W- THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF Jack Mills Sun Ray Oil Co, A TREATISE ON THE LAW OF INDIRECT AND COLLATERAL EVIDENCE By JOHN H. GILLETT Judge Thirty-First Judtcial Circuit of Indiana INDIANAPOLIS AND KANSAS CITY THE BOWEN-MERRILL COMPANY 1897 Copyright 1897 BY THE BOWEN-MERRILL COMPANY rjtEHS OF CAKI.ON ,t MOI.I.KNBECK INDIANAPOLIH I99T - PREFACE. Y I A NAVIGATOR upoii the open sea of the common law should steer by compass. It is not only his privilege but his duty to state the law according to principle. The cases are his serv- ants to illustrate and enforce the text, and he owes to them no duty except to make a faithful and unbiased exhibit of them as they are. It is not, however, an iconoclastic mind which searches for the true vein of law, for, while reason is the virile and juvenescent factor of the common law, yet it is the apoth- eosis of that noble science that Authority, illumined by the wisdom of the ages, rarely leaves the path of Reason. In practical effect, a writer upon the subject of evidence, least trammeled, as it is, by the doctrine of stare decisis, finds that the composite authority of the past is a faithful portrayal of what the dictates of reason show that the law is. " Out of the old fieldes Cometh al this new corne." The author confesses that it has been his purpose in writing the following pages to state the law. It is for an intelligent and discriminating profession to determine to what extent the personal equation has caused the result to fall short of the at- tempt. As custom justifies the expectation that there will be at least an outline of the character of a book presented in the preface, it may be said of this undertaking, that the subject of declara- (iii) f^'f?vo J SS1 1 1 iy PREFACE. torv evidence is discussed in all of its aspects ; that the chapter on collateral evidence is a contribution to a subject which has never received systematic discussion, and that it has been the author's endeavor, by a consideration and an analysis of the authorities, to put the topic of res gestae, and the allied topic of declarations denoting subjective conditions, upon a scien- tific basis. The voluntary limitations upon this work, as a work on evidence, lie in the exclusion of the subjects of pre- sumptions, primary and secondary evidence, evidence excluded on grounds of public policy, and evidence applicable to particu- lar actions. Even these topics, however, receive considerable of incidental treatment. The work is one of original investigation. This is a con- sideration of paramount importance. The loftiest ambition of a lawyer is to make a permanent im- press upon his profession by contributing something to its adornment. The author's hopes will not carry him upon such an ambitious flight. Rather, he contemplates this effort, in its relation to the science of the law, as a workman who feels, as he gazes upon a noble cathedral, shimmering in beauty, a very type of spiritual aspiration from tessellated pavement to lofty spire, that he helped to build that structure, for did not his faithful back carry mortar to the skilled workmen ? May worthier minds find use for the material this book contains. JOHN H. GILLETT. Hammond, Ixd., August 2, 1897. TABLE OF CONTENTS. CHAPTER I. ADMISSIONS, PAGE. SECTION. 1. Term, how used— Reason for receiving admissions 2 2. Admission before interest attached ^ 3. Admissions in pleadings 4. Paying money into court 5. Admissions implied from silence • • ^ 6. Silence when claim asserted 7. Silence while under a criminal charge ^ 8. Silence where there is no right to speak ° 9. Same subject— Silence during court proceedings 9 10. Unanswered letter 11. Admission by acquiescence • 12. Collateral admissions.... 13. Admissions by conduct 14 Admissions by possession of books and documents, and implements , . 14 of crime 15. Admissions made under compulsion 1^ 16. Admission of matter of law ^° 17. Admission as to writing ^ 18. Same subject -Admissions are primary evidence 19 19. Recitals in deeds ^| 20. Doctrine as to attested documents -1 21. Incomplete and canceled admissions • 23 22. Whole of admission, explaining or modifying context, must go in.... 23 23. Each part of the statement not entitled to equal weight 25 24. Weight of admissions 25. Practice as to receiving admissions 28 26. Admissions by persons having joint interest— Joint and several ob- ligation •• 27. A mere community of interest is 'not enough ou (V) Vi TABLE OF CONTENTS. SECTION. PAGE. 28. Admissions of co-conspirators 31 ■ 29. Proof of conspiracy., 32 30. Declarations of predecessors in title 33 31. Admissions not competent after purchaser's rights have attached 37 32. Statements of agent in making contract 39 33. Admissions of agent in matters where he is authorized to speak 39 34. jRes (/esto statements of agents 42 35. The mere admissions of agents are not competent 43 36. Proof of agency 44 37. Admissions of agents of corporations 45 38. Admissions of attorneys 45 39. Admissions of public officers 47 40. Admissions of partners 48 41. Admissions of partners after voluntary dissolution 49 42. Admissions of surviving partners 51 43. Admissions of principals as against sureties ^ 52 44. Receipts and oral acknowledgments of others as admissions 53 45. Admissions of trustees 54 46. Admissions of trustees before clothed with trust 56 47. Admissions by party in different capacity 56 48. Admissions of person interested who is not a party 57 49. Admissions of strangers, when receivable 57 50. Admissions of co-plaintiffs and co-defendants 58 CHAPTER II. COLLATERAL EVIDENCE. 51. When proof of collateral facts is relevant 62 52. Same subject — Inferences based on inferences 66 63. Circumstantial evidence 68 54. Proof of facts from which no just inference can be drawn 68 55. Collateral evidence 71 56. Similar but unconnected facts 73 57. Collateral crime 74 58. Sexual relations 81 59. Collateral evidence to show motive 82 60. Facts necessary to explain or introduce relevant facts 83 61. Particular instances to rebut evidence 84 62. Evidence of other defects in negligence cases 85 63. Proof of prior injury at same place 87 64. Accidents, or non-happening of, showing how contrivance served... 90 65. Hal)its of animals 93 66. Experiments 94 67. Other occurrences in fire cases 97 TABLE OF CONTENTS. Vll SECTION. . PAGE. 68. Prior habit of person as proof of what was done at particular time... 100 69. Subject of custom or usage as affecting negligence 102 70. Prior specific acts to prove notice of negligent character 102 71. Condition of object or place before and after 103 72. Subsequent precautions ^*'^ 73. Other writings ^'^^ 74. Evidence where title is in question 107 75. Special circumstances of plaintiff or his family 107 76. Pecuniary circumstances of defendant 109 77. Jury entitled to entire facts of case H^ 78. Collateral facts illustrative of principal fact 113 79. Same subject— Evidence relative to values 113 80. Fraud ^^^ 117 81. Resemblance 82. IMaps and photographs 1^1^ 83. Evidence in aggravation 1-1 84. Evidence in mitigation 1-1 85. Scientific books— Life tables 1-^ 86. View and inspection ^"^ 87. Inspection of defendant and his belongings in criminal case 128 88. Ptight to show circumstance by which witness remembers 131 89. Right of party producing witness to prove his contradictory state- ments out of court 1^- 90. Collateral matters on cross-examination 134 91. Same subject— Collateral matters affecting standing of witness 135 92. Corroboration of witness by proving his like statements out of court 140 93. Impeachment by contradictory statements 1-11 94. Impeaching evidence not substantive 1-13 95. Right to impeach character of witness 1-13 96. Corroboration of witness 1"!^ 97. Impeachment and corroboration of impeaching witness 151 CHAPTER III. CONFESSIONS. 98. Meaning of term 1^" 99. Confessions and admissions 1^3 100. To be admissible confessions must be voluntary lo3 101. Person in authority 1^''^ 102. As to who are persons in authority 1''54 103. Character of inducement 1'^'^ 104. Influence of inducement presumed to continue l-^S 105. Spiritual inducement— Promise of secrecy 157 106. Confession obtained by artifice or deception admissible 157 Vlll TABLE OF CONTENTS. SECTION. PAGE. 107. Confession obtained by hope of collateral benefit 157 108. Witchcraft 157 109. Duress 158 110. Fear of violence of mob 158 111. Confession in reply to questions 158 112. Confessions under oath or made under compulsion 159 113. Statement while insane, drunk or asleep 161 114. Confession as to written instrument 161 115. Confession improperly obtained subsequently rendered admissible... 161 116. Weight to be given confession 162 117. Proof of corpus delicti 163 118. 'MesLxAng of iexva. corpus delicti — How proved 164 119. Practice upon receiving confession 166 120. Same subject — Preliminary question for court 167 121. Confession involving co-defendant 169 122. Confessed accomplice failing to testify 169 123. Substance sufficient 170 CHAPTER IV. CUSTOM AND USAGE. 124. Custom 171 125. Usage .*. 172 126. Usage as affecting contract 172 127. Qualities which a usage must possess. ..f 178 128. Custom and usage as affecting the question. of negligence 180 CHAPTER V. DECLARATIONS. 129. Scope of discussion 185 130. Matters of public or general interest 185 131. Either reputation or particular statements may be proved 186 132. Rights must be ancient — Death of declarants 187 133. Declarations must have been made ante litem motam..... 187 134. Declarations of persons in pari jure 188 135. Proof of exercise of right 189 136. Evidence admissible to defeat public right 189 137. Verdicts, judgments, etc., as evidence of ancient rights 190 138. Historical facts 191 139. Common repute concerning private boundaries 192 TABLE OF CONTENTS. IX SECTION. PAGE. 140. General observations as to pedigree 193 141. Relationship 193 142. Declarations concerning legitimacy 195 143. What is meant by pedigree 197 144. Of what such declarations may consist 198 145. Such declarations admissible, although not based on personal knowl- edge 200 146. Must be ante litem motam and declarant must be dead 200 147. Verdicts, judgments, etc., as evidence of pedigree 200 148. Weight to be given to evidence of reputation 200 149. Instruments thirty years old — Proper custody 201 150. AUunde proof of age not necessary 202 151. Not necessary to prove possession under instrument 202 152. Document a little more than thirty years old merely presumed to be genuine 204 153. Rule where document very ancient 204 154. Declarations of persons deceased 207 155. Must be against pecuniary interest 208 156. Need not be connected with principal act 208 157. Peculiar knowledge of declarant 209 158. Some phases of subject discussed in connection with next topic 209 159. Declarations by deceased persons in ordinary course of business 210 160. Ground of admission 210' 161. Statement need not be against interest 211 162. Business entries by deceased persons may prove facts in collateral controversies 215 163. Declarant must have been immediately and personally cognizant of fact ' 216 ■ 164. Evidence aliunde position of declarant 217 165. Evidence competent although there are living witnesses 217 166. Admissibility of entry where declarant can testify 217 167. Must be ante litem motam and declarant disinterested in collateral controversy 217 168. When entry must be made 218 169. Such declarations may be oral 218 170. Declarations of deceased officials 218 171. Declarations of deceased persons as to boundaries 220 172. Indorsements of payments — Do they toll the statute of limitations?.. 221 173. Leading case upon shop-books 223 174. Shop-books in United States 224 175. Character of transactions upon which books may be introduced 225 176. To what classes of business the doctrine applies 226 177. Transaction must be within scope of ordinary business 226 178. To what subject entry must relate 227 179. Relation of entry to transaction 227 180. Character of entry 228 181. Question of necessity as affecting right to introduce books 230 X TABLE OF CONTENTS. SECTION. PAGE. 182. Party's own entries may be shown 231 183. Suppletory oath 232 184. Secondary evidence of books 233 • 185. Books of deceased persons 234 186. Mere memoranda not evidence 234 187. Bills to perpetuate testimony 236 188. Testimony on former trial, when admissible 236 189. Admissibility in criminal case of testimony given on former trial.... 238 190. Practice as to receiving former testimony 240 191. Complaint of woman in case of rape 241 CHAPTER VI. DYING DECLARATIONS. 192. Admitted only in prosecutions for homicide 244 193. Introducing does not violate constitutional right 245 194. Ground of introduction 246 195. Circumstances under which declaration made 246 196. Sense of impending death may be inferred 248 197. Fact that death occurred some time after not conclusive 248 198. On what subject dying declaration received 248 199. Matters of opinion excluded 249 200. Must be complete in itself 252 201. Dying declaration may be by signs 253 202. Question of competency for court 253 203. Weight to be given to dying declarations 254 204. Right of accused to impeach or discredit declarations 257 205. Competency of declarant as witness 258 206. When written declaration is primary evidence 258 CHAPTER VII. EXPERT AND OPINION EVIDENCE, 207. Opinion evidence incompetent, except under special circumstances.. 259 208. Questions on which the opinions of experts can be received 260 209. Who is an expert 261 210. Form of question to expert 262 211. Distinction between expert and opinion evidence 264 212. Opinions as to value 264 213. Opinions received fi-om necessitj'^ 266 214. Non-expert evidence upon the subject of sanity 270 TABLE OF CONTENTS. XI SECTION. ^^^^• 214a. Limitations upon the competency of non-expert opinion evidence.... 270 215. Speed of trains, etc 272 216. Subscribing witnesses ^''^ 217. Modes of proving handwriting 27l 218. Extent of familiarity with handwriting 272 219. Comparison of handwritings -^'"^ 220. Same subject ••• '^^^ 221. Cross-examination of witness as to handwriting 277 222. Secondary evidence of standard of handwriting 279 223. Qualification of expert as to handwriting... 279 CHAPTER VIII. HEARSAY. 223ffl. Scope of discussion...' ^^^ 224. Definition of hearsay evidence 282 225. Hearsay should always be excluded ••••_• 283 226. Circumstances giving credit to hearsay do not render admissible 284 227. Admissions of guilt by third persons ;• 285 228. Acts and declarations of third person tending to prove that he is guilty person -" "^ 229. Admissions of injured party not competent in criminal case 286 230. The rule is the same where the injured party is dead 287 231. Self-serving acts of party 287 232. Res inter alios acta aUeri nocere non debet • 288 233. Party offering hearsay evidence must show it within exception 288 234. Probative force of hearsay if not objected to 288 235. General reputation 289 CHAPTER IX. RES GEST^. 236. Meaning of term 291 237. Its history 291 238. Technically accurate definition not possible 291 239. Definitions of text-writers 292 240. Definitions of courts. 293 111. Doctrine stated by a thoughtful writer 293 1.'42. Must tend to elucidate 294 243. Declarations must harmonize with act 298 244. Must derive credit from act., 298 Xii TABLE OF CONTENTS. SECTION. ^^OQQ 245. Must be connected with main event 29J 246. Contemporaneousness— Taylor on Evidence 300 247. Commonwealth v. McPike— Lund v. Tyngsborough 301 248. Insurance Company -y. Mosley 303 249. People u. Vernon ^^^ 250. Expressions from the courts 304 251. Some vigorous western expressions 305 252. Contemporaneousness not always necessary 307 253. The res gestce broader in some cases than in others 308 254. A test proposed 209 255. Excitement extending the res gfesfce 310 256. Declarations made at place of occurrence 310 257. Same subject— Actor absent 312 258. Period of unconsciousness 313 259. Declarations before person extricated from place of injury 313 260. Constructively continuing act 314 261. Death protracting the J-es gestce 315 262. Statements against interest 316 263. Narrative excluded r ^^^ 264. Exclamations of pain, etc 316 265. Declarations of past pain 318 266. Declarations of past pain to doctor 319 267. Exclamations of pain after suit brought 320 268. Declarations to physician after suit brought 320 269. Statements of physician 322 270. Statements of physical condition-Statute permitting parties to tes- tify 322 271. Same subject — The cases considered 323 272. Prior statements by person whose life is insured 325 273. Subsequent statements by person whose life is insured 326 274. Declarations preceding act 327 275. Declarations showing state of mind 328 276. Subject continued 329 277. Declarations by deceased persons as to intent . 329 278. Same subject— Mutual Life Insurance Co. v. Hillmon 331 279. Declarations by deceased persons of other facts 332 280. Declarations showing fraud 333 281. Declarations of testator 335 282. The res gestm in questions of domicile 338 283. Evidence of affection— Proof of marriage 339 284. Certain analogous res gestce topics suggested but considered elsewhere 340 285. A limitation upon declarations where mental state is involved 341 286. The res gestce in business transactions 341 287. The res gestce in criminal cases 343 288. Declarations of grantor where fraud is charged 345 289. Declarations of person in possession in favor of himself or another... 347 290. Declarations of by-standers 349 TABLE OF CONTENTS. Xlll SECTION. PAGE. 291. Matter of opinion 351 292. Principal fact must be established by direct proof 351 293. Res gesUn is primary 352 294. Duty of state to prove the whole of res gestiv 353 295. Certain res gestae topics treated elsewhere 354 CHAPTER X. RUMOR AND GENERAL REPUTATION. 296. Rumor and common report 355 297. Character 357 298. Same subject continued 360 299. Practice in proving character 362 TABLE OF CASES. [Beferences are to Sections."] Abbott V. Plumbe, 20 Abel V. State, 296 Abney v. Kingsland, 289 Ackroyed and Warburton's Case, 109 Adams v. Blodgett, 170, 171 Adams v. Chicago, etc., R. Co., 296 Adams v. Couillard, 160 Adams v. Field, 219 Adams v. Hannibal & St. Joseph R. Co.. 36,244 Adams v. Kenney, 80 Adams v. Lawson, 297 Adams v. Morrison, 296 Adams v. State, 89 Adams v. Waggoner, 84 Adams v. Wheeler, 89 Adler v. Apt, 31, 288 Ad well V. Com., 195 Agricultural Ins. Co. v. Keeler, 43 Aiken v. Kennison, 56 Alabama, etc., R. Co. v. Hawk, 263 Alabama, etc., R. Co. v. Hill, 62 Alabama, etc., R. Co. v. Searles, 79 Alberti v. New York, etc., R. Co., 82 Alberts v. Village of Vernon, 63 Alcorn v. Chicago, etc., R. Co., 72 Albright v. County of Bedford, 127 Alderman v. People, 122 Aldrich v. Griffith, 149, 170 Aldrich v. Peckham, 64 Alexander v. Hoffman, 179 Alleman v. Stepp, 91 Allen V. Burlington, etc., R. Co., 128 Allen V. Dyers, 126 Allen V. Kirk, 288 Allen V. Union Pac, etc., R. Co., 211 Allen V. Vancleve, 264 Alter V. Berghaus, 20, 183 Ambler v. Phillips, 127 American Fire Ins. Co. v. Hazen, 297 American Steamship Co. v. Lan- dreth, 36 Ames, In re, 27, 30 Ammons v. Dwyer, 149, 151 Amos V. State, 90, 120 Anderson v. Chicago, etc., R. Co., 72 Anderson v. New York & F. S. S. Co., Anderson v. Pitcher, Anderson v. State, Anderson v. Whitaker, Andrews v. Roach, Angell V. Rosenbury, Annapolis, etc., R. Co. v. Gantt, Anthony v. Chapman, Anthony v. State, Anthony v. Stephens, Antrim v. Wood, Anvil Mining Co. v. Humble, Applegate v. Lexington Mining Co., Applegate v. Ruble, Archer v. New York, etc., R. Co., Archer v. Helm, Archer v. State, Ardesco Oil Co. v. Gilson, Armstrong v. Farrar, Arnold v. State, Aryman v. City of Marshalltown, Asbury Life Ins. Co. v. Warren, Ashmore v. Hardy, Ashworth v. Kittridge, Ashton's Case, Atchison, etc., R. Co. v. Parker, Atchison, etc., R. Co. v. Thul, Atkinson v. Truesdell, Atkins V. State, Atkins V. Tredgold Atlas Bank v. Brownell, 34 126 298 127 126 88 67 24 193 298 139 33 151 76 82 238 29 209 26 89 62 272 19 85 204 72 86 126 54 26, 42 26 Atlanta, etc., R. Co. v. Holcombe, 68 Augusta Factory v. Barnes, 244 Augusta V. Windsor, 161, 162 Avery v. Clemons, 289 Avery v. Ray, 84 Avery v. Rowell, 40 Aveson v. Kinnaird, 273, 293 Aymes, In re, 26 Ay res v. Hartford Fire Ins. Co., 3 (XV) XVI TABLE OF CASES. l^Beferences are to Sections.'] B Baccio V, People, 191 Bailey v. Bensley, 127 Bailey v. Hannibal, etc., R. Co., 73 Bailey v. Inhabitants of Belfast, 65 Bailey v. McDowell, 176 Bailey V. State, 118 Baird v. Daly, 72 Bakeman v. Rose, 95 Baker v. Haskell, 30 Baker v. Joseph, 91 Baker v. Kelly, 242 Baker v. Preston, 43 Baker v. State, 210 Balbo V. People, 109 Baldridge v. Penland, 177 Baldry's Case, 103 Baldwin v. Threlkeld, 13 Baldwin v. "VVhitcomb, 5 Ballenger v. Barnes, 190 Baltimore Elevator Co. v. Neal, 68 Baltimore, etc., R. Co. v. Barger, 84 Baltimore, etc., R. Co.v.Colvin, 296 Baltimore, etc., R. Co. v. State, 277 Baltimore, etc., R. Co. v. Wood- ruff, 55, 68 Banfield v. Whipple, 13 Bamford v. Barton, 142 Banbury Peerage Case, 141 Bank v. Davis, 89 Bank v. Kennedy, 286 Bank v. Slemmons, 91 Bank of Brighton v. Smith, 43 Bank of Middlebury v. Rutland, 151 Bank of United States v. Lyman, 26 Bank of United States v. Richie, 45 Banks v. Metcalf, 142 Banks v. State, 115 Banning v. Griffin, 145 Barber v. Bennett, 186 Barber v. Hildebrand, 210 Barber v. Merriman, 266, 268 Barber's Admr. v. Bennett, 161, 168 Barholt v. Wright, 84 Barker v. Ray, 161 Barker v. Town of Perry, 82 Barkly v. Copeland, ' 76, 77 Barlow v. Lambert, 127 Barnard v. Kellogg, 126 Barnes v. Bakersfield, 127 Barnes v. Dow, 186 Barnes v. Mawson, 131 Barnes v. State, 57 Barough v. White, 30 Barr v. City of Kansas, 210 Barr v. Gratz Heirs, 151 Barrett v. Village of Hammond, 62 Barry v. Inglis, 84 Bartlett v. Brookhouse, 171 Bartlett v. Emerson, 171 Bartholomew v. Farwell, 183 Barton v. Thompson, 297 Barton v. State, 57 Bass V. State, 188 Basset v. Nosworthy, 30 Bassett v. Shares, 128 Bassler v. Niesly, 30 Batchelder v. Sanborn, 161 Bateman v. Bailey , 280 Bates V. Preble, 186 Bateman v. Bailey, 282 Bateman v. State, 59 Bates v. Bates, 281 Bathrick v. Detroit Post and Tri- bune Co.,* 51 Batturs v. Sellers, 5 Bauerman v. Radenias, 45, 50 Baughman v. Baughman, 213, 214 Basye v. State, 96 Baxter v. Knowles, 25 Bay V. Cook, 161 Bayliffe v. Butterworth, 127 Beall V. Cunningham, 27 Bean v. State, 95 Beard's Lessee v. Talbott, 171 Bearss v. Copley, 22 Beasley v. San Jose Fruit Packing Co., 36 Beauchamp v. Parry, 30 Beck V. Dowell, 75 Beebee v. Parker, 135 Beeckman v. Montgomery, 31 Beedy v. Macomber, 166 Beggarly v. State, 101 Beime v. Dord, 126 Bell V. Anslev, 48 Bell v. Brews'ter, 149, 152 Bell V. Chicago, etc., R. Co., 67 Bell V. Hansley, 84 Bell V. Keely, 184 Bell V. Perkins, 170 Belote V. State, 115 Ben V. State, 298 Bender v. Pitzer, 171 Benedict v. Flanigan, 219 Benedict v. Nichols, 22 Benham v. Cary, 80 Bennet v. Day, 141 Bennett v. Beam, 76 Bennett v. Burch, 22 Bennett v. Fail, 213 Bennett v. Northern Pac. R. Co., 264 Bennett v. State, 91 Benson v. Lundy, 288 Bentley's Admr. v. Hollenback, 185 Benton V.Starr, 227 Bernard v. Bank of Kentucky, 43 TABLE OF CASES. XVll Bergen v. People, 117, 188, 189 Berg V. Patterson, 218 Bergoff V. State, 57 Berkeley Peerage Case, 133, 139, 143, 144 Bermon v. Woodbridge, ^3 Berney v. Mitchell, 188 Berniaud v. Beecher, 296 Berrenberg v. City of Boston, 71 Bersch v. State, 57 Bertie v. Beaumont, 149 Besselte v. State, 90 Betts V. Badger, 20 Biddulph V. Ather, 153 Binns v. State, 192, 198, 263 Bird V. Hueston, 155 Birmingham Union R, Co. v. Al- exander, 64, 71 Birmingham Union R. Co, v. Hale, 95, 264 Biscoe V. State, 103, 120 Bissell V. Bissell, 283 Bissell V. Ryan, 127 Bissell V. Saxton, 43 Bivins v. McElroy, 17 Blackburn v. Crawford's Lessee, 141 Blackburn v. Scholes, 4 Blackman v. Wheaton, 31 Blackmore v. Boardman, 39 Blackwell v. Hamilton, 88 Blackwell v. State, 87 Blair v. Kiger, 152 Blair v. Pelham, 82 Blair v. Perpetual Ins. Co., 43 Blaisdell v. Bickum, 296 Blake v. People, 213 Blake v. The Albion Life Assur- ance Society, 80 Blaker v. Sands, 40 Blakeslee v. Hughes, 297 Blakey's Heirs v. Blakey's Execu- trix, 27, 30 Bland v. Warren, 185 Blattner v. Weis, 166 Blazinski v. Perkins, 33, 86 Bleecker v. Johnston, 9 Blight V. Ashley, 22 Bliss V. Nichols, 3 Blizzard v. Hays, 297 Blossom V. Barrett, 25 Blough V. Parry, 89 Blount V. Riley, 30 Blythe v. Sutherland, 132 Board of Comm'rs Franklin Co. V. Bunting, 127 Board of Comm'rs Carroll Co. v. O'Connor, 96 Ev. ii. \_Beferences are to Sections."] Board of Comm'rs Hancock Co. V. Leggett, 265, 271 Board of Comm'rs Wabash Co. v. Pearson, 72, 264 Board of Supervisors of Jefferson Co. V. Jones, 43 Board of Supervisors Tomkins Co. V. Bristol, 43 Boardman v. Keeler, 176 Boardman v. Reed's Lessees, 130, 139, 171 Boardman v. Woodman, 96 Bob V. State, 7 Bodwell V. Swan, 297 Boehringer v. A. B. Richards Med. Co., 85 Boick V. Bissell, 296 Bond V. Fitzpatrick, 30 Bonino v. Caledonio, 84 Boom Co. V. Patterson, 79 Boon V. Wethered, 95 Boor V. Lowery, 40 Boots V. Canine, 3 Boston & M. R. Co. v. Ordway, 33 Boston V. Richardson, 152, 153 Bound V. Lathrop, 40 Bowen v. Hall, 297 Bowen v. State, 227 Bowen v. Stoddar, 127 Bowers v. Horen, 212 Bowie v. Maddox, 231 Bowling v. Hax, 20 Bowlus v. State, 298 Bowser v. Cravener, 144 Boyd v. Ladson, 176 Boyd V. State, 277 Boyd V. United States, 87 Boyden v. Moore, 4 Boyle V. State, 194, 199, 203, 214 Bradberry v. State, 254 Bradbury v. Butler, 126 Bradford v. Cunard S. S. Co., 163 Bradford v. The Homestead Fire Ins. Co., 127 Bradley v. Spofford, 289 Bradley v. Wheeler, 126 Bradshaw v. Com., 225, 290 Bradshaw v. Mayfield, 13 Brady v. Manhattan R. Co., 63 Bragg v. Colwell, 219 Braintree v. Hingham, 143 Branch v. Libbej'-, 63 Brandon v. People, 91 Brant v. Dennison, 218 Brett V. Beales, 131 Brewster v. Doan, 183 Bridge v. Eggleston, 30 XVlll TABLE OF CASES. \_Beferences are to Sections."] Bridgewater v. Roxbury, 161, 168, 183 Briggs V. Rafferty, 160 Brill V. Flagler, 212 Brindle v. M'llvaine, 30 Bringloe v. Goodson, 18 Brinkley v. State, 211 Brisco V. Lomax, 137 Bristol V. Dann, 31 Broadrup v. Woodman, 3 Brock V. Schradsky, 31 Brock V. Com., 199 Brody v. Com., 189 Brooks V. Brooks, 126 Brotherton v. People, 199 Brouillette v. Connecticut, etc., R. Co., 68 Brown v. Barnes, 76 Brown v. Clark, 51 Brown v. Com., 192, 193 Brown v. Crandall, 296 Brown v. Galesburg Pressed Brick Co., 82 Brown v. Jones, 186 Brown v. Kenyon, 242 Brown v. Kohout, 289 Brown v. Mooers, 96 Brown v. Mooi'e, 27 Brown v. New York Cent. Co., 264 Brown v. People, 191 Brown v. Rains, 40 Brown v. State (105 Ind. 385), 54 Brown v. State (32 Miss. 433), 117 Brown v. State (1 Tex. App. 154), 118 Brown v. Weightman, 271 Brown's Case, 119 Brownell v. Pac. R. Co., 258 Brownell v. People, 213 Brovles v. State, ex rel., 9 Bruce v. State, 87 Bryant v. Stillwell, 86 Buchanan v. Moore, 130, 132 Budlong V. Van Nostrand, 34 Buffalo, etc., Co. v. Knights Tem- plar, etc., Asso., 45 Buhols V. Boudousquie, 152 Bullard v. Pearsall, 89 Bump V. Belts, 75 Bunn V. Timberlake, 213 Burdette v. Com., 91 Burdge v. State, 120 Burgess v. Wareham, 34 Burk V. Hand, 31 Burkhalter v. Edwards, 89 Burkholder v. Casad, 31 Burieigh v. Stibbs, 19 Burlington v. Calais, 34, 36 Burnham v. Brennan, 288 Burns v. State, 54 Burnside v. Grand Trunk R, Co., 33 Burr V. Harper, 219 Burrows v. Village of Lake Crys- tal, 62, 63 Burt V. McKinstry, 31 Burt V. Palmer, 33 Burt V. State, 191 Burton v. Driggs, 183 Burton v. Scott, 2 Bush V. Roberts, 244 Bushnell v. Gore, 141 Bustin V. Rogers, 180 Buswell Trimmer Co. v. Case, 51 Butchart v. Dresser, 41 Butler V. Chicago, etc., R. Co., 186 Butler V. Manhattan R. Co., 242 Butler V. Watkins, 80 Butler V. Wright, 170 Butte Hardware Co. v. Wallace, 40 Buzard v. McAnulty, 82 Byers v. Wallace, 143 c Cabiness v. Holland, Cady V. State, Caeman v. Van Harke, Cahill V. Murphy, Caldwell v. Murphy, 5 110 281 75 264 Calkins v. City of Hartford, 63 Calloway v. Middleton, 298 Calvert v. Coxe, 188 Cancemi v. People, 298 Canfleld v. Hard, 296 Cannady v. Lynch, 213 Campau v. Moran, 51 Campbell v. Coon, 31 Campbell v. Rickards, 208 Campbell v. Russell, 56 Campbell v. People (16 111. 17), 54 Campbell v. People (159 111. 9), 118 Campbell v. Wilson, 144 Card V. State, 57 Carleton v. Baldwin, 31 Carlton v. Patterson, 242 Carlton v. People, 59 Carpenter v. Leavitt, 210 Carr v. State (43 Ark. 99), 255 Carr v. State (135 Ind. 1), 298 Carrv. State (24 Tex. App. 562), 214 Carroll v. East Tenn., etc., R. Co., 36 Carroll v. Norwood, 152 Carroll v. State, 95 Carroll v. Tyler, 44 Carson v. Godley, *56 Carter v. Buchannon, 240 Carter v. Pryke, 56 Carter v. State, 85 TABLE OF CASES. XIX iBeferences are to Sections.'] Carthage Turnpike Co. v. Andrews, Cartier v. Troy Lumber Co., 13 Caruthers v. Eldridge, 151 Carver v. Jackson, 144 Carver v. Tracey, 22 Cary v. Hotailing, 80 Case V. Marks, 76, 298 Case V. Potter, 178 Casey v. New York, etc., E. Co., 259 Cassidy v. Angell, 296 Castillo V. State, 191, 244 Castleman v. Sherry, 24 Caton V. Lenox, 190 Catt V. Howard, 22 Cavender v. State, 53 Cayuga County Bank v. Bennett, 27 Central Branch Union Pac. R. Co. v.Shoup, 38 Central, etc., R. Co. v. Pearson, 79 Central Nat. Bank v. Frye, 296 Central R. Co. v. Allman, 214 Central R. Co. v. Skellie, 212 Chadwick v. Fonner, 30 Chaffee v. United States, 161, 183 Chairman of Wash. Co. Court v. Harramond, 43 Chamblee v. Tarbox, 144 Champ v. Com., 89 Chandler v. Caswell, 20 Chapin v. Marlborough, 263, 266 Chapman v. Coffin, 93 Chapman v. Twitchell, 33 Charlton v. Lowry, 176 Charter v. Lane, 289 Chase v. Citv of Lowell, 242, 296 Chase v. Maine, etc., R. Co., 68, 296 Chase v. Perley, 92 Chase, Adm'r, v. Horton, 288 Chastang v. State, 87 Chatfleld v. Fryer, 139 Cheek v. State, 279 Cheever v. Congdon, 142 Chenango Bridge Co. v. Lewis, 14 Cheney v. Cheney, 14 Cherry v. Butler, 188 Chess v. Chess, 95 Chicago, etc., R. Co. v. Barnes, 72 Chicago, etc., R. Co. v. Becker, 263 Chicago, etc., R. Co. v. Bragonier,128 Chicago, etc., R. Co. v. Champion, 66 Chicago, etc., R. Co. v. Clark, 296 Chicago, etc., R. Co. v. Dickson, 127 Chicago, etc., R. Co. v. Lee, 68 Chicago, etc., R. Co. v. Lewis, 72 Chicago, etc., R. Co. v. Modesitt, 208 Chicago, etc., R. Co. v. O'Connor, 188 Chicago, etc., R. Co. v. Spilker, 68 Chilton V. State, 226 Chouteau V. Searcy, 225 Chung Sing v. United States, 298 Church v. City of Milwaukee, 82 Church V. Howard, 27 Churchman v. Smith, 180 Citizens', etc., Co. v. Doll, 6 Citizens' G., L. & H. Co. v. O'Brien, 60 Citizens' St. R. Co. v. Willoeby, 86 City of Augusta v. Hafers, 63 City of Bloomington v. Legg, 64 City of Chicago v. Dalle, 71 City of Chicago v. Powers, 63, 75 City of Delphi v. Lowery, 62, 63 City of Fort Wayne v. Coombs, 62, 63 City of Galveston v. Barbour, 255 City of Goshen v. England, 62 City of Lafayette v. Weaver, 72 City of Friend V. Ingersol, 85 City of Joliet v. Conway, 78 City of Junction City v. Blades, 63 City of London v. Gierke, 137 City of New York v. Second Ave. R. Co., 186 City of Ripon v. Bittel, 85 City of Santa Ana v. Harlin, 79 City of Seattle, etc., R. Co. v. Gil- christ, 79 City of South Bend v. Hardy, 91 Clarck v. Larkin, 24 Clardy v. Richardson, 20 Clark V. Bradstreet, 81 Clark V. Brown, 297 Clark V. Fisher, 208 Clark V. Fletcher, 20, 22 Clark V. Huffaker. 40 Clark V. Morrison, 26, 27 Clark V. Sanderson, 20 Clark V. Smith, 22 Clark V. State, 213 Clark V. Wyatt, 219 Clarke v. State, 9 Clarkson v. Woodhouse, 131, 152, 153 Clary v. Clary, 213 Clav v. Langslow, 49 Cleghorn v. The New York Cent., etc., R. Co., 68 Clem V. Holmes, 76 Clemens v. Conrad, 91 Clement v. Kimball, 13, 296 Cleaveland v. Railroad Co., 67 Cleveland v. Davis, 31 Cleveland, etc., R. Co. v. Mona- ghan, 82 Cleveland, etc., R. Co. v. Newell, 68, 263, 264, 265, 266, 268 Cleveland, etc., R. Co. v. Perkins, 21 L> Cleveland, etc., R. Co. v. Wvnant, 51,64 XX TABLE OF CASES. Iliefere7ices are to Sections. "^ Cleveland Woolen Mills v. Sibert, 296 Com. V. Culver, 120 Clifford V. Richardson, 208 Com. V. Curtis, 103 Cline V. State, 95 Com. V. Dana, 87 Cline's Heir v. Cattron, 130 Com. V. Densmore, 195, 229, 230 Cluett V. Rosenthal, 87 Com. V. Dorsey, 213 Cluggage's Lessee v. Swan, 44 Com. V. Durfee, 58 Clunie v. Sacramento Lum. Co., 34 Com. V. Eastman, 10, 222 Coate V. Speer, 171 Com. V. Edgerly, 10,57 Coates V. Burlington, etc., R. Co. 13 Com. V. Fagan, 226 Coats V. Elliott, 25 Com. V. Ferrigan, 57 Cobb V. Lunt, 45 Com. V. Follansbee, 71 Cochran v. Toher, 297 Com. V. Galligan (113 Mass. 202), 24 Cockman v. Mather, 138 Com. V. Galligan (155 Mass. 54), 91 Coeler v. Abels, 24 Com. V. Goddard (2 Allen 148), 227 Cohen v. Stein, 296 Com. V. Goddard (14 Gray 402), 22 Cohen v. Teller, 222 Com. V. Gray, 298 Cole V. Lake Shore & M. S. R. Co. , 9 Com. V. Hackett, 251, 255 Cole V. State, 299 Com. V. Hardiman, 9 Coleman v. State (HI Ind. 563), 9 Com. V. Harman, 112 Coleman v. State (59 Miss. 484), 298 Com. V. Harvey, 5 Coif V. Chicago, etc., R. Co., 128 Com. V. Harwood, 257 Collett V. Keith, U ,21 Com. V. Haskell, 294 Collier v. Simpson, 85 Com. V. Hersey, 231 Collins V. Inhabitants of Dorches - Com. V. Hobbs, 91 ter, 62, 6E !, 64 Com. V. Holmes, 54 Collins V. Com., 189, 199 Com. V. Homer, 192 Collins V. Jones, 296 Com. V. Howe, 113, 119 Collins V. New York Central, etc. ) Com. V. Hudson, 59 R. Co., 71 Com. V. Jackson, 57 Collins V. State, 195, 252, 258 Com. V. James, 115 Colman v. Anderson, 152 Com. V. Jefferies, 222 Colorado Coal & I. Co. v. Lamb, 208 Com. V. Jenkins, 92 Colorado Electric Co. v. Lubbers, 72 Com. V. Johnson, 57 Colorado, M. & I. Co. v. Rees, 64 Com. V. Keenan, 95 Colt V. Selden, 16 Com. V. Kenney, 5,7 Columbia, etc., R. Co. v. Flanna - Com. V. Knapp, 24, 104, 105, 122 gan, 72 Com. V. Leach, 61, 264 271 Columbia, etc., R. Co. v. Haw- Com. V. Leonard, 298 thorne, 72 Com. V. McCabe, 9 Columbus, etc., R. Co. v. Powell, 36 Com. V. McCarthy, 57 Com. V. Alburger, 138 Com. V. McDermott, 5,7 Com. V. Allen, 220 Com. V. McKenna, 188 189 Com. V. Billings, 95 Com. V. McPike, 247, 248, 249, 251 ,280 Com. V. Bonner, 91 Com. V. Moore, 95 Com. V. Bradford, 58 Com. V. Mosler, 111 Com. V. Brady, 199 Com. V. Murphy, 95 Com. V. Burrough, 120 Com. V. Nagle, 298 Com. V. Byrnes, 87 Com. V. Nichols, 58 Com. V. Carey, 193 Com. V. Nott, 101 Com. V. Casey, 192 201 Com. V. O'Brien, 298 Com. V. Castles, 20 Com. V. O'Connor, 287 Com. V. Chabbock, 227 Com. V. Piper, 66 120 Com. V. Churchill, *'95 Com. V. Phillips, 142 Com. V. Clark, 112 Com. V. Plummer, 54 Com. V. Coe, 219 Com. V. Pope, 213 Com. V. Cooper, 197 204 Com. V. Preece, 100 120 Com. V. Crocker, 7 Com. V. Richards, 188, 189 190 Com. V. Crowninshield, 29 Com. V. Sanders, 227, 229 , 2?.0 Com. V. Cuffee, 7 Com. V. Schaffner, 91 TABLE OF CASES. XXI [Beferences are to Sections. 1 Com. '7. Scott, Com. V. Shepherd, Com. V. Stearns, Com. V. Stevenson, Com. V. Sturtivan, Com. V. Sullivan, Com. V. Tate, Com. V. Taylor, Com. V. Tibbetts, 28 57 57 1-12 85, 213 91 43 104 87 Com. V. Trefethen, 54, 227, 228, 275, 277 Com. V. Twitchell, 66 Com. V. Vose, 33 Com. V. Walker, 7 Com. V. Webster, 9, 63, 298 Com. V. Wilson, 85 Com. V. Wood, 71 Combe v. Pitt, 11, 12 Comstock V. Hadlyme, etc.. Soci- ety, 281 Conkey v. Carpenter, 96 Conn. V. Penn., 130, 171 Connecticut, etc., Ins. Co. v. La- throp, 214 Conn. Mutual Life Ins. Co. v. Schwenk, 163 Connelly v. Hamilton Woolen Co., 208 Conner v. People, 92, 95 Conover v. Berdine, 296 Conrad v. Griffey, 92 Consolidated Tank Line Co. v. Pien, 31 Continental Ins. Co. v. Jachnich- en, 297 Conway v. Vizzard, 281 Cook v. Barr, 3 Cook v. Brown, 91 Cook V. Johnston, 208 Cook V. State, 293 Cooke v. Banks, 139 Cooke V. Lloyd, 142 Cooper V. Mayhew, 45 Cooper V. Morrel, 179 Cooper V. St. Paul City R. Co., 82 Corbett v. State, 119 Corcoran v. Batchelder, 286 Corcoran v. Harran, 84 Corcoran v. Village of Peeksville, 72 Corev V. Janes, 190 Corley v. State, 101, 103, 120 Corn Exchange Bank v. Nassau Bank, 126 Cornell v. Green, 190 Cornell v. Todd, 73 Corps V. Robinson, 11, 40 Corr V. Sellers, 177, 180 Cort V. Birkbeck, 137 Costelo V. Cave, 26 Costello V. Crowell, 55, 57, 160, 185, 186 Coster v. Symons, 30 Coulter V. American M. U. Exp. Co., 89 County of Mahaska v. Ingall's Ex- ecutors, 157, 163, 167 Courtney v. State, 57 Cowden v. Reynolds, 89 Cowling v. Ely, 'IS Cox V. Charleston F. & M. Ins. Co., 128 Cox V. Eayres, 89 Coxe V. Whitney, 84 Crabtree v. Hagenbaugh, 95 Craft V. Com., 93 Craig V. Craig, 33 Cramer v. Burlington, 72 Crane v. Michigan Central, etc., R. Co., 88 Crawcour v. Salter, 125 Crawford v. Turk, 43 Creamer v. Shannon, 184 Crease v. Barret, 135, 139, 141, 157 Credit v. Brown, 22 Creed v. Hartman, 213 Creighton v. Hoppis, 242 Crocker v. McGregor, 64 Crockett v. Morrison, 16 Cronkhite v. Dickerson, 286 Cronnse v. Fitch, 263 Crookham v. State, 54, 228, 255 Crooks v. Bunn, 92 Crose v. Rutledge, 95 Crowley v. Page, 93 Crust v. Evans, 288 Culbertson v. City of Chicago, 79 Culver V. D wight, 213 Culver V. Marks, 161, 183 Cumberland Mut. Fire Ins. Co. v. Giltinan, 17 Cummings v. Fullam, 183 Cummings v. Nichols, 180 Cunningham v. Fuller, 30 Cunningham v. Hudson Riv. Bank, 218 Cunningham v. State, 88 Curran v. Witter, 186 Curren v. Crawford, 180 Currier v. Silloway, 60 Curtis V. Aaronson, 130, 139, 171 Curtis V. Belknap, 20 Gushing v. Willard, 256 Curzon v. Lemon, 135 Curzon v. Lomax, 131 D Daggett V. Shaw, 171 Daley v. American Print. Co., 128 XXll TABLE OF CASES. [^Be/erences are to Sections. "^ Damon v. Carroll, 234 Dan V. Brown, 281 Daniel v. Pitt, 33 Daniel v. State, 227 Daniels v. McGinnis, 288 Dantz V. State, 117 Darling v. March, 41 Darling V. Stanwood, 56 Darling v. AVestmoreland, 63, 213 Darrigan v. New York, etc., R. Co., 266 Davidson v. Cornell, 267, 268 Davidson v. State, 210 Davie v. Briggs, 188 Davies v. Loundea, 141 Davis V. Com., 227 Davis V. Foster, 299 Davis V. Franke, 299 Davis V. Fuller, 132 Davis V. Gallagher, 27 Davis V. Hardy, 24 Davis V. Green, 24 Davis V. Lloyd, 155 Davis V. Rochester, 27 Davis V. Spooner, 30 Davis v. State, 290 Day V. Ross, 96 Dav V. Stickney, 91 Day V. Stone, 80 Dayharsh v. Hannibal, etc., R. Co., 75 Deade v. Hancock, 134 Deal v. State, 24 Dean v. Wilkerson, 156 Deckard v. Case, 40 DeFrance v. Howard, 31, 288 Delamater v. Pierce, 22 Delano v. Smith Charities, 88 Delaware, etc., R. Co. v. Converse, 68 DeLeon v. IMcMurray, 141 Demeritt v. Meserve, 34 Demeyer v. Legg, 19 Dennett v. Dow, 89 Dennis v. Chapman, 25, 43 Dennis v. Weekes, 30, 281 Dennison v. Miner, 16 Dent V. Dent, 47 Denver Tramway Co. v. Owens, 68 Derbv v. Gallup", 31 Desha v. Holland, 127 Detroit, etp., R. Co. v. Steinburg, 215 Devoto V. Com., 57 Diamond v. Northern Pac, etc., R. Co., 67 Dickenson v. Inhabitants of Fitch- burg, 79, 210 Dickerson v. Christman, 30 Diers v. Mallon, 297 Dietrichs v. Lincoln, etc., Co., 79 Diffenderfer v. Scott, Digby V. Steele, Dillard v. Dillard, 2 Dillebar v. Home Life In«. Co., Dishazer v. Maitland, District of Columbia v. Arms, 62 District of Columbia v. Haller, Dobson v. Cothran, Dock v. State, Dodge V. Childs, Dodge V. Freeman's Trust Co., Dodge V. Morse, Doe V. Moore, Doe V. Newton, Doe V. Rickarby, Doe V. Robson, Doe V. Tarrier, Doe V. Turford, 156, 157, Doe V. Wainwright, Dohan v. Murdock, Dole V. Wooldredge, Donaldson v. Mississippi, etc., R. Co., Donnell v. Jones, 76, Donnelly v. State, 7, Donovan v. Boston, etc., R. Co., 160, Dooner v. Delaware & H. Canal Co., Dorsey v. Dorsey, Dungan v. Transportation Co., Douglas v. Chapin, Douglass V. Howland, Douglass V. Mitchell, Douglass V. Tousey, 95, Dow V. Sawyer, Dowdon V. Fowle, Downs V. State, Dovle V. Manhattan R. Co.. Doyle V. St. Paul, etc., R. Co., 51, Drake v. State (29 Tex. 365), 90 Drake v. State (25 Tex. App. 293), Draper v. Baker, 76 Drayton v. Wells, Dreher v. Town of Fitchburg, Drink water v. Porter, Driscoll v. City of Fall River, Driscoll V. People, Drucker v. R. Co., Drummond v. Hvams, Drury v. Midland R. Co., Dubois V. City of Kingston, Dudley v. Greyson, Duff V. Leary, Dufreshne v. Weise, Duke of Newcastle v. The Hun- dred of Broxtowe, 133 Dnnaway v. School Directors, 288 Duncan v. State, 59 19 152 , ('3 208 144 298 34 30 18.5 31 220 289 161 134 168 48 19 29 85 208 202 166 208 30 72 277 43 51 299 161 48 95 66 128 , 93 203 , 88 188 24 136 296 91 66 180 130 62 141 155 299 TABLE OF CASES. XXlll J^Beferences are to Sections."] Dundas v. City of Lansing, 62 Dunham v. Dey, 127 Dunlap V. Snvder, 212 Dunn V. State, 191 Dupoyster v. Gagoni, 141 Dupree v. State, 95 Durkee v. Cent. Pac. R. Co., 36, 256, 259, 263 Durnell v. Sowden, 219 Dutchess of Kingston's Case, 18 Dutton V. Woodman, 10 Dwight V. Brown, 185 Dye V. Delaware, etc., R. Co., 64 Dver V. Ashton, 4 Dyson v. New York, etc., R. Co., 82 E Eager v. Atlas Ins. Co., Earl V. Tapper, Earle v. Picken, Early V. Com., 101, Easdale v. Reynolds, Easly V. Eakin, Eason v. Chapman, East Pennsylvania Railroad v. Hiester, East River Bank v. Hoyt, East Tennessee, etc., R. Co. v. Johnson, East Tenn., son, Easter v. Eaton V. Eaton V. Eborn v. Eekert v etc., R. Co. v. Thomp- Allen, Jervis, N. E. Telegraph Co., Zimpelman, . Triplett, 30 Edelen v. Gough, Edgar v. Richardson, Edington v. Mut. Life Ins. Co., Edmunds v. Curtis, Edwards v. Crock, Edwards v. Dillon, Edwards v. Sullivan, Egan v. Bouker, Eggleston v. Speke, Ehrlingerv. Douglas, 244, Eidt V. Cutter, Eisenlord v. Clum, 16, 142, 143, Elcox V. Hill, Elkins V. Hamilton, Elkins V. McKean, Elledge v. Nat'l City & O. R. Co., Ellicott v. Pearl, Ellis V. State (25 Fla. 702), Ellis V, State (65 Miss. 44), Elms V. Chevis, 183, Elsam V. Faucett, 127 264 24 102 55 176 95 79 27 127 93 13 220 68 82 ,45 218 17 272 34 283 40 91 13 45 274 66 145 36 242 255 34 224 191 120 184 283 Elting V. Scott, 38 Elton V. Larkins, 38 Elwood V. Deifendorf, 27 Ely V. Stewart, 151 Emerson v. Thompson, 45 Emery v. State, 22 Emig V. Diehl, 188 Emmons v. Barton, 31 Enders v. Richards, 31 Engles v. Bruington, 20 English V. State, 92 Enos V. Enos, 75. 76 Enos V. St. Paul Fire & M. Ins. Co., 5, 213 Enos V. Tuttle, 242, 243 Epps V. State, 85 Equitable M. A. Asso. v. McClus- key, 242 ,243, 244 Eshelman v. Harnish, 179 Estell V. State, 263 Eureka Ins. Co. v. Robinson 68 Evans v. Getting, 138 Evans v. Rees, 151 Evansville, etc., R. Co. V. Fitz- Patrick, 214 Evansville, etc., R. Co. v . Guyton , 77 Evansville, etc., R. Co. v . Keith, 67 Evening Journal Asso. v. McClas- key. 57 Ewing V. Burnet, 289 Excelsior Electric Co. v. Sweet. 208 F Fairfield Turnpike Co. v. Thorp, 27 Fairlie v. Denton, 10 Fairlie v. Hastings, 34 Fairley v. Smith, 212 Fallin v. State, 92 Faris v. People, 57 Farkas v. State, 112 Farmers' Bank v. Whitehall, 170, 219 Farmers' Loan and Trust Co. v. Montgomery, Farrand v. Aldricb, Farrar v. Fessenden, Farrar v. State, Farrell v. Weitz, Farris v. People, Father Matthew, etc., Fitzwilliams, Faunce v. Gray, Faxon v. Hollis, Fay V. Harlan, Fearing v. Kimball, Felder v. State, Feighley v. AVhitaker, Fellman v. Smith, 31, 288 76, 264, 275 289 277 82, 227 57 Society v. 43 30, 45 180 268 10 204, 226, 290 41 XXIV TABLE OF CASES. [Beferences are to Sections.'] Fenner v. Lewis, 22, 44 Fenuo v. Weston, 10 Ferbiache v. Martin, 80, 296 Ferguson v. Hubbell, 208 Ferguson v. Wriglit, 2i»6 Fen wick v. Reed, 149, 150 Feuwick v. Thornton, 46 Fickett V. Swift, 40 Field V. New York, etc., R. Co., 67 Field V. State, 264, 265 Field's Assignees v. Mouleon, 11 Finch V. State, 113 Findlay Brewing Co. v. Bauer, Fifiejd V. Gaston, Fine v. St. Louis Public Schools, Finley v. Quirk, Finn v. Com., Finnegan v. Dugan, Finnerstein's Champagne, Fire Asso. v. Fleming, Fisk V. Cole, Fitzgerald v. Town of Weston, Flagg V. Mason, Fleming v. City of Springfield, Flanders v. Chicago, etc., R. Co., Flannery v. Van Tassel, Fogg V. Child, Fogg V. Edwards, Ford V. Central, etc., R. Co., Ford V. Ford, Ford V. State, Ford V. Tirrell, Fordyce v. Withers, Forney v. Ferrill, Forsyth v. Ganson, Forsythe v. Norcross, Foster v. People, Foster v. Shaw, Foster v. Trenarj', Foster's Executors v. Dickerson, 213 Foster's Will, Fowler v. Commissioners, Fowler v. Lewis, Fox V. Com., Fox V. Peninsular, W. L Works, Fox V. Reil, Foye V. Lieghton, Foxcroft V. Nevens, Framingham Mnfg. Co. v. ard, Francis v. Rosa, Frankfort v. Manhattan R, Franklin Bank v. Penn. D S. N. Co., Franklin v. State, Fraser V. Marsh, & C. 64 24 19 79 189 81 212 297 242 51 30, 31 268 128 30 34 3 88 95 28, 29 126 72 27 50 180 91 190 214 82 79 85 96 Barn- Co., &M. 72 20 20 43 169 58 210 34 82 46 Fraternal Mut. Ins. Co. v. Apple- gate, 272, 273 Frazier v. Drayton, 176 Frazier v. Pennsylvania R. Co., 70 Frazier v. State, 57 Frear v. Evertson, 31, 45 Freedland v. Heron, 11 Freeman V. Phillips, 131,133 Freenjan v. Sanderson, 57 French v. White. 80 Friedenstein v. United States, 2S8 Frink V. Coe, 242,259 Frinkv. Roe, 30,81 Fry V. Sly field, 176 Fry V. Stowers, 24 Fry V. Wood, 151 Fnlkerson v. Holmes, 141 Fulham V. Howe, 282 Fuller V. Dean, 298 Funk V. Ely, 180 Furst V. State, 101 Futterv. Randall, 145 Ft. Worth, etc., R. Co. v. Stone, 265 Ft. Worth, etc., R. Co. v. Thomp- son, 51 G Gahagan v. Boston, etc., R. Co., 68, 70 Gaines v. Relf, 283 Galbraith v. Green, 22 Gale V. Shillock, 3 Galena, etc., R. Co. v. Fay, 290 Galena, etc., R. Co. v. Yarwood, 70 Gallagher v. Market St. R. Co., 85 Gallagher v. State, 57 Gallowav v. Courtnev, 298 Gandolfb v. State, ' 299 Ganong v. Green, 288 (Gardner v. O'Connell, 242 (4arey v. Nicholson, 22 Garlick v. Bowers, 31 Garlitz v. State, 57 Garner v. State, 54 Garner's Case, 103 Garnet v. Ball, 33 Garnons v. Bernard, 139 Garrahy v. Green, 31 Garrells v. Alexander, 218 Garrison v. Goodale, 242 Garth v. Howard, 33 Garvin v. State, 81 Gates V. Mowry, 288 Gaunt V. Harkness, 221 Gaunt V. State, 81 Gav V. Gav, 281 Gebhart v" Burkett, 297 George v. Bartlett, 126 George v. Pilcher, 96 TABLE OF CASES. XXV {Eeferences are to Sections.} George v. State, 90 George v. Thomas, 170 Gerhauser v. North British, etc., Ins. Co., 188 Gertz V. Fitchburg, etc., R. Co., 96 Gervin v. Meredith, 133 Getty V. Binsse, 42 Gibblehouse v. Strong, 17, 30, 45 Gibbons v. Wisconsin Valley, etc., R. Co., 67 Gibney v. Marchay, ^ Gibson v. Gibson, 281 Gibson v. Winter, 45 Gilbert v. Gilbert, 293 Gilbert v. West End St. R. Co., 82 Gilchrist V. Bale, 283, 293 Gilchrist v. Martin, 166 Gilchrist v. McKee, 95 Gildersleeve v. Caraway, 190 Gill V. Stozier, 288 Gillett V. Mead, 77 Gilliam v. State, 95 Gilmanton v. Ham, 81 Gindrut v. People, 87 Glasgow V. Ridgeley, 20 Glass V. Memphis, etc., R. Co., 68, 128 Gleadow v. Atkin, 172 Glynn v. Bank of England, 172 Goens v. State, 287 Goff V. Stoughton, 257 Goins V. State, 29 Golden v. Newbrand, 34 Gonzales v. State, 84 Goodall V. State, 204 Goode V. Goode, 281 Goodman v. State, 57 Goodright v. Moss, 142, 144, 14(5 Goodwin v. Harrison, 264 Goodwin v. State (102 Ala. 87), 298 Goodwin v. State (96 Ind. 550), 59 Goodwyn v. Goodwyn, 91 Gordon v. Preston, 23 Gordon v. Ritenour, 296 Gosewich v. Zebley, 180 Goss V. Watlington, 43 Gott V. Dinsmore, 33 Gough V. St. John, 297 Gourley v. Gourley, 282 Grable v. Blowers, 75 Grable v. Margrave, 76 Grade's Estate, In re, 21 Grafton Bank v. Moore, 296 Graham v. Lockhart, 31, 45 Grand Rapids, etc., Co. v. Diller, 22 Grand Rapids, etc., R. Co. v. Hunt- ley, 62, 268 Grand Trunk R. Co. v. Richardson, 67 Grangers' Life Ins. Co. v. Brown, 86 Grant v. Masterton, 14 Grant v. Varney, 208 Gray v. Com., 117 Gray v. Palmer, 26 Grayville, etc., R. Co. v. Burns, 27 Great Falls Co. v. Worster, 171 Green v. Boston, etc., R. Co., 33 Green v. State, 23 Greenawalt v. McEuelly, 24 Greenfield v. People, 13, 54, 213, 227, 228 Greenstine v. Borchard, 126 Gregg V. State, 115 Gregg Township v. Jamison, 93 Griffith V. State, 95, 290 Griffith V. Williams, 220 Griesheimer v. Tanenbaum, 180 Grimes V. Hill, 288 Griswold v. Haven, 36, 40 Grotton v. Glidden, 84 Guggenheim v. Lake Shore, etc., R. Co., 68, 215 Gulf, etc., R. Co. v. Compton, 72 Gulf, etc., R. Co. V. York, 36 Gutzwiller v. Lackman, 297 H Hachett v. Boston, etc., R. Co.. 213 Hackett v. Amsden, 30, 296 Ilacklev V. Patrick, 26, 41 Haddanv. Mills, 30 I hidden v. N. Y. Silk Mnfg. Co., 24 Haddock v. B. &. M. R., 142 Hadjo v. Gooden, 96 Hahn v. St. Clair, etc., Ins. Co., 40 Haines v. Guthrie, 143 Hair v. State, 189, 190 Hairston v. State, 226 Hale v. Sillowav, 190 Hale v. South. Pac. R. Co., 72 Hall v. Glidden, 180 Hall v. People, 58 Hall V. Phelps, 20 Hall V. State (86 Ala. 11), 242 Hall V. State (132 Ind. 317), 263, 298 Hall V. Vanderpool, 9 Hallet V. Basset, 282 Halliday v. Martinet, 170 Halliday v. McDougall, 296 Halsey v. Sinebaugh, 188 Hamilton v. People, 95 Hamilton v. State, 242, 287 Hammat v. Russ, 3 Hammersmith v. Avery, 79 Hammon v. Huntley, 27 Hampton v. State, 287 Hampson v. Taylor, 54 XXVI TABLE OF CASES. [^Seferences are to Sections.'] Hanawalt v. State, 81 Hanney v. Com., 298 Hanoff V. State, 91 Hanover R. Co. v. Coyle, 248, 256 Hanriot v. Sherwood, 219 Hanson v. Parker, 48 Happy V. Moslier, 34 Haralson v. State, 91 Harden v. Hayes, 89 Hardenburg v. Lakin, 144 Hardy v. Merrill, 213, 214 Hardy v. Moore, 288 Hargrovesv. Redd, 281 Harlan v. Howard, 151 Harland v. Cook, 124 Harman v. Harman, 283 Harness v. Harness, 281 Harrell v. Zimpleman, 126 Harriman v. Brown, 154 Harriman v. Stowe, 244 Harrington v. State, 298 Harris v. Carson, 124, 126 Harris v. Panama R. Co., 79 Harrison v. Glover, 79 Hart V. New Orleans, etc., R. Co., 296 Hart V. Railway Co., 72 Hartford Bank v. Hart, 27 Harwood v. Keys, 49 Harwood v. Sims, 134 Haslam v. Crow, 144 Hastings v. Stetson, 13 Hatcher v. Comer, 127 Hatfield v. St. Paul, etc., R. Co., 86 Hathaway v. Haskell, 27 Hauberger V. Root, 27 Hauser v. Central, etc., R. Co., 88 Hawkins v. City of Fall River, 210 Haven v. Brown, 34 Haven v. Cole, 24 Haverstick v. State, ex rel., 54 Havens v. Sea Shore Land Co., 149 Hay V. Kramer, 20, 183 Hayes v. Burkam, 27 Haves v. People, 16 Hayes v. West, 281 Hayner v. Cowden, 76 Haynes v. Brown, 14 Haynes v. Crutchfield, 10 HaVs V. Com., 203 Hays V. Millar, 68 Hazard v. Martin, 152 Hazleton v. Union Bank, 34 Healy v. Visalia, etc., R. Co., 85, 213 Heartt v. Corning, 14 Heath v. Page, 80 Heath v. Scott, 95 Heddles v. Chicago, etc., R. Co., 94 Hedge v. Clapp, 91 Hedges v. Wallace, 296 Heffron v. Hanaford, 40 Hegler v. Faulkner, 163 Heine v. Com., 2'.>S Heland v. Lowell, 68 Heldt v. State, 103, 106, 116 Helm V. Steele, 45 Helme v. Phila. Life Ins. Co., 126 Helton v. Alabama, etc., R. Co., 75, 211 Henderson v. Phila., etc., R. Co., 67 Henderson v. State (70 Ala. 23j, 287 Henderson v. State (14 Tex. 503), 53 Henly v. Henning, 20 Henrv v. Bishop, 20 Hensiey v. State, 54, 228 Hepburn v. Citizens' Bank, 88 Hepler v. Mt. Carmel Savinga Bank, 190 Hermany v. Fidelity Mut. L. Asso., 272 Hess V. Lowery, 86 Hewitt v. P^isenbart, 266 Hewlett V. Cock, 151 Hibbard v. Peek, 127 Hickman v. Reineking, 40 Hicks V. Stone, 94 Higgins V. People, 191 Higham v. Ridgway, 161, 162. 169 Higley v. Bidwell, 132 Higley v. Gilmer, 64 Hildeburn v. Curran, 90 Hildreth v. Aldrich, 89 Hill V. Buckminster, 45 Hill V. Com., 196 Hill V. Draper, 19 Hill V. Eldridge, 142 Hill V. Portland, etc., R. Co., 63 Hill V. State, 91 Hillis V. Wvlie, 95 Hills V. Chfcago, etc.. R. Co., 296 Hincklev v. Inhab's of Somerset, 296 Hinds v'. Keith, 296 Hitchcock V. Moore, 297 Hitchcock V. Tvson, 4 Hite V. Stimmell, 214 Hoar V. Abbott, 242 Hoare v. Corvton, 49 Hobbs V. State, 92 Hobson V. Doe, 188 Hobson V. Ogden, 3 Hodges V. Bales, 92 Hodges V. Bearse, 64 Hodges V. Percival, 72 Hodsoll V. Taylor, 76 Hoffman v. Chicago, etc., R. Co., 186 Hogan v. Robinson, 288 Hoitt V. Hoitt, 281 Holbert v. State, 95 Holbrook v. Gay, 183, 185 TABLE OF CASES. XXVll {Beferences are to Sections ] 214 44 20 96 38 22 56 91 126 264 93 51 76 127 72 91 242 R Holcomb V. State, Holladay v. Littlepage, HoUenback v. Fleming, Holley V. State, Holley V. Young, HoUey's Admr. v. Chnstopner, Hollingham v. Head, HoUingsworth v. State, Holloway v. McNear, Holly V. Bennett, Holmes v. Anderson, Holmes v. Goldsmith, Holmes v. Holmes, Holmes v. Johnson, Holt V. Spokane, etc., Co., Holtz V. State, Home Ins. Co. v. Marple, Home Pro. of N. A. v. Whidden, 34, do Homer v. Cilley, Hoober v. State, Hooker v. Chicago, etc Hoover v. Cary, Hoover v. Gehr, Hopt V. People, Hopt V. Utah, Horton v. Chadbourn, Hosley v. Brooks, Hostetter v. Gray, Hotchkiss V. Insurance Co., Hotchkiss V. Lyon, Houghtaling v. Kilderhouse, Houliston V. Smyth, Houlton V. Maneuffel, House V. Metcalf , Houser v. Austin, Hovey v. Hovey, Howard v. Patrick, Howe v. Plainfield, Howell V. Barden, Howland v. Geo. F Co., Hoyt V. New York, etc Hubbard v. Harrison, Hudson V. Applegate, Hudson V. Chicago, etc., H- Co^, DO, D4, Iji Hudson V. Houser, Hudson V. North. Pacific, etc., K. Co., Hudson V. Puett, Huffman v. Click, Hughes v. Hampton, Hughes V. Nolte, Hull V. State, Hulton V. ,v^arren, Humes v. O'Bryan, Humphries v. Parker, Humphrey v. Dale, 297 171 288 79 25 3 279 57 Huiburt v. Hurlburt's Estate, 223a Hurst v. Robinson, 2& Hussey v. State, ^^ Hvatt v. Adams, ■'O* Hynes v. McDermott, 82, 219, 222 Humphrey v. Humphrey, Hunnicutt v. Peyton, Hunsinger v. Hofer, Hunt v. City of Boston, Hunt v. Roylance, Hunter v. Jones, Hunter v. State, Hurd v. Union Pac. R. Co., 151 109 Co., 242 242, 289 185 103, 224 101, 103 213 95 76 126 91 43 297 283 142 63 13 9 185, 188 264 176, 179 Blake Man'f 'g 297 R. Co., 64 242 38 Idaho For. Co. v. Fireman's Fund Ins- Co., . , 3^^ IlwacoR. &Nav.Co.v.Hedrick, 128 Illinois Cent. R. Co. v. Sutton, Illinois Cent. R. Co. v. Troustine, 33 Illinois, etc., R. Co. v. Reedy, 70 Independence v. Pompton, 143 Indiana Car Co. v. Parker, 66, 86 Indianapohs, etc., R. Co. v. Pltzer, 75 Indianapolis Union R. Co. v. Boettcher, 6^ In nis v. Steamer Senater, 2bd Inslee v. Prall, 176 Insurance Co. V. Mosley, 244, 248, 251, 280 Insurance Co. v. Weides, 186, 188 International, etc., R. Co. v. An- derson, 244 International, etc., R.Co.v. Dim- mitt, etc., Co., 212 International & G. N. R. Co. v. Underwood, °^ Irby V. State, 258 Ireland v. Cincinnati, etc., K. Co., °1' ^7 Ireland v. Elliott, 84 Isaacs V. Strainka, 88 Isler V. Dewey, »^ Israel v. Brooks ^y/ 10 212 20 85 180 297 89 126 163 76 126 Jackson v. Brooks, Jackson v. Cooley, Jackson v. Dunsbagh, Jackson v. Feather, etc., Co., Jackson v. King, Jackson v. Kingsley, Jackson v. Kniffen, Jackson v. Laroway, 219 141 73 Water 90 141, 170 20 281 149, 151 XXVlll TABLK OF CASES. [^References are to Sections.'] Jackson v. McKenny, 73 Jackson v. McVey, 289 Jackson v. People, 143 Jackson v. Smith, 56 Jackson v. State, 120 Jackson v. Timniernian, 80 Jackson v. VanDusen, 218 Jacksonville, etc., R. Co. v. Jones, 79 Jacksonville, etc., R. Co. v. Penin- sular Land Co., 53 Jacobs V. Callaghan, 30 Jacobs V. Duke, 68 Jacobs V. Farrall, 22 Jacobson v. Siddall, 16 James v. Hackley, 27 James v. Stookey, 36 Jamison v. People, 13 Janeway v. State, 93 Janzen v. People, 57 Jenkins v. State, 112 Jewett V. Banning, 54 Johnson v. Anderson, 208 Johnson v. Caulkins, 84 Johnson v. Daverne, 218 Johnson v. Earl of Pembroke, 144 Johnson v. Fry, 180 Johnson v. Johnson, 296 Johnson v. Lawson, 140 Johnson v. Patterson, 30 Johnson v. Qnarles, 24 Johnson v. Richmond, etc., R. Co., 85 Johnson v. Sherwin, 293 Johnson v. State (54 INIiss. 430), 54 Johnson v. State (30Tex.App.419), 264 Johnson v. Smith, 76 Johnson v. Thompson, 34 Johnson v. Trinity Church Society, 7 Johnston v. Usborne, 126 Jones v. Henry, 20 Jones V. Hoar, 4 Jones V. Jones (45 Md, 144), 81 Jones V. Jones (120 N. Y. 589), 32 Jones V. Layman, 242 Jones v. Long, 180 Jones V. State (103 Ala. 1), 275 Jones V. State (71 Ind. 66), 197 198 201 Jones V. State (57 Miss. 684),' ' 54 Jones v. State (13 Tex. 168), 95, 117 Jones v. Ward, 190 Jordan v. Com., 260 Jordan v. Lewis, 87 Jordan v. Meredith, 126 Jordan v. State, 231 Jordan v. White, 14 Josephi v. Furnish, 31, 94, 288 Juggomohun Ghose v. Manick- chund, 127 Jump v. State, 28 Kaelin v. Com., 290 Kahlenbeck v. State, 298 Kaiser V. Alexander, 178 Kaiser v. Fendrick. 40 Kansjis City, etc., R. Co. v. Smith, 82 Karney v. Paisley, 76 Karr v. State, 218 Kaughley v. Brewer, 179 Keener v. State, 54 Keep V. Quallman, 298 Keith V. Haggart, 212 Keithler v. State, 117 Kelley v. Detroit, etc., R. Co., 265 Kelley v. People, 7 Kellogg V. Krauser, 30 Kelly V. Railroad Co., 128 Kellv V. Rilev, 76 Kellv V. Statie (72 Ala. 244), 112 Kelly V. State (82 Ga. 441), 227 Kelsey v. Bush, 23 Kempland v. Macauley, 49 Kendall v. Russell, 126 Kennard v. Burton, 264 Kennedy v. Kennedy, 24 Kennedy v. Rochester City, etc., R. Co.', 271 Kennon v. Gilmer, 65 Kent V. Garvin, ISO Kent V. Harcourt, 286 Kent V. Town of Lincoln, 63, 268 Kenyon v. Gilmer, 65 Kenyon v. People, 55, 296 Ketchingham v. State, 91 Keyes v. State, 95 Kevser v. Chicago, etc., R. Co., 214 Kidd V. Ward, 13 Kiddie v. Debrutz, 3 Kieth V. Kerr, 31 Kiff V. Youmans, 84 Kilburn v. Mullen, 95 Killam v. Preston, 11 Kimball v. Bellows, 3 Kimmel v. Kimmel, 95 King V. Donohue, 220 Kirby v. Hewitt, 40 Kirby v. State (7 Yerg. 258), 277 Kirby v. State (9 Yerg. 383), 279 Kirbv V. Territorj', 191 Kirkland v. Trott, 289 Kirkpatrick v. Briggs, 290 Kingston's Case, 103 (see Dutchess of Kingston's Case). Knippen v. McConnell, 76 Knight V. House, 95 Knight V. State, 298 Knode v. Williamson, 95 KnoU V. State, 213 TABLE OF CASES. XXIX {^Beferences are to Sections.'] Knox V. Jenks, 152 Kleiber v. People's R. Co., 290 Klein v. Hoffheimer, 288 Koch V. Lyon, 31, 288 Koontz V. Oregon, etc., & Nav. Co., 67 Kummer v. Christopher, 13 Krammen v. Meridian Mill Co., 126 La Beau v. People, 91 Lacy V. State, 191 Ladd V. Couzins, 263 Ladd V. Griswold, 42 Lafayette & I. R. Co. v. Ehman, 34 Lake Erie, etc., R. Co. v. Mugg, 66, 75, 128 Lake Erie & W. R. Co. v. Rooker, 38 Lake Shore, etc., R. Co. v. Her- rick, 277 Lamagdelaine v. Tremblay, 297 Lamar v. Pearre, 3 Lamar v. Turner, 144 Lamb v. Henderson, 126, 127 Lamb v. State, 57 Lambert v. People, 260 Lambridge v. State, 120 Lamoreux v. Huntley, 289 Lamos v. Snell, 297 Landear v. Blossman, 126 Lander v. Peoi)le, 242, 263 Landis v. Turner, 180 Lane v. Boston, etc., R. Co., 33 Lane v. Bryant, 259 Lane v. Doty, 26, 27, 42 Lane v. Moore, 275 Lanergan v. People, 5 Lang V. Sanger, 72 Lang V. Terry, 208 Langliorn v. Allnutt, 36 Langley v. Oxford, 38 Langworthv v. Township of Green, 68, 71 Lapham v. Kelly, 186 Larned v. Bufiinton, 76 La Rose v. Logansport Nat. Bank, 36 Larson v. Ring, 128 La Rue v. St. Anthony & D. El. Co., " 34 Larzelere y. Kirchgessner, 75 Lashee y. Jacobs, 45 Lassone y. Boston, etc., Co., 161, 162, 186 Latham y. Pledger, 34 Lau y. Fletcher, 208 Lau y. Mumma, 151 Lavery v. Crooke, 76 Law y. Merrills, 24 Lawless y. Quearle, 17 Lawrence y. Kimball, 109 Lawrence y. Tennant, 171 Leahey v. Cass Ayenue, etc., R. Co., 244, 290 Learned v. Tillotson, 10 Leathers y. Salver Wrecking Co., 82 Le Baron y. Crombie, 188 Lee y. Cooley, 10 Lee y. Heuman, 210 Lee y. State (21 Ohio St. 151), 90 Lee y. State (74 Wis. 45), 191 Lee y. Woolsey, 84 Lefeyre y. State, 120 Legatt y. Tolleryey, 87 Leggett V. Boyd, 144 Legh y. Legh, 45 Leighton y. Sargeant, 68 Leinkauf y. Brinker, 297 Leiand y. Cameron, 161, 162 Leland y. Kauth, 91 Lench y. Lench, 45 Lester y. State, 113 Lewis V. Bacon, 184 Lewis y. Brooklyn Elev. R. Co., 210 Lewis y. Eastern R. Co., 64 Lewis y. Lewis, 281 Lewis y. Long, 45 Lewis V. New York, etc., Co., 60 Lewis y. Rice, 288 Lewis y. State (9 Sm. & M. 115), 196 Lewis y. State (29 Tex. App. 201), 244 Libby y. Scherman, 66 Lightcap V. Phila. Traction Co., 242 Lights y. State, 91 Lincoln, etc., R. Co. y. Suther- land, 208 Lincoln y. Taunton Copper Mnfg. Co., 56, 65 Linderberg v. Crescent Mining Co., 244 Link y. Jaryis, 68 Lipscombe y. Holmes, 4 Little y. Beazey, 219 Little y. Chauvin, 20 Little y. Dyer, 30 Little y. Wyatt, 181 Liyingstone y. Arnoux, 161 Lloyd y. R. Co., 86 Lochausen v. Laughter, 289 Lockard v. Com., 95 Locke y. S. C. & P. R. Co., 82 Logan y. Austin, 84 Logansport, etc., Turnpike Co. v. Heil, 25, 92 Lohre y. Aitchison, 125 Lombard, etc., R. C!o. y. Christian, 33 Long y. Colton, 171 Long y. Hitchcock, 93 XXX TABLE OF CASES. [Beferences are to Sectiotis."] Long V. Mulford, 45 Long V. State, 119 Longabaugh v. Virginia, etc., Co., 67 Long's Lessee v. Pellett, 132 Loomis V. New York & H. & H. R- Co., 38 Loomis V. Wadhams, 17 Loos V. Wilkinson, 288 Lord Marley's Case, 189 Louisville, etc., R. Co. v. Berry, 30, 291 Louisville, etc., R. Co. v. Buck, 256, 259 Louisville, etc., R. Co. v. Collins, 70 Louisville, etc., R. Co. v. Falvey, 268 Louisville, etc., R. Co. v. Frawley, 96 Louisville, etc., R. Co. v. Hall, 296 Louisville, etc., R. Co. v. Hart, 88 Louisville, etc., R. Co. v. Hurt, 89 Louisville, etc., R. Co. v. Lange, 67 Louisville, etc., R. Co. v. Miller, 85 Louisville, etc., R. Co. v. McCorkle, 67 Louisville, etc., R. Co. v. Pear- son, 250, 259 Louisville, etc., R. Co. v. Thomp- son, 9 Louisville, etc., R. Co. v. Wright, 128 Lovejoy v. SpaSord, 296 Lovell V. State, 58 Low V. Payne, 178 Lowe V. Dalrymple, 288 Lowe V. Lehman, 126 Lowe V. Herald Co., 297 Lowe V. State, 188, 189 Lowery v. State, 91, 96 Lowry v. Russell, 126 Luby V. Hudson River R. Co., 34 Lucke V. Yoakum, 127 Luke V. Calhoun County, 82 Lund V. Inhabitants of Tyngsbor- ough, 242, 243, 244, 247 Lush V. Druse, 212 Lush V. McDaniel, 266 Lyman v. Lull, 25 Lyman v. Philadelphia, 95 Lynch's Admr. v. Petrie, 180 Lynde v. McGregor, 21 Lyons v. People, 112 Lyons v. State, 298 M Macbride v. Macbride, 91 Mack V. Handy, 24 Mack V. State, 54, 242, 244, 287 Macy V. St. Paul, etc., R. Co., 60 McAleer v. McMurray, 51 McAuley v. Birkhead, 76 McBride v. People, McCartney v. State, McClackey v. State, McClain v. Com., McClaskey v. Barr, McClellan v. Zwingle, McClure v. Cox, McCombs V. State, McConnell v. City of Osage, McCorkle v. Binnis, McCormick v. Barnum, McCoy V. Curtice, 192 57 214 111 144 151 126 191 62 219 170 296 McCracken v. Village of Marken- son, 68 M'Craine's Executor v. Clark, 45 :McCulloch V. Dobson, 36, 54, 71, 93 McCullough V. State, 118 McCutchen's Admrs. v. McCutch- en, 95 McDermott v. State, 298 McDonald v. Bowman, 288 McDonald v. Carnes, 183 McDonald v. Chicago, etc., R. Co., 85 McDonald v. McDonald, 221 McDonald v. Com., 95 McDonald v. Savov, 68, 296 McDowell V. Goldsmith, 288 McDowell V. Preston, 91 McFadden v. Santa Ana, etc., R. Co., 269 McGee V. State, 191 McGenness v. Adriatic Mills, 33 McGinnis v. Grant, 91 McGlothlin v. State, 120 McGonigle v. Kane, 208 McHugh V. State, 91 Mclndoe v. Clarke, 36 Mclntire v. Levering, 297 Mclntire v. Morris, 27 Mclntyre v. State, 57 McKee v. Bidwell, 72 IVlcKee v. Nelson, 213 McKee v. People, 7 McKillop V. Duluth St. R. Co., 213 McKim V. Blake, 43 McKinnon v. Norcross, 36 McLaughlin v. McLaughlin, 31 McLaughlin v. Mencke, 91 McLean v. State, 196 McLellan v. Crofton, 185 McLemore v. Powell, 288 McLeod V. Bullard, 40 McLeod V. Ginther's Adm'rs, 256 McMurrin v. Rigbv, 255 McMurtry v. Keifner, 144 McNamara v. King, 75 McNamara v. State, 189 McPherrin v. Jennings, 33 McPherson v. Rathbone, 40 TABLE OF CASES. XXXI [Beferences are to Sectio7is.'] McPherson v. State, 199 McQueen v. State, 196 McShane v. Howard Bank, 43 McTaggart v. Thompson, 281 Maester v. Abraham, 36 Madden v. Koester, 91 Madden v. State, 92 Magee v. Raiguel, 30 Maggi V. Cutts, 65 Magill V. Kauffman, 188 Mahaney v. St. Louis, etc., R. Co., 72 Mahaska Co. v. Ingalls, 155, 183 Maher v. People, 294 Mahurin v. Bellows, 242, 244 Maine v. Harper, 178 Man V. Ricketts, 150 Manderchid v. Dubuque, 72 Mangun v. Webster, 47 Manning v. Insurance Co., 51, 52 Manning v State, 298 Mapes V. Weeks, 298 Marble v. Marble, 296 March v. Railroad Co., 79 Marcy v. Barnes, 82, 222 Mardes v. Meyers, 219 Marion v. Chicago, etc., R. Co., 36 Markowitz v. Kansas City, 79 Marler v. State, 188 Marley's Case, 189 Marr v. Hill, 264 Marsh v. McPherson, 84 Marshall v. Brown, 85 Marshall v. Cliff, 38 Martel v. Somers, 31 Martin v. Barnes, 91 Martin v. Hardesty, 289 Martin v. New York, etc., R. Co., 259 Martin v. Root, 22 Martin v. Scott, 185 Martin v. Town of Algona, 24 Mason v. State, 57 Mason v.Wedderspoon, 185 Massey v. Bank, 222 Massie v. Donaldson, 45 Matherly v. Com., 199 Mathes v. Robinson, 181 Mathew^s v. City of Cedar Rapids, 63, 64 Matson v. Buck, 298 Matteson v. New York, etc., R. Co., 242, 264, 267, 268 Mattocks V. Lyman, 23, 178 Mattox V. United States, 93, 189 Maupin v. Triplett, 20 Maurer v. Miday, 242 Mauri v. Heffernan, 20 Mauro v. Piatt, 24 Maxwell v. Eason, 128 Maxwell v. Harrison, 45 May V. Little, * Mayes v. State, Mayfield v. State, JMeacham v. Pell, Mead v. Husted, Meade v. Black, Meade v. McDowell, Meath v. Belfield, Meath v. Winchester, Medsker v. Pogue, Mehaffy v. Dobbs, Melius V. Dodge, Melen v. Andrews, Melhuish v. Collier, 47 253 64 186 297 3 44 139 149 51,57 19 76 9 89 Melhvitz v. Manhattan R. Co., 269 Melvin v. Easley, 85 Memphis & C. R. Co. v. Maples, 34 Mercer v. Vose, 212 Merchants' Bank v. Berthold, 263 Merchants' Nat. Bank v. Clark, 36 Merkle, Adm'r, v. Township of Bennington, 257, 265 Merriam v. Hartford, etc., R. Co., 96 Merriam v. Swensen, 288 :\rerrill v. The Ithaca, etc., R. Co., 161, 179, 183, 186 Mertz V. Detweiler, 46, 68 Metcalf V. Officer, 296 Methodist E. Church v. Jaques, 23 Middleton v. Mass, 151 Middleton v. Melton, 165- Miller's Estate, 20' Miles V. United States, 16, 118 Millard v. Truax, 84 Miller v. Brown, 297 Miller v. Dayton, 28, 29 Miller v. Johnson, 82' Miller v. Lathrop, 33 Miller v. Shav, 180 Miller v. State, 242, 243 Miller v. Stevens, 13 Mills V. Dennis, 45 Mills V. Glennon, 184 Mima Queen v. Hepburn, 143, 153, 224, 225 Mims V. Mims, 3 Minneapolis Mill Co. v. Minn., etc., R. Co., 18a Missouri, etc., R. Co. v. Hilde- brand, 215 Missouri, etc., R. Co. v. Lyde, 75 Missouri, etc., R. Co. v. Neiswan- ger, 63 Missouri Pac. R. Co. v. Baier, 252 IMissouri Pac. R. Co. v. Johnson, 86 Mitchell V. Clark, 176 Mitchell V. Colglazier, 286 Mitchell V. Com., 95 Mitchell V. South. Pac. R. Co., 200 XXXll TABLE OF CASES. iBeferences are to Sections. "l Mobley v. Hamit, 95 Mobile Life Ins. Co. v. Morris, 272 Moerling V. Smith, 92, Moline-Milburn Co. v. Franklin, 80 Monahan v. City of Worcester, 296 Monkton v. Attorney-General, 133, 134, 141, 144, 145, 146 Monroe v. Snow, 286 Montag V. People, 279 Montclair R. Co. v. Benson, 79 Montgomery v. Montgomery, 142 Montgomery v. State, 192, 195 Moody V. Roberts, 177, 180 Mooney v. Olsen, 281 Mooers v. White, 30 Moore v. McDonald, 281 Moore v. Hitchcock, 16 Moore v. Meacham, 243 Moore v. Railroad, 89 Moore v. Smith, 5 Moore v. United States, 219 Mora V. People, 98 More wood v. Wood, 135, 148 Morgan v. McNeelev, 30 Morgan v. State, ' 192 Moriarty v. London, etc., R. Co., 13 Moritz V. Brough, 281 Morning Star v. Cunningham, 124 Morrell v. Morgan, 142 Morris v. Baker, 76 Morris v. East Haven, 68 Morris v. Edwards, 138 Morris v. Hurst, 22 Morris v. Lessee of Harmer's Heirs, 138 Morris v. Town of East Haven, 296 Morrissey v. Ingham, 52 Morrison v. Porter, 219 Morse v. Conn. Riv. R. R. Co., 33 Morse, Admrx., v. Minneapolis, etc., R. Co., 63, 64, 72 Morse v. State, 213 Morton v. Massie, 2 Morton v. Morton, 45 Moseley v. Davies, 131, 132, 134, 139 Moulton V. Newburyport Water Co., 79 Moyes v. Brumaux, 14 Mucci V. Houghton, 210 Mulhado v. R. Co., 86 Mull v. Carr, 214 Mullaney v. Duffy, 139 Muller V. Southern Pac. R. Co., 79 Mulliner v. Guardian Mut. Life Ins. Co., 273 Mumford v. Whitney, 22 Munger v. City of Waterloo, 62 Munn V. Mayes, 146 Murphey v. Loyd, 144 Murphy v. State (108 Ala. 10), 298 Murphy v. State (36 Ohio St. 628), 7 Murray v. Coster, 22 Murray v. Lepper, 13 Murray v. Missouri Pac, etc., R. Co., 88 Murray v. Oliver, 30 Murray v. Spencer, 130 Murray v. State, 120 Mutcha V. Pierce, 30, 256 Mutual Life Ins. Co. v. Hillmon, 278, 280, 282, 283 Mutter V. Tucker, 171 Myers v. Brown ell, 24 Myers v. State (62 Ala. 599), 54 Myers v. State (84 Ala. 11), 71 Mynatt v. Hudson, 95 N Nalley v. Hartford Carpet Co., 72 Nash V. Hoxie, 54 National Ulster Co. Bank v. Mad- den, 186 Neeley v. State, 122 Neille v. Keese, 45 Nelms V. State, 194 Nelson v. Oldfield, 281 Neubauer v. North. Pac. R. Co., 208 Newburgh v. Newburgh, 153 Newcome v. State, 54 Newhall v. Appleton, 56 New Jersey Steamboat Co. v. Brockett, 34 Newman v. Bradley, 23 New Portland v. Kingfield, 91 Newton v. Harris, 91 Newton v. State, 112 New York & Hav. Cigar Co. v. Bernheim, 30, 31 Nicholls V. Parker. 134 Nicholls v. Webb, 271 Nichols v. Goldsmith, 170 Nichols V. Haynes, 182 Nippolt V. Fireman's Ins. Co., 127 Nolley V. Callaway County Court, 39 Nonatum Worsted Co. v. North Adams Mfg. Co., 126 Norfolk R. Co. v. Bohannon, 67 Norfolk, etc., R. Co. v. Hoover, 296 Norris v. Edwards, 141, 145 Norris v. Stewart's Heirs, 297 Norris v. Town of Haverhill, 268 North V. Miles, 48 North Bank v. Abbot, 286 North Pac. R. Co. v. Urlin, 264 Northrop v. Hale, 141, 142 Northrop v. Knowles, 296 TABLE OF CASES. XXXlll Norwood V. Kenfield, Nourse v. McCay, Nute V. Nute, iBeferences are 89 I 161, 170 93 O'Connor v. Andrews, 56, O'Connor v. Illinois, etc., R. Co., O'Donohue v. Leggett, Ogle V. Brook, O'Hagan v. Dillon, O'Hare v. Duckworth, Ohio, etc., R. Co. v. Hammersley, Ohio, etc., R. Co. v. Levy, Ohio, etc., R. Co. v. Stein, 94, 257, Ohio & M. R. Co. V. Trapp, Ohio Val. R. Co. v. Watson's Adm'r, Ohning v. City of Evansville, Oil City, etc., Co. v. Boundy, Oil Co. V. Van Etten, O'Leary v. Mankato, Olinde v. Saizan, Oliver v. Gray, Olxnstead v. Winsted, Omaha Street R. Co. v. Elkins, Omychund v. Barker, O'Neil V. Vanderburg, Orcutt V. Hanson, Oregon Steamship Co. v. Otis, Ort V. Fowler, 219, Ortiz V. State, Osborn v. Robbins, Osborne v. Bell, Osborne v. Nelson Lum. Co., Oscanyan v. Arms Co., Osgood v. Manhattan Co., 26, 27 Oskamp v. Gadsden, Otis v. Thorn, 208, Outram v. Morse wood, Over v. Schiffling, 33, Owen V. State, Owens V. State, 16, Owensby v. State, 128 128 126 57 88 288 30 33 259 67 62 43 34 11 72 89 22 89 188 270 31 176 218 223 82 263 26 127 38 , 30 33 242 139 214 103 283 227 Pack v. Thomas, 51 Packet Co. V. Clough, 34, 35, 248 Paddock v. Sahsbury, 297 Padgett v. Lawrence, 31 Paige v. Cagwin, 30 Pain v. Beeston, 93 Paine v. Aldrich, 213, 214 Paine v. City of Boston, 79 Paine v. Hutchins, 289 Paine v. Tilden, 96 Ev. iii. to Sectioiis."] Palethorp v. Furnish, Palmer v. People, Palmer v. State, Pape v. Wright, Papendick v. Bridgwater, Parker v. Boston Steamship Co., Parker v. Enslow, Parker v. Portland Pub. Co., Parker v. State (106 Ind. 580), Parker v. State (136 Ind. 284), 209, 259, Parker v. State (67 Md. 329), Partridge V. Insurance Co., Paschel v. Perez, Patch v. City of Boston, Pate V. State, Patrick v. Steamboat J.Q.Adams, Patteshall v. Turford, Pavey v. Pavey, Payne v. Rogers, Payne v. State (60 Ala. 80), Payne v. State (61 Miss. 161), Peak v. State. 195, Peake v. Hutchinson, Pearce v. Furr, Pearsall v. Western Union Tel. Co., Pease v. Batten, Pease v. Shippen, Peck V. Ryan, Peck V. Parchen, Peck V. State, 91 Peck V. Yon Keller, Peck V. Yorks, Peckham v. Potter, Peek V. State, Peeples v. Stevens, Peerless Machine C3o. v. Gates, Pefferling v. State, Pejepscut Proprietors v. Ransom, Pelzer v. Cranson, Pemberton, In re, Pemberton v. Pemberton, Pemigewassett Bank v. Rogers, Pence v. Makepeace, Pendleton v. Bank, Pendleton v. Empire Stone Dress- ing Co., Pentield v. Jacobs, Pennsylvania Co. v. Bray, Pennsylvania Co. v. Newmyer, Pennsylvania Co. v. Roy, Pennsylvania Co. v. Stranahan, Pennsylvania Co. for Ins. v. Phila. etc., R. Co., Pennsylvania, etc., Ins. Co. v. Wiler, Pennsylvania, etc., R. Co.v. Bun- nell, 33 54 120 95 154 213 86 64 90 263 191 126 88 79 231 213 161 219 45 93 199 203 22 93 14 288 298 5 34 ,95 176 31 30 57 30 214 298 152 181 281 281 27 20 43 93 23 94 86 75 67 57 272 79 XXXIV TABLE OF CASES. \_Beferences are to Sections."} Pennsylvania R. Co. v. Books, 34 Pennsylvania Tel Co. v. Varnau, 72 Penrose v. Griffith, 19 People V. Abbott (Cal., 4 Pac. Rep. 769), 203 People V. Abbot (97 Mich. 484), 95 People V. Ah Lee, 249, 260 People V. Ah Lee Doon, 96 People V. Aiken, 263 People V. Anderson, 298 People V. Arbold, 64 People V. Arnold, 91 People V. Badgley, 117 People V. Barker, 106 People V. Bentley, 29 People V. Bidleman, 57 People V. Brooks, 91 People V. Buchanan, 13 People V. Buddensieck, 86 People V. Callaghan, 206 People V. Cahoon, 95 People V. Chin Hane, 13 People V. Clark, 13 People V. Colburn, 10 People V. Crapo, 91 People V. Cunningham, 57, 287 People V. Davis (52 Mich. 569), 59 People V. Davis (21 Wend. 309), 95 People V. Davis (56 N.Y.95), 192, 263 People V. Deacons, 117, 213 People V. Deitz, 294 People V. Devine, 188 People V. Dewev, 243, 251 People V. Doyell, 92 People V. Druse, 298 People V. Eastwood, 213 People V. Everhardt, 67 People V. Farber, 122 People V. Fine, 13 People V. Fish, 82,189 People V. Fong Ching, 92 People V. Fox, 120 People V. Frank, 57 People V. Gage, 191 People V. Garbutt, 54, 298 People V. Glover, 52, 191 People v. Green, 10, 196 People V. Hall (94 Cal. 595), 192 227 230 People V. Hall (48 Mich. 482), ' 85 People V. Hamblin, 91 People V. Hancock, 298 People V. Harris, 298 People V. Hawkins, 57 People V. Irwin, 28, 279 People V. Jacks, 67 People V. Jackson, 82 People V. Jacobs, 89 People V. Johnson, 226 People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V. People V People V People V People V 54 112 57 298 57, 249, 254, 257 86 Jones, Kelly, Kemp, Lamb, Lane, Larned, Lawrence, Lee, Lee Chuck, Lee Sare Bo, Le Roy, Levine, Lewis, Lyons, McCormick, McCoy, McGee, McGloin, McGuire, McMahon, McNamara, M'Quade, Martill, Mather, Mayes, Millard, Mills, Mitchell, Mondon, Moore, Monteith, Murphy (45 Cal. 137), Murphy (101 N. Y. 126), Murphy (135 N. Y. 450), Nrvis O'Brien (92 Mich. 17), O'Brien (96 Cal. 171), O'Neill, O'Sullivan, Packenham, Pallister, . Palmer, . Parker, . Parton, . Rando, . Rathbun, . Robinson, . Scroggins, . Sessions, . Sharp, . Shaw, . Shepard, . Silver, . Simpson, . Skutt, . Smalling, . Stackhouse, . Stephens, . Swetland, 204 298 28 196 98 66 6 95 91 87 191 112 55 112 226 28 226 95 191 85 95 112 112 91 213 190 28 57 119 263 91 13 57, 191 213 287 118 219 98 57 231 113, 120 54 65 28,57 199 287 13 196, 260 58 107 93 38 118 TABLE OF CASES. XXXV 91 69 57 130 244, 249, 289 199 People V. Thompson, People V. Thomson, People V. Tucker, People V. Velarde, People V. Vernon, People V. Wasson, People V. Webster (68 Hun 11), 81 People V. Webster (139 N. Y. 73), 82, 91 People V. Wentz, 7 People V. Wheeler, 85 People V. White, 298 People V. Williams (3 Abb. 596), 279 People V. Williams (35 Hun 516), 189 People V. Wong Ark, 249 People V. Yslas, 95 Peoples V. Stevens, 2 Perego v. Purely, 22 Perkins v. People, 79 Peoria, etc., Co. v. Terminal R. Co., 79 Perry v. State, 188, 189 Peters v. State, 104 Pfister V. Dascey, 296 Pflueger v. State, 214 Pfomer v. People, 298 Phelin v. Kenderdine, 77 Phelps V. Foot, 223a Phelps V. Hartwell, 27 Phelps V. Railroad, 64 Phillips V. Kingsfleld, 95 Phillips V. Town of Willow, 63, 64 Pheuix V. Prindle, 176 Pickering v. City of Cambridge, 271, 282 Pickering v. Reynolds, 25 Pickering v. Weld, 126 Pierson v. People, 57 Piles V. Hughes, 242 Pirn V. Carrol, 137 Pinnev v. Cahil, 85, 218, 242 Pitts V. State, 117, 118 Pittsburg V. O'Neill, 126 Pittsburg, etc., Co. v. Hixon, 79 Pittsburg, etc., R. Co. v. Nash, 127 Pittsburg, etc., R. Co. v. Noel, 160, 166 Pittsburg, etc., R. Co. v. Ruby, 70 Plant V. M'Ewen, 46 Planters' Bank v. Markham, 127 Platner v. Platner, 88 Plaxton V. Dare, 131 Placer Co. v. Dickerson, 43 Plumer v. French, 242, 244 Plumsted v. Rudebagh, 36 Plymouth County Bank v. Gilman, 33 Pocock V. BilHng, 30 Poggensee v. Mut. Fire, L. & F. Ins. Co., 60 Polk's Lessee v. Robertson, 15 Polleys V. Ocean Ins. Co., 27 [_Eefere7ices are to Sections.'} Pomeroy v. Bailey, 288 Poole V. Dicas 161 Porter v. Seller, 297 Portland, etc., R. Co. v. Inhabit- ants of Deering, 79 Potter V. Washburn, 144 Potterfieldv. Com., 63 Potts V. Aechternacht, 127 Potts V. House, 213, 214 Pound V. State, 298 Powell, ex parte, 125 Powell V. State, 64 Powers V. Kansas City, 210 Powers V. Silsby, 171 Powers V. State, 213 Prather v. Johnson, 44 Pratt V. White, 185 Pray v. Farmers' Co -Operative Creamery, 33 Prest V. Mercereau, 178 Prewett v. Coopwood, 27 Price V. Earl of Tarrington, 173 Price V. Hollis, 33 Prideaux v. City of Mineral Point, 256 Priest V. State, 117 Prince v. Smith, 185 Pi'itchett V. State, 64 Probst V. Delamater, 61 Proctor V. Cole, 31 Proctor V. Tows, 36 Proctor V. Old Colony R. Co., 6, 33 Proper v. State, 57 Prosser v. Hartley, 43 Pueblo Building Co. v. Klein, 64, 68 Puett v. Beard, 264 Punderson v. Shaw, 178 Putnam v. Wadley, 218 Q Quaife v. Chicago, etc., R. Co., 266, 268 Queen's Case, 93 Quimby v. Vermont, etc., R. Co., 70 Quinlan v. City of Utica, 63 Quinsigamond Bank v. Hobbs, 95 R Raggett V. Musgrave, 14 Railing V. Com., 192 Raisler v. Springer, 213 Ralph V. Chicago, etc., R. Co., 88 Ralston v. Lahee, 45 Ralston v. Miller, 130 Rambler v. Tryon, 281 Ramsey v. Rushville & M. Gravel Road Co., 63 XXXVl TABLE OF CASES. [Eeferences are to Sections."] Randall v. Beatty, Randle v. Blackburn, Randolph v. Loughlin, Ranger v. Goodrich, Rathbun v. Ross, Rauck V. State, Rawles v. State, 281 23 219 242, 244 95 54, 298 95 Rawls V. Am. Mat. Life Ins. Co. (36 Barb. 357) , 272 Rawls V. Am. Mut. Ins. Co. (27 N. Y. 282), 272,273 Rawson v. Haigh. 253, 280, 282 Ray V. Jackson, 289 Rea V. Harrington, 76, 275 Readman v. Conway, 72 Real V. People, 91 Redden v. Gates, 82 Redding's Lessees v. McCubbin, 171 Redfield v. Buck, 288 Reed v. Burlington, etc., R. Co., 33 Reed v. Davis, 75 Reed v. Jackson, 137 Reed v. New York, etc., R. Co., 264, 271 Reed v. State, 57 Reed v. Vancleve, 30 Reese v. Reese, 218 Regina v. Austen, 189 Regina v. Bedingsfleld, 244 Regina v. Boswell, 103 Regina v. Bull, 294 Regina v. Chapman, 294 Regina v. Dunn, 101 Regina y. Exeter, 155 Regina v. Garner, 102 Regina v. Hagan, 189 Regina v. Harding, 103 Regina v. Hind, 192 Regina v. Holden, 294 Regina v. Holmes, 103 Regina v. Jenkins, 195 Regina V. Kerr, 111 Regina v. Laugher, 102 Regina v. Leatham, 115 Regina v. Megson, 195 Regina v. Moore, 101 Regina v. Reason, 103 Regina v. Rowton, 299 Regina v. Taylor, 101 Regina v. Wainwright, 277 Regina v. Wilshaw, 188 Rehburg v. City of New York, 56 Reid V. Reid, 95 Reiley v. Haynes, 296 Remsen v. People, 298 Reno V. Crane, 14 Eenshaw v. Steamer Pawnee, 31 Respublica v. Davis, 43 Reviere v. Powell, 286 Rex V. Baker, Rex V. Burdett, Rex V. Clewes, Rex V. Clews, Rex V. Cotton, Rex V. Court, Rex V. Crockett, Rex V. Davis, 192 118 119 23 137 103 203 112 Rex v. Eriswell (see Rex v. Inhabi- tants). Rex v. Erith (see Rex v. Inhabi- tants). Rex v. Gay, 20& Rex v. Hardy, 297 Rex v. Higgins, lli> Rex V. Inhabitants (8 East 539), 225 Rex V. Inhabitants of Eriswell, 139 141 224 Rex V. Inhabitants of Erith,' 143' 225 Rex V. Jolliffe, 190 Rex V. Jones, 119 Rex V. Lewis, 91, 112 Rex V. Lloyd, 192 Rex V. Mead, 192 Rex V. Millington, 132 Rex V. Netherlong, 161 Rex V. Partridge, 103 Rex V. Pike, 204 Rex V. Plumer, 10 Rex V. Pountey, 102 Rex V. Rudd, 122 Rex V. Ryton, 151 Rex V. Schaife, 199 Rex V. Simons, 24 Rex V. Thomas, 105 Rex V. Thornton, 111 Rex V. Van Butchell, 195 Rex V. Woodcock, 195 Reyburn v. Belotti, 218 Reynolds v. United States, 188, 189 Reynolds v. State, 198 Reywood v. Reed, 31 Rhea v. State, 54, 227, 228 Rheem v. Snodgrass, 179 Rhodes v. Naglee, 75 Rhutasel v. Stephens, 267 Ribbans v. Crickett, 4 Rice V. State (35 Fla. 236), 298 Rice V. State (3 Heisk. 213), 115 Rice V. Withers, 23 Richards v. City of Oshkosh, 63 Richards v. State, ^ 6 Richardson v. Carey, 170 Richmond v. Richmond, 96 Richmond, etc., Co. v. Allison, 75 Richmond, etc., R. Co. v. Chil- dress, 86 Richmond, etc., R. Co. v. Ham- mond, 263 TABLE OF CASES. XXXVll lEeferences are to Sections.'] Riddle v. Dixon, Riehl V. Evansville Foundry Asso Rigg V. Curgenven, Ringo V. Richardson, Rippey v. Miller, Risk V. State, Robb V. Hackley, Robb V. Schmidt, Robbins v. Spencer, Roberts v. Gee, Roberts v. State, Robertson v. National Steamship Co., 126, Robinson v. Fitchburg, etc., R. Co., Robinson v. Hutchinson, Robinson v. State, Robinson v. United States, Robison v. Fitchburg R. Co., Robison v. Rupert, Roblis' Case, Roche V. Brooklyn, etc., R. Co., 264. 268, Rodgers v. Rodgers, Rogers v. Allen, Rogers v. Crain, 264, Rogers v. McCune, Rogers v. Moor, Rogers v. Rogers, Rogers v. Thurston, Rogers v. Tyley, 208, Rogers v. Wood, Rollins V. Griffin, Root V. Sturdivant, Rose V. Bryant, Rose V. First National Bank, Ross V. Bank of Burlington, Rouch V. Great Western R. Co., Rouse V. Whited, Rowell V. Fuller's Estate, Rowell V. Klein, Rowland v. Phila., etc., R. Co., Rowt's Admx. v. Kite's Admr 1 ,29 12 24 118 81 92 30 289 23 118 127 S Royal V. Chandler, Ruan V. Perry, Ruch V. Rock Island, Rudd V. Robinson, Ruloff V. People, Rundle v. Allison, Russell V. Brosseau, Russell V. Chambers, Russell V. Coffin, Russell V. Frisbie, Russell V. McCall, Rustell V. Macquister, Ruttledge v. State, Ryan v. Dunphy, Ryan v. Gilmer, Ryan v. People, 25 188, 91 117 126 34 84 57 271 281 153 265 263 178 27 288 219 183 68 22 172 221 274 252 22 219 36 266 219 ,171 297 190 14 118 20 242 58 96 242 42 57 54 177 34 Sage V. State, 188, 189, 190 Samples v. People, 28 Sampson M. & M. Co. v. Schaad, 62 Sanborn v. Detroit B. C. & A. R. Co., Com., Johnson, Reister, State, V. Frazier, Miller, 64 298 264, 271 110 60 176 286 219 296 176, 180 31,45 5 Sanders v. Sanders v. Sanders v. Sanders v. Sanderson Sanford v. Sanger v. Colbert, Sankey v. Cook, Sanscrainte v. Torongo, Sargeant v. Pettibone, Sargeant v. Sargeant, Sauls V. State, Saunders' Appeal, 27 Saunders v. Gallagher, 61 Savage v. Murphy, 30 Savannah, etc., R. Co. v. Flanna- gan, 68 Savior V. Com., 206 Sciiarff V. Keener, 144 Schearer v. Harber, 33 Schettler v. Jones, 186 Schmidt v. Durnham, 84 Schoneman v. Fegely, 68 Schoolcraft v. People, 279 Schooner Reeside, 126 Schroeder v. Chicago, etc., R. Co., 86 Schulz V. Railroad Co., 91 Schuster v. State, 90 Schwarzbach v. Ohio Valley Pro. Union, 272 Scott v. Berkshire Sav. Bank, 156 Scott V. Coleman, 30 Scott V. Crane, 36 Scott V. Donovan, 81 Scott V. Hale, 296 Scott V. Hartley, 126 Scott V. Home Ins. Co., 33 Scott V. People, 57 Scott V. State (30 Ala. 503), 28 Scott V. State (64 Ind. 400), 91 Scott V. State (56 Miss. 287), 61 Scott Co. V. Fluke, 155 Searle v. Barrington, 172 Sears v. Kings Co. Elevated R. Co., 13 Seasy v. Glenwood, 76 Seattle, etc., R. Co. v. Murphine, 79 Seavy v. Shurick, 126 Seccomb v. Provincial Ins. Co., 126 Seeley v. Town of Litchfield, 128 Self V. State, 110 Seller v. Jenkins, 94 XXXVlll TABLE OF CASES. [Beferences are to Sections.'] Sellers v. Stevenson, 13 Seligman v. Rogers, 51 Selma, etc., R. Co. v. Keith, 79 Selvidge v. State, 115 Senn v. So. Pac. R. Co., 290 Senter v. Carr, 299 Sessions v. Little, 242 Settle V. Alison, 20 Severance v. Lombardo, 178 Sewart v. Everts, 266 Sexson v. Hoover, 76 Shaber v. Railroad Co., 68, 75 Shaffner v. Com., 57 Sliailer v. Bumstead, 30, 281 Shaller v. Brand, 22, 151 Sbattuck V. Railroad, 79 Shauver v. Phillips, 242 Shaver v. Ehle, 20 Shaw V. Broom, 30 Shaw V. People, 199 Shaw V. Van Rensselaer, 86 Shav V. Thompson, 84 Sheahan v. Collins, 298 Shearer v. Clay, 143 Shearman v. Atkins, 44 Sheehan v. Fleetham, 40 Sheffield v. Sheffield, 24 Shelbj' v. Governor, 43 Sheldon v. Railroad, 67, 68 Shell V. State, 203 Shelley v. AVright, 18 Shepard v. Mo. Pac. R. Co., 86 Shepard v. Parker, 91 Shepherd v. People, 59 Sherman v. Crosby, 44 Sherman v. Sherman, 11 Shewalter v. Bergman, 298 Shields v. Boucher, 142, 143 Shields v. State, 87, 106 Shinners v. Proprietors, 72 Shippen & Robbin's Appeal, 85 Shoecraft v. State, 260 Shoemaker v. Benedict, 26 Shoemaker v. Kellog, 177 Shook V. Pate, 130 Shorb V. Kinzie, 220 Short V. Northern Pac. El. Co., 33 Shorten v. Judd, 81 Shorer v. Myrick, 85 Shrewsbury Peerage (7 H. of L. Cases 1), 141 Shrewsburv Peerage (7 H. of L. Cases 123), 141 Shriedlev v. State, 57 Shulte v^ Thompson, 296 Sible v. State, 54, 228 Sibley v. Smith, 86 Sickles V. Mather, 180 Sidekum v. Wabash, etc., R. Co., 62 Sidelinger v. Bucklin, Siebert v. People, 87, Siltzell V. Mitchell, Silva V. Pickard, Simmermain v. State, Simmons v. Fay, Simmons v. Spratt, Simms v. Kirtley, Simon v. State, Simpson v. Carleton, Simpson v. Smith, Simpson v. Westenberger, Sims V. Moore, Singer Mfg. Co. v. Coon, Sioux City & P. R. Co. v. Finlay- son, Sisson V. Cleveland, etc., R. Co., 34, Sitler V. Gehr, Skottowe V. Oregon, etc., R. Co., Slack V. Buchanan, Slatterie v. Pooley, 17, 18 Slaymaker v. Gundacker's Execu- tors, Sleeper v. Van Middlesworth, Slipp v. Hartley, Sloan V. Coburn, Sloman v. Heme, Smallej' v. City of Appleton, Smith V. Battens, Smith V. Blandy, Smith V. Briscoe, Smith V. Chicago, etc., R. Co., Smith V. City of Des Moines, Smith V. Clews, Smith V. Com., Smith V. Cramer, 280, Smith V. Dawley, Smith V. Fenner, Smith V. Forrest, Smith V. Griffith, Smith V. Hunt, Smith V. Jones, Smith V. King, Smith V. Law, Smith V. Ludlow, Smith V. Lyon, Smith V. ^ieiser. 130, Smith Smith Smith Smith Smith Smith V Smith V Xat'l Ben. Assc, Nowells, Palmer, Patterson, Railroad Co., Sanford, Shoemaker, Smith V. Simmes, , 86 297 277 19 92 296 80 190 14 104 31 214 297 22 43 86 212 141 72 15 , 20 27 95 40 288 49 213 172 23 89 210 62 126 118 282 255 281 171 296 23 22 221 177 26 48 50 280 132 17 144 67 180 10 31 TABLE OF CASES. XXXIX IBeferetices are to Sections.'\ Smith V. Smith, 30 Smith V. State (9 Ala. 990), 227 Smith V. State (88 Ala. 73), 287 Smith V. State (64 Md. 25), 91 Smith V. State (58 Miss. 867), 95 Smith V. State (17 Neb. 358), 57, 117 Smith V. State (2 Ohio St. 511). 66 Smith V. State (12 Ohio St. 446) , 191 Smith V. Vincent, Smith V. Walton, Smith V. Whittier, Smith V. Wilson, Snavely v. McPherson, Sneed v. State, Snelgrove v. Martin, Snell V. Bray, Snell V. Gregory, Snelhng's Will, In re. Snow V. Grace, Snow V. State, Snowden v. Warder, Snyder v. Witwer, Solita V. Yarrow, Somerville v. State, Souder v. Schechterly, South V. People, Southern, etc., R. Co. ' 48,50 218 38, 224 126 170 188 30 13 89 210 95 227 127 213 220 59 31, 228 117 Robbins, 68, 128 Southern Life Ins. Co. v. Booker, 272 Southwell V. Bowditch Spalding v. Albin, Spalding v. Hedges, Spann v. Baltzell, Spargo V. Brown, Sparrow v. Hovey, Spears v. Forest, Spencer v. Fortesque, Spencer v. Robbins, Spies V. People, Sprague v. Atlee, Sprague v. Kneeland, Springer v. Hall, Springfield Cons. R. Co. v.Welch, Squire v. State, St. Clair v. United States, St. .Joseph, etc., R. Co. v. Chase, St. Louis, etc., R. Co. v. Chapman, 125 288 138 161, 166 45 289, 296 95 22, 23 90 10, 29 213, 214 31 220 259 16 118 67 212 St. Louis, etc., R. Co. v. Johnson, 7 St. Louis, etc., R. Co V. Jones, 60, 72, 85 St. Louis, etc., R. Co. V. Murray, St. Louis, etc., R. Co. v. Thomas, St. Louis, etc., R. Co. v. Weaver, Staal V. Grand Rapids, etc., R. Co., Stacy V. Graham, Stafford v. City of Oskaloosa, Stamper v. Griffin, 290 10 72 75 93 75 96 Starkey Staser v State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V, State V, State V. State V, State V State V State V State V State V 195, 202, 203 91, 296 87, 118 V. People, . Hogan, Ah Chuey, Archer, Armstrong, Bacon, Baker, Beaudet, Beck, Beyers, Bilansky, Black (42 La. Ann. 861), Black (15 Mont. 143), Bonsor, Borie, Brooks, Bruce, Burpee, Bvrne, Cain (9 W. Va. 559), Cain (20 W. Va. 679), Cameron, 96 16 91 57 54, 228 54 Campbell, Cantieny, Cardelli, Carr, Carson, Center, Chee Gong, Cherry, Christian, Cleaves, Clifford, Clinton, Coella, Coffee, Cook, Cousins, Covington, , Craemer, , Crowder, . Cruse, . Daley, . Danforth, . Darnell, . Dart, . Daugherty, Davidson, , Davis, Deitrick, , Deuble, , Desforges, . DeWolf, , Dickenson, . Dickinson, . Dillon, . Diskin, . Donnelly, . Driscoll, 189 91 199 91 58 54, 58 106 95 51 191 142 294 206 191, 298 202 118 98 91 199 91 96 95 5 112 91, 219 211 112 276 9 25 287 13 112 298 81 105 277 243, 253 117, 264 64, 228 299 247 96 96, 191 277 192 13 7 199, 213 260 xl TABLE OF CASES. l^Beferences are to Sections.'\ State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. Dula, 279 State V. Johnson (40 Kan. 266), Duncan, 228 28,95 Eaton, 294 State V. Johnson (47 La. Ann. Eddow, 203, 298 — ), 92,93 Egan, 95 State V. Johnson (1 Mo. App. Elliott, 189 219), 212 Ellwood, 9 State V. Justus, 66 Emery, 298 State V. Kaiser, 290 Espinozei, 95 State V. Keefe, 54 Farmer, 91 State V. Kellar, 118 Feltes, 113 State V. Kent, 90 Field, 57 State V. Kindle, 193 206 Fields, 116 State V. King, 31 Findley, 113 State V. Kinkle, 59 Fitzgerald, 189 State V. Kinney, 191 Fletcher, 227 State V. Kirby, 111 Flint, 92 State V. Kline, 59 Flynn, 87 State V. Knapp, 191 Forshner, 95 State V. Knowles, 117 Furney, 202 State V. Laliyer, 117 Gainor, 287 State V. Lamb, 117 Garrand, 252 State V. Lapage, 57 Garrett, 87 State V. Larkin, 95 George, 29,92 State V. Lawhorn, 91 Glahn, 54 State V. Lee (22 Minn. 407), 299 Goetz, 57 State V. Lee (17 Ore. 488), 13 Gorham, 120 State V. Lewis (20 Nev 333), 214 Gould, 104 State V. Lewis (19 Ore. 478), 57 Graham, J 57,87 State V. Libby, 16 Grammer, 43 State V. Lindley, 298 Grate, 96 State V. Loveless, 118 Grear, 113 State V. McCartey, 91 Guild, 104 State V. McCarthy, 298 Guillory, 226 State V. McClain, 142 Hack, 227 State V. McDonald, 16 Hallack, 57 State V. McFarlain, 91 Harper, 192 State V. McGahey, 294 Harris, 54 State V. McGee, 28,29 Harrison, 108 State V. Ma Foo, 13 Hastings, 219 State V. Markins, 58 Hendricks, 296 State V. Martin (28 Mo. 530), 22 Hilton, 16 State V. Martin (124 Mc .514), Hogard, 117 238, 239 260 Holden, 101, 120 State V. Martin (2 Ired. L. 101), 294 Howard (9 N. H. 486), 95 State V. Marvin, 16 Howard (32 Vt. 380), 277 State V. Mathes, 203 Hull, 298 State v. Mathews, 112 Hunt, 25 State V. Meekins, 103 Hunsaker, 93 State V. Middleham, 294 Hutchinson, 119 State V. Miller (42 La. Ann. 1186) 120 Ivans, 191 State V. Miller (45 Minn. 521), 13 Ivey, 91 State V. Miller (47 Wis. 530), 219 Jacobs, 87 State V. Mims, 98, 104 Jackson, 57 State V. Mitchell (68 Iowa 116), 191 James, 213 State V. Mitchell (41 La . Ann. Jamison, 57 1073), 298 Jerome, 298 State V. Molisse, 229 Jones, 277 State V. Moncla, 13 Jordan, 287 State V. Moore (81 Iowa 578), 51 TABLE OF CASES. xli [Beferences are to Sections.'] State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. State V. Moore (117 Mo. 395), Mortimer, Mulkern, Mullins, Murphy, Murray, Nash, Nelson, Newton, Nettlebush, Niles, 260 115 191 9 91, 244 7 193, 195 299 43 199 191 91 290 51 82 298 57,59 200 203 198, 199 5 161, 162 13, 480 213 O'Brien, Oliver, O'Neil, O'Reilly, Painter, Palmer, Patterson, Pearce, Perigo, Perkins, Phair, Phelps, Pike, Place, 57 Porter, 92 Potter, 298 Potts, 95 Probasco, 91 Prudhomme, 87 Punshon, 283 Rainsbarger, 213 Reed (62 Me. 129), 5 Reed (39 Vt. 417), 298 Reid, 191 Rhoades, 43 Richards, 191 Rider, 95 Riley, 188, 189, 290 Roberts (1 Dev. 259), 102, 104 Roberts (81 N. Car. 605), 91 Roberts (63 Vt. 139), 294 Rogers, 112 Ross, 29 Schmidt, 197 Scott, 117 Seals, 16 Shettleworth, 191 Shields, 95 Shinborn, 213 Slingerland, 298 Smallwood, 294 Smith (35 Kan. 618), 227 Smith (72 Miss. 420), 100 Sorter, 89 Staples, 188 Stewart, 91 Swiftf 283 Talbert, 195 State V. Taylor, 91, 95 State V. Terrell, 192 State V. Thompson, 219 State V. Tippet, 96 State V. Turpin, 54 State V. Tweedy, 206 State V. Van Sant, 203 State V. Vickers, 89 State V. Walker, 242 State V. Ward (73 Iowa 532), 298 State V. Ward (61 Vt. 153), 57, 59 State V. Watkins, 59 State V. Weaver, 29 State V. Wells, 91 State V. Wensell, 195 State V. West (45 La. Ann. 14, 928), 227 State V. West (46 La. Ann. 1009), 296 State V. White. 227 State V. Wilkins, 60, 191 State V. Williams (40 La. Ann. 168), 54 State V. Williams (2 Rich. 418), 57 State V. Williams (7 Jones N. Car. 446), State V 118 Williams (67 N. Car. 12), 199, 214a State V. Wilson, 16 State V. Winner, 29 State V. Windahl, 82 State V. Winter, 85 State V. Wisdom, 112 State V. Witham, 57, 58 State V. Woodruff, 81 State V. Young (41 La. Ann. 94), 287 State V. Young (99 Mo. 666), 5 Staring v. Bowen, 150 Staser v. Hogan, 90 Steamboat Chipper v. Logan, 213 Stearns v. Field, 210 Steele v. Pac. Coast, etc., R. Co., 67 Steele v. People, 57 Steele v. Prick ett, 135 Stephen v. McCloy, 286 Stephen v. State, 117, 191 Stevenson v. Gunning's Estate, 96 Stephenson v. State, 213 Stevenson v. Stewart, 51 Stevenson's Heirs v. McReary, 152 Stein V. Bowman, 141 Steinbrunner v. Pittsburg, etc., R. Co., 85 Steinhofel v. Chicago, etc., R. Co., 240 Sterrett V. Bull, . 183 Stetson V. Freeman, 130 Stewart v. Everts, 271 Stewart v. Inhabitants, 22 Stewart v. Kindel, 90 Stewart v. Redditt, 213 xlii TABLE OF CASES. {^References are to Sections.'] Stewart v. Spedden, 214 Stewart v. State (64 Miss. 626), 58 Stewart v. State (22 Ohio St. 477), 298 Stewart v. Thomas, 31 Stevens v. Irwin, 20, 95 Stevens v. Vancleve, 281 Stiles V. Western R. Corp., 34 Stinson v. Chicago, etc., R. Co., 79 Stitt V. Huidekopers, 88 Stitz V. State, 59 Stockfleth V. De Tastet, 15 Stocking V. State, 118 Stockman v. State, 287 Stoddard v. Winchester, 210 Stoher v. St. Louis, etc., R. Co., 71 Stokes V. People, 54 Stokes V. State, 87 Stokes V. United States, 95 Stolp V. Blair, 92 Stone V. Moore, 213 Stone V. State (105 Ala. 60), 107 Stone V. State(22Tex. App. 185), 296 Stone V. Varney, 297 Stoner v. Ellis, 30 Stappert v. Nierle, 297 Storms V. Lemon, 212 Stow V. Tifft, 73 Stowe V. Bishop, 16, 208 Stowe V. Heywood, 275 Strang v. People, 298 Strange v. Donohue, 242 Stranger V. Searle, 218 Stratton v. Dole, 76 Strong V. Dwight, 3 Strong V. Grand Trunk R. Co., 126 Strong V. State, 57 Strother v. Lucas, 219 Stroud V. Springfield, 152, 170 Strudgeon v. Village of Sand Beach, 62 Stuart V. Havens, 86 Stuart V. Kissman, 50 Sturgeon v. Sturgeon, 264 Sturla V. Freccia, 224 Sullivan v. Com., 66 Sullivan v. Hurley, 58 Sullivan v. Kuykendall, 33 Sullivan v. Lear, 212 Sullivan v. McMillan, 10 Sullivan v. O'Leary, 57 Sullivan v. Oregon, R. & N. Co., 251 Sullivan v. State (102 Ala. 335), 198. 199 Sullivan v. State (6 Tex. App. 319), 189 Summons v. State, 189 Sun Fire Office v. Ayerts, 95 Supreme Lodge Knights of Pythias, V. Schmidt, 272, 273 Susquehanna Fert. Co. v. White, 126, 127 Sussex Peerage Case, 155 Sutton V. Johnson, 57 Sutton V. Ridgway, 141 Sutton V. Tatham, 127 Sutton v. Town of Vernon, 64 Swadley v. Mo. Pac. R. Co., 71 Swales V. Grubbs, 219 Swan V. County of Middlesex, 212 Sweeney v. Thomason, 126 Sweet V. Sherman, 96 Sweet v. Wood, 40 Swift v. Mass. Mut. L. Ins. Co., 272 Swisher v. Com., 202 Tabb V. Cabell, Tacket v. May, Taggart v. Fox, Talbott V. Hedge, Talcott V. Harris, Tate v. Southard, Tate v. Tate, Taylor v. Hawkins, Taylor v. Hess, Taylor, In re, Taylor v. Kinloch, Taylor v. Lusk, Taylor v. Robinson, Taylor v. Shufford, Teachout v. People, Tebo V. Augusta, Tedrowe v. Esher, Tennev v. Evans, Tenney v. Tuttle, 3 95 180 218 10 139 155 144 30 242 49 288 288 130 112 210 288 45, 286, 289 68 Tennis v. Interstate C. R. T. R. Co., 263 Terre Haute, etc., R. Co. v. Clem, 72 Terrill v. Beecher, 179 Territory v. Chartrand, 296 Territory v. Clayton, 263 Territory v. Conk, 269 Territory v. Davis, 244 Territory v. Hanna, 294 Territory v. Hart, 214 Territory v. O'Hare, 91, 218 Territory v. Stone, 296 Territory v. Underwood, 120 Tesse v. Huntingdon, 95 Texas, etc., R. Co. v. Barron, 264 Texas, etc., R. Co. v. Raney, 96 Texas L. & L. Co. v. Watson, 36 Thallhimer v. Brinckerhoff, 34 Thatcher v. Maine Cent. R. Co., 67 Thayer v. Boston, 282 TABLE OF CASES. xliii [JSe/erences are to Sections.'] Thayer V. Thayer, 58 The Count Joannes v. Bennett, i^ The Fred M. Lawrence, 9 The Mussel Slough Case, ^^ ^^^ J^ Thistlewait v.Thistlewait, 54, 15&, ^»i 139 149 149 43 10 264 139 56.57 151 58 120 79 288 188 283 22 126 79 51 294 Thoen v. Roche, Thomas v. Benyon, Thomas v. Beyton, Thomas v. Blake, Thomas v. Gage, Thomas v. Herrall, Thomas v. Jenkins, Thompson v. Bowie, Thompson v. Bullock, Thompson v. Clendening, Thompson v. Com., Thompson, Li re, Thompson v. Mawhinny, Thompson v. State (106 Ala. 67), Thompson v. State (30 Tex. App. 325) Thompson v. Thompson (13 Ohio St. 356), ,^ ^ , ^' ^' Thompson v. Thompson (9 Ind. 323) 13, 24, ol, /o» Thompson v. Toledo, etc., R. Co., 72 Thompson v. Trevanion, ^m, ^^^ Thompson's Cases, 1^-; Thorn v. Smith, 4^ Thorndell v. Morrison, ^»^ Thornton v. Thornton, 89 Thornton's Case, 1^^ Thrall v. Smiley, -^^ Thurston v. Murray, " Tickel V. Short, }}. Tillev V. County of Cook, 12b, Ui Tilson V. Terwilliger, 242, 243,244, 250 Titford V. Knott, 21 8 Titus V. Ash, y^ Tobin V. Shaw, ^i^. -^^^ Todd V. Inhab. of Rowley, b& Toledo, etc., R. Co. v. City of TJtica, 63 Toledo, etc., R. Co. v. Milligan, 63 Toledo, etc., R. Co. v. Smith, 76 Tome V. Parkersburg, etc., R. Co., 82 22 Trelawney v. Coleman, Troy Fertilizer Co. v. Logan, Trueman v. Loder, Truitt V. Baird, Trull V. True, Trustees University of N. Car Roe, Trustees of Village of Watertown V. Co wen, 27 Tubbs V. Garrison, ^^^ Tucker v. Hyatt, 2...1 Tucker v. Kellogg, 218, 219 Tudor Iron Works v. Weber, 86 Tunn V. Rogers, 183 Turner v. Child, 23 Turner V. Crisp, oo^'Ji Turner v. Jenkins, 22, 45 Turner v. People, 191 Turner v. Phoenix Ins. Co., 22 Turner v. State (102 Ind. 425), 13, 57 Turner v. State (89 Tenn. 547), Turney v. Wilson, Turnpike Co. v. Baily, Turquand, Ex parte, Tuttle V. Rainey, Tyler v. Todd, U 206 126 86 125 218 222 42 264 79 43 160 60 94 Towers v. Moor, Towle V. Blake, Town of Cherokee v. Land Co., Town of Union v. Bermes, Townsend v. Petterell, Tracy v. McManus, Trapnell v. Conklyn, Travelers' Ins. Co. v. Mosley, 244, 248, 251, Travelers' Ins. Co. v. Sheppard, 6, 242 Treadway v. Treadway, 185 Treager v. Jackson Coal and Min- ing Co., 36 1 Udderzook v. Com., 81, 82 Uhler V. Browning, 40 Union Bank v. Knapp, 154, 182, 183 Union Cent. L. Ins. Co. v. Chee Union Nat. Bank v. Underbill, Union Pac. R. Co. v. Botsford, Union Pac, etc., R. Co. v. Wil- liams, United States v. Boese, United States v. Brig Burdett, United States v. Brown, United States v. Cole, United States v. Craig, United States v. Doyle, United States v. Guiteau, United States v. Kirkwood, United States v. Leighton, United States v. Mulholland, 227, 228 United States v. Ross, ,^Y 'ino United States v. Stone, 101, 102 United States v. Tenney, 16, 113, 295 272 40 86 79 117 36 7 29 57 30 214 112 54 280 United States v. Van Sickle, United States v. Wood, United States Bank v. Binney, United States Express Co. v. Jen- kins, _, ^ United States Express Co. v. Raw son, Unruh v. State, 95 190 14 53 36 24 xliv V 91 104 Hart- 126, 127 33 30 25 26 40 43 220 128 Van Bokkelein v. Berdell, Van Buren v. State, Van Camp Canning Co. v man, Van Dusen v. Letellier, Van Duyne v. Thayre, Van Fleet v. Van Fleet, Van Keuren v. Parmelee, Vannov v. Klein, ^ „ « , Van Sickel v. County of Buffalo, Van Wyck v. Mcintosh, Veginanv. Morse, Veiths V. Hagge, f--^ ^' ' Vicksburg, etc., R. Co. v. O'Brien, 34 Vicksburg, etc., R. Co. v. P^tnam,^ ^^ Viles V. City of AValtham 282:285 Village of Ponca v. Crawford, ^hy Vinal V. Gilman, i°^ Vogel V. Osborne, ^. ^^ Voisinv. Conn. Ins. Co., i>^ Voorhees v. Presbyterian Church Co. TABLE OF CASES. [iZe/erences are to Sections.'] Walter v. Ballman, Walter v. Gernant, Walters v. Chicago, etc., R Walthall V. Johnston, Walton V. Green, Warburton v. Camp, Ward V. Charleston City R. Co Ward V. White, Warden v. Johnson, AVare v. Cartledge, Warlick v. White, Warner v. Com., Warren v. Greenville, Warren v. Moore, Warren v. Nichols, Warren v. State, Warwick v. Elsey, AVarickshall's Case, Wash V. Com., Washburn v. Railroad Co., Washington v. State, AVashington Life Ins. Co. v. Ha- ^^^ 180 290 85 30 293 6 213 253 176 76 81 16, 297 161 49 190 198 57 116 57 79 120 ney. of Amsterdam, Vowles V. Young, Vrooman v. King, 19 141 30,31 w 96 95 264 22 93 22 45 281 84 127 142 190 79 Wachstetter v. State, AVaddingham v. Hulett, AVadlow V. Ferryman, AVaggoner v. Gray, AVagner v. State, Availing v. Toll, ^ ^ oo Wakefield Rattan Co. v. Tappan, 66 Waldele v. New York, etc., ^•^^■'^^^ Walker v. Com., ^^ Walker v. Dunspaugh, ^' AValker v. Farmers' Ins. Co., 6^ Walker v. Lake Shore, etc., R. Co., ^I'i ^£v;IS('lb2Ind.502),296,W Walker v. State (7 Tex. Cr. App. 245\ °' Walker v. State (6 Tex. App. 576), 54, Z-io Walker v. Transportation Co., 127 Wall V. State, 19'] Wallace v. Berger, -* Wallace v. Howard, ^66 Walhs V. Randall, J^ Wallis V. AVood, f»o Walls V. Bailey, 1^^ Walls V. State, ^9 Walrod v. Ball, ^^ 186 5 49 184 76,77 45 AA''aterman v. Lawrence, AVaterman v. AVhitney, AVaters v. Brown, AVaters v. Lilley, AVatson v. Brewster, AVatson v. Gilday, AA''atson v. Railroad Co., AVatson v. AVatson, AVatt V. Howard, AVatt V. People, AVatts V. Thorp, AVeamer v. Juart, AVebb V. Oilman, AVebb V. Smith, AVebb V. State, AA''ebb v. Steele, AVebber v. Hanke, AVebster v. Le Compte, AVeeks v. Inhabitants of Needham,^^^ Weeks v. Sparks, 1^1, 148 AVeidman v. Kohr, ^ AVeinrich v. Porter, ^ AVelch V. State, «" AVelcome V. Mitchell, ^8» AVeld V. Brook, l^i. i^- AVellington v. Boston & M. R., o^ AA^ells V. Fairbank, ^^ AVelsh V. Barret, 160, 151, 1»^ 57 96 45 95 46 AVelsh V. Sayre, AVendt v. Chicago, etc., R. <^o., AVentworth v. Eastern R. Co., Wentworth v. Smith, AVerely v. Persons, Wertz V. May, West V. Davis, 86 90 61 68 264 96 19 TABLE OF CASES. xlv [^Beferences are to Sections. '\ West V. State, 227 Westbrook v. People, " 195 Westchester, etc., R. Co. v. Mc- Elwee, 72 Westcott V. Thompson, 126 Westfield v. Warren, 143 Western Boatman's Ben. Asso. v. Kribben, 33 Western Stage Co. v. Walker, 40 Western Union Tel. Co. v. Ad- ams, 275 Western Union Tel. Co. v. Levi, 62 Western Union Tel. Co. v. Way, 34 Westmoreland v. State, 25 Wetherbee v. Marsh, 298 Wetmore v. Mell, 242 Whaly V. State, 104 Wheatcroft v. Hickman, 40 Wheeler V. Walker, 161 Whelan v. Lynch, 212 Whitaker v. Brown, 31 Whitaker v. Eighth Ave. R. Co., 257 Whitcomb v. Whiting, 26 White v. Chouteau, 163 White V. Gregorv, 76 White v. Lisle, " 135 White V. Milwaukee City R. Co., 86 White V. Murtland, 76 White S. M. Co. v. Gordon, 82, 219 White V. Rayburn, 272, 279, 292 White V. State (87 Ala. 24), 89 White V. State (3 Heisk. 338), 113, 115 Whitelock v. Baker, 133 Whitescarver v. Bonney, 36 Whitman v. Morey, 22, 89 Whitnash v. George, 43 Whitney v. Elmer, 77 Whitney v. Sawyer, 180 Whitney v. Sterling, 40 Whitney v. Thatcher, 212 Whiton V. Snyder, 27 Whitsett V. Chicago, etc., R. Co., 128 Whittier v. Town of Franklin, 65, 213 Whittuck v. Waters, 143 Whitwell v. Wver, 22 Wick V. Baldwin, 91, 96 Wiggin V. Plumer, 242, 244 Wiggins V. Burkham, 11 Wiggins V. Holman, 93 Wiggins V. People, 54 Wigglesworth v. Dallison, 125, 126 Wilbur V. Flood, 91 Wilbur V. Seldon, 170, 188, 190 Wilcox V. Wood, 127 Wilder v. City of St. Paul, 188 Wilkins v. Ferrell, 290 Wilkins v. Stidger, 5, 9 Wilkinson v. Moseley, 213 Willard v. Stone, 84 Willey V. City of Portsmouth, 36 Williams v. Bowden, 250 Williams v. Bridges, 49 Williams v. Conger, 220 AVilliams v. Innes, 33 Williams v. Judy, 30 AVilliams v. Lewis, 40 Williams v. People, 107 Williams v. State (103 Ala. 33), 119 Williams v. State (44 Ala. 24), 16 Williams v. State (Miss., 16 So. Rep. 296), 120 Williams v. State (22 Tex. App. 497), 13 Williams v. Walker, 20, 89 Williamson v. Cambridge R. Co., 291 Willis v. Holmes, 49 Willis V. Jernegan, 11 Willis V. Lewis, 88 Willoughby v. Carleton, 20 Wilmington v. Burlington, 143 Wilmot v. Richardson, 80 Boerem, 192 N. Y., etc., R. Co., 213 Shepler, 76 State (84 Ala. 426), 112, 120 State (30 Fla. 234), 54 State (3 Wis. 698), 95 Webster, 283 Norman, 219, 220 Winchester v. Creary, 40 Winchester, etc., Mfg. Co. v. Clearv, 94 Winter v. Central Iowa R. Co., 213 Winter v. Wroot, 283 Wise V. AVynn, 141, 143 Witcomb V. Whiting, 45 Withers v. Gillespy, 22 Wolcott V. Hall, 298 Wolf V. Wyeth, 190 Wolfe V. Mo. Pac. R. Co., 33 Wood V. Braddick, 41 Wood V. Keyes, 190 Woodman v. Dana, 210 Woodruff V. Scaife, 40 Woodruff V. Whittlesey, 30 Woodworth v. Mills, 297 Woods V. Banks, 242, 244 Woodsides v. State, 193 Woodstock Iron Co. v. Roberts, 214 Wooley V. Railroad Co., 64 Woolfolk V. State, 25, 54, 105, 228 Woolsey v. Bohn, 180 Woolway v. Rowe, 30 Wprden v. Humeston & S. R. Co., 36 Wormsdorf v. Detroit City R. Co.,' 33, 36, 296 Worth V. Chicago, etc., R. Co., 276 Wren v. Parker, 289 Wilson V. Wilson V. Wilson Wilson Wilson Wilson Wilton Winch xlvi TABLE OF CASES. {^Eeferences are to Sections.'] Wright V. Beckett, 89 AVright V. City of Boston, 242, 282 AVriglit V. City of Fort Howard, 213 Wright V. McKee, 297 Wright V. Weimeister, 33 AVroe v. State, 91, 199, 204 Wrottesley v. Bendish, 45 Wynne v. Glidewell, , 31 Wynne v. Trywhitt, 149 Yahoola, etc., Mining Co. v.Irby, 144 Yale V. Dart, 5 Yarborough v. Moss, 242 Yarbrough v. State, 67, 95 Yate V. William, 4 Yates V. Yates, Yates V. Harris, Yates V. People, Yates V. State, Yordy v. ^larshall Co., Young V. Dearborn, Young V. Jones, Young V. Smith, Young V. State, Young V. AVright, Yost V. Conroy, Yost V. Ditch, z Zeigler v. Eckert, Zeitzer v. Merkel, 219 153 66 115, 117 27, 39 190 178 40 110 38 208 264 281 297 INDIRECT AND COLLATERAL EVIDENCE CHAPTER I. ADMISSIONS. §1. 2. 3. 4. 5. 6. 7. 8. 10. 11. 12. 13. 14. §21. 15. 16. 17. 18. 19. 20. Term, how used— Reason for re- ceiving admissions. Admissions before interest at- tached. Admissions in pleadings. Paying money into court. Admissions implied from silence. Silence when claim asserted. Silence while under a criminal charge. Silence where thero is no right to speak. Same subject — Silence during court proceedings. • Unanswered letter. Admissions by acquiescence. Collateral admissions. Admissions by conduct. Admissions by possession of books and documents, and im- plemei>ts of crime. Admissions made under compul- sion. Admissions of matter of law. Admissions as to writing. Same subject— Admissions are primary evidence. Recitals in deeds. Doctrine as to attested docu- ments. (1) 22. 23. 24. 25. 26. 32 33 Incomplete and canceled ad- missions. Whole of admission, explaining or modifying context, must go in. Each part of the statement not entitled to equal weight. Weight of admissions. Practice as to receiving admis- sions. Admissions by persons having joint interest— Joint and sev- eral obligation. A mere community of interest is not enough. Admissions of co-conspirators. Proof of conspiracy. Declarations of predecessors in title. Admissions not competent after purchaser's rights have at- tached. Statements of agent in making contract. Admissions of agent in matters where he is authorized to speak. Res gestce statements of agents. , The mere admissions of agents are not competent. 2 INDIRECT AND COLLATERAL EVIDENCE. § 1 §36. Proof of agency. §44. Receipts and oral acknowledg- 37. Admissions of agents of corpora- ments of others as admissions. tions. 45. Admissions of trustees. 38. Admissions of attorneys. 46. Admissions of trustees before 39. Admissions of public officers. clothed with trust. 40. Admissions of partners. 47. Admissions by party in differ- 41. Admissions of partners after ent capacity. voluntary dissolution. 48. Admissions of person interested 42. Admissions of surviving part- who is not a party. ners. 49. Admissions of strangers, when 43. Admissions of principals as receivable. against sureties. 50. Admissions of co-plaintiffs and co-defendants. § 1. Term, how used — Reason for receiving admissions. — The term admissions, as ordinarily used in the books, refers to the non-contractual, self-disserving statements of parties to the record or their privies, whether in civil or criminal cases, excluding, however, direct acknowledgments of guilt, which, when made in the latter class of cases, are termed confessions. "On a principle of good faith and mutual convenience, a man's own acts are evidence against himself . " ' The force of the state- ment of Gibson, C. J.,^ that the pocket is "as good a touch- stone of truth as the conscience," is appreciated, but the ob- servation of the learned chief justice does not exhaust the philosophy of the competency of admissions, as an effort will be made to show in the next section. The self-disserving statements of third persons, not in privity with the litigant, are received only in a limited class of cases, ^ A reason for this distinction can not be suggested which will meet every case. As applicable to most cases, however, it maybe suggested, since there may be an undisclosed motive overbalancing the appar- ent one, that a good reason ordinarily for excluding the dec- larations of third persons contrary to their seeming interest lies in the fact that the party can not always prove, or his counsel suggest in argument, the explanation, if any there be, which will neutralize, or break the force of, the declaration. * 1 Starkie on Ev., vol. 1, p. 59. ' See post, chapters v, vi, ix. 2 Riddle v. Dixon, 2 Pa. St. 372, 44 Am. Dec. 207. § 2 ADMISSIONS. 3 Admissions will admit of a further sub-classification, as the black letter words of the sections of this chapter will indicate, but such statements may be classified, in a general way, as ex- press and implied. § 2. Admissions before interest attached. — Every individual is under an implied compact with society to speak the truth. He ought not to complain, therefore, if a court of justice should adjust his affairs, when required to do so, in accord- ance with his statement concerning them, even if he had no interest at the time which was disserved by what he said. There are, however, a few decisions in which the courts have been so tender of convicting parties out of their own mouths that they insist that the declaration must be self- disserving, if it is admitted. The particular holding in these cases is that the admissions of a devisee or legatee as to the testator's mental condition, made before the execution of the will, are not competent, because the statements were not at the time opposed to the declarant's interest.^ This ruling has met with deserved dissent elsewhere.^ The doctrine is recog- nized, and will be elsewhere discussed," that the admissions of parties who represent others, made before they were clothed with their trust, are not competent, but this rule is not, for the benefit of such parties, but for the protection of those whom they represent. It sometimes happens that at the time a state- ment is made it is not against interest, but that subsequently an unapprehended event is born, which, because of its relation to the fact admitted, makes the former indifferent statement one that the party making it would gladly recall. A man is found murdered. A person is put on trial for the offense, and it hap- pens that he admitted that he was in the company of the de- ceased at a time and place which, if the fact were true, would be a link in the chain of evidence against the defendant. Ac- cording to the principle of the criticised cases, instead of accept- ing the defendant's statement, if satisfactorily proved, that he » Thompson v. Thompson, 13 Ohio overruling Dillard v. Dillard, 2 Strob. St. 356; Burton v. Scott, 3 Rand. 399. 89. See IMorton v. Massie, 3 Mo. 482. *Peeples v. Stevens, 8 Rich. L. 198, ^Fost, §46. 4 INDIRECT AND COLLATERAL EVIDENCE. § 3 was present at such time and place, the jury, before it could give weight to the statement, would have to consider whether the defendant knew of the murder at the time he made the . statement, to the end that it might be determined whether the statement was self-disserving or merely indifferent. In the parable of Holy Writ, the slothful servant, who had kept the pound entrusted to him in a napkin, sought to excuse his omis- sion to gain anything with the money, by making what he in- tended as a self-serving declaration, when he said: "For I feared thee, because thou art an austere man ; thou takest up that thou layest not down, and reapest that thou didst not sow . ' ' But the master did not reason that the declaration should be disregarded, because, although self-disserving in form, it was intended as a matter of excuse, but like the practical man that he was, he answered : " Out of thine own mouth will I judge thee, thou wicked servant." § 3. Admissions in pleadings. — This subject seems to be in some confusion. In the first place, it is to be recol- lected that the doctrines relating to admissions in the law of pleading have no application where the question arises as to the effect of a pleading as an admission in a collat- eral suit; as, for instance, it would be apparent that the fail- ure of a party to traverse an allegation in his adversary's pleading could not be accepted as an admission in another suit that the non-traversed allegation was true. Many of the cases which discuss the question as to whether a pleading withdrawn is to be treated as evidence will be found to hold merely that it is not evidence ex proprio vigore, and that the question whether it would have been competent if it had been formally offered in evidence was not determined. These cases can rest on no other foundation. As said by Elliott, J.,^ "If it be true, as it undeniably is, that an admission in a pleading operates against a party, then it must also be true that he can not, by any act of his own, destroy its competency. To hold otherwise would be' to declare that a party may, by a retrac- * Boots V. Canine, 94 Ind. 408. R 4 ADMISSIONS. ^ tion, deprive his adversary of admissions previously made, and surely no one will seriously contend that this can be the law." Bills, as well as answers, in chancery have always been re- garded as evidence/ The ground of their admission is that they are presumed to truly state the facts.^ And this being correct, there is no reason why, under a system of practice re- quiring pleadings to state facts, pleadings filed in courts of law should not be evidence.'' If a party should lead a jury to con- clude that a statement had been made in his pleading without his volition, the admission would not likely be one to which any weight would be attached, but its admissibility can not, even under such circumstances, if the practice requires that pleadings shall state facts, be seriously doubted, when the plead- ing- is considered, as it should be, as an act of agency. The at- torney is undoubtedly the agent of the party in filing the plead- ing, and in the discharge, and as a part of the performance, of that duty, he makes a statement. The declarations of other agents are always admitted under such circumstances, and there is no good reason why the solemn admission of an attor- ney in a pleading should not be received. The weight of au- thority, at least in jurisdictions where pleadings are required to state facts, authorizes the reception of such evidence.* § 4. Paying money into court.— The effect of paying money into court is to work a conclusive admission of the plaintiff's right to recover to the extent of the payment.' But if the 1 Buller's Msi Prius, 235. 17 Iowa 176 ; Meade v. Black, 22 Wis. 2 Boots V. Canine, 94 Ind. 408 ; Gres- 241 ; Kiddie v. Debrutz, 1 Hay w. 4.0 ; levEq Ev 13. ^Ii°^3 ^- Mims, 3 J. J. Marsh. 103; 3 Boots i^.'canine, 94 Ind. 408 ; Cook Hunter v. Jones, 6 Rand. 541 ; Gale v. V Barr 44 N. Y. 156. Shillock, 4 Dak. 182, 29 N. W. Rep. *Cooki^.Barr,44N.Y.156;Fogg«.Ed- 661; 1 Whart. on Ev., § 838. Contra, wards, 20 Hun 90; Strong v. Dwight, Kimball t^. Bellows, 13 N. H. 58; Ve- il Abb. Pr. N. S. 319; Bliss v. Nich- gel v. Osborne, 32 Minn. 167, 20 N. W. ols, 12 Allen 443 ; Hammat v. Russ, Rep. 129. 16 Me. 171 ; Tabb v. Cabell, 17 Gratt. ^ pyer v. Ashton, 1 B. & C. 3; Yate 160; Lamar v. Pearre, 90 Ga. 377, 17 S. v. William, 2 East 128 ; 2 Starkie on E. Rep. 92; Boots V. Canine, 94 Ind. Ev.,600; Blackburn v. Seholes, 2 408; Broadrup«. Woodman, 27 Ohio Camp. 341 ; Lipscombe v. Holmes, 2 St. 553; Hobson v. Ogden, 16 Kan. Camp. 441 ; Boyden t^ Moore, 5 Mass. 388; Ayres v. Hartford Fire Ins. Co., 365; Jones v. Hoar, 6 Pick. 285. 6 INDIRECT AND COLLATERAL EVIDENCE. §5 plaintiff would recover beyond the amount of the payment, he must prove his right to do so.^ § 5. Admissions implied from silence. — Silence, when a state- ment is made in a party's presence affecting his rights, and when he is fairly called on to speak, is frequently spoken of as an implied admission/ It has been questioned, how- ever, whether the omission to speak under such circum- stances should be characterized otherwise than as a fact tending to raise an unfavorable presumption against the party.' If a party is silent when he ought to have denied, the presumption of acquiescence arises. The natural inference is that the imputation or other statement was well founded, or he would have repelled it.* Before the acquiescence of a person in the language or conduct of another can be assumed as a concession, if that be not too strong a word, of the truth of the matter stated or implied, it must appear that the language was heard or the conduct understood by the party at the time.® It is not enough that it was made only in his bodily presence, as when he was unconscious from sleep or stupor.* If it is doubtful upon the evidence whether the party heard or under- 1 Ribbans v. Crickett, 1 B. & P. 264 ; Hitchcock V. Tyson, 2 Esp. 481, note. 2 People V. Lewis, 62 Hun 622, 16 N. Y. Supp. 881 ; Foster v. Trenary, 65 Iowa 620, 22 N. W. Rep. 898 ; Bat- turs V. Sellers, 5 Har. & John. 117. 8 Enos V. St. Paul Fire & M. Ins. Co., 4 S. Dak. 639, 57 N. W. Rep. 919. See Baldwin v. Whitcomb, 71 Mo. 651. * Gibney v. Marchay, 34 N. Y. 301 ; State V. Cleaves, 59 Me. 298; State v. Reed, 62 Me. 129 ; Watt v. People, 126 111. 9, 18 N. E. Rep. 340. Inculpa- tory statements made in the presence and hearing of one accused of crime, which he, having an opportunity to do so, does not deny, and the truth or falsity of which is within his personal knowledge, are competent to go in ev- idence because of the acquiescence. Richards v. State, 82 Wis. 172, 51 N. W. Rep. 652. See post, § 7. 5 Com. V. Harvey, 1 Gray 487 ; Com. V. Kenney, 12 Met. 235, 46 Am. Dec. 672 ; Sauls v. State, 30 Tex. App. 496, 17 S. W. Rep. 1066; Cabiness v. Hol- land, (Tex. Civ. App.) 30 S. W. Rep. 63. Where a party was in a room divided by a partition, in which there was an open door, and state- ments adverse to his interest were made by a person on the other side of the partition, it was held that the statements were inadmissible in the absence of any proof that they could have been heard by the party. Yale V. Dart, (N. Y. City Ct.) 17 N. Y. Supp. 179. 6 Lanergan v. People, 39 N. Y. 39. § 6 ADMISSIONS. 7 stood the statement, the question should be submitted to the jury.^ To make the evidence of any value it must appear that the truth was within the knowledge of the party at the time.^ The circumstances must have been such, in order to affect him, that he was not entitled to pass the matter by in silence as a mere piece of impertinence.* §6. Sileuce when claim asserted. — Within the principle of the leading doctrine of the preceding section are cases where claims or demands are asserted in the presence of the party it is sought to hold responsible for them, and such party does not deny them. Thus, where a conversation occurred between the plaintiff and the defendant, in which the plaintiff asserted a claim against the defendant based on a contract with an alleged agent of the defendant, it was held proper to ask the plaintiff if the defendant denied the agency.* In insurance cases ex parte proofs of loss are made pursuant to the almost universal requirements in insurance policies that such course shall be pursued by claimants. The fact of the presentation of such claims can not be relied on as proof of the facts con- cerning the loss therein stated,* although silence under such circumstances might tend to prove that a policy had been issued. In one case, where the plaintiff sought to prove the facts concerning the death of the person upon whose life the insurance was written, by proving the presentation of an affi- 1 State V. Perkins, 3 Hawkes 377, iff had numerous interviews with the *Peck V. Ryan, 110 Ala. 336, 17 So. president, general manager and divis- Eep. 733; Com. v. Kenney, 12 Met. ion superintendent of a railway com- 235, 46 Am. Dec. 672. pany, concerning his damages by the 3 Whart. on Ev., § 1138. See, as to re- setting back of water upon his land by marks made to others in his presence, the railroad, it was held proper for particularly by a stranger. Com. v. Mc- the plaintiff to testify that in none of Dermott, 123 Mass. 440; Com. v. Ken- the interviews was any denial made ney, 12 Met. 235, 46 Am. Dec. 672; of the facts asserted by him. Proctor Moore v. Smith, 14 S. & R. 388; State v. Old Colony R. R., 154 Mass. 251, 28 V. Young, 99 Mo. 666, 12 S. W. Rep. N. E. Rep. 13. 879; Wilkins v. Stidger, 22 Cal. 231, ^ citizens, etc., Co. v. Doll, 35 Md. 83 Am. Dec. 64. 89, 6 Am. Rep. 360; Thurston v. Mur- * Warburton v. Camp, 112 N. Y. 683, ray, 3 Bin. 326 ; Travelers' Ins. Co. v. 20 N. E. Rep. 592. Where the plaint- Sheppard, 85 Ga. 751, 12 S. E. Rep. 18. 8 INDIRECT AND COLLATERAL EVIDENCE. § 7 davit of death to the defendant, the court, in holding the evi- dence incompetent, said: "It is a mere 'side-wind' evidence, a class of evidence than which none not absolutely false could be more pernicious.'" Such evidence, where sent to the com- pany by letter, might be rejected on another principle, con- cerning unanswered letters, but it would also be inadmissible for the reason that proofs of loss are made, not with the ex- pectation that they will evoke a response from the company, but because the company has contracted for it, in order that at an early date after the facts have transpired upon wdiich it is sought to be held liable, it may be afforded an opportunity to investigate the claim for itself. § 7. Silence while imder a criminal charge. — It was held in a Massachusetts case,^ that if a person is in custody charged with crime, his silence, when statements inculpating him are made in his presence, is not evidence. That case w:as sought to be explained in New York,^ on the ground that it did not appear that the truth was within the defendant's knowledge at the time, and it may be also suggested that it did not appear that the statement was made to the defendant — a circumstance of some importance in determining the preliminary question of competency.* But, however this may be, it is held in the later Massachusetts cases® that the circumstance that the defendant is under arrest, while it affects the weight of an ad- mission by silence, does not destroy its competency, and this is the rule elsewhere.* § 8. Silence where there is no right to speak. — A person can not be held to acquiesce in a statement w^here the proprietie's "Travelers' Ins. Co. v. Sheppard, 85 * Kelley v. People, 55 N.Y. 565 ; Peo- Ga. 751. pie v. Wentz, 37 N. Y. 303; McKee v. 2 Com. V. Kenney, 12 Met. 235, 46 People, 36 N. Y. 113 ; Murphy u. State, Am. Dec. 672. ' 36 Ohio St. 628; Donnelly v. State, 26 3 Kelley v. People, 55 N. Y. 565, 14 N. J. L. 601 ; State v. Murray, 126 Mo. Am. Rep. 342. 611, 29 S. W. Eep. 700. See United 4 See Com. v. Walker, 13 Allen 570; States v. Brown, 4 Cranch C. C. 508; Com. V. McDermott, 123 Mass. 440, Bob v. State, 32 Ala. 560; State v. 25 Am. Rep. 120. Diskin, 34 La. Ann. 919, 44 Am. Rep. 5 Com. V. Cuffee, 108 Mass. 285 ; Com. 448. V. Crocker, 108 Mass. 464. § 9 ADMISSIONS. y of the occasion require him to be silent. In one instance, a minister referred to the terms of his employment, during the course of a sermon, and it was held, although his statements were not contradicted, that it was not competent to show such un- denied statements, in a suit against the church on the contract.' § 9. Same subject— Silence during court proceedings.— To what extent shall a party be taken to admit as true the state- ments of witnesses by an omission to contradict them? In a Massachusetts case' it was said by Shaw, C. J.: "Where probable proof is brought of a state of facts tending to crim- inate the accused, the absence of evidence tending to a contrary conclusion is to be considered,— though not alone entitled to much weight ; because the burden of proof lies on the accuser to make out the whole case by substantive evidence. But when pretty stringent proof of circumstances is produced tending to support the charge, and it is apparent that the accused is so situated that he could offer evidence of all the facts and cir- cumstances as they existed, and show, if such was the truth, that the suspicious circumstances can be accounted for consist- ently with his innocence, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead of rebutting would tend to sustain the charge. But this is. to be cautiously applied, and only in cases where it is manifest that proofs are in the power of the accused, not accessible to the prosecution." And it may be added that the rule should not be so applied as to break down the constitutional right of a defendant in a criminal case to refuse to testify.' But while adverse inferences may be drawn against a party, in a case on 1 Johnson v. Trinity Church Society, son, 107 Ind. 442, 9 N. E. Rep. 357, 8 11 Allen 123. N. E. Rep. 18, 57 Am. Rep. 120 ; Cole v. 2 Com V Webster, 5 Cush. 295, 52 Lake Shore, etc., R. Co., 81 Mich. 15(5, Am. Dec. 711. 45 N. W. Rep. 983 ; The Fred M. Law- 3 Coleman v. State, 111 Ind. 563, 13 rence, 15 Fed. Rep. 635; Bleecker v. N E. Rep. 100; Com. v. McCabe, 163 Johnston, 69 N. Y. 309; Com. v. Mc- Mass. 98, 39 N. E. Rep. 777. See as to Cabe, 163 Mass. 98, 39 N. E. Rep. 777 ; the failure to offer testimony, Com. v. Clarke v. State, 78 Ala. 474, 6 So. Hardiman, 9 Gray 136; Hall v. Van- Rep. 368, 56 Am. Rep. 45; State v. derpool, 156 Pa. St. 152, 26 Atl. Rep. Cousins, 58 Iowa 250, 12 N. W. Rep. 1069 ; Louisville, etc., R. Co. v. Thomp- 281. 10 INDIRECT AND COLLATERAL EVIDENCE. § 9 trial, by reason of a failure to offer evidence, the doctrine ought not to be extended by applying it to collateral suits. In such cases the failure to deny the testimony of a witness, or even the production of a witness who testifies incidentally concern- ing a subsequently controverted matter, could scarcely be con- sidered as an admission in a collateral suit. The following reasons suggest themselves as enforcing the conclusion stated: First. The character of court proceedings is such that the liti- gant can not deny the statement immediately, as he might in conversation;^ second, as it is not to be presumed that testi- mony is manufactured for the occasion, the party must, in or- der to gain the advantage of particular testimony, put a wit- ness upon the stand and permit him to state the facts as he un- stands them ; it is burden enough to require a party to vouch for his witness upon the point upon which he produces him in the cause on trial; third, the establishment of such a prac- tice would oftentimes require a litigant, in order to escape the consequences in another suit of an admission by acquiescence, to array his own testimony against that of his witnesses upon points which, for the purposes of the case on trial, were com- paratively, or altogether, unimportant. The weight of authority excludes such evidence.^ It has been held in Massachusetts' that the filing of a deposition in a cause is not such an adoption of the statements of the witness as to make them evidence in a different suit. In an English case^ the court held that the failure of the plaintiff, who was present at the taking of a deposition in another cause, in which he was a party, to exer- cise his right to cross-examine the witness, did not make his statements competent as admissions in the collateral action. ^ As said in Wilkins v. Stidger, 22 ^j^Ielen v. Andrews, 1 Moody & M. Cal. 231, 83 Am. Dec. 64: "A denial 336; State v. Mullins, 101 Mo. 514, 14 or contradiction under such circum- S. W. Rep. 625; Wilkins v. Ptidger, 22 stances would produce great confusion Cal. 231, 83 Am. Dec. 64; Hovey v. and cause continual wrangling be- Hovey, 9 Mass. 216; Broyles v. State, tween party and witnesses. There is ex rel., 47 Ind. 251, 1 Greenl. on Ev., a certain regularity, order and de- § 197, note; Whart. on Ev., § 1139. coram required in such proceedings, ^ Hovey t?. Hovey ,'•9 Mass. 216. which precludes parties from inter- *Melen v. Andrews, 1 Moody & M. posing with denials and objections as 336. they could in common conversations." § 10 ADMISSIONS. 11 § 10. Unanswered letter. — It was stated by Lord Tenterden^ that "what is said to a man before his face he is in some de- gree called upon to contradict, if he does not acquiesce in it, but 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."^ Where, however, the letter has been invited, answered, acted upon, or in some other way sanctioned, it will be evidence, if it may be inferred upon the whole that there has been an acquies- cence in its statements.^ § 11. Admission by acquiescence, — A close analogy exists between admissions implied from a party's silence, where statements adverse to his interest are made, and admissions implied from the failure to assert rights, or to object to acts of aggression upon the part of others. Forbearance from acts of ownership, and neglect to interpose when others are exercising such acts, is evidence for the jury, in the nature of an ad- mission.* Coupled with certain other elements, such an admission will be conclusive, or, in other words, will constitute an estoppel in pais, but it is not deemed advisable to treat in a cursory way a subject of such magnitude. While, as we have seen,^ the possession of an unanswered letter is not to be treated as an admission, yet the law, in recognition of the cus- tom among merchants, treats as an account stated an account iFairlie v. Denton, 3 Car. & P. 103. burn, ]05 Cal. 648,38 Pac. Rep. 1105; 2 To same effect. Button v. Wood- Lee v. Cooley, 13 Ore. 433, 11 Pac. Rep. man, 9 Cush. 255, 57 Am. Dec. 46 ; Com. 70 ; Rex v. Plumer, Rus. & Ry. C. C. tJ.Edg-erly. 10 Allen 184; Fearing v. 264; 1 Greenl. on Ev., § 198, note. Kimball, 4 Allen 125, 81 Am. Dec. 690; »Com. v. Eastman, 1 Cush. 189, 48 Smith 7;.|Shoemaker,17 Wall. 630 ;Peo- Am. Dec. 596; Sullivan u. McMillan, 26 pie V. Green, 1 Park. Cr. R. 11 ; Talcott Fla. 543, 8 So. Rep. 450 ; Fenno ?7.West- V. Harris, 93 N. Y. 567 ; Learned v. Til- on, 31 Vt. 345 ; Haynes v. Crutch field, 7 lotson, 97 N. Y. 1, 49 Am. Rep. 508; Ala. 189; Spies v. People, 122 111. 1, 12 Thomas v. Gage, 141 N. Y. 506, 36 N. N E. Rep. 865, 3 Am. St. Rep. 320 ; Lee E. Rep. 385; St. Louis, etc., R. Co. v. v.Cooley, 13 Ore. 433, 11 Pac. Rep. 70. Thomas, 85 111.464; Spies v. People, * Phil, on Ev., (1849 ed.) 355; 1 122 111. 1, 12 N. E. Rep. 865, 3 Am. St. Greenl. on Ev., § 197. Rep. 320; SulHvan v. McMillan, 26 ^ Supra, § 10. Fla. 543, 8 So. Rep. 450; Peoples. Col- 12 INDIRECT AND COLLATERAL EVIDENCE. § 12 which a person has received by mail and has failed to object to within a reasonable time.^ § 12. Collateral admissions. — It sometimes happens that a person by his words or conduct implied!}^ admits some col- lateral fact. Thus, where one was charged with bribing a voter, it was held that proof of the attempt to bribe was evi- dence that the party thus corruptly approached had the right to vote.^ A common illustration of collateral admissions is found in cases where a person by exercising some office or function is held to thereby admit that he exercises such office or function by authority. § 13. Admissions by conduct. — A few illustrations must suf- fice for the treatment of a doctrine so easily understood. Where a person asserts a claim, it is proper to show that in a prior settlement with the party against whom the claim is as- serted he did not make his claim known.' In a suit for salary as the treasurer of a corporation, it was held that the de- fendant might show, as bearing on the question as to whether there was a contract, that in making a statement of the cor- poration's liabilities the plaintiff did not make an item of his salary.* It is competent to show, as tending to rebut the defense to an action, that upon a former trial of the same action such defense was not asserted.® Where plaintiff's de- cedent was run over and killed, by reason of the fact that his foot was caught in the angle of a frog, it was held proper to prove a prior general order of defendant company requiring ^ Sherman v. Sherman, 2 Vern. 276 ; * Sears v. Kings Co. Elevated R. Co., Willis V. Jernegan, 2 Atk. 251 ; Tickel 152 Mass. 151, 25 N. E. Rep. 98. V. Short, 2 Ves. Sr. 239; AViggins v. sgeHers v. Stevenson, 163 Pa. 262, Burkham, 10 Wall. 129 ; Oil Co. r.Van 29 Atl. Rep. 715. See Clement v. Kim- Etten, 107 U. S. 325 ; Field's Assignees ball, 98 Mass. 535. Where the plaint- V. Moulson, 2 Wash. C. C. 155 ; Corps iff charged that defendant by its serv- V. Robinson, 2 Wash. C. C. 388 ; Freed- ants wrongfully threw him off its car, land V. Heron, 7 Cranch 147; Killam it was held competent to prove by V. Preston, 4 W. & S. 14. those who first came to plaintiff's aid 2 Combe v. Pitt, Burr. 1586; Rigg v. that he did not make any such claim Curgenven, 2 Will. 395. to them. Kummer v. Christopher, etc., 3 Miller v. Stevens, 13 Gray 282. R. Co., (N. Y. Com. PL) 20 N.Y. Supp. 116. §13 ADMISSIONS. 13 all frogs to be blocked, as a circumstance in the nature of an Idmission that some unprotected frogs are dangerous to em- ployes.' Evidence of the demeanor of the defendant when ar- rested is competent/ and evidence of a declaration accusing him of the crime charged may be offered, in order to give point to his demeanor and statements when accused.' Changes made by the defendant in the stolen property, rendering identification more difficult, may be considered as in the nature of an admis- sion of guilt.* The omission of an administrator to inventory certain property, if not sufficiently explained, maybe regarded as an admission that he was not claiming it.' Where the de- fendant was charged with injuring plaintiff's horse by overdriv- ing, it was held that the plaintiff was entitled to prove that im- mediately after the commission of the alleged unlawful act the defendant made a conveyance of all of his property, without consideration, as a circumstance tending to show that he was conscious of his liability, and seeking to escape the payment of damages' Under this head the subjects of flight,' the iCoates V. Burlington, etc., R. Co., 62 Iowa 486, 17 N. W. Rep. 760. 2 State V. Phelps, 5 S. D. 480,59 N.W. Rep. 471 ; Greenfield v. People, 85 N.Y. 75, 39 Am. Rep. 636. The fact that the defendant was drinking heavily soon after the commission of the crime is proper. People i;. O'Neill, 112 N.Y. 355, 19 N, E. Rep. 796. AVhere the defend- ant was charged with the murder of his wife, it was held admissible to show- bis indifference to her while she was in life, and his gratification at being rid of her; People v. Buchanan, 145 N.Y. 1, 39N. E. Rep. 846. s State V. Dillon, 74 Iowa 653, 38 N. W. Rep. 525. estate V. Miller, 45 Minn. 521, 48 N. W. Rep. 401. 5Bradshaw v. Mayfield, 18 Tex. 21. 6 Banfield v. Whipple, 10 Allen 27, 87 Am. Dec. 618. 7 State V. Palmer, 65 N. H. 216, 20 Atl. Rep. 6; Cora. v. Brigham, 147 Mass. 414, 18 N. E. Rep. 167 ; State v. Ellwood, 17 R. I. 763, 24 Atl. Rep. 782 ; Jamison v. People, 145 111. 357, 34 N. E. Rep. 486; WilHams v. State, 22 Tex. App. 497, 4 S. W. Rep. 64; State V. Lee, 17 Ore. 488, 21 Pac. Rep. 455; People V. Fine, 77 Cal. 147, 19 Pac. Rep. 269; People v. Clark, 84 Cal. 573, 24 Pac. Rep. 313. The defendant is entitled to account for the fact of his flight. State v. Moncla, 39 La. Ann. 868, 2 So. Rep. 814. See People v. Clark, 84 Cal. 573. But he can not offer evidence in the fii'st instance that he did not flee. See post, § 231. No pre- sumption of guilt can be drawn from the fact of flight from a mob. State V. Ma Foo, 110 Mo. 7, 19 S. W. Rep. 222, 33 Am. St. Rep. 414. Evidence of flight may be given, although there was at the time no actual or threatened prosecution. State v. Findley, 101 Mo.217, 14S.W. Rep. 185. "Suspicion always haunts the suih.v mind, The thief doth fear each bush an officer." 14 INDIRECT AND COLLATERAL EVIDENCE. §14 suppression and fabrication of evidence, and the bribery or intimidation of witnesses or jurors might be treated/ but such a discussion belongs properly to the subject of presumptions, and the limitations upon this work render it impossible to consider that subject, except in an incidental manner. § 14. Admissions by possession of books and documents, and implements of crime. — We have already seen that the receipt and possession of an unanswered letter is not an admission. Doubtless, the reason for this is that such a letter is distinctly the emanation of another. But it is obvious that entries made in partnership books stand on a different ground. As said by Mills, J., in delivering the opinion of the court in a Kentucky case :^ ^See Baldwin v. Threlkeld, 8 Ind. App. 312, 34 N. E. Rep. 851 ; Thomp- son V. Thompson, 9 Ind. 323, 68 Am. Dec. 638 ; The Count Joannes v. Ben- nett, 5 Allen 169, 81 Am. Dec. 738 ; Murray v. Lepper, 99 Mich. 135, 57 N. W. Rep. 1097; Houser v. Austin, 2 Idaho 188, 10 Pac. Rep. 37 ; State v. Crowder, 41 Kan. 101, 21 Pac. Rep. 208 ; People v. Chin Hane, 108 Cal. 597, 41 Pac. Rep. 697. A person who tails and refuses to produce evidence may be treated as a spoliator of evidence. Cartier v. Troy Lumber Co., 138 111. 533, 28 N. E. Rep. 932; Hastings v. Stetson, 130 Mass. 76 ; Easter v. Allen, 8 Allen 7 ; Egan v. Bouker, 5 Allen 449; Kidd v. Ward, 91 Iowa 371, 59 N. W. Rep. 279; Turner v. State, 102 Ind. 425, 1 N. E. Rep. 869; Snell v. Bray, 56 Wis. 156, 14 N. W. Rep. 14. "The conduct of a party to a cause may be of the highest importance in deter- mining whether the cause of action in which he is plaintiff, or the ground of defense, if he is defendant, is hon- est and just; just as it is evidence against a prisoner that he has said one thing at one time and another at another, as showing that the recourse to falsehood leads fairly to the infer- ence of guilt. Anything from which such an inference can be drawn is cogent and important evidence with a view to the issue. So, if you can show that a plaintiff has been suborning false testimony, and has endeavored to have recourse to perjury, it is strong evidence that he knew perfectly well his cause was an unrighteous one. I do not say that it is conclusive. I fully agree that it should be put to the jury with the intimation that it does not al- ways follow, because a man, not sure he shall be able to succeed by right- eous means, has recourse to means of a different character, or that that which he desires, namely, the gaining of the victory, is not his due, or that he has not good ground for believing that justice entitles him to it. It does not necessarily follow that he has not a good cause of action, any more than a prisoner's making a false statement to increase his appearance of innocence is necessarily a proof of guilt ; but it is always evidence which ought to be submitted to the considera- tion of the tribunal which is the judge of the facts." Cockburn, C. J., in Moriarty v. London, etc., R. Co., 5 L. R. Q. B. 314. 2 Simms v. Kirtley, 1 T. B. Monroe 80. § 14 ADMISSIONS. 15 " From the very nature of the case, the books of a partnership must be evidence between the partners themselves. Their situa- tion is one of confidence. They agree to unite and, as to others, to become one person ; and the books of the firm are to speak their language and record their joint transactions ; and there is an understanding that these books are to be appealed to, to tell their true situation. To admit them as evidence, then, is only effectuating their agreement, and using their own crite- rion and test, to ascertain the truth. Such books, therefore, kept subject to the inspection of each, must be admitted as correct until the contrary is shown. "^ But the presumption of the competency of the partnership books as against a part- ner may be rebutted by proof of special circumstances as to such partner, such as residence in a distant place or non-ac- cess.^ Of course, as to one who engages in a controversy with a partnership or corporation, as such, there is no question as to his right to avail himself of the admissions contained in the regular books of such entity. As against a stockholder, how- ever, while the corporate records are the best evidence of what the corporation did, yet, according to the weight of authority, the stockholder does not occupy such a relation to the corpo- ration, as will permit the introduction of its books against him, as evidence of their mutual relations and obligations,^ and this doctrine has been recently extended to a director.* Where a suit was brought by a clerk for services, and the fact was in dispute as to whether the rate of wages was six or ^ See, also, Reno v. Crane, 2 Blackf . been admitted as against its members. 217; Moyes v. Brumaux, 3 Yeates 30; Raggett v. Musgrave, 2 C. & P. 556. Jordan v. White, 4 Mart. N. S. (La.) ^ United States Bank v. Binney, 5 335; Heartt v. Corning, 3 Paige 566. Mason 176. In Grant 2>. Masterton, 55 Mich. 161, » Haynes v. Brown, 36 N. H. 545; 20 N. W. Rep. 885, it was held that it Chenango Bridge Co. v. Lewis, 63 was proper to show an entry in the Barb. Ill; Pearsall v. Western Union books of a partnership of a transaction Tel. Co., 124 N. Y. 256, 26 N. E. beyond its scope, as it tended to show Rep. 534, 21 Am. St. Rep. 662 ; Rudd v. that the transaction had been ratified. Robinson, 126 N.Y. 113, 26 N. E. Rep. Within the same principle, entries 1046. See Thompson's Commentaries made by the servants of a club have on Corporations, vol. 6, § 7728, et seq. *Rudd V. Robinson, supra. 16 INDIRECT AND COLLATERAL EVIDENCE. § 15 twelve dollars a week, and as to whether certain payments had been made, it was held that the books of the defendant were not evidence, although there was testimony that plaintiff had access to them and had been seen looking over them. In pass- ing on the question the court said : "The books were not the plaintiff's books or kept on his behalf. - He was not a partner, and had no interest in them ; so that there was no ground for a presumption, from the fact of access, that he knew their contents. On the evidence above stated, it would be a mere guess whether he had seen the items in question.'" From the subjects under discussion to the subject of presumptions of guilt based on the possession of implements of crime may seem like afar cry, but, notwithstanding the dissimilarity of the subjects, the basis of the presumption in all these cases is the same, namely, the party's acquiescence in a matter over which he was entitled to exercise, or was actually exercising, some degree of control. § 15. Admissions made under compulsion, — While duress will operate to exclude both an admission and a confession, yet the law distinguishes between the two, in that if the compul- sion is legal, an admission made under such circumstances is competent,' while a confession must be purely voluntary or it is excluded. § 16. Admission of matter of law. — Although all persons are presumed to know the law, yet this is a mere prsesumptio juris, which is indulged in order to furnish a basis for the adminis- tration of justice. The law, for some purposes at least, recog- nizes the fact that persons are often ignorant of it, and for this reason, as well as the further one that the law is what it is, and not what a person, in a self-disserving way, declares it to be, it follows that an admission of a pure matter of law can not be received in evidence.* In one case,* where the question was as 1 Cheney ». Cheney, 162 Mass. 591, ^Polk's Lessee v. Robertson, 11 39 N. E. Rep. 137. Overton (Tenn.) 456; Moore v. Hitch- 2 Slack tJ.Buchannan, 1 Peake 5 ; Col- cock, 4 Wend. 292 ; Colt v. Selden, 5 lett V. Keith, 4 Esp. 212 ; Stockfleth v. Watts 525. DeTastet, 4 Camp. 10. * Crockett v. Morrison, 11 Mo. 3. § 17 ADMISSIONS. 17 to the competency of an admission by a party that he expected to lose his suit, the court, in holding the statement inadmissi- ble, states that an admission containing a mixed matter of law and fact can not go in evidence. The exclusion of the decla- ration was doubtless right, as there was no ultimate matter of fact stated, and it was impossible to determine from it whether the declarant's conclusion was based on the insufficiency of the facts in the case or his view of the law. The authorities, however, do not warrant so broad a statement as the case makes. ^ It has been many times held that an admission of the existence of the marriage alleged, made by a defendant in a prosecution for bigamy or adultery, may be received.^ In a Pennsylvania case, where the defendant was charged with negligence, evidence was held admissible of the defendant's declaration that he was in fault. ^ § 17. Admission as to writing. — It was a matter of doubt for many years, both in England and this country, whether admissions could be received as to the contents of writings. The disposition existed to regard such evidence as secondary. But the case of Slatterie v. Pooley,* decided by the Court of Ex- chequer in 1840, reinforced by the authoritive opinion of Mr. Best, in his learned treatise on evidence,^ has given the cases a tendency to admit such declarations. In the case mentioned, 1 1 Greenleaf on Ev., § 97. Marvin, 35 N. H. 22, and Jacobson v. 2 Miles V. United States, 103 U. S.304 ; Siddal, 12 Ore. 280, 7 Pac. Rep. 108, 53 State V. Libby, 44 Me. 469, 69 Am. Dec. Am. Rep. 360, in whicli the fact of the 115 ; State v. Hilton, 3 Rich. L. 434, 45 prior marriage is regarded as a part of Am. Dec. 783; Williams?'. State, 44 Ala. the corpus delicti, and it is thereforea 24; Warner 1'. Com., 2 Va.Cas. 95; State rule in these jurisdictions that there V. Seals, 16 Ind. 352; Squire v. State, shall not be a conviction in this class 46 Ind. 459; State v. McDonald, 25 of cases without proof of the fact of Mo. 176 ; United States v. Tenney, marriage, but even the cases last cited (Ariz.) 11 Pac. Rej). 472; Owens v. authorize the use of the defendant's State, 94 Ala. 97, 10 So. Rep. 669. admission as corroboratory proof. There are cases, such as Hayes v. ^Dennison u. Miner, (Pa. St.) 2 Atl. People, 24 How. Pr. 453, Eisenlord v. Rep. 561. See Stowe v. Bishop, 58 Vt. Clum, 126 N. Y. 552, 27 N. E. Rep. 498, 3 Atl. Rep. 494, 56 Am. Rep. 569. 1024, State v. Armstrong, 4 Minn. 335, * Slatterie v. Pooley, 6 M. e'c W. 664. State V. Wilson, 22 Iowa 364 ; State v. » gggt on Ev., § 525. 2— Ev. 18 INDIRECT AND COLLATERAL EVIDENCE. § 17 Park, B. , says : ' ' The reason why such parol statements are ad- missible, without notice to produce or accounting for the absence of the written instrument, is, that they are not open to the same objection which belongs to parol evidence from other sources, where the w^ritten evidence might have been produced ; for such evidence is excluded from the presumption of its un- truth arising from the very nature of the case, where better evidence is withheld ; whereas, what a party himself admits to be true may reasonably be presumed to be so. The weight and value of such testimony is quite another question. That will vary according to the circumstances, and it may be in some cases quite unsatisfactory to a jury. But it is enough for the present purpose to say that such evidence is admissi- ble." This decision has established the law in England ; ^ it has, however, been criticised by Chief Justice Pennefather in Ireland,^ and Mr. Taylor, while yielding assent to its authority, has questioned its soundness.' Their objection to it is based, not on principle, but on the inexpediency of putting estab- lished rights in peril by receiving parol evidence of that which is committed to writing. Of this objection Mr. Best says:* "Now, w^e must protest, in toto, against trying the admissibility of evidence by such a test as this. The most respectable and innocent man in the community may be hanged for murder on the unsupported testimony of a pre- tended accomplice ; or sent to penal servitude for rape, on the unsupported oath of an avowed prostitute; but is this a reason for altering the law with reference to the admissibility of the evidence of accomplices or prostitutes, or do innocent men feel themselves in danger from it? "* The few authorities in the United States upon the subject for the most part sanction the English doctrine.® It is doubtless the law, however, that such 1 See cases in Best on Ev., §526. the case of Gibblehouse v. Strong, 3 2 Lawless v. Quearle, 8 Ir. L. Rep. Rawle 437. 382. ^ Loomis v. Wadhams, 8 Gray 557 ; 'Taylor on Ev., § 411. Smith v. Palmer, 6 Gush. 513; Edgar * Best on Ev., § 526. v. Richardson, 33 Ohio St. 581, 31 Am. 5 Much the same argument as that Rep. 571; Bivinsv. McElroy, 11 Ark. of the author just quoted is used in 23, 52 Am. Dec. 258; "Wharton on E v.. § 18 ADMISSIONS. 19 evidence must yield to the force of a record title, and that while the execution of a written instrument relating to a con- tract within the statute of frauds may be shown by admis- sion, yet the naked admission of a right, not shown to be in writing, can not be asserted to the defiance of the statute,^ § 18. Same subject — Admissions are primary evidence.^ The underlying principle of Slatterie v. Pooley'' is that admis- sions are substantive or primary evidence.* In an English case,* Patterson, J., said: "Slatterie v. Pooley* establishes that, if a party by words admits the contents of a written doc- ument, such admission is legal evidence against him, not as secondary evidence of the contents of the written instrument, but as original evidence." Professor Greenleaf, who does not seem to have been familiar with the latter case, says : " Such evidence seems, therefore, more properly admissible as a sub- stitute for the ordinary and legal proof."® Upon this subject Mr. Best states : " It is evidence in the direct, not in the collateral line, which falls within the exclusion. For the same reason it seems — although much has been said and written on both sides of the question — that self-disserving, statements by a party against his own interest are receivable as primary proof of documents."^ Mr. Wharton, while he fails to discriminate upon this precise point, except in so far as he may be said to §1091. In Cumberland Mut. Fire Gill. 482; Barber's Adm'r v. Bennett, Ins. Co. V. Giltinan, 48 N. J. L. 495, 60 Vt. 662, 15 Atl. Rep. 348, 6 Am. St 57 Am. Rep. 586, the court, while Rep. 141 ; Smith v. Palmer, 6 Cush recognizing the force of Slatterie v. 513; Edgar v. Richardson. 33 Ohio St Pooley, state that the New Jersey 581, 31 Am. Rep. 571 ; Bivins v. Mc courts are committed to the old rule, Elroy, 11 Ark. 23, 52 Am. Dec. 258 although it is declared that it was Gibblehouse u. Strong, 3 Rawle 437; never understood that the old rule Logansport & P. G. T. Co. v. Heil, 118 extended to matters aside from and Ind. 135, 20 N. E. Rep. 703; Earle v. only incidental to the issue. Picken, 5 C. & P. 542. 1 Wharton on Ev., §1157. See Tay- *Regina «. Basingstoke, 14 Q. B. lor on Ev., §413; Bivins y. McElroy, 611. 11 Ark. 23, 52 Am. Dec. 258. ^ Slatterie v. Pooley, 6 M. & W. 664. 2 Slatterie v. Pooley, 6 M. & W. 664. ^ 1 Greenl. on Ev., § 169 «To same effect see Dent v. Dent, 3 'Best on Ev., § 491. 20 INDIKECT AND COLLATERAL EVIDENCE. §18 do so by quoting approvingly from Slatterie v. Pooley/ gives implied recognition to the doctrine, by stating that admissions may be given in evidence, although the party who made them is in court/ This proposition of Mr. Wharton's is scarcely within the realm of controversy, but it eflBciently determines that admissions are primary evidence, and if the writer's opin- ion were sought upon the controverted question involved in the case of Slatterie v. Pooley,^ he would state that with the point yielded that admissions are primary evidence, even of 1 Slatterie v. Pooley, 6 M. & W. 664. 2 Wharton on Ev., § 1094. Phillips says in his work on evidence (1849 ed.. vol. 1, p. 339) : "This species of evidence (referring to admissions) is of a nature which renders it unneces- sary to call the author of the state- ment as a witness, even where he is capable of being called." The follow- ing is from the note to the Dutchess of Kingston's Case, as reported in Smith's Leading Cases: " An estop- pel, therefore, is an admission, or something which the law treats as equivalent to an admission, of an ex- tremely high and conclusive nature — so high and so conclusive that the party whom it affects is not permitted to aver against it or offer evidence to controvert it— though he may show that the person relying on it is estop- ped from setting it up, since that is not to deny its conclusive effect as to himself, but to incapacitate the other from taking advantage of it. Such being the general nature of an estop- pel, it matters not what is the fact thereby admitted, nor what would be the ordinary and primary evidence of that fact, whether matter of record, or specialty, or writing unsealed, or mere parol : the fact may in each case be proved, the ordinary evidence rendered unnecessary by an estoppel ; and this is no infringement on the rule of law requiring the best evi- dence and forbidding secondary evi- dence to be produced till the sources of primary evidence have been ex- hausted, for the estoppel professes, not to supply the absence of the ordi- nary instruments of evidence, but to supersede the necessity of any evi- dence by shov.'ing that the fact is already admitted : and so too has it been held that an admission, which is of the same nature as an estoppel, though not so high in degree, may be allowed to establish facts, which, w'ere it not for the admission, must have been proved bj' certain steps ap- propriated by law to that jjurpose : for instance, in Bringloe v. Goodson, 5 Bing. N. C. 738, a deed was recited to be executed in pursuance of a power contained in the will of P. S. A will purporting to be that of P. S. was pro- duced, and there was some slight evi- dence that it was a will of P. S. This was held sufficient evidence to go to the jury that the will produced was executed by P. S. without calling the attesting witness. 'I do not put the admission' said Tindall, C. J., 'so high as an estoppel, but it has its effect on the principle laid down in Shelley v. Wright, Willes 9, where a party executing a deed was held estopped by the recital of a particular fact in that deed to deny that fact.'" 3 Slatterie v. Pooley, 6 M. & W. 664. ^ IQ ADMISSIONS. 21 facts that lay in parol, it is his opinion that principle must carry the mind the full length of that case. Upon the estab- lishment of this doctrine, as will be hereinafter shown,^ rests the right to introduce the self-disserving declarations of prede- cessors in title and it is therefore of very great importance. § 19. Recitals in deeds.— Because of the solemn character of deeds, the cases without division authorize the proposition that if such an instrument contains a recital— even as to the existence or character of a writing— it may be treated as an admission as against the grantee and those claiming under him.^ § 20. Doctrine as to attested documents.— An exception to the rule that a writing may be proved by admission is recog- nized as existing in many jurisdictions, in cases where the parties to an instrument have caused it to be attested. The persons so attesting are regarded as the plighted witnesses to the transaction, and it is held that they must be called to prove it.' It has been laid down that this rule is so inflexible as to prevent proof of the instrument being made by the sworn testimony of the parties.* But the New York courts have ^Post § 30 Recitals in a deed are not conclusive. 2 ^shmore' V. Hardy, 7 C. & P. 501 ; Mehaffy v. Dobbs. 9 Watts 363. West V. Davis, 7 East 363; Digby v. » Hall v. Phelps, 2 Johns 451 ; Wil- Steele, 3 Camp. 115; Burleigh v. louhby v. Carleton, 9 Johns. 136; Stibbs, 5 T. R. 465; Vorhees v. Pres- Jackson v. Kingsley 17 Johns. 158 ; bvterian Church of Amsterdam, 17 Hudson v. Puett, 86 Ga. 341, 1^ b. i.. Barb. 103; Demeyer v. Legg, 18 Barb. Rep. 640; Henly v. Henning 7 Baxt. 14; Penrose .. Griffith, 4 Binn. (Pa.) 524, 32 Am. Rep. 568; Wilhams . 231 • Siltzell V. Michael, 3 W. & S. 329. Walker, 2 Rich. Eq. (S. Car.) 291, 46 But a subsequent grantee can not be Am. Dec. 53; Clark v Sanderson 3 charged with such an admission, if he Binn. (Pa.) 192, 5 Am. Dec^ 368; claims by a title derived from his Foye ^>. Lieghton, 4 Post. (N. H.) 2,1; grantor before the latter received the Maupin v. Triplet!, 5 Mo. 422 ; Stevens deed which is in the chain of title con- «. Irwin, 12 Cal. 306. ^ , ^„, taining such admission. Penrose v. * Henly v. Henning, 7 Baxt. 524, Griffith, 4 Binn. (Pa.) 231; Hill v. 32 Am. Rep. 568; Taylor on Ev Draper 10 Barb 454. Such a recital § 1843. Contra, Bowling v. Hax, 55 is not evidence against a stranger to Mo. 446 (overruling Maupin ^. Trip- the title. Fine v. St. Louis Public lett, 5 Mo. 422 ; Glasgow «. Ridgeley, Schools, 30 Mo. 166; Dohan v. Mur- 11 Mo. 34). dock, 40 La. Ann. 376, 4 So. Rep. 333. 22 INDIRECT AND COLLATERAL EVIDENCE. §20 shown more liberality than usual by allowing an admission of execution to go in evidence, provided that the admission is proved with great certainty/ and the instrument is not un- der seal.^ To be a subscribing witness, such witness must not only be present but must sign as such.' The rule does not ap- ply to mere collateral writings.* If the instrument is acknowl- edged this dispenses with the necessity of calling a witness.^ The rule requiring the calling of attesting witnesses is regard- ed by Mr, Best® as a remnant of the old practice, which ex- isted previous to Slatterie v. Pooley,'' and as a reversal of the maxim, " omnia prsesumunter rite esse acta." In an En- glish case,* where the obligor had admitted that he owed the debt, Lord Mansfield overruled the objection that the attesting wiftiess was not called, stating that he considered the objection as captious, as the rule was a mere technical one. It is now 1 Shaver v. Ehle, 16 Johns. 201; Mauri v. Heffernan, 13 Johns. 58; Hall V. Phelps, 2 Johns. 451. And see Jones v. Henry, 84 N. Car. 320, 37 Am. Rep. 624; Pence v. Makepeace, 65 Ind. 345. 2 Fox V. Reil, 3 Johns. 477 ; Henry V. Bishop, 2 Wend. 575. If the wit- ness lives out of the state his non- production will be excused. Stevens V. Irwin, 12 Cal. 306; Little v. Chau- vin, 1 Mo. 626; Settle v. Alison, 8 Ga. 201, 52 Am. Dec. 393; Alter v. Berg- haus, 8 Watts 78. Such witness is presumed to live out of the state, if the instrument was not executed in the state. Clardy v. Eichardson, 24 Mo. 295. Absence from the county will not excuse the production of the witness. Hay v. Kramer, 2 W. & S. 137. If the witness is out of the state, bis handwriting may be proved. Eng- les V. Bruington, 4 Yeates 345, 2 Am. Dec. 411 ; Little v. Chauvin, 1 Mo. 626. So within this principle it would be enough if the witness was present and testified, and could only recollect the fact that he signed his name as an at- testing witness. Miller's Estate, 3 Rawle 312, 24 Am. Dec. 345, although there would in that case have to be supplemental proof as to the delivery. ^ Henry v. Bishop, 2 Wend. 575; Hollenback v. Fleming, 6 Hill 303. ' *Com. V. Castles, 9 Gray 121, 69 Am. Dec. 278; Chandler v. Caswell, 17 Vt. 580; Curtis v. -Belknap, 21 Vt. 433; Rundle v. Allison, 34 N. Y. 180. ^ 1 Starkie on Ev., star p. 355 ; Fox V. Reil, 3 Johns. 477. Contra, Little's Admr. v. Chauvin, 1 Mo. 626. Where an instrument is produced, pursuant to notice, by a party to it, it is evi- dence in favor of the party calling for it. Betts v. Badger, 12 Johns. 223, 7 Am. Dec. 309; Jackson v. Kingsley, 17 Johns. 158. It is also held that the fact that an instrument is produced pursuant to notice entitles the producer to use it, even where the party calling for it did so under a mistake as to its contents. Clark v. Fletcher, 1 Allen 53. 6Ev., §527. ' Slatterie v. Pooley, 6 M. & W. 664. 8 Abbott V. Plumbe, 1 Doug. 216. § 21 ADMISSIONS. 23 provided in England by statute that an instrument not re- quired by law to be attested "may be proved by admission or otherwise, as if there had been no attesting witness thereto."^ § 21. Incomplete and canceled admissions. — It is not ma- terial to its admissibility that an admission is not signed.^ The fact that an admission was but a part of a statement which was never completed will not suffice to exclude it. Thus, it was held competent in a collateral suit to introduce the admis- sion of the opposite party made during the course of an exam- ination under oath, although he was stopped as he was about to explain his admission.* Where a party had given his written examination in an insolvency court, his admissions were held competent, although his examination was not signed, and although it was given with an understanding that he might submit to his counsel for revision before signing.* An admission can not be effectually destroyed as long as evidence of it exists. In a Pennsylvania case,* the court held that a testamentary paper, in the handwriting of the testatrix, mak- ing a certain admission, was evidence against her estate, al- though she had torn her signature from the writing. § 22. Whole of admission, explaining or modifying context, must go in. — It is quite plain that the party against whom an admission is introduced is entitled to the whole of the context, so far as it explains or modifies the admission, even though the rest of the statement be self-serving.* But this rule will 1 17 and 18 Vict., c. 125, § 26. v. Goddard, 14 Gray 402; Clark v. 2 1 Phil, on Ev. (1849 ed.), 370, note; Smith, 10 Conn. 1, 25 Am. Dec. 47; Lynde v. McGregor, 13 Allen 182, 90 Gordon v. Preston, 1 Watts 385, 26 Am. Dec. 188; Lire Grade's Estate, Am. Dec. 75; Bennett v. Burch, 1 158 Pa. St. 521, 27 Atl. Rep. 1083. Denio 141 ; Bearss v. Copley, 10 N. Y. ^Collet V. Keith, 4Esp. 212. A wit- 93; Carver v. Tracey, 3 Johns. 427; ness who heard only a part of an ad- Wailing v. Toll, 9 Johns. 141; Mum- mission may testify to what he did ford v. Whitney, 15 Wend. 380, 30 hear. Post, ^25. Am. Dec. 60; Rouse v. Whited, 25 « Lynde v. McGregor, 13 Allen 182, N. Y. 170, 82 Am. Dec. 337; Whitman 90 Am. Dec. 188. v. Morey, 63 N. H. 448, 2 Atl. Rep. 899 ; ^Inre Gracie's Estate, 158 Pa. St. Turner v. Pho?nix Ins. Co., 55 Mirli. 521, 27 Atl. Rep. 1083. 236, 21 N. W. Rep. 326 ; Troy Fertili- « Clark v. Fletcher, 1 Allen 53; Com. zer Co. v. Logan, 90 Ala. 325, 8 So. 24 INDIRECT AND COLLATERAL EVIDENCE. § 22 not permit the showing of what was said at a distinct conver- sation/ Even witliin the limits of the particular conversation, the right to admit declarations on cross-examination is some- what circumscribed. A party can go no further than to prove what, if anything, he said qualifying his admission.^ His statement as to the general merits of the case is incompetent.* In a case where an indorser sued the maker of a note for money paid on such account, by a levy upon and sale of plaintiff's prop- erty, and it appeared tliat when the officer demanded property of the defendant the latter pointed out some property w'hich he said belonged to plaintiff, it was held that defendant was not entitled to show that he also added that the debt was to be paid by the plaintiff, as such statement was not germane.* The self-serving portions of the following declarations have been held competent : that the goods w^ere bought and paid for f that the defendant had received the goods, but had accounted for them f that he had received a dollar, but that it was his due ;' that the account v\ras correct, but that a set-off existed f that plaintiff's dog was killed, "but it was because he assaulted me in the night in the highway."^ Many other rulings might be mentioned, permitting statements of justification or defense to go in evidence, at least w^iere closely connected wdth the admission." Where an entry in the book of a part}^ has been Rep. 46; Spencer v. Fortesque, 112 N. zgimg ,, Moore, 61 Iowa 128, 16 N. Car. 268, 16 S. E. Rep. 898; State v. W. Rep. 58. Martin, 28 Mo. 530; Grand Rapids, ^Qj^j-ey ^,, Nicholson, 24 Wend. 350; etc., Ry. Co. v. Diller, 110 Ind. 223, 9 Mumford v. Whitney, 15 Wend. 380, N. E. Rep. 710; Yeiths v. Hagge, 8 30 Am. Dec. 60. Iowa 163 ; Sims v. Moore, 61 Iowa 128, * Rouse v. Whited, 25 Barb. 279. 16 N. W. Rep. 58; Emery v. State, 92 sgn^jth v. Jones, 15 Johns. 229. Wis. 146, 65 N. W. Rep. 848 ; Taylor « Benedict v. Nichols, 1 Root 434. on Ev., § 733. '' Carver v. Tracey, 3 Johns. 427. ^Peake v. Hutchinson, 5 S. & R. » Jacobs v. Farrall, 2 Hawks 570; 295; GalbraithtJ.Green,13S. &R. 85; Oliver v. Gray, 1 Har. & Gill 204. Murray v. Coster, 4 Cow. 617, 630; Contra Delamater v. Pierce, 3 Denio Martin v. Root, 17 Mass. 227; Blight* 315, 3 How. Pr. 162*. But compare V. Ashley, 1 Pet. C. C. 15; Stewart v. Perego v. Purdy, 1 Hilt. (N. Y. Com. Inhabitants, 5 Conn. 244; Carvers. PL) 269. Tracey, 3 Johns. 427 ; Fenner v. Lewis, ^ Credit v. Brown, 10 Johns. 365. 10 Johns. 88. " See Morris v. Hurst, 1 Wash. C. C. 433; Waggoner v. Gray, 2 Hen. & § 23 ADMISSIONS. 25 read he is entitled to put in evidence an entry necessarily con- nected therewith/ but he is not entitled to use other entries not so connected.' Where detached portions of the deposition of a witness were read on cross-examination, for the purpose of contradicting him, it was held that this gave the opposite party the right to read so much of the deposition pertaining to the same subject as tended to qualify, limit or explain the answer read by the opposite party." In a case where the defendant was sued for an assault and battery, and the plaintiff introduced in evidence defendant's plea of guilty in a prosecu- tion for the same unlawful act, it was held the duty of the trial court to exclude a qualifying statement made at the time the plea was entered, as it was an unqualified admission, and no accompanying statement could change its character in that respect." The fact that certain letters are read from a series of letters will not per se entitle the opposite party to read other letters from the series, and is not enough that they will shed some light on the transaction.^ § 23. Each part of the statement not entitled to equal weight.— It is the privilege of the jury to give credit to a part of the statement, and to reject the balance.* Mr. Best states, Miinf . 603 ; Turner v. Jenkins, 1 Har. Ins. Co., 55 Mich. 236, 21 N. W. Eep. & Gill 161; Whitwell v. Wyer, 11 326. Mass. 6; Holley's Admr. ?;. Christo- ^ Xaylor on Ev., §732. As to the pher, 3 Monr. 14 ; Trustees University right to read a letter sent in reply, see of N. Car. v. Roe, 2 Hawks 370; Shal- Taylor on E v., § 734; Turner ?;. Phoenix ler V. Brand, 6 Binn. 435, 6 Am. Dec. Ins. Co., siqyra, I Greenl. on Ev., 482; Bennett v. Burch, 1 Denio 141. §201, note. But a long statement of independent « Kelsey v. Bush, 2 Hill 440 ; Roberts facts will not be admitted. Walrod v. v. Gee, 15 Barb. 449 ; Penfield «. Jacobs, Ball, 9 Barb. 271. 21 Barb. 335; Mattocks u. Lyman, 18Vt. 1 Withers v. Gillespy, 7 S. & R. 10. 98, 46 Am. Dec. 138 ; Spencer v. Fortes- 2Catt V. Howard, 3 Stark. 3 ; Taylor que, 112 N. Car. 268, 16 S E. Rep. 898 ; on Ev., §732. Green v. State, 13 Mo. 382; Thrall v. 3 Whitman v. Morey, 63 N. H. 448, Smiley, 9 Cal. 529; Bermon v. Wood- 2 Atl. Rep. 899. See as to pleadings bridge, 2 Doug. 788 ; Rex v. Clews, 4 C. read in evidence, 1 Greenl. on Ev., &P.221; Smith ?;. Blandy, Ry. and M. § 202. 257 ; Methodist E. Church v. Jaques, 3 4 Root V. Sturdivant, 70 Iowa 55, 29 Johns. Ch. 115; Turners. Child, IDev. N. W. Rep. 802; Turners. Phcenix 133, 17 Am. Dec. 555 ; Smith u. Hunt, 1 2t) INDIRECT AND COLLATERAL EVIDENCE. § 24 in his work on evidence, that " while the whole statement must be received, the credit due to each part must be deter- mined by the jury, who may believe the self-serving and dis- believe the self-disserving portion of it, or vice versa.'" The admission of the portion of the statement favorable to the declarant has sometimes been put upon the ground that the use of the admission waives any objection to any of the mat- ters contained in the statement,^ and it has also been suggested that the presumption or probability of the truth of those parts of a party's statement which are against interest may be looked upon as giving credit to the remainder of the statement.^ But upon whatever ground the admission of the favorable portion of the statement may be claimed, it is believed, although authority is meager upon the subject, that such portion can not be given any constructive force. Thus, in an action for defama- tion, where the plaintiff introduced an admission of the de- fendant as to the publication, but the admission was coupled with the further statement that the matters set forth were true, it was held that the latter statement did not tend to prove the truth of the publication, but that the utmost effect which could be given it was to neutralize the admission.* § 24. Weight of admissions. — A self -disserving declaration, deliberately made by a party, and clearly proved, is ordinarily, perhaps, the most satisfactory oral evidence. It has been fre- quently laid down that it is entitled to very great weight.^ It is to be observed, however, that this statement relates to the M'Cord 464; Newman v. Bradley, 1 ^ i Phil, on Ev. (1849 ed.), 344. See Dall. (Pa. St.) 240. But this rule can 1 Starkie on Ev., star p. 46. only be applied where the self-disserv- * Eice v. Withers, 9 Wend. 138. See Ing portions of the declaration can be Randle r. Blackburn, 5 Taunt. 245. separated. Thus,where a negro says, ^ Com. v. Knapp, 9 Pick. 496, 20 Am. " I was manumitted," it would not be Dec. 491 ; Myers v. Brownell, 2 Aikens possible to reject the statement and (Vt.) 407, 16 Am. Dec. 729; Tozer v. at the same time draw the implica- Hershey, 15 Minn. 257; Dreher v. tion from it that he was once a slave. Town of Fitchburg, 22 Wis. 675, 99 Fox V. Lambson, 3 Halst. 255. Am. Dec. 91; Martin v. Town of Al- 1 Best on Ev., §520. gona, 40 Iowa 390; Greenawalt v. 2Randle?;. Blackburn, 5 Taunt. 245; McEnelly, 85 Pa. St. 352; 1 Greenl. Smith V. Blandy, Ry. & M. 257. on Ev., § 200. 97 « 24 * ADMISSIONS. ^' force of an admission, about the deliberate making of wliicli the mind has no question. But with reference to verbal ad- missions, there is grave danger that the witness may not have correctly understood what was said, or have forgotten the exact language; and the declarant may not have made his meaning clear, or have spoken in jest, or without real consideration of what he was saying. It is because of the uncertainty and lia- bility to mistake upon these preliminary questions that courts and authors have been led to state that verbal admissions ought to be received with very great caution.^ A few courts have sanctioned instructions which lay down the doctrine as it is or- dinarily found in works on evidence,^ but while such state- ments are correct, as abstract propositions, it must be said that in many jurisdictions such instructions would be regarded as an invasion of the jury's province.^ It is, however, entirely proper for the trial judge to direct the attention of the jury to the elements suggested, leaving it to determine what value if any, it will place upon the testimony.* There is a hue of cases in which it is held that evidence of verbal statements and admissions made by a deceased person are not sufficient to es- tablish a resulting trust, unless supported by strong corrobo- rative evidence.^ A divorce will not be granted, without cor- lEex^.Simons, 6C.&P.540;Earle ^See authorities cited in two notes ■J, Picken 5C & P. 5-t2; Law v. Mer- immediately preceding, rilfs 6 Wend 268 ; Hadden .. N. Y. ^Va.l^ v. Hardy, 76 md- 272 ; Unrub Silk' m<^ Co., 1 Daly 388; Myers .. v. State, 105 Ind. 117, 4 N. E. Rep. ProwneU 2 Aikens (Vt.) 407, 16 Am. 453; Castleman v. Sherry, 42 Tex. o9; Dec 729; Clarck .. Larkin, 9 Iowa Com. v. Galligan, 113 Mass. 202 ; Mauro 391; Thompson v. Thompson, 9 Ind. v. Piatt, 62 111. 4o0. 393 68 Am Dec. 638 ; Dreher v. Town * See Deal .. State, 140 Ind. 354, 39 of Fitchburg, 22 Wis. 675, 99 Am. N. E. Rep. 930. Dec. 91; Fry .. Stowers, 92 Va. 13, ^Johnson . Quarles, 46 Mo. 423, ''2 S E Rep. 500; Greenl. on Ev., Ringo v. Richardson, 53 Mo. 385, §200; 1 Phil, on Ev. (1849 ed.), §372. Kennedy ^. Kennedy, 57 Mo 73 ; Da- Tbisisparticularlytrueiftbedeclara- vis .. Green 102 Mo 170, 14 S.^\ . tion is made in a casual conversation Rep. 876 ; Anthony ^.Chapman, 65 Cal and to a disinterested person. Haven 73, 2 Pac. Rep. 889. As to the weight V Cole 67Wis.493,30N.W.Rep.720; of evidence of the admission of a de- Fifield'r. Gaston, 12 Iowa 218; Wal- ceased person, testified to by a wit- lace V. Berger, 14 Iowa 183. ness who can not be contradic ed, see Coeler v. Abels, 18 La. Ann. 617. 28 INDIRECT AND COLLATERAL EVIDENCE. § 25 roboratiou, on the admission of one of the parties to the fact of adultery, because of the danger of collusion/ § 25. Practice as to receiving admissions. — As an admis- sion is itself substantive evidence, it is not necessary to fix time and place in interrogating a witness concerning it.^ Al- though there is the right, within limits, where a witness is contradicted, to prove other declarations out of court consist- ent with his testimony, yet no right exists to break the force of an admission by showing the self-serving declarations of the party at any other time.^ The fact that the witness did not hear all of the statement will not prevent him from testifying to what he did hear.* A witness should state the language of an admission, if possible ; if not, the substance of it ; he can not give merely his understanding of it.^ Proof may be made in rebuttal, where the facts warrant it, that the party making the statement was of weak intellect, so that the jury may know whether to attribute to the declaration the force of a deliberate admission.® Admissions by Persons Other than the Painty Against Whom They Are Introduced. § 26. Admissions by persons having joint interest — Joint and several obligation. — According to the weight of authority, if one of two parties having a joint interest makes a self-dis- serving declaration, it is evidence against both. It is upon this ground that the declarations of joint obligors, or other persons having a joint interest, are received.'' There must, 1 Sheffield v. Sheffield, 3 Tex. 79; 14 N. W. Eep. 671; Logansport, etc., Mack V. Handy, 39 La. Ann. 491, 2 Turnpike Co. v. Heil, 118 Ind. 135, 20 So. Rep. 181; Whart, on Ev., §483. N. E. Rep. 703; State v. Hunt, 137 See Taylor on Ev., §768. Ind. 537, 37 N. E. Rep. 409. 2 Blossom V. Barrett, 37 N. Y. 434, * Westmoreland v. State, 45 Ga. 97 Am. Dec. 747. 225; Woolfolk v. State, 85 Ga. 69, 11 3 Hunt V. Roylance, 11 Cush. 117 S. E. Rep. 814; State v. Covington, 2 59 Am. Dec. 140; Baxter v. Knowles Bailey 569. 12 Allen 114; Pickering v. Reynolds, ^Dennis v. Chapman, 19 Ala. 29, 54 119 Mass. Ill ; Royal v. Chandler, 79 Am Dec. 186. Me. 265, 9 Atl. Rep. 615, 1 Am. St. « Coats v. Elliott, 23 Tex. 606. Rep. 305; Lyman v. Lull, 20 Vt. 349; ' Whitcomb v. Whiting, Doug. 652; Van Fleet v. Van Fleet, 50 ]\Iich. 1, Armstrong v. Farrar, 8 Mo. 627, § 26 ADMISSIONS. 29 however, be evidence de Jiors the declaration to establish the joint relationship.^ The doctrine of this section rests upon the ground that the interest of the parties being joint, the admission of one is the admission of all. The leading case upon the subject is Whitcomb v. Whiting,^ decided by Lord Mansfield. In addition to the reason above suggested for the doctrine, it is further said in that case that one acts virtually as the agent for the other. In New York it is denied that there is such an agency between mere joint debtors as to make the declarations of one competent against the other,' and even in jurisdictions where acquiescence is not yielded to the doc- trine as laid down in New York, it must be held that the agency implied from the mere fact of the execution of a joint obligation is to be kept within very narrow confines. In an English case* it was stated that the principle of the case of "Whitcomb v. Whiting^ was not to be extended, and the court therefore denied the application of that case where an admis- sion was made by one of the signers of a joint obligation after the death of the other obligor, for the reason that death had worked a severance.^ The limitations upon the writer's space will preclude an examination into the cases involved in the controversy engendered by Whitcomb v. Whiting' relative to the power of a joint obligor to toll the statute of limitations against his co-obligor, by an admission of payment. The and cases cited; Hurst v. Robinson, Smith v. Ludlow, 6 Johns. 267; Gray 13 Mo. 82, 53 Am. Dec. 13-4; Costelou. v. Pahiier, 1 Esp. 135. Cave, 2 Hill (S. Car.) 528, 27 Am. Dec. MVhitcomb v. Whiting, Doug. 652. 404; Bankof United States V.Lyman. HVallis v. Randall, 81 N. Y. 164, 1 Blatch. C. C. 297, 20 Vt. 66G; and see Van Keuren v. Parmelee, 2 Clark V. Morrison, 25 Pa. St. 453; N. Y. 523, 51 Am. Dec. 322; Shoe- Ames, In re, 61 Iowa 596, 2 N. W. maker v. Benedict, 11 N. Y. 176, 62 Rep. 408; 1 Greenl. on Ev., §176; Am. Dec. 95; Osgood v. Manhattan Whart. on Ev., § 1197, ef seg. Taylor Co., 3 Cow. 612, 15 Am. Dec. 304; on Ev., § 750; 1 Phil, on Ev., (1849 Osborne v. Bell, 62 Mich. 214, 28 N. ed.) §378. Where the principal and W. Rep. 841. surety enter into a joint obligation, ^ Atkins v. Tredgold, 2 Bar. & Cress, the admissions of the former are com- 23. petent against the latter. Atlas Bank ^ Whitcomb v. Whiting, Doug. 652, V. Brownell, 9 R. I. 168, 11 Am. Rep. ^To the same effect Lane v. Doty, 4 231. Barb. 530. ^Hackley v. Patrick, 3 Johns. 536; HVitcomb v. Whiting, Doug. 652. 30 INDIRECT AND COLLATERAL EVIDENCE. §27 American authorities upon the subject will be found collected, to a large extent, in the note to that case in Charles H. Edson & Co.'s edition of Smith's Leading Cases. § 27. A mere community of interest is not enough. — If there is but a community of interest between two persons, the admission of one is not competent against the other. This rule has been applied as between tenants in common ;^ as be- tween co-executors or co-administrators ;^ as between heirs or legatees f and as between the indorsers upon a note.* The admis- sion of a stockholder can not be received as against the corpo- ration,® and, a fortiori, the admission of a director of a private corporation,* or a member of a public board, can not be shown.' 1 Dan V. Brown, 4 Cow. 483, 45 Am. Dec. 395; Lane v. Doty, 4 Barb. 530; Osgood V. Manhattan Co., 3 Cow. 612, 15 Am. Dec. 304. ^Lane v. Doty, 4 Barb. 530; Cayuga County Bank v. Bennett, 5 Hill 236 Elwood V. Deifendorf, 5 Barb. 398 Hammon v. Huntley, 4 Cow. 493 James v. Hackley, 16 Johns. 273 ; Mc- Intire V.Morris, 14 Wend. 90; Church V. Howard, 79 N. Y. 415 ; Whiton v. Snyder, 88 N. Y. 299; Davis v. Gal- lagher, 124 N. Y. 487, 26 N. E. Rep. 1045 ; Hathaway v. Haskell, 9 Pick. 42. 3 Hayes v, Burkam, 67 Ind. 359; Hauberger v. Root, 6 Watts & S. 431 ; Clark V. Morrison, 25 Pa. St. 453; Dil- lard V. Dillard, 2 Strob. (S. Car.) 89; Blakey's Heirs v. Blakey's Executrix, 33 Ala. 611 ; Forney v. Ferrell, 4 VV. Va. 729 ; Ames, Li re, 51 Iowa 596, 2 N. W. Rep. 408; Phelps v. Hartwell, 1 IMass. 71 ; Thompson v. Thompson, 13 Ohio St. 356. Contra, Beall v. Cun- ningham, 1 B. Monr. 399; Rogers v. Rogers, 2 B. Monr. 324; Brown v. Moore, 6 Yerg. 272; Saunder's Ap- peal, 54 Conn. 108, 6 Atl. Rep. 193. In a suit on an administrator's bond, it was held that the admission of one distributee was not competent as against his co-distributees. Prewett V. Coopwood, 30 Miss. 369. *Slaymaker v. Gundacker'« Execu- tor, 10 S. & R. 75. * Osgood V. Manhattan Co., 3 Cow. 612, 15 Am. Dec. 304 ; Fairfield Turn- pike Co. V. Thorp, 13 Conn. 173; Pol- leys V. Ocean Ins. Co., 14 Me. 141. Although the law is otherwise in En- gland, in this country the admissions of a parishioner, who is liable to be assessed for taxes, are not received. Hartford Bank?;. Hart, 3 Day (Conn.) 491, 3 Am. Dec. 274; Osgood v. Man- hattan Co., 3 Cow. 612, 15 Am. Dec. 304 ; Trustees of Village of Watertown V. Cowen, 4 Paige 510, 27 Am. Dec. 80; Whart. on Ev., § 1199. ^Pemigewassett Bank v. Rogers, 18 N. H. 255; Grayville, etc., Ry. Co. v. Burns, 92 111. 302; East River Bank v. Hoyt, 41 Barb. 441. Contra, where the admission is made in and about a matter where the ofiicer is called on to act. Northrup v. Miss. V,alley Ins. Co., 47 Mo. 435, 4 Am. Rep. 337. 'Walker v. Dunspaugh, 20 N. Y. 170 ; Davis -y. Rochester, 66 Hun 629, 21 N. Y. Supp. 215; Yordy v. Marshall Co., 86 Iowa 340, 53 N. W. Rep. 298. § 28 ADMISSIONS. 31 § 28. Admissions of co-conspirators. — The subject of joint obligors, of which we have lately been treating, and of co-con- spirators, upon superficial thought, seem almost as widely sep- arated as the antipodes, but the same principle governs both. The word ''conspire" is from the Latin word coiispiro, mean- ing, to blow together, to breathe together. In both cases there is a joint agreement. The declarations and acts of co-conspir- ators are admitted on the theory that they have taken upon them- selves, as a body, the attribute of individuality.^ This subject is frequently treated of in works on evidence under the title res gestse, and it is not improper to do so, for the declarations of a co-conspirator are not received except when they are a part of the res gestse.^ It is only those declarations which are uttered in the effort to aid or carry forward the design of the conspiracy, or which are a part of its active prosecution, that are admissible. Thus, upon a charge of murder, it was held incompetent to prove that a co-conspirator said, in response to a suggestion that he move his hay, so that the deceased could not steal it, " He will not be here next winter, and don't you forget it."^ Declarations as to past acts,* or expressing merely the opinion or desire of the conspirator, are not competent.^ As such dec- larations are not admissible, it follows that acts not done in the execution of the conspiracy can not be shown. Thus, it can not be shown that a co-conspirator has fled,® even to ac- ^3 Greenl. on Ev., § 94; Ford v. although made during the continuance State, 112 Ind. 373, 14 N. E. Rep. 241 ; of the plot, are in fact a mere narra- State V. Johnson, 40 Kan. 266, 19 Pac. tive of the measures that have already Rep. 749. been taken. These last statements 23 Greenl. on Ev., § 94. are, as before explained, inadmissi- » State V. McGee, 81 Iowa 17, 46 N. ble." Taylor on Evidence, § 593. W. Rep. 764. See Samples w. People, * People v. Irwin, 77 Cal. 494,20 121 111. 547, 13 N. E. Rep. 586. "Care, Pac. Rep. 56 ; Walls v. State, 125 Ind, however, must be taken to distinguish 400, 25 N. E. Rep. 457; People v. between declarations, which are ei- Murphy, 101 N. Y. 126, 4 N. E. Rep. ther acts in themselves purporting to 326, 54 Am. Rep. 661 ; State v. John- advance the objects of the criminal son, 40 Kan. 266, 19 Pac. Rep. 749. enterprise, or which accompany and ^ People v. Irwin, 77 Cal. 494, 20 explain such acts, and those state- Pac. Rep. 56. ments, whether written or oral, which ^ People v. Lee Chuck, 78 Cal. 317, 32 INDIRECT AND COLLATERAL EVIDENCE. § 29 count for the failure to call him as a witness/ or to corroborate the evidence of a state witness.^ Where the purpose of the conspiracy is limited to the commission of a criminal act, the completion of the act marks the end of the criminal relationship, and, consequently, of the right to introduce the declarations of conspirators against their fellows. Where, however, the conspiracy also had for its object preventing sus- picion from attaching to the defendant, or enabling him to es- cape justice, declarations made looking to such an end would still be competent.* § 29. Proof of conspiracy. — In the case of co-conspirators, as in the case of agency and also of partnership, one link in the chain of proof must be forged by evidence aliunde, and that is the fact of the joint undertaking; it would be a clear violation of principle to permit the declarations of co-conspirators to go in evidence to prove the very fact which alone could make such declarations competent-.* What the party himself says may, of course, be given in evidence as an admission. It is the usual practice to require -prima facie evidence of the fact of conspir- acy to be made in advance.^ Whether such a showing has been made is a question for the trial court, and its action will not 20 Pac. Eep. 719 ; Jump v. State, 27 conspiracy existed against others, to Tex. App. 459, 11 S. W. Rep. 461. which he was not a party, would ^ People V. Sharp, 107 N. Y. 427, 14 clearly be inadmissible, and although N. E. Rep. 319, 1 Am. St. Rep. 893. the "person making the assertion con- 2 People V. M'Quade, 110 N. Y. 284, fessed that he was a party to it, this, 18 N. E. Rep. 156. on principles fully established, would * Miller v. Dayton, 57 Iowa 423, 10 not make the assertion evidence of the N. W. Rep. 814. See Com. v. Scott, fact against strangers." 2 Starkie on 123 Mass. 222, 25 Am. Rep. 87; Scott Ev., star p. 235. v. State, 30 Ala. 503. ^ 2 Starkie on Ev., star p. 234 ; United *Ford V. State, 112 Ind. 373, 14 N. States v. Cole, 5 McLean 513; Com.??. E. Rep. 241 ; Wharton on Ev., § 1206. Crowninshield, 10 Pick. 497; State v. "The existence of a conspiracy is a George, 8 Ired. 324, 49 Am. Dec. 392; fact, and the declaration of a stranger Coins v. State, 46 Ohio 457, 21 N. E. is but hearsay, unsanctioned by either Rep. 476; State i'. Weaver, 57 Iowa of the two great tests of truth. The 730, 11 N. W. Rep. 675; State v. Me- niere assertion of a stranger that a Gee, 81 Iowa 17, 46 N. W. Rep. 764. § 30 ADMISSIONS. 33 be reviewed in the absence of an abuse of discretion.^ While it is the usual practice, as already stated, to refuse to permit the declarations of co-conspirators to be introduced in advance of evidence of the conspiracy, yet the court may, as a matter of discretion, permit evidence to go in of all that is said and done by the parties in carrying out the alleged conspiracy, and then it will become a question, upon the close of such testi- mony, whether, in view of all the acts, declarations and cir- cumstances with w^hich the party may be fairly charged, by concurrence or otherwise, enough has been shown to prima facie infect him with a conspiracy.' "If it be proved that the defendants pursued by their acts the same object, often by the same means, — one performing one part, and another another part of the same, so as to complete it, — with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object." ^ § 30. Declarations of predecessors in title. — This subject -will in part be considered under the title res gestse.* We are now about to deal with declarations which owe their admissibility to the fact that they are the self -disserving statements of persons through whom the party sought to be charged deraigns his title. If a person should make a declaration against interest concerning his right to certain property, and his right should subsequently be attacked, there would be no doubt as to the competency of such declaration as against him. It would seem to follow, therefore, that a grantee who purchased caveat emptor ought to be charged with his grantor's prior admis- iGoins V. State, 46 Ohio 457, 21 N. 106 Ind. 426, 7 N. E. Rep. 225; Miller E. Rep. 476. See State v. McGee, 81 v. Dayton, 57 Iowa 423, ION. W. Rep. Iowa 17, 46 N. W. Rep. 764. 814; State v. Ross, 29 Mo. 32. 2Spiesi\ People, 122 111. 1, 12 N. E. ^3 Greenl. on Ev., §93; United Rep. 865, 3 Am. Rep. 320; State V.Win- States v. Doyle, 6 Sawyer 612; The ner, 17 Kan. 298 ; Dole v. Wooldredge, Mussel Slough Case, 5 Fed. Rep. 680 ; 142 Mass. 161, 7 N. E. Rep. 832 ; Riehl People v. Bentley, 75 Cal. 407, 17 Pac. V. Evansville Foundry Asso., 104 Ind. Rep. 436. 70, 3 N. E. Rep. 633 ; Archer v. State, « Post, § 289. 3 -Ev. 34 INDIRECT AND COLLATERAL EVIDENCE. §30 sions, notwithstanding the transfer. This has been many- times ruled as to realty, chattels and choses in action, includ- ing commercial paper transferred after maturity.' No attempt has been made to classify the cases cited in the note, as the rulings in all of them rest upon the same substantial principle. An effort has been made in the earlier pages of this work to show that admissions are primary evidence.' This considera- tion disposes of every objection to admitting the prior admis- sions of predecessors in title, unless a court should have the boldness to assert that the admissions of persons who stand in the ascending line of privity with the party are but mere hear- say declarations. As Messrs. Cowen and Hill say, in their learned notes to Phillips on Evidence :" "The only doubt lies in the principle. Is the purchaser in privity with the seller? Does the vendee take subject to the vendor's defects of title?" In view of the strong array of English and American author- ity the subject would not merit further discussion except for the doubts cast upon the doctrine by the New York courts ^Gibblehouse v. Strong, 3 Eawle 437 ; Hackett v. Amsden, 59 Vt. 553, 8 Atl. Rep. 737 ; Baker v. Haskell, 47 N. H. 479, 93 Am. Dec. 455; Davis v. Spooner, 3 Pick. 284 ; Bridge v. Eggle- ston, 14 Mass. 245, 7Am.Dec.209; Bond V. Fitzpatrick, 4 Gray 89 ; Flagg v. Ma- son, 141 Mass. 64, 6 N. E. Rep. 702; Magee v. Raigael, 64 Pa. St. 110; Mor- gan V. McNeeley, 126 Ind. 537, 26 N. E. Rep. 395 ; Blount v. Riley, 3 Ind. 471 ; Stoner v. Ellis, 6 Ind. 152; Jacobs v. Callaghan, 57 Mich. 11, 23 N. W. Rep. 454; Williams v. Judy, 3 Gil. (111.) 282, 44 Am. Dec. 699; Cunningham V. Fuller, 35 Neb. 58, 52 N. W. Rep. 836; Taylor v. Hess, 57 Minn. 96, 58 N. W. Rep. 824 ; Robb v. Schmidt, 35 Mo. 290 ; Murray v. Oliver, 18 Mo. 405 ; Dickerson v. Chrisman, 28 Mo. 134; New York & Hav. Cigar Co. v. Bern- heim, 81 Ala. 138, 1 So. Rep. 470; Frink v. Roe, 70 Cal. 296, 7 Pac. Rep. 481 ; Bassler v. Niesly, 2 Serg. & R. 352 ; Weidman v. Kohr, 4 Serg. & R. 174; Brindle v. M'llvaine, 10 Serg. & R. 282; Kellogg v. Krauser, 14 Serg. &R. 137,16 Am. Dec. 480; Reed-r.Van- cleve, 27 N. J. L. 352, 72 Am. Dec. 369 ; Dorsey v. Dorsey, 3 Harr. & J. 410, 6 Am. Dec. 506; Scott v. Coleman, 5 Lit- tell R. 349, 15 Am. Dec. 71 ; Walthall v. Johnston, 2 Call 275; Woodruff v. Whittlesey, Kirby 60; Johnson v. Pat- terson, 2 Hawks 183, 11 Am. Dec. 756 Snelgrove v. Martin, 2 McCord 241 Shaw V. Broom, 4 Dowl. & Ryl. 730 Barough v. White, 6 Dowl. & Ryl 379; Pocock v. Billing, 2 Bing. 269 Coster V. Symons, 1 Carr. & P. 148 Haddan v. Mills, 4 Carr. & P. 486 Peckham v. Potter, 1 Carr. & P. 232 Whart. on Ev., § 1156, and cases cited 1 Greenl. on Ev., §§ 190, 191 ; Taylor on Ev., §§790, 791; 3 Phil, on Ev., (1849 ed.) 265, et seq. ^Ante, §18. ^PhilHps on Evidence, 3 vol. (1849 ed.),288. § 30 ADMISSIONS. 35 and the Supreme Court of the United States. The case of Paige V. Cagwin/ which was an over-due note case, fully established the doctrine in New York that such dec- larations were incompetent in cases involving the trans- fer of personal property and choses in action. In the at- tempt to distinguish between these classes of cases and real estate cases, the court reasons upon the subject in the follow- ing unsatisfactory way : ''When a person becomes a pur- chaser of a chose in action or a chattel, for a valuable consid- eration, his rights are independent of his assignor and beyond his control. Although it may be necessary to found his title on the transfer, yet the mere proof of such transfer is evidence of his right. Personal property is frequently acquired by possession merely. Possession alone is, then, prima facie evidence of title, and the rights of the possessor do not neces- sarily depend on the title of the person by whom delivery was made."^ It is upon this reasoning that the doctrine exclud- ing the class of declarations under consideration in cases in- volving the transfer of personal property and cJioses in action rests in New York to this day,^ and the Supreme Court of the United States has adopted the same view.* The case of Paige V. Cagwin® contains also a suggestion which would exclude such declarations, except under exceptional circumstances, in real estate cases. That suggestion is that the old cases admit- ting such declarations as self-disserving were cases in which the privity between the parties was by blood or representation, ^ Paige V. Cagwin, 7 Hill 361, 42 Am. more effect than a verbal acknowl- Dec. 68. edgment to discharge the note." 2 The dissenting opinion in this case The learned judge evidently over- rendered by Hopkins, Senator, con- looked the fact that if a receipt was tains a piece of reasoning unworthy given as a part of the transaction of of a judge of that great court. He payment, the receipt would have been says: "Can it be doubted that a a part of the res f/esto. written release or receipt duly proved ^Flannery v. Van Tassel, 127 N. Y. to have been made before the note 631, 27 N. E. Rep. 393, and cases was transferred, would have put an cited. end to it as a thing of value, or at *Dodge v. Freedman's Trust Co., 93 least that it would have been prima U. S. 379. facie evidence of payment or dis- ^ Paige v. Cagwin, 7 Hill 361,43 Am. charge? and yet a written receipt or Dec. 68. admission of payment would have no 36 INDIRECT AND COLLATERAL EVIDENCE. §30 as in the case of ancestor and heir, testator and executor, etc. The authorities do not warrant this view, and a distinction maintained on that ground, as the opinion cited from the Supreme Court of tlie United States clearly foreshadows, would exclude all of the vendor's declarations in many real estate cases, unless the declarations were a part of the res gestse} The dif- ficulty with this latter day doctrine is that the authorities to the contrary have foreclosed discussion of the topic to such an extent that in most jurisdictions, under the rule of stare decisis, the question is not open to discussion. Returning now to what may be termed the general rule, it may be laid down, apart from exceptional cases hereafter noticed, that where a person must recover through the title of another, the admissions of the grantor, during his investiture of the title, are evidence against his grantee.^ In other W'Ords, to use a somewhat figurative expression, if the subsequent holder is 1 Post, § 289. See as to the New York doctrine concerning transfers of real estate, Vrooman v. King, 36 N. Y. 477; Chadwick v. Fonner, 69 N. Y. 404; Savage v. Murphy, 8 Bosw. 75. 2 1 Phil, on Ev., (1849 ed.) 394; Taylor or Ev., § 787; 1 Greenl. on Ev., § 189, et seq.; Van Duyne v. Thayre, 14 Wend. 233; Smith v. Smith, 3 Bing. (N. C.) 29, and see cases in the second note to this sec- tion. The admissions of an executor as to the circumstances attending the execution of the will are not competent when they affect the devisee. Shailer v. Bumstead, 99 Mass. 112; Blakey's Heirs v. Blakey's Executrix, 33 Ala. 611 ; Ames, In re, 51 Iowa 596, 2 N.W. Rep. 408. Contra, Dennis v.Weekes, 46 Ga. 514; Peeples v. Stevens, 8 Rich. (S. C.) 198, 64 Am. Dec. 750. See imst, §50. The fact of the insolvency of a tes- tatrix at the time of her death can not be shown by a statement to that effect in a petition filed by her executor to make assets of the realty, the petition not having been acted on and it ap- pearing that her heirs were claiming, not by descent, but by conveyance. Os- good V. Manhattan Co., 3 Cow. 612, 15 Am. Dec. 304. The executor can not bind the heir by an admission where the real estate is not resorted to. Mooers v. White, 6 Johns. Ch. 360. The admission of an administrator being competent as against himself (Faunce v. Gray, 21 Pick. 243; Eckert V. Triplett, 48 Ind. 174) is competent against the administrator de bonis non. Lashlee v. Jacobs, 9 Humph. 718; Eckert v. Triplett, 48 Ind. 174, 17 Am. Rep. 735. A parent suing for the death of a child can not be charged with the mere admission of the child. Louisville, etc., Ry. Co. v. Berry, 2 Ind. App. 427, 28 N. E. Rep. 714; Ohio, etc., R. Co. v. Hammersley, 28 Ind. 371; Mutcha v. Pierce, 49 Wis. 231, 5 N. W. Rep. 486, 35 Am. Rep. 776. In all these cases it will be seen that the question of the admissibility of the evidence turns upon the consid- eration as to whether privity existed. § 31 ADMISSIONS. 37 in a position where he must rely upon the strength of his pred- ecessor's title, he may find that the strain put upon it by his effort to recover will cause it to part at a point where his pred- ecessor's admission has mutilated it. It is to be remembered, however, that the doctrine of this section is not to be invoked for the purpose of overthrowing the title of a good faith pur- chaser for a valuable consideration, at the suit of the holder of a prior secret equity, for where equities are equal the holder of the legal title will prevail.^ It is also necessary to distin- guish in favor of the holder of commercial paper, who has purchased under circumstances entitling him to protection,^ for, as observed by Mr. Justice Parke, ^ ''the right of a person holding by a good title is not to be cut down by the ac- knowledgment that he had no title." In a preceding section, some limitation is put upon the effect of admissions in cases where they conflict with the recording act or the statute of frauds.* § 31. Admissions not competent after purchaser's rights have attached. — In the absence of a conspiracy, and where the purchaser does not permit the seller to remain in possession of the property,' the law is thoroughly settled that after the title has passed it does not lie with the seller, by his declarations, to impeach the purchaser's title.® It has been denied that an owner 1 «< For equity will not disarm a pur- don ed., 1. Even the holder of the legal chaser but will assist him." Basset v. title to property is exposed to the prior Nosworthy, Finch 102; Story's Eq. admissionsof the seller, if he buys with Jur. § 604. It may admit of ques- notice of an outstanding equity. Lit- tion as to the extent that the holder tie v. Dyer, 138 111. 272, 27 N. E. Eep. of a non-negotiable chose in action 905, 32 Am. St. Rep. 140. See, in sup- can insist upon being protected portof the text, 2Whart. on Ev., §1163. against prior declarations of his as- ^gj^j-^^gi^^ ^ White, 4 B. &C. 327; signor tending to estabhsh an equita- Beauchamp v. Parry, 1 B. & Ad. 89; ble right in another, in those jurisdic- 1 Phil, on Ev. (1849 ed.) 394; 1 tions which continue to treat non-ne- Greenl. on Ev., § 190. gotiable choses in action as non-assign- ^Woolway v. Rowe, 1 A. & E. 114. able except in equity. For some aid * Ante, ^17. upon this subject consult the note to ^ Post, §§288, 289. Basset u. Nosworthy, Finch 102, as re- ^Padgett v. Lawrence, 10 Paige's ported in 2 White and Tudor's Lead. Ch. 170, 40 Am. Dec. 232; Sprague v. Cas.inEq.,4th Am. ed. from4thLon- Kneeland, 12 Wend. 161 ; Whitaker 38 INDIRECT AND COLLATERAL EVIDENCE. §31 of land has power to prejudice by his declarations a purchaser under a judgment rendered before the declarations were made/ The contrary has been held in Massachusetts in the case of a mortgage,^ and it would seem with the better reason, provided tliat the debtor had at the time such an interest in the prop- erty over and above the debt as to render his declaration self- dissevering. It lias been held in Missouri that the declara- tions of the owner of a steamboat, made after it had been seized and ordered sold, could not be received.^ According to the weight of authority, an assignee who holds in trust for creditors is not liable to have his interest destroyed, or cut down, by the subsequent declarations of the assignor.* Even the purchaser of a non-negotiable chose in action, although he gets no title at law, will be protected against the subsequent ■?;. Brown, 8Wend. 490; Bristol «.Dann, 12 Wend. 142, 27 Am. Dec. 122 ; Vroo- man v. King, 36 N. Y. 477 ; Peck v. Yorks, 47 Barb. 131 ; Burk v. Hand, 45 N. J. Eq. 166, 16 Atl. Eep. 693 ; Beeck- manv. Montgomery, 1 McCarter (N. J. Eq.) 106, 80 Am. Dec. 229 ; Souder v. Schechterly, 91 Pa. St. 83 ; McLaugh- lin w. McLaughlin, 91 Pa. St. 462; Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 638 ; Kieth v. Kerr, 17 Ind. 284 ; Burkholder v. Casad, 47 Ind. 418 ; Campbell v. Coon, 51 Ind. 76; Proctor V. Cole, 104 Ind. 373, 3 N. E. Eep. 106 ; Burt-y. McKinstry,4 Minn. 204, 77 Am. Dec. 507; Derby v. Gallup, 6 Minn. 119; Blackman v. Wheaton, 13 Minn. 326; Adler v. Apt, 30 Minn. 45, 14 N. W. Rep. 63 ; Cleveland v. Davis, 3 Mo. 331; Enders v. Eichards, 33 Mo. 598; Steward v. Thomas, 35 Mo. 202; State V. King, 44 Mo. 238; Weinrich v. Por- ter, 47 Mo. 293; Consolidated Tank Line Co. v. Pien, 44 Neb. 887, 62 N. W. Eep. 1112; De France v. Howard, 4 Iowa 524 ; O'Neil v. Vanderburg, 25 Iowa 104; Garrahy v. Green, 32 Tex. 202; Emmons v. Barton, 109 Cal. 662, 42 Pac. Eep. 303 ; Garlick v. Bowers, 66 Cal. 122, 4 Pac. Eep. 1138; Frink V. Eoe, (Cal.) 7 Pac. Eep. 481; Josephi V. Furnish, 27 Ore. 260, 41 Pac. Eep. 424; Farmers' Loan and Trust Co. V. Montgomery, 30 Neb. 33, 46 N. W. Eep. 214; Koch v. Lyon, 82 Mich. 513, 46 N. W. Eep. 779; New York & Hav. Cigar Co. v. Bernheim,81 Ala. 138, 1 So. Eep. 470. ^ Padgett V. Lawrence, 10 Paige's Ch. 170, 40 Am. Dec. 232. See Whart. on Ev., § 1162. ^Flagg V. Mason, 141 Mass. 64, 6 N. E. Eep. 702. And see Martel v. Som- ers, 26 Tex. 559. ^ Eenshaw v. Steamboat Pawnee, 19 Mo. 532. * Simpson v. Carleton, 1 Allen 109, 79 Am. Dec. 707; Heywood v. Eeed, 4 Gray 574 ; Brock v. Schradskj', 6 Colo. App. 402, 41 Pac. Eep. 512 ; Carleton v. Baldwin, 27 Tex. 572; Josephi v. Fur- nish, 27 Ore. 260, 41 Pac. Eep. 424; Wynne t'. Glidewell, 17 Ind. 446; Doe V. Moore, 4 Blackf. 445 ; Smith v. Sim- mes, 1 Esp. 330. Confra Koch ii. Lyon, 82 Mich. 513, 46 N. W. Eep. 779. § 32 ADMISSIONS. 39 declarations of his assignor, and that, notwithstanding the fact that the latter is the plaintiff of record/ §32. Statements of agent in making contract. — "Qui fdcit per alium facit per se" — he who acts for another is regarded as acting for himself — so runs the maxim. It is unnecessary to multiply authority upon the plain proposition that if an agent has power to make a contract, his statements in the making of it are evidence to the same extent as if the principal were act- ing without the intervention of an agent. Such a statement is in the nature of original evidence, being an ultimate fact to be proved, and not an admission of some other fact. Even where authority to make a contract on behalf of another is wanting, a ratification of the contract, made with full knowledge of the facts, will attach to the contract whatever infection there was in the agency which brought it about. ^ § 33. Admissions of agent or servant in matters where he is authorized to speak. — It is frequently laid down that anagent's admission must be within the res gestse to be competent. This statement is not entirely accurate, for there are agents wdio, by the express terms of their appointment, or by implication, from the nature of the service they render, are expected to speak for the principal, and where they do so speak it is the principal's voice.* An illustration of an express delegation of authority to speak is found in a not infrequent occurrence in the affairs of life, that is, where a party, who receives an in- ^Sargeant v. Sargeant, 18 Vt. 371; Green v. Boston, etc., R. Co., 128 Frear v. Evertson, 20 Johns. 142; Doe Mass. 221, 35 Am. Rep. 370; Burnside V. Moore, 4 Blackf. 445. See Graham v. Grand Trunk Ry. Co., 47 N. H. V. Lockhart, 8 Ala. 9. 554, 93 Am. Dec. 474; Wormsdorf v, 2 Jones V. Jones, 120 N. Y. 589, 24 Detroit City Ry. Co., 75 Mich. 472, N. E. Rep. 1016; Whart. on Ev., 42 N. W. R. 1000, 13 Am. St. Rep. 453;' § 1070; Mechem on Agency, § 178; Wright v. Weimeister, 87 Mich. 594, Story on Agency, § 134. 49 N. W. Rep. 870 ; Pray v. Farmers' 2 Short V. Northern Pac. El. Co., 1 Co-operative Creamery, 89 Iowa 741, N. D. 159, 45 N. W. Rep. 706; Illinois 56 N. W. Rep. 443; McPherrin v Jen- Cent. Ry. Co. V. Troustine, 64 Miss, nings, 66 Iowa 622, 24 N W. Rep. 242; 834, 2 So. Rep. 255; Morse v. Conn. Anvil Mining Co. v. Humble, 153 U. Riv. R. R. Co., 6 Gray 450; Lane v. S. 540, 14 Sup. Ct. Rep. 876. Boston, etc., R. Co., 112 Mass. 455; 40 INDIRECT AND COLLATERAL EVIDENCE. §33 quiry from another, refers to a third person as authorized to answer on his behalf/ This authority is implied where state- ments are made by one person to another through the medium of an interpreter^ or telephone operator/ According to the weight of authority, the admission of a general agent, concern- ing the business entrusted to him, is competent, as his admission is regarded as equivalent to the acknowledgment of the princi- pal.* Since the authorities upon this proposition are not en- tirely harmonious,^ and since it is the policy of the law not to 1 Williams v. Innes, 1 Camp. 364; Daniel v. Pitt, 1 Camp. 366, note ; Price V. Mollis, 1 M. & S. 105 ; Burt r. Palmer, 5 Esp. N. P. C. 145; Garnet v. Ball, 3 Stark, N. P. C. 160; Chapman v. Twit- chell, 37 Me. 59, 58 Am. Dec. 773; Craig V. Craig, 3 Rawle (Pa.) 472, 24 Am. Dec. 390; Over v. Schiffling, 102 Ind. 191, 26 N. E. Rep. 91 ; Gott v. Dinsmore, 111 Mass. 45; Green v. Boston, etc., E. Co., 128 Mass. 221, 35 Am. Rep. 370. This rule of evidence is also applicable to criminal cases. 1 Phil, on Ev., (1849 ed.) 386. 2 Com. V. Vose, 157 Mass. 393, 32 N. E. Rep. 355; Blazinski v. Perkins, 77 Wis. 9, 45 N. W. Rep. 947; Miller V. Lathrop, 50 Minn. 91, 52 N. W. Rep. 274; Sullivan v. Kuykendall, 82 Ky. 483, 56 Am. Rep. 901. The state- ments of a person made through an interpreter can not be shown except where such person is himself to be charged with them on the ground of an implied agency. Schearer v. Har- ber, 36 Ind. 536. » Sullivan v. Kuykendall, 82 Ky. 483, 56 Am. Rep. 901. The fact that the voice is not identified goes only to the weight. Wolfe v. Mo. Pac. Ry. Co., 97 Mo. 473, 11 S. W. Rep. 49, 10 Am. St. Rep. 331. The doctrine of the text applies although the message is re- peated by an operator in transit. Sul- livan V. Kuykendall, 82 Ky. 483, 56 Am. Rep. 901; Oskamp v. Gadsden, 35 Neb. 7, 52 N. W. Rep. 718, 37 Am. St. Rep. 428. Where the question was as to the knowledge of the defendant com- pany that a defective car was ^bout to be sent out on its road, it w^as held that evidence was competent that an employe engaged in making up the train telephoned to the general office for instructions relative to the matter, and that a voice which he did not recognize answered: "If she will hold together, send her off." In the view of the court the circumstances justified the jury in presuming that the order came from some one in au- thority. Reed v. Burlington, etc., R. Co., 72 Iowa 166, 33 N. W. Rep. 451, 2 Am. St. Rep. 243. * Burt V. Palmer, 5 Esp. 145; Pale- thorp w. Furnish, 2 Esp. 511. note; 3 Phil, on Ev., (1849 ed.) 410; Short v. Northern Pac. El. Co., IN. D. 159, 45 N. W. Rep. 706; Lombard, etc., Ry. Co. V. Christian, 124 Pa. St. 114, 16 Atl. Rep. 628; McGenness V. Adriatic Mills, 116 Mass. 177 ; West- ern Boatman's Benev. Asso. v. Krib- ben, 48 Mo. 37 ; Proctor v. Old Colony R. Co., 154 Mass. 251, 28 N. E. Rep. 13. The extra-judicial admissions of the general counsel of a railway company are not competent. Ohio, etc., Ry. Co. V. Levy, 134 Ind. 343, 32 N. E. Rep. 815. 5 WelUngton v. Boston & M. R. R^ 158 Mass. 185, 33 N. E. Rep. 393, anh cases cited in note 3, page 39. § 33 ADMISSIONS. 41 open the door to the admissions of agents any further than has already been done/ it is clear that such admissions ought to be confined to statements of substantive facts,' and only ad- mitted in cases where it is just under all the circumstances to regard the agent as the principal's alter ego. There are cer- tain classes of agents who, by the implication of their employ- ment, are expected to make statements to those who have busi- ness relations with them, and in such cases the information they thus afford is evidence against the principal. Within these classes are freight agents or baggage masters, who make state- ments, pursuant to inquiries, concerning lost freight or bag- gage,' but they mast be engaged in the performance of their duty in giving the information.* The answer of a bookkeeper, in response to an inquiry by a customer as to the state of his account, would be competent.' Where the question was whether defendants were partners in the banking business and the plaintiff applied to a joint agent of the defendant's at the bank to know whether there had been a change in the firm, and the agent answered that there had not been, it was held that the plaintiff was entitled to show this conversation in evi- dence.^ Where the issue was as to whether a policy of insur- ance had been renewed a second time, the court held that the plaintiff might testify that he applied to defendant's local agent for a certificate of the renewal of his policy, and that the agent said that he had previously delivered such certificate. The court put its ruling on the ground thart although the deliv- 1 Garth v. Howard, 8 Bing. 451, per * Boston & M. R. Co. v. Ordway, 140 Tindal, C. J. See Vogel v. Osborne, Mass. 510, 5 N. E. Rep. 627. 32 Minn. 167, 20 N. W. Rep. 129. ^ Anvil Mining Co. v. Humble, 163 2 Van Dusen v. Letellier, 78 Mich. U. S. 540. But in the absence of spe- 492, 44 N. W. Rep. 572; Lombard, cial authority, the representations etc.', R. Co. V. Christian, 124 Pa. St. made by a bookkeeper to a mercan- 114 16 Atl. Rep. 628. tile agency would not be competent 3 Morse v. Conn. Riv. R. R. Co., 6 as he would have no authority to make Gray 450; Lane v. Boston & A. R. them. Wakefield Rattan Co. v. Tap- Co., 112 Mass. 455 ; Burnside v. Grand pan, 70 Hun 405, 24 N. Y. Sup. 430. Trunk Ry. Co., 47 N. H. 554, 93 Am. « Wright v. Weimeister, 87 Mich. Dec. 474; Illinois Cent. R. Co. v. 594, 49 N. W. Rep. 870. Troustine, 64 Miss. 834, 2 So. Rep. 255. 42 INDIRECT AND COLLATERAL EVIDENCE. § 3 J: ei-}^ of the renewal certificate was not essential, yet it was the duty of the agent to deliver the certificate, and, therefore, his statement in answer to plaintiff's request was competent/ But further illustrations need not be. given, for the rule is plain that the answer of an agent concerning the facts of a transac- tion, of which inquiry was made of him, and upon which he had authority at the time to speak, isproper to go in evidence.' But such answer is only competent where it relates to a state- ment of a matter of fact. Thus, where a bank cashier, in answer to an inquiry as to the failure of the bank to collect certain notes, answered that the omission was the fault or negligence of the bank, his answer was excluded." § 34. Res gestae statements of agents and servants. — Sub- ject to the exceptions already noted, of cases where the decla- ration is a part of a contract, and where the declaration was made pursuant to an express or implied authority to make the same, it may be laid down without qualification that if the declaration of an agent or servant is to go in evidence it must be res gestse." Professor Greenleaf says } " The declaration of 1 Scott V. Home Insurance Co., 53 Barb. 25; Happy ■». Mosher, 47 Barb. Wis. 238, 10 N. W. Eep. 387. 501 ; Pennsylvania R. R. Co. v. Books, 2 Pray v. Farmers' Co-operative 57 Pa. St. 339, 98 Am. Dec. 229; Creamery, 89 Iowa 741, 56 N.W. Rep. Oil City, etc., Co. v. Boundy, 122 Pa. 443; Short V. Northern Pac. El. Co., St. 449, 15 Atl. Rep. 865; Haven v. 1 N. D. 159, 45 N. W. Rep. 706; Mc- Brown, 7 Greenl. (Me.) 421, 22 Am. Pherrin v. Jennings, 66 Iowa 622, 24 Dec. 208; Franklin Bank v. Penn. D. N. W. Rep. 242. & M. S. N. Co., 11 Gill & J. (Md.) 3 Plymouth County Bank v. Gilman, 28, 33 Am. Dec. 687 ; Western Union 4 S. D. 265, 56 N. W. Rep. 892, 46 Am. Tel. Co. v. Way, 83 Ala. 542, 4 S. Rep. St. Rep. 786. 844; Home Pro. of N. A. v. Whidden, 4 Packet Co. v. Clough, 20 Wall. 103 Ala. 203,15 S. Rep. 567; Latham 528; Vicksburg, etc., R. Co. v. v. Pledger, 11 Tex. 439; Sisson v. O'Brien, 119 U. S. 99; Burlington ??. Cleveland, etc., R. R. Co., 14 Mich. Calais, 1 Vt. 385, 18 Am. Dec. 691; 489, 90 Am. Dec. 252; Golden v. New- Robinson V. Fitchburg R. R. Co., 7 brand, 52 Iowa 59, 2 N. W. Rep. 537, Gray 92; Burgess v. Wareham, 7 35 Am. Rep. 257; La Rue v. St. Anth- Gray 345; Demeritt v. Meserve, 39 N. ony & D. El. Co., 3 S. D. 637, 54 N. H. 521; Thallhimerv. Brinckerhoff, W. Rep. 806, and cases cited ; Clunie 4 Wend. 394, 21 Am. Dec. 155; r. Sacramento Lum. Co., 67 Cal. 313,7 Luby V. Hudson Riv. R. Co., 17 Pac. Rep. 708; Ryan v. Gilmer, 2 Mont. N. Y. 131; Fogg v. Child, 13 Barb. 517, 25 Am. Rep. 744. 246; Budlong v. Van Nostrand, 24 ^l Greenl. on Ev., §113; Peck ?>. §35 ADMISSIONS. 43 an agent, to bind his principal, must be made during the con- tinuance of the agency in regard to a transaction then depend- ing et dum fervet opus. Mr. Wharton points out, in his work on evidence,' that a servant moves within an orbit far more limited than that of agent, for the latter is authorized to exer- cise discretion. As a consequence it may be suggested, while not abating from the proposition that the declaration to be competent must be in the performance of the agent's duty, that it hardly seems reasonable to tie down as closely to time an agent's declaration as the declaration of a servant who was delegated to perform a mechanical duty. §35. The mere admissions of agents or servants are not competent.'— The reason for this is that the agent is not at the time engaged in the executing of his contract of agency, and his statements under such circumstances are, therefore, in legal effect, the mere hearsay declarations of a third person. The admission by an agent of prior facts, amounting to a mere Parchen, 52 Iowa 46, 2 N. Rep. 597. In Anderson v. New York & F, S. S. Co., 47 Fed. Rep. 38, it became ma- terial to determine whether a winch- man was deaf. It was claimed that the accident complained of had been occasioned by his failure to stop the machine on signal. It was held com- petent for the plaintiff to testify that the winchman had asked him, during the course of the service, to blow loud, as he was deaf. Where an embank- ment fell upon the plaintiff, and the foreman seeing the accident, exclaim- ed: " My God, I expected that!" the exclamation was held competent. El- ledge V. Nat'l City & 0. Ry. Co., 100 Cal. 282, 34 Pac. Rep. 720, 852, 38 Am. St. Rep. 290. See New Jersey Steam- boat Co. V. Brockett, 121 U. S. 637, 7 Sup. Ct. Rep. 1039. See, also, Fairlie V. Hastings, 10 Ves. 123 ; Luby v. Hud- son Riv. R. R. Co., 17 N. Y. 131; Johnston v. Thompson, 23 Hun 90; Stiles V. Western R. Corp., 8 Met. 44, 12 Am. Dec. 486 ; Memphis & C. Ry. Co. V. Maples, 63 Ala. 601 ; Lafayette & I. Ry. Co. V. Ehman, 30 Ind. 83; Hazleton v. Union Bank, 32 Wis. 34; Edmunds v. Curtis, 8 Colo. 605, 9 Pac. Rep. 793; Dodge v. Childs, 38 Kan. 526, 16 Pac. Rep. 815. 1 Section 1182. 2 "A close attention to this rule, which is of universal acceptance, will solve almost every diflftculty. But an act done by an agent can not be va- ried, qualified or explained by his declarations which amount to no more than a mere narrative of a past occurrence, or by an isolated conver- sation, or an isolated act done, at a later period. The reason is that the agent to do the act is not authorized to narrate what he has done, or how he has done it, and his declaration is no part of the res gestce." Packet Co. V. Clough, 20 Wall.528. 44 INDIRECT AND COLLATERAL EVIDENCE. §36 narrative of a past transaction, is plainly within this rule of exclusion/ and, according to the weight of authority, the sub- sequent report of the facts made to the principal, by the agent, should be excluded, for the reason that as it is but a narrative of a past event, it is not res gestae.^ A different rule would ob- tain where it was made to appear that the report had been acted on by the principal,' or had been promulgated by him.* § 36. Proof of agency. — Although, within the limits heretofore defined, an admission by an agent is evidence against his prin- cipal, yet one of the essential factors in the competency of such admission is the fact that the person making the statement was at the time an agent. It is therefore evident that to admit the evidence there must be proof of the fact of agency, de Jiors the admission. In other words, an agency can not be proved by the admission of the agent, when the fact of his agency is in ^ As to a prior knowledge of defec- tive conditions, see Weeks v. Inhab- itants of Needham, 156 Mass. 289, 31 N. E. Rep. 8 ; Treager v. Jackson Coal and Mining Co., 142 Ind. 164; 40 N. E. Rep. 907; American Steamship Co. v. Landreth, 102 Pa. St. 131, 48 Am. Rep. 196 ; McCulloch v. Dobson, 133 N. Y. 114, 30 iS^. E. Rep. 641; Worden v. Humeston & S. R. Co., 72 Iowa 201, 33 N. W. Rep. 629, and see in support of text generally, Yicksburg & M. R. R. Co. V. O'Brien, 119 XJ. S. 99, 7 Sup. C. C. Rep. 118; Elcosr. Hill,98U. S.218; McKinnon v. Norcross, 148 Mass. 533, 20 N. E. Rep. 183; Merchants' Nat. Bank v. Clark, 139 N. Y. 314, 34 N. E. Rep. 910, 36 Am. St. Rep. 710; Burl- ington V. Calais, 1 Vt. 385, 18 Am. Dec. 691 ; Penn. R. Co. v. Books, 57 Pa. St. 339, 98 Am. Dec. 229; United States Express Co. v. Rawson, 106 Ind. 215, 6 N. E. Rep. 337; Walker v. Farmers' Ins. Co., 51 Iowa 679, 2 N. W. Rep. 583; Home Pro. of N. A. v. Whidden, 103 Ala. 203, 15 So.Rep. 567 ; Adams v. Hannibal & St. Joseph R. R. Co., 74 Mo. 553, 41 Am. Rep. 333; M'Indoe v. Clarke, 57 Wis. 165, 15 N. W. Rep. 17; Idaho For. Co. v. Fireman's Fund Ins. Co., 8 Utah 41, 29 Pac. Rep. 826; Durkee v. Central Pac. Ry. Co., 69Cal. 533,58 Am. Rep. 562; Beasley V. San Jose Fruit Pack. Co., 92 Cal. 388, 28 Pac. Rep. 485; Gulf, etc., Ry. Co. v. York, 74 Tex. 364, 12 S. W. Rep. 68. 2 2 Starkie on Ev., §34 ; United States V. The Brig Burdett, 9 Pet. 682 ; Car- roll V. East Tenn., etc., Ry. Co., 82 Ga. 452, 10 S. E. Rep. 163; Langhorn V. Allnutt,4 Taunt.511. Contra Worms- dorf V. Detroit City Ry. Co., 75 Mich. 472, 42 N. W. Rep. 1000, 13 Am. St. Rep. 453. Qriere, Would the statement to the principal be competent if made pursuant to a rule requiring a report ? 3 Carroll v. East Tenn., etc., Ry. Co., 82 Ga. 452, 10 S. E. Rep. 163 ; Abbott's Tr. Ev., p. 51. * Vicksburg, etc., R. Co. v. Putnam, 118 U. S. 545, 7 Sup. Ct. Rep. 1. ^ 37 ADMISSIONS. 45 question.' So, within the same principle, the acts of the person whose ageney is in question can not be shown to prove the fact of agency, unless notice of his acts is expressly or impliedly traced home to the person whom it is sought to charge. The foundation of these doctrines is expressed in the maxim of the Civilians: "Qui non potest donare non potest confiteri" — he who is not able to give is not able to confirm.' There are cases which sanction the admission of declarations relative to author- ity, where they are made as a part of the res gestse,^ but it is be- lieved that these declarations are admissible rather to prove the fact that the person was acting pursuant to his authority, that is, as an agent, where that fact is in issue, than as proof of the substantive fact that he was an agent. § 37. Admissions of agents of corporations. — No special dis- cussion of this sub-head is necessary. It only remains to say that the authority of agents of corporations to make declara- tions and admissions stands upon the same footing as the au- thority of agents of natural persons.* §38. Admissions of attorneys. — Admissions of attorneys may be classified into judicial and extra-judicial admissions. In an English case,** Lord Ellenborough said: " If a fact is admitted by the attorney on the record, with intent to obviate the necessity of proving it, he must be supposed to have author- ity for this purpose, and his client will be bound by the ad- 12 Whart. on Ev., § 1183 and cases be borne in mind is not quoted with cited ; Mechem on Agency, and cases reference to the contractual powers of cited '; Scott v. Crane, 1 Conn. 255 ; agents, a subject with which we are Plumsted v. Rudebagh, 1 Yeates 502; not dealing. See Griswold v. Haven, James v. Stookey, 1 Wash. C. C. 330; 25 N. Y. 595, 82 Am. Dec. 380, and Rowell V. Klein, 44 Ind. 290, 15 Am. cases cited. Rep. 235; La Rose ij. Logansport Nat. ^Willey -y. City of Portsmouth, 64 Bank, 102 Ind. 332, 1 N. E. Rep. 805; N. H. 214, 9 Atl. Rep. 220; Marion v. Whitescarver 17. Bonney, 9 Iowa 480; Chicago, etc., Ry. Co., 64 Iowa 568, Proctor V. Tows, 115 111. 138, 3 N. Rep. 21 N. W. Rep. 86. See Columbus, etc., 669 ; Texas L. & L. Co. -y.Watson, (Tex. Ry . Co. v. Powell, 40 Ind. 37. Civ. App.) 22 S. W. Rep. 873; Maes- « Taylor on Priv. Corporations, §210; ter V. Abraham, 1 Esp. N. P. C. 375. Angell and Ames on Corporations, 2This maxim, although applicable §309. to nearly every case of agency, it will ^ Young v. Wright, 1 Camp. 139. 46 INDIRECT AND COLLATERAL EVIDENCE. §38 mission." But it is not to be inferred that it is necessary that such admission should be entered of record ; for the purposes of the particular trial, at least, a formal admission, although not reduced to writing, is as binding as though it was entered upon the minutes of the court. ^ An admission may be made by an attorney, for the purposes of trial, in advance, provided that he has been retained.^ But mere informal statements made by an attorney, even upon the trial, are not evidence, and will not relieve from the burden of proof.* Formal ad- missions are evidence upon a subsequent trial ;* they can not be withdrawn, unless the court in the exercise of a sound dis- cretion relieves the party from them.* Even a stranger to the cause may show in evidence an admission, wliere it appears from the circumstances that it was an admission, as distin- guished from a mere concession.® This suggests the fact that there are a class of statements which lie about the boundary line between admissions and concessions, the competency of which upon a subsequent trial is difficult to determine. Sometimes a question of this character can be determined as one of law, but perhaps more often it is necessary to submit it to the jury with appropriate instructions.' Where an attorney makes a formal 1 Smith V. Whittier, 95 Cal. 279, 30 Pac. Rep. 529; People v. Stephens, 52 N. Y. 306. 2 Marshall v. Cliff, 4 Camp. 133; 1 Greenl. on Ev., §186. ^ Lake Erie & W. Ry. Co. v. Rocker, 13 Ind. App. 600, 41 N. E. Rep. 470. See Oscanyan v. Arms Co., 103 U. S. 261. "It is clear that whatever the attorney says in the course of conver- sation is not evidence in the cause." Young V. Wright, 1 Camp. 139. * Elton V. Larkins, 1 M. & Rob. 196 Langley v. Oxford, 1 M. & Wei. 508 5 1 Greenleaf on Ev., §§186, 206 Holley V. Young, 68 Me. 215, 28 Am Rep. 40. See Voisin v. Conn. Ins Co., 67 Hun 365, 22 N. Y. Supp. 348 An admission made to obviate a con- tinuance is not evidence upon a sub- sequent trial. Hudson v. Applegate, 87 Iowa 605, 54 N. W. Rep. 462. 6 See 2 Whart. on Ev., § 1185. ' In Central Branch Union Pac. R. Ji. Co. V. Shoup, 28 Kan. 394, 42 Am. Rep. 163, Brewer, J., speaking for the court said : "It is doubtless often true that during the progress of a trial, and to hasten it, counsel waive the pro- duction by the opposite party of formal proof of some fact, intending to rest their case on some other mat- ter ; and this which is done for the mere purpose of that trial alone, and for the sake of facilitating it, is not to be considered as a formal admission of the fact, binding in all subsequent progress of the case. But whether the consent or admission or waiver is to be considered as made for the pur- §39 ADMISSIONS. 47 demand of the opposite party for performance, there is no rea- son why the statement, made on his client's behalf, should not go in evidence.* § 39. Admissions of public officers. — ^The declarations of public officers, when offered in cases where the public in its aggregate capacity is a party, rest upon the same ground as the declarations of other agents. There is a limited class of cases in which it is a part of their duty to make statements in response to inquiries, and in which it is the expectation of the law-making power that the mutual rights of the public, and of the individual dealing with it, shall be affected thereby. In these cases, and in cases where a declaration may be necessary to be introduced in order to explain or illustrate a litigated pose of that trial only, or as a general admission, is ordinarily a question of fact to be determined by the jury, and so in this case the court placed it. It is true that sometimes the waiver or admission may be so obviously in- tended for that trial alone that the court may properly so instruct the jury, and it may also be so obviously intended as a general admission that the court may instruct the jury to treat it as such; as, for instance, where the parties sign an agreed state- ment of facts. [See, however, Elting V. Scott, 2 Johns. 156.] But perhaps more often, especially in reference to oral admissions, it is uncertain whether they were intended as general admissions, like admissions in a plead- ing by which the party intends to stand at all times, or as a mere waiver of proof for the purposes of facilitating the pending trial. There the tribunal to determine what was the import and intent of the admission is the jury before which the case is then pending for hearing. It is not always easy to determine as to any particular admis- sion upon which side of the line it be- longs, yet the difficulty is not in the rule itself, but in its application to the particular case. i"The maxim 'q^ti facit per alium facit per se,' applies as well to acts done or statements made by an attor- ney at law as to any other agent. The act of a party, done by his agent, may always be proved against him, if material. An attorney or agent em- ployed to present and collect a claim is impliedly authorized to state to the debtor what the claim is. The plaint- iff could not have expected that his attorney would collect her claim from the defendant on demand, without stating the nature and particulars of it, so that the defendant could under- stand it, and make investigation as to its validity. It was as much a part of his duty to state, as nearly as possible, the precise place in the building where the accident happened, if asked, as to state in what town or state the plaintiff was when she fell." Loomis V. New York & H. & H. Ry. Co., 159 Mass. 39, 34 N. E. Rep. 82. 48 INDIRECT AND COLLATERAL EVIDENCE. act, the declarations of public officers are competent, narratives or admissions should be excluded.* §40 Pure § 40. Admissions of partners. — No question can exist as to the competency of an admission of the fact of partnership as against the declarant.^ It is equally plain that such admis- sion is not competent as against the other party sought to be bound.' "The law as to partnership," said Lord Wensley- dale,* " is undoubtedly a branch of the law of principal and agent ; and it would tend to simplify and make more easy of solution the questions which arise on this subject if this true principle were more constantly kept in view." This observa- tion is particularly pertinent in so far as it relates to admis- sions by partners concerning past transactions. A partner's declarations or acts are not competent to bring a prior trans- action within the partnership with which it had no connection, for this would be to render the partnership helpless against the fraud and unlawful acts of the declarant.® With reference, ^ Yordy v. Marshall County, 86 Iowa 340, 53 N. W. Rep. 298; Nolley v. Callaway County Court, 11 Mo. 447; Blackmore v. Boardman, 28 Mo. 420; 1 Dillon on Municipal Corporations, §237, note. 2 Whitney v. Sterling, 14 Johns. 215 Corps V. Robinson. 2 Wash. C. C. 388 McPherson v. Rathbone, 7 Wend. 216 Kirby v. Hewitt, 26 Barb. 607 ; Van- noy V. Klein, 122 Ind. 416, 23 N. E. Rep. 526. ^ Corps V. Robinson, 2 Wash. C. C. 388; Whitney v. Ferris, 10 John. 66; McPherson v. Rathbone, 7 Wend. 216; Kirby v. Hewitt, 26 Barb. 607 ; Butte Hardware Co. v. Wallace, 59 Conn. 336, 22 Atl. Rep. 330; Young u. Smith, 25 Mo. 341 ; Clark v. Huffaker, 26 Mo. 264; Brown v. Rains, 53 Iowa 81, 4 N. W. Rep. 867. In Sheehan v. Fleet- ham, 66 Hun 628, 21 N. Y. Supp. 128, it was held that a declaration as to the existence of a partnership by a person claiming to be a partner in making a report to a mercantile agency, was inadmissible. MVheatcroft v. Hickman, 9 C. B. N. S. 47, 8 H. of L. C. 268. 5 Thorn v. Smith, 21 Wend. 365; Union Nat. Bank v. Underbill, 102 N. Y. 336, 7 N. E. Rep. 293; Uhler v. Browning, 28 N. J. L. 79; Kaiser v. Fendrick, 98 Pa. St. 528; Heffron v. Hanaford, 40 Mich. 305; Hickman v. Reineking, 6 Blackf. 387; Boor v. Lowery, 103 Ind. 468, 3 N. E. Rep. 151, 53 Am. Rep. 519; Williams v. Lewis, 115 Ind. 45, 17 N. E. Rep. 262, 7 Am. St. Rep. 403; Slipp v. Hartley, 50 Minn. 118, 52 N. W. Rep. 386, 36 Am. St. Rep. 629 ; Hahn v. St. Clair, etc., Ins. Co., 50 111. 456; Blaker v. Sands, 29-Kan. 551. In Boor r. Lowery, 103 Ind. 468, 53 Am. Rep. 519, it was held that the admission of one mem- ber of a firm of physicians, as to the manner in which he had treated a pa- tent, was not competent, as against his co-partner. § 41 ADMISSIONS. 49 however, to the contractual power of a partner, it is measured, as to one dealing with him in good faith as a representative of the firm, by the apparent scope of the business.* But this distinction is only suggested for the sake of clearness ; it does not concern us now. The admissions of a partner are only competent when made in the execution of the affairs of the firm.^ § 41. Admissions of partners after voluntary dissolution. — By the failure to give the proper notice of the fact of dissolu- tion, the partners may be able to exercise, as to third persons without notice of the fact, a greater measure of contractual authority than they are lawfully authorized to exercise ; but, aside from this, w^th the dissolution of the partnership comes the surcease of the agency, for most purposes, at least. As to admissions, the power to make them is extinguished, except that, according to some of the authorities, such admissions may be made concerning such past matters as are purely inci- dental to the closing up of the business affairs of the partner- ship. As laid down by the supreme court of Maine :' "The dissolution operates as a revocation of all authority for making new contracts. It does not revoke the authority to arrange, liquidate, settle and pay those before created." In Wood v. Braddick,* Lord Mansfield says : " Clearly the admission of one partner, made after the partnership has ceased, is not evidence to charge the other in any transaction which has occurred since their separation ; but the power of partners with respect 'Griswold V. Haven, 25 N. Y. 595, Rep. 151,53 Am. Rep. 519; Williams v. 82 Am. Dec. 380, and cases cited; Lewis, 115 Ind. 45, 17 N. E. Rep. 262, 7 Sweet V. Wood, 18 R. I. 386, 28 Atl. Am.St.Rep.403; Heffronu. Hanaford,, 335; Deckard v. Case, 5 Watts 22, 30 40 Mich. 305; Hahn v. St. Clair, etc., Am. Dec. 287; Edwards r. Dillon, 147 Ins. Co., 50 III. 456; Avery v. Rowell, 111. 14, 35 N. E. Rep. 135, 37 Am. St. 59 Wis. 82, 17 N. W. Rep. 875; Mc- Rep. 199. Leod v. Bullard, 84 N. Car. 515 ; Blaker ^Winchesterv.Creary, 116U. S. 161, v. Sands, 29 Kan. 551; Woodruff v. eSup.Ct. Rep. 369; Fickett V.Swift, 41 Scaife, 83 Ala. 152, 3 So. Rep. 311; Me. 65, 66 Am. Dec. 214 ; Bound v. La- Western Stage Co. v. Walker, 2 Iowa throp, 4 Conn. 336, 10 Am. Dec. 147 ; 504, 65 Am. Dec. 789. Corps V. Robinson, 2 Wash. C. C. 388 ; ^ Darling v. March, 22 Me. 184. Boor®. Lowery, 103 Ind. 468, 3 N. E. * Wood v. Braddick, 1 Taunt. 104. 4— Ev. 50 INDIKKCT AND COLLATKKAL EVIDKN'Ct:. § 41 to rights created, pending the partnership, remains after tlie dissolution." So far as this proposition relates to the closing up of the affairs of the firm, apart from the giving of new ob- ligations, or the admission of the existence of subsisting ones, no substantial question exists among the authorities,' But in the same year that Wood v. Braddick^ was decided, it was held in New York, in the case of Ilackley v. Patrick," that the vol- untary dissolution of a partnership so far put an end to the agency as to prevent a partner from acknowledging an obliga- tion. Although neither of these cases was especially well considered, yet they stand, as it were, at the forks frortj which two divergent lines of authority spring. In the one class of cases the admissibility of the evidence is put on the ground that the agency still continues as to past transactions, for at least the purpose of making such incidental admissions as the closing up of the partnership involves, while the other line of cases denies to the partners upon dissolution the power to admit the existence of obligations, for the reason that the power to make an admission which will furnish the evidence whereby an obligation is saddled upon the partnership is the practical equivalent of the creation of a new obligation. In an Ohio case* it was held that while a statement showing the condition of the account between the firm and a third person, or show- ing a balance in the latter 's favor, if sent by a partner after dissolution, would not alone be evidence as an admission, yet such statement would be competent if coupled with evidence as to the existence of the unsettled account at the time of the dissolution and of the fact that the statement was made by the partner as a part of the business of closing up the affairs of ^ In Butchart v. Dresser, 4 De Gex, necessarily be so. If it were not, at M. & G. 542, the court said: " Each the instant of the dissolution it would partner has, after and not withstand- be necessary to apply to this court for ing the dissolution, full authority to a receiver in every case, although the receive and pay money on account of partners did not differ on any one the partnership, and has the same au- item in the account." thority to deal with the property of ^^ood v. Braddick, 1 Taunt. 104. the partnership for partnership pur- ^ f];a(.ldey v. Patrick, 3 Johns. 536. poses as he had during the continu- * Feighley v. Whitaker, 22 Ohio St. ance of the partnership. This must 606, 10 Am. Rep. 778. § 42 ADMISSIONS. 51 the firm. With the further qualification that the declaration must always be self-disserving, it is believed that where the declarations arrange themselves within the limitations of the case last cited, the weight of reason, and perhaps of authority, is in favor of the admissibility of the evidence/ § 42. Admissions of surviviiig partners.— Upon the death of a member of a firm composed of two partners, the survivor, because of his personal obligation to pay the debts, and his right to obtain his own equity in the residue, succeeds to the entire legal title of the partnership property.' Although ac- countable in equity, he is not a trustee in the ordinary sense, for he does not join the deceased's personal representative as cestui que trust in suits brought, and he may be sued alone. So, the right of set-off, according to the great weight of author- ity, is determined precisely as if he held the property in his own right." Under these circumstances, at least in jurisdic- tions where judgments against the survivor are treated, as against the representatives of the decedent, as res inter alios acta, and not as prima facie evidence, it would seem quite plain that in a suit where he was defendant, his admissions subsequent to the dissolution would be competent. The only objection which could be urged against such a doctrine would be that it might lead to the dissipation of the assets, but the fact that the declaration was self-disserving would suffi- ciently protect against that possibility. As death works not only a dissolution of the partnership, but works a severance of the joint obligations of the firm,* the authorities with even more unanimity than in the case of a voluntary dissolution, deny to ^Theauthorities.pro and con, relative ^jjygggji ^ McCall, 141 N. Y. 437, to this proposition are collected, and 38 Am. St. Rep. 807 ; 36 N. E. Rep', the shades of discrimination noted, in 498; Bates on Part., § 718. the learned work of Mr. Bates on Part- ^ Bates on Part., § 722. nership, §§ 700, 701. As the limits of « Getty v. Binsse, 49 N. Y. 385, 10 this undertaking will not permit a Am. Rep. 379; Lane r. Doty, 4 Barb, thorough discussion of the various 530, and cases cited ; LaddiJ. Griswold, cases upon the comparatively minor 4 Gilm. (111.) 25, 46 Am. Dec. 443; point under consideration, it is deemed Towers v. Moor, 2 Vern. 98; Atkins ij! better to refer the reader to a work on Tredgold, 2 Bar. & Cres. 23 '; Bates on partnership. . Part., § 746. 52 INDIRECT AND COLLATKRAL EVIDENCE. § 43 the survivor the riglit to create new obligations, or to change the form of old ones.^ § 43. Admissions of principals as against sureties. — Where the admission of a principal involves his own conduct, such admission may in many instances be shown as against the surety. In cases where a surety has signed an official bond, conditioned upon the principal faithfully performing his du- ties, and it is made his duty to keep correct books, or make accurate reports, there is no difficulty in assigning a sufficient reason for the reception of the books or reports in evidence as against the surety, because the latter has contracted that they shall be correct." It is evident, however, that under the de- cided cases evidence of the principal's declarations must be put on a somewhat broader basis. Dallas, C. J., suggests,' that the declarations of the principal may bind in the same sense that those of an agent would, both being within the scope, and in the carrying out, of the business. A number of American cases assign this as the ground of admitting the evidence.* In fact the proposition that the declaration is evidence if it is res gestse is one of such familiarity as to be current coin in legal literature.* And it would seem that such expression is sub- stantially accurate as it only admits declarations accompany- ing litigated acts,* and statements made by the principal pur- suant to requests for information which it was his duty to an- 1 Bates on Part., § 727. Misc. 465, 30 N. Y. Supp. 232 ; Goss v. 2McKim V. Blake, 139 Mass. 593, 2 Watlington, 3 Brod. & B. 132; Whit- N. E. Rep. 157; Board of Super- nash r. George, 8 Barn. & Cres. 556. visors of Tomkins County v. Bristol, *Goss v. Watlington, 3 Brod. & B. 99 N. Y\ 316, 1 N. E. Rep. 878; 132. State V. Newton, 33 Ark. 276. See Collins u. Dorchester, 6 Cush. 396; ^jjoyt v. New York, etc., R. Co., Aldrich v. Peckham, 1 Gray 510 ; Phil- 118 N. Y. 399, 23 N. E. Rep. 565. lips V. Town of Willow, 70 Wis. 6, 5 Am. St. R. 114. 92 INDIRECT AND COLLATERAL EVIDENCE. §64 that this doctrine is in line with a class of cases holding that where a defect is shown to exist, that fact may be legitimately strengthened by proof of other similar occurrences, both before and after the occurrence which forms the subject of the trial/ In a Minnesota case,^ the question at issue was as to whether a switch was so defective that it caused a locomotive to leave the track. Evidence was held competent that other locomotives had left the track at that point. The court put its ruling on the ground that the evidence was equivalent to testimony as to the result of experiments. Among other things, the court said: " Upon any issue as to the condition or safety of any work of human construction designed for practical use, evi- dence showing how it has served, when put to the uses for which it was designed, would seem to bear directly upon the issue." Within the principle of the above rulings would seem to be a further proposition that where the appliance has long been used, under circumstances calculated to fully test its avail- ability to the use to which it is subject, and no accident has ever occurred on account of it, such fact is evidence tending to prove that it does not possess an inherent defect in the manner of its construction.' Where the question is as to ^ See, also, Wooley v. Railroad Co., 83 N.Y. 121 ; Phelps V. Railroad, 37 Minn. 485, 35 N. W. Rep. 273, 5 Am. St. Rep. 867 ; Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450; Colorado, M. & I. Co. V. Rees, 21 Colo. 435, 42 Pac. Rep. 42. ^ Morse v. Minneapolis, etc., R. Co., 30 Minn. 465, 16 N. W. Rep. 358. In Dye V. Delaware, etc., R. Co., 130 N.Y. 671, 29 N. E. Rep. 320, where the plaintiff, a brakeman in defendant's employ, was injured by being caught between the dead-woods of two cars, such dead-woods being of unequal height, so that they would overlap, and where the defendant had fully admitted that said cars, and the oth- ers in its service, w^ere constructed without reference to uniformity in that respect, but grounded its defense upon the position that the injury was the result of one of the assumed per- ils of the service, it was held improper to permit the plaintiff to introduce ev- idence showing the injury of other brakemen by being caught in the same manner between other cars. ^ Where plaintiff's wagon was over- turned, as he claimed, by the faulty construction of defendant's railway at a highway crossing, it was held that defendant might prove that vehicles constantly passed over the track at that point without difficulty or hin- derance. Birmingham Union R. Co. V. Alexander, 93 Ala. 133, 9 So. Rep. 525. In Pueblo Building Co. r. Klein, (Colo.) 38 Pac. Rep. 608, the plaintiff sued for an injury caused by a fall of defendant's elevator, the issue being §65 COLLATERAL EVIDENCE. 93 whether an object is calculated to frighten horses, it has been held, in Indiana, that evidence that other horses have been frightened by the same object is not competent/ A like rul- ing has been made in lowa,^ while the contrary has been held to be the law in Maine and New Hampshire.' In the writer's opinion the Maine and New Hampshire cases were decided wrong. It is to be considered that where an inanimate object frightens a horse, the object is entirely passive ; it is not put to any test ; it is the animal alone which is tested, and it can not be affirmed, as is necessary to make the evidence compe- tent, that there is any visible, open connection between the cir- cumstance of one horse being frightened at one time and the circumstance of another horse being frightened at another time. § 65. Habits of animals. — Because it is a recognized fact that an animal which has formed a vicious habit is likely to persist as to whether it was defective in its construction. Held, that the defend- ant might show that it had been much used for a considerable time, and that no one had been hurt in its use, in or- der to rebut any inference that it was defective in its construction. In Sut- ton V. Town of Vernon, 62 Conn. 1, 23 Atl. Rep. 1020, where the plaintiff sued for an injury sustained while traveling on a highway, the defendant tendered an instruction that where a highway had remained in the same condition for twenty years, and no ac- cident has happened thereon, the jury might take that fact into consideration in determining the question of negli- gence. The supreme court held that the instruction was rightly refused, saying that to have made it relevant it must have appeared that the use and experience of others had been of a nature to have teste.l the alleged defect. The cases of Parker v. Port- land Pub. Co., 69 Me. 173, 31 Am. Rep. 262, and Hodges v. Bearse, 129 111. 87, 21 N. E. Rep. 613, are in conflict with the text. In Aldrich v. Peckham, 1 Gray 510, where the question was as to whether a traveled path was wide enough to permit two carriages to pass, it was held that evidence that other persons had passed in carriages with- out collision or accident was incompe- tent, as the question could have been determined by measuring. The ten- dency in Massachusetts is to hold evi- dence of the nature under discussion as collateral ; but that court has not so held where the experience of all must be substantially the same. Collins ». Dorchester, 6 Cush. 396. See Whit- ney V. Leominster, 136 Mass. 25. * Cleveland, etc., Co. v. Wynant, 114 Ind. 525, 17 N. E. Rep. 118, 5 Am. St. Rep. 644. 2 Hudson V. Railway Co., 59 Iowa 581, 13 N. W. Rep. 735, 44 Am. Rep. 692. 3 Crocker v. McGregor, 76 Me. 282, 49 Am. Rep. 611 ; Lewis v. Eastern R. Co., 60 N. H. 187. 94 INDIRECT AND COLLATERAL EVIDENCE. § 66 in it, the law permits evidence to be introduced, where the disposition of the animal is involved, of prior exhibitions of the same vicious habit, as bearing on its disposition at the time of the injury/ It is even held that, where an injur}'- is alleged to have been occasioned by the act of an animal, it is competent to show like acts upon the animal's part subsequently, as such evidence may be regarded as tending to prove a continuance of the vicious habit. ^ § 66. Experiments. — Under certain circumstances, testimony as to the result of experiments may afford cogent evidence. Thus, for instance, if it should become material to determine whether there was at a certain time an unobstructed view from one point to another, the force of the testimony of persons who had made the experiment, and were able to state that the condi- tions were the same at the time in question as at tho time when the experiment was made, would be at once recognized. To render evidence of an experiment admissible, it must appear that the experiment was made under substantially the same condi- tions as existed at the time the event the experiment is designed to illustrate took place, for otherwise the experiment, instead of aiding the jurors, would be likely to con%se and mislead them. It may be added also that the subject-matter of the ex- periment must be such that, if it be certain that the conditions which were material elements in the two occurrences were pre- cisely similar, the experiment would amount to a practical demonstration as to the nature of the prior fact. Without this limitation upon the admissibility of experiments, such proof would, in many instances, be open to the objection that it amounted only to proof of a similar but wholly disconnected cir- ^Whittier v. Town of Franklin, 46 lis Union R. Co. v. Boettcher, 131 Ind. N. H. 23, 88 Am. Dec. 185; Bailey v. 82, 28 N. E. Rep. 551. Inhabitants of Belfast, (Me.) 10 Atl. ^ Pennon v. Gilmer, 131 TJ. S. 22, 9 Rep. 452; Maggi v. Cutts, 123 Mass. Sup. Ct. Rep. 696; Maf?gi«. Cutts, 123 535; Todd v. Inhabitants of Rowley, IMass. 535; Todd v. Inhabitants of 8 Allen 51; Kennon u. Gilmer, 5 Mont. Rowley, 8 Allen 51; Kennon v. Gil- 257, 51 Am. Rep. 45. See Indianapo- mer, 5 Mont. 257, 51 Am. Rep. 45. 06 COLLATERAL EVIDENCE. 95 cumstance.^ Frequent observation of merely similar circum- stances may equip the expert for the expression of an opinion, but, as we have already seen, evidence of merely isolated facts is collateral.' Before taking leave of the topic of experiments, ' Com. V. Piper, 120 Mass. 185 ; Eidt V. Cutter, 127 Mass. 522; Lincoln v. Taunton, etc., Co., 9 Allen 181 ; Yates V. People, 32 N.Y. 509 ; Com. v. Twitch- ell, 1 Brewst. 551 ; Sullivan v. Com., 93 Pa. St. 284 ; Smith v. State, 2 Ohio St. 611; Indiana Car Co. v. Parker, 100 Ind. 181; Lake Erie, etc., R. Co. v. Mugg, 132 Ind. 168, 31 N. E. Eep. 564; Chicago, etc., R. Co. v. Cham- pion, 9 Ind. App. 610, 36 N. E. Rep. 221 ; State?;. Justus, 11 Ore. 178, 8 Pac. Rep. 337, 50 Am. Rep. 470; People v. Levine, 85 Cal. 39, 22 Pac. Rep. 969. In a condemnation proceeding brought by an elevated railroad com- pany, it was held proper to ask wit- nesses to state such observed facts as to the effect of the road on the busi- ness of another street, as to the dark- ening of windows thereon, as to inter- ference with access to property, flick- ering of lights in rooms from passing trains, etc., Drucker v. R. Co., 106 'N. Y. 157, 12 N. E. Rep. 568, 60 Am. Rep. 437 ; Doyle v. Manhattan R. Co., 128 N. Y. 488, 28 N. E. Rep. 495. In Lake Erie, etc., R. Co. v. Mugg, supra, there being some evidence of state- ments of a res gestae character made by the deceased, who had been run over, to the effect that his boot froze to the rail, and that he was unable to pull his foot away, it was held that the trial court ruled correctly in excluding the evidence of a witness to the effect that on the day of the injury he experi- mented and proved that his foot stuck to the rail, inasmuch as there was no evidence that the conditions of warmth and moisture were the same. In Yates V. People, supra, there being no proof of similar conditions, it was held im- proper to prove how far a certain street-lamp would shed light, by evi- dence of an experiment conducted four months after the time in question. In Com. V. Twitchell, 1 Brewst. 551, the object of the experiment was to ascertain the facility of breaking a human skull with a poker. A wit- ness testified that he made experi- ments upon another skull with a poker, like the one with which it was claimed that the skull in question was broken. Held, that he could not testify as to the result of his experiments. ^Ante, §56. State v. Justus, 11 Ore. 178, 8 Pac. Rep. 337, 50 Am. Rep. 470, was a case where the defendant had shot his father. The defendant claimed that the shooting was acci- dental, and that when it occurred he stood at a distance of about twelve feet from his father. The judgment of con- viction was reversed, because of evi- dence of a series of experiments in shooting at targets at the same and shorter distances, which evidence was offered for the purpose of showing that defendant stood much nearer his fath- er when he shot. The court, after call- ing attention to the fact that gunshot wounds belong to a branch of medical science, and to the fact that the cir- cumstances might vary the result, de- pending upon the load, wadding and the difference in the nature of the texture between the human body and the substance upon which the experi- ments were made, said: "It would seem, then, hardly to be safe to per- mit non-professional witnesses to prove, through the instrumentality of 96 INDIRECT AND COLLATERAL EVIDENCE. §66 mention should be made of the interesting case of People v. Sevine.^ In that case the defendant was on trial for arson, and, it becoming material to ascertain how long it would take experiments, matters not within the range of their observation and experi- ence, and of which they are supposed to be incompetent to deal." In Libby V. Scherman, 146 111. 540, 34 N. E. Rep. 801, 37 Am. St. Rep. 191, where the plaintiff sued for an injury to his per- son, caused by the falling of a part of a pile of barrels filled with pork, after the contents of one of the barrels had been removed, it was alleged that such act rendered the barrels above less se- cure. The defendant sought to show an experiment by which a barrel, lo- cated relatively the same as the empty barrel, had been entirely taken out without the barrels above it falling. This evidence the trial court excluded, and in reviewing such ruling the su- preme court said : " We are clearly of the opinion that experiments of that character and their results, and infer- ences drawn from them by witnesses, were mere collateral matters, which could have no legitimate bearing upon the issues before the jury. Besides, the impossibility of showing that the conditions under which these experi- ments were made were in all respects identical with those existing at the time the plaintiff was injured, and the multitude of collateral issues which an attempt to prove identity of conditions would raise, the fact that one experiment had been con- ducted to a successful issue would have little, if any, tendency to show that in another case precisely like it an accident might not happen. A thousand men may pass an impend- ing wall with safety, or at least with- out injury, but the next man who at- tempts to pass it may be crushed by its fall. The question is not whether a pile of barrels might not stand situ- ated as was the one in this case, but whether leaving such barrel in the condition shown rendered the sup- port of the barrels above it less se- cure, and that to such a degree as to constitute negligence, and whether the plaintiff's injury occurred as the result of such negligence. So far as these witnesses were sought to be ex- amined as experts, it does not appear that they had any special knowledge or skill on the subject, unless it was that gained by means of the experi- ments which counsel attempted, but was not permitted to prove. Nothing therefore is proved which tends to show that they were any better quali- fied to express an opinion on the sub- ject than were any of the jurors be- fore whom the cause was being tried ; and, even admitting that the subject was one for expert testimony — a prop- osition which may well be doubted— their answers to questions put to them, calling for their opinions, would obviously have been merely a means of getting before the jury by indirec- tion the results of the experiments, if not the experiments themselves." In Sullivan v. Com., 93 Pa. St. 285, where the deceased was shot in the abdomen, through her night-gown, it was held competent, in order to show the effect of gunpowder at close range, for a physician to testify to experiments made by him with the same "listol, loaded with cartridges out of the same box, in shooting at a material similar to the material of which the night- gown was composed. ^ People V. Levine, 85 Cal. 39, 22 Pac. Rep. 969. § 67 COLLATERAL EVIDENCE. 97 for a candle to burn down to a certain point, it was held proper to show such fact by an experiment conducted in the presence of the jury. §67. Other occurrences in fire cases. — While it is settled in most of the states, where the subject is not regulated by statute, that the mere fact that a locomotive sets out a fire upon the land of an adjoining owner does not cast upon the company any onus of proof, yet there may be room for an inference of negligence, if the evidence shows that the same locomotive, at or about the time in question, set other fires adjacent to the right of way. It is therefore competent to show such fact as a circum- stance having a tendency to establish negligence.* As stated by the New York Court of Appeals :^ ''The more frequent these oc- currences and the longer time they would have been apparent, the greater the negligence of the defendant ; and such proof would disarm the defendant of the excuse that, on the particular occa- sion, the dropping of the fire was an unavoidable accident. ' ' In cases where a fire is traced to a railroad company, and the evi- dence does not identify the engine which set the fire, the weight of authority justifies the statement that evidence may be intro- duced that at about that time the company's locomotives gen- erally, or many of them, threw sparks of unusual size, or kin- dled numerous fires upon adjoining property. The grounds for this doctrine are aptly stated by Denio, C. J., in an earlier New York case.^ Evidence was there introduced that the loco- motives of the defendant generally lacked a certain equipment, ordinarily used, rendering locomotives less likely to set fires. It was objected that this evidence was too remote. In passing on its competency the learned chief justice said: "This argu- ment is not without force, but at the same time I think it is iQ. & M. Railroad Co. v. Trapp, 4 v. Chicago, etc., R. Co., 64 Iowa 321, Ind. App. 69, 30 N. E. Rep. 812 ; Louis- 20 N. W. Rep. 456. ville, etc., R. Co. v. McCorkle, 12 Ind. ^pjeid v. New York, etc., R. Co., 32 App. 691, 40 N. E. Rep. 26 ; Louisville, N. Y. 339. etc., R. Co. V. Lange, 13 Ind. App. ^ Sheldon v. Railroad, 14 N. Y. 218, 537, 41 N. E. Rep. 609. Contra, Bell 67 Am. Dec. 155. 7— Ev. 98 INDIRECT AND COLLATERAL EVIDENCE. § 67 met by the peculiar circumstances of this case. These engines run night and day, and with such speed that no particular note can be taken of them as they pass. Moreover, there is such a general resemblance among them that a stranger to the business can not readily distinguish one from another. * * * It would be practically quite impossible by any inquiries to find out the offending engine, for a large proportion of those owned by the company are constantly in rapid motion. The business of running the trains on a railroad supposes a unity of management, and a general similarity in the fashion of the engines and the character of operation. I think, therefore, it is competent |)Hma facie evidence, for a person seeking to es- tablish the responsibility of the company, for a burning upon the track of the road, after refuting every other probable cause of the fire, to show that, about the time when it happened, the trains which the company was running past the location of the fire were so managed in respect to the furnaces as to be likely to set on fire objects not more remote than the property burned. It is presumed to be in the power of the company, which is intimately acquainted with all its engineers and con- ductors, to controvert the fact sworn to if it is untrue, or, if true in a particular instance, to show that it was not so in respect to the engines which passed the place at a particular time be- fore the fire. The effect of the evidence could only be to shift the onus probandi upon the company, and that, under the cir- cumstances of this case, seems to me just and equitable." This case finds very general support in the authorities.^ But as the 1 Grand Trunk R. Co. v. Richard- Cleaveland v. Railroad Co., 42 Vt. 449; son, 91 U. S. 454; Pennsylvania Co. «. Smith v. Railroad Co., 10 R. I. 22; Stranahan, 79 Pa. St. 405; Henderson Norfolk R. Co. v. Bohannon, 85 Va. V. Philadelphia, etc., R. Co., 144 293, 7 S. E. Rep. 236; Annapolis, etc., Pa. St. 461, 22 Atl. Rep. 851, 27 R. Co. v. Gantt, 39 Md. 115; Steele t-. Am. St. Rep. 652; Thatcher v. Maine Pacific Coast, etc., R. Co., 74 Cal. 323, Central R. Co., 85 Me. 502, 27 Atl. 15 Pac. Rep. 851 ; Evansville, etc., R. Rep. 519; St. Joseph, etc., R. Co. Co. v. Keith, 8 Ind. App. 57, 35 N. E. V. Chase, 11 Kan. 47; Longabaugh Rep. 296; Gibbons t?. Wisconsin Val- V. Virginia, etc., Co., 9 Nev. 271; ley, etc., R. Co., 58 Wis. 335, 17N. W. Diamonds. Northern Pacific, etc., R. Rep. 132; Koontz v. Oregon, etc., and Co., 6 Mont. 580, 13 Pac. Rep. 367; Nav. Co., 20 Ore. 3, 23 Pac. Rep. 820. § 67 COLLATERAL EVIDENCE. 99 habits of a railroad company — if this expression may be per- mitted — may change with the management, . the evidence should ordinarily be confined to about the time of the set- ting of the fire.^ In the case of Grand Trunk R. Co. v. Richardson/ it was intimated that evidence as to the con- dition of other locomotives might be shown, although the particular locomotive which set the fire was identified. The authorities which have heretofore been cited on this general question state the doctrine more guardedly, and in some of them it has been expressly held that it was error to admit the evidence if the locomotive was identified.' With all due defer- ence, it must be said that the doctrine of Grand Trunk R. Co. V. Richardson, supra,'^ in the respect last mentioned, is utterly wrong, for, since the evidence of the plaintiff points to a par- ticular locomiotive as the cause of injury, the introduction of evidence that other locomotives were defective would amount to evidence that the defendant company was generally careless as proof of the specific allegation that in the particular instance it was negligent. Such a doctrine falls afoul of a leading doc- trine concerning collateral evidence,* and there would be quite as much warrant for convicting persons in criminal cases by proof of their general criminal tendencies. If the evidence does not identify the locomotive, then the proof that the fire proceeded from the railroad is greatly strengthened by evi- dence that the defendant was using locomotives which were likely to set the fire. Such evidence would array itself direct- ly in the line of causation. In a Wisconsin case,* the case of Grand Trunk R. Co. v. Richardson is thus criticised: "In ^ Henderson v. Philadelphia, etc., R. § 675. It was held in Evansville, etc., Co., 144 Pa. St. 461, 22 Atl. Rep. 851, Co. v. Keith, 8 Ind. App. 57, 35 N. 27 Am. St. Rep. 652; Thatcher v. E. Rep. 296, that the identification of Maine Central, etc., R. Co., 85 Me. the train by number, to which the lo- 502, 27 Atl. R. 519. comotive was attached, was not a nec- * Grand Trunk R. Co. v. Richard- essary identification of the latter, son, 91 U. S. 454. * Grand Trunk R. Co. v. Richard- ' Gibbons v. Wisconsin Valley, etc., son, 91 TJ. S. 454. R. Co., 58 Wis. 335, 17 N. W. Rep. ^Ante, § 52. 132; Ireland v. Cincinnati, etc., R. "^Qii^i^ons u. Wisconsin, etc., R. Co., Co., 79 Mich. 163, 44 N. W. Rep. 426; 58 Wis. 355, 17 N. W. Rep. 132. Sherman and Redfield on Negligence, 100 INDIRECT AND COLLATERAL EVIDENCE. §68 due deference to the learned judge who wrote the opinion, and the other judges who have used this language, it is submitted that a possibility can never establish a probability of a fact re- quired to be proved in order to make a railroad company or any party liable in any action whatever, and the proposition is no sounder in logic than in law. It would be monstrous doc- trine that where a party is sued in tort for a personal injury to another, occasioned by his negligence in not furnishing prop- er appliances, or otl^erwise, his common carelessness in other cases would tend to--^5ve the 'possibilitj^' and therefore 'probability,' that the axv^4^arged was the result of his negli- gence, without proof er^Tt~that he committed it. In cases where it is shown, either b^^p ositive or circumstantial evidence, that some locomotive of thk^mpany caused the fire, without the identification of any par^ular one, such evidence might have weight in showing the neglect of the company . ' ' § 68. Prior habit of person -^OH'oof of wliat was done at a particular time. — Where the queM^^^. is as to how a person conducted himself at a particular ti^e, it is not competent to show that prior thereto he was gei^rally careless or the re- verse.^ Proof of prior particular dis(^S^ected acts is even ^Tenney v. Tuttle, 1 Allen 185 ; Ga- hagan v. Boston, etc., R. Co., 1 Allen 187, 79 Am. Dec. 724; Heland ?;. Lo- well, 3 Allen 407, 81 Am. Dec. 670; McDonald v. Savoy, 110 Mass. 49; Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 Atl. Rep. 338; Eaton v. N. E. Telegraph Co., 68 Me. 63 ; Chase v. Maine, etc., R. Co., 77 Me. 62, 52 Am. Rep. 744; Morris v. East Haven, 41 Conn. 252 ; Hays v. Millar, 77 Pa. St. 238, 18 Am. Rep. 445; Glass v. Memphis, etc., R. Co., 94 Ala. 581, 10 So. Rep. 215, Jacobs v. Duke, 1 E. D. Smith 271; Link v. Jarvis, (Cal.) 33 Pac. Rep. 206; Pueblo Bldg. Co. v. Klein, 5 Colo. App. 348, 38 Pac. Rep. 608; Southern, etc., R. Co. v. Robbins, 43 Kan. 145, 23 Pac. Rep. 113; Lang- worthy V. Township of Green, 88 Mich. 207, 50 N. W. Rep. 130. In Mertz V. Detweiler, 8 W. & S. (Pa.) 376, a suit for malpractice, evidence of the general skill of the defendant as a surgeon was rejected. The court said: "It was not that, but his treat- ment of the particular case, with which the jury had to do. If the latter was notoriously bad, of what account would be his abstract science or treat- ment of other cases? It may be said that his general qualifications might serve to shed light on the propriety of his practice in this particular instance, but it is light which would be less likely to lead to a sound consideration than to lead astray." To the same effect, Hays v. Millar, 77 Pa. St. 238, §68 COLLATERAL EVIDENCE. 101 more plainly within the line of exclusion.^ The weight of authority favors the view, however, that where the direct evi- dence shows that an act was done or omitted, it is competent to prove that a custom existed prior to that time to do or not do such act, as such evidence legitimately tends to uphold the theory of one of the contending parties.' 18 Am. Rep. 445; Rollins v. Griffin, 7 Misc. R. 232, 27 N. Y. S. 269; Chase V. Maine, etc., R. Co., supra; Link v. Jarvis, supj-a ; Langworthy v. Town- ship of Green, 88 Mich. 207, 50 N. W. Rep. 130. In Leighton v. Sargeant, 11 Fost. 460, 59 Am. Dec. 388, such evi- dence was held admissible, where the declaration alleged a want of skill. There are a few cases, however, which authorize evidence as to the prudent habits of a deceased person, on an issue as to his contributory negligence, where there were no eye-witnesses to the accident and where better evi- dence can not be obtained. Southern, etc., R. Co. V. Robbins, 43 Kan. 145, 23 Pac. Rep. 113, and cases cited. See Guggenheim v. Lake, Shore, etc., R. Co., 66 Mich. 150, 33 N. W. Rep. 161. ^Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 Atl. Rep. 338; Robinson v. Fitchburg, etc., R. Co., 7 Gray 92; Wentworth v. Smith, 44 N. H. 419, 82 Am. Dec. 228; Cleveland, etc., R. Co. V. Newell, 104 Ind. 264, 3 N. E. Rep. 836, 54 Am. Rep. 312; Delaware, etc., R. Co. V. Converse, 139 V. S. 469, 11 Sup. Ct. Rep. 569; Southern, etc., R. Co. V. Kendrick, 40 Miss. 374, 90 Am. Dec. 332 ; Edwards v. Ottawa Riv. Nav. Co., 39 Up. Can. Q. B. 264. 2 Where the question was as to whether a railway employe had placed a stool at the foot of the steps of a car, it was held that if a witness had testi- fied to the location of the stool at such pointjit would have been proper to have corroborated him by proof of the in- variable custom of the servant, but that it was not proper in the absence of such testimony to admit in defense evidence of custom. Atlanta, etc., R. Co. V. Holcombe, 76 Ga. 590, 13 S. E. Rep. 751. In Denver Tramway Co. v. Owens, 20 Colo. 107, 36 Pac. Rep. 848, the court said: "If it had been pro- posed to show that the gripman had been in the service of the company for a considerable time, and that it had been his particular habit not to stop in the middle of the block, this would have lent corroboration to his testi- mony that he did not stop ; for in case of doubt as to what a person has done, it miiy be considered more probable that he has done what he has been in the habit of doing than that he acted otherwise." It has been held in sev- eral cases, where thequestionindispute was as to whether a railway company operated a train at a certain highrateof speed at a particular point,on a certain occasion, that it was competent to cor- roborate the affirmative evidence on that point by proof of a custom existing at that time for the company to so run that train. Sheldon v. Railroad Co., 14 N. Y. 218, 67 Am. Dec. 155 ; Chi- cago, etc., R. Co. V. Spilker, 134 Ind. 562, 33 N. E. Rep. 280; Shaberv. Rail- way Co., 28 Minn. 103, 9 N. W. Rep. 575; Henry v. Railroad Co., 50 Cal. 176; Presby v. Grand, etc., R. Co., 66 N. H. 615, 22 Atl. Rep. 554. Contra, Meloy 1'. Chicago, etc., R. Co., 77 Iowa 743, 42 N. W. Rep. 563, 14 Am. St. 102 INDIRECT AND COLLATERAL EVIDENCE. §69 § 69. Subject of custom or usage as affecting negligence. — This subject is considered elsewhere.^ § 70. Prior specific acts to prove notice of negligent charac- ter. — " We think it is well settled," says the Indiana Supreme Court/ "not only by the authorities, but in reason and on principle, that for the purpose of showing that the officers of a railroad company had not exercised due care, prudence, and caution in the employment, or in retaining in service, of care- ful, prudent and skillful persons to manage and operate such road, and for the purpose of charging such corporation with notice of the incompetency of its employes, it may be shown that such employes had been guilty of specific acts of careless- ness, unskillfulness and incompetency, and that such acts were known to such officers prior to the employment of such agents, or that such employes had been retained in such service after notice of such acts."^ Rep. 325; Baltimore, etc., R Co. v. Woodruff, 4 Md. 242 ; Chicago, etc., R. Co. V. Lee, 60 III. 501. In Savannah, etc., R. Co. V. Flannagan, 82 Ga. 579, 9 S. E. Rep. 471, 14 Am. St. Rep. 183, the court refused to reverse the cause on account of the admission of such evidence upon the trial, but the court intimated adoubt as to the competency of the evidence. In Schoneman v. Fegely, 14 Pa. St. 376, where a witness could not recollect whether he had given a receipt, it was held competent to prove his custom to give a receipt in such cases. So, in Eureka Ins. Co. V. Robinson, 56 Pa. St. 256, 94 Am. Dec. 65, it was held proper to corroborate the defective memory of a witness by proof of what was his habit under similar circumstances. In Brouillette V. Connecticut, etc., R. Co., 162 Mass. 98, 38 N. E. Rep. 507, on an issue as to contributory negligence, it was held that evidence of previous statements by plaintiff, as to his ability to keep out of the way of trains and not get hurt, was competent, as bearing upon the question as to his readiness to take risks. In a case where a ques- tion arose as to whether the plaintiff was drunk at the time of an accident, and there was evidence to that effect, it was held proper to ask plaintiff whether he was not at that time an habitual drunkard. McCracken v. Vil- lage of Markensan, 76 Wis. 499, 45 N. W. Rep. 323. But where there was no evidence of intoxication at the time, such evidence was held properly rejected. Cleghorn v. The New York Cent., etc., R. Co., 56 N. Y. 44, 15 Am. Rep. 375; Langworthy v. Town- ship of Green, 88 Mich. 207, 50 N. W. Rep. 130. ^Post, Chap. IV. 2 Pittsburg, etc., R. Co. v. Ruby, 38 Ind. 294, 10 Am. Rep. 111. ^The court in the above case cites the following authorities in support of its views: Gahagan v. Boston, etc., R. § 71 COLLATERAL EVIDENCE, 103 § 71. Condition of object or place before and after. — It often happens that it becomes material to inquire into the condition or character of an object or place at a certain time, but that there is no person who saw the object or place at that precise time. The authorities justify the proposition that its condition before and after the time in question may be shown, as evi- dence of its condition at the time under inquiry, provided, that the time before or after is sufficiently near to the time in ques- tion as to justify an inference that the condition was the same.' Hoops of steel can not be put around a rule of this kind. Within limits, it is a question for the sound discretion of the trial court. The application of the rule depends largely upon whether the condition is transitory or more or less permanent. Thus, while evidence as to the condition of a defective sidewalk a few days after an accident might be competent,^ such limits would be entirely too broad where the question was as to the condition of a sidewalk alleged to have been unsafe because of ice.^ On the other hand, the time limit would ex- pand very broadly if the question was as to the condition of a large log, firmly imbedded in the earth of a highway.* Where a railroad company was charged with negligently using a locomotive that was out of repair, and thereby setting fire to plaintiff's property, it was held incompetent for the plaint- iff to prove that the locomotive was out of repair several Co., 1 Allen 187, 79 Am. Dec. 724 ; 111- competent. Myers v. State, 84 Ala. 11, inois, etc., R. Co. v. Reedy, 17 111. 580 ; 4 So. Rep. 291. In Com. v. Wood, 11 Galena, etc., R. Co. v. Yarwood, 17 Gray 85, andinCom.u. Follansbee, 155 111. 509, 65 Am. Dec. 682; Quimby v. Mass. 274, 29 N. E. Rep. 471, like rul- Vermont, etc., R. Co., 23 Vt. 387; ings were made, where the evidence Louisville, etc., R. Co. v. Collins, 2 was directed to the condition of the Duvall 114, 87 Am. Dec. 486. Contra, woman about a month after the alleged Frazier v. Pennsylvania R. Co., 38 Pa. abortion. St. 104, 80 Am. Dec. 467. ^ City of Chicago v. Dalle, 115 111. 1 Swadley v. Mo. Pac. R. Co., 118 Mo. 386, 5 N. E. Rep. 578. 268, 24 S.W. Rep. UO, 40 Am. St. Rep. ^ggrrenberg v. City of Boston, 137 366; McCulloch v. Dobson, 133 N. Y. Mass. 231, 50 Am. Rep. 296. 114. 30 N. E. Rep. 641. See Stoher v. * Langworthy v. Township of Green, St. Louis, etc., R. Co., 91 Mo. 509, 4 S. 88 Mich. 207, 50 N. W. Rep. 130 ; Ber- AV. Rep. 389. In a rape case the evi- renberg v. City of Boston, 137 Mass. dence of a physician as to the condition 231, 50 Am. Rep. 296. of the woman ten days after was held 104 INDIRECT AND COLLATERAL EVIDENCE, §72 months subsequently/ If there is other aflfirmative evidence that the condition of the place or object was the same at the time that another witness saw it as it was at the time specially in question, such testimony, even if the two occasions are some- what remote, would render the testimony as to the prior or sub- sequent condition, with which the latter witness was acquainted, competent. In other words where inference fails, affirmative testimony may still uphold.^ So, in a case where the question was as to the dimensions and slope of an ice formation at a particular time, it was held competent to show its condition shortly after, there being evidence of such weather conditions as rendered it probable that the ice formation had not varied in the meantime/ § 72. Subsequent precautious. — The act of a defendant sub- sequent to an accident in making repairs, erecting guards or exercising greater care can not be construed as an admission that he was previously negligent.* The courts of the states of ^ Collins V. New York Central, etc., R. Co., 109 N.Y. 243, 16 N. E. Rep. 50. ^Langworthy V. Township of Green, 88 Mich. 207, 50 N. W. Rep. 130; Birmingham Union R. Co. v. Alex- ander, 93 Ala. 133,9 So. Rep. 525; Collins V. New York Central, etc., Co., 109 N. Y. 243, 16 N. E. Rep. 50. ^Berrenberg v. City of Boston, 137 Mass. 231, 50 Am. Rep. 296. *Dougan ■;;. Transportation Co., 56 N. Y. 1 ; Baird v. Daly, 68 N. Y. 547; Corcoran v. Village of Peeksville, 108 N. Y. 151, 15 N. E. Rep. 309 ; Nalley v. Hartford Carpet Co., 51 Conn. 524, 50 Am. Rep. 47, and cases cited; Shin- ners v. Proprietors, 154 Mass. 168, 28 N. E. Rep. 10, 26 Am. St. Rep. 226; Atchison, etc., R. Co. v. Parker, 55 Fed. Rep. 595; Columbia etc., R., Co. V. Hawthorne, 144 U. S. 202, 12 Sup. Ct. Rep. 591; Savannah, etc., R. Co. v. Flannagan, 82 Ga. 579, 9 S. E. Rep. 471, 14 Am. St. Rep. 183 ; Terre Haute, etc., R. V. Clem, 123 Ind. 15, 23 N. E. Rep. 965, 18 Am. St. Rep. 303; Board Comm'rs Wabash Co. v. Pearson, 129 Ind. 456, 28 N. E. Rep. 1120; Hodges V. Percival, 132 111. 53, 23 N. E. Rep. 423; Fox v. Peninsular W. L. & C. Works, 84 Mich. 676, 48 N. W. Rep. 203; Thompson v. Toledo, etc., R. Co., 91 Mich. 255, 51 N. W. Rep. 995; Cramer v. Burlington, 45 Iowa 627; Hudson V. Chicago, etc., R. Co., 59 Iowa 581, 13 N. W. Rep. 735, 44 Am. Rep. 692; Lang v. Sanger, 76 Wis. 71, 44 N. W. Rep. 1095; Anderson v. Chicago, etc., R. Co., 87 Wis. 195, 58 N. W. Rep. 79; Alcorn v, Chicago, etc., R. Co., 108 Mo. 81, 14 S. W. Rep. 943 ; Mahaney v. St. Louis, etc., R. Co., 108 Mo. 191, 18 S. W.Rep.895 ; Colorado Electric Co. v. Lubbers, 11 Colo. 505, 19 Pac. Rep. 479, 7 Am. St. Rep. 255; St. Louis, etc., R. Co. v. Jones (Tex.), 14 S. W. Rep. 309; Gulf, etc., R. Co. V. Compton, 75 Tex. 667; Hale v. § 72 COLLATERAL EVIDENCE. 105 Pennsylvania and Kansas are alone in holding to the con- trary.' The Minnesota Supreme Court followed the Penn- sylvania Supreme Court on this point in one case,^ but subse- quently that court overruled its earlier decision,* after a full consideration of the question. " True policy and sound rea- son," says Elliott, J.,* "require that men should be encour- aged to improve or repair, and not be deterred from it by the fear that, if they do so, their acts will be construed into an admission that they have been wrong-doers. A rule which so operates as to deter men from profiting by experience, and availing themselves of new information, has nothing to com- mend it, for it is neither expedient nor just. * * * Xhe fact that the happening of an accident may convey informa- tion producing a conviction or belief that had extraordinary precaution been taken the injury would have been prevented, does not legitimately tend to prove that ordinary care and vigilance were not exercised. All may be done that ordinary care required, and yet a person, satisfied by experience that a higher degree of care may insure absolute safety, may em- ploy extraordinary means to prevent accidents in the future. In doing this he does what is commendable, and certainly he ought not to be restrained or checked by the fear that if he does resort to unusual means to insure safety, he may be treated as one who confesses that he was a wrong-doer wdien the accident occurred. It is unjustly burdening one who, in- fluenced by the light supplied by events, resorts to greater precautions to insure the safety of others." In an English case,^ Branwell, J., expressed himself thus: ''People do not South. Pac. Co., (Cal.) 33 Pac. Eep. Weaver, 35 Kan. 412, 67 Am. Rep. 119; Holt V. Spokane, etc., Co., (Ida.) 176. 35 Pac. Rep. 39. See Columbia, etc., ^ o'Leary v. Mankato, 21 Minn. 65. R. Co, V. Hawthorne, 3 Wash. Ter. 'Morse, Admx., v. Minneapolis, 353, 19 Pac. Rep. 25. etc., R. Co., 16 N. W. Rep. 358. nVestchester, etc., R. Co. v. Mc- «Terre Haute, etc., R. Co. v. Clem, Elwee, 67 Pa. St. 311 ; McKee v. Bid- 123 Ind. 15, 23 N. E. Rep. 965, 18 Am. well, 74 Pa. St. 218 ; Pennsylvania St. Rep. 303. Tel. Co. v. Varnau, (Pa. St.) 15 Atl. sjjart v. Railway Co., 21 Law T. Rep. 624; St. Louis, etc., R. Co. v. (N. S.) 261. 106 INDIRECT AND COLLATERAL EVIDENCE. § 73 furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think that a proposition to the contrary would be barbarous. It would be, as I have often had occasion to tell juries, to hold that, because the world gets wiser as it gets older, there- fore it was foolish before." It is to be recollected, however, that evidence of subsequent repairs is excluded in the many cases cited in the first note to this section solely on the ground that the fact of subsequent repairs is not evidence of prior negligence. There is no reason why proof should not be made of such repairs, if the fact of the making of them be relevant, under the circumstances of the particular case. Such evidence has been held competent as proof of acts of domination, amounting to admissions of proprietorship, or obligation to repair.^ In two cases such evidence was held competent to explain photographs of the locus in quo, taken subsequent to the accident.^ In a Texas case, where a train had been derailed, by reason of sand washing on to the track, at a point where it crossed a street, at the foot of a steep in- cline, it was held that subsequent alterations might be shown, to prove that it was practicable to prevent the washing of the sand upon the crossing.^ In another derailment case from the same state, the defendant's witnesses having testified to the good condition of the track at the particular point, and that the track was used after the wreck without being repaired, it was held that it was competent for the plaintiff to prove by a witness that he saw the track a short time after the derail- ment and that new ties had been put in at that point.* § 73. Other "writings. — Where several writings are executed between the same parties substantially at the same time, and ^ Read man v. Conway, 126 Mass. Louis, etc., R. Co. r. Johnston, 78 Tex. 374 ; City of La Fayette v. Weaver, 92 536, 15 S. W. Rep. 104. Ind. 477; Manderschid v. Dubuque, * St. Louis, etc., R. Co. v. Johnston, 29 Iowa 73, 4 Am. Rep. 196; Skottowe 78 Tex. 536, 15 S. W. Rep. 104. V. Oregon, etc., R. Co., 22 Ore. 430, *Fordyce v. Withers, 1 Tex. Civ. 30 Pac. Rep. 222. App. 540, 20 S. W. Rep. 766, 22 S. W. ^Chicago, etc., R. Co. v. Barnes, 10 Rep. 235, and see Chicago, etc., R. Co. Ind. App. 460, 38 N. E. Rep. 428 ; St. v. Lewis, 145 111. 67, 33 N. E. Rep. 960. § 74 COLLATERAL EVIDENCE, 107 relating to the same subject-matter, such writings may be read together as forming parts of one transaction, although the in- struments do not in terms refer to each other/ § 74. Evidence where title in question.— Sir James Stephen states, in article 5 of his Digest of the Law of Evidence, that "when the existence of any right of property, or of any right over property, is in question, every fact which constitutes the title of the person claiming the right, or which shows that he, or any person through whom he claims, was in possession of the property, and every fact which constitutes an exercise of the right, or which shows that its exercise was disputed, or which is inconsistent with its existence, or renders its exist- ence improbable, is deemed to be relevant." § 75. Special circumstances of plaintiff or his family. In an Iowa case,' it was held by a divided court, that where the plaintiff, a physician, was suing for a disabling injury to his person, it was proper for him to prove that he was poor and wholly dependent upon his profession for support. The theory of the ruling was that as the fact that the plaintiff was depend- ent on his earnings for support was proper, it was competent to show that he was poor as a circumstance tending to show his dependence.' There are cases which go further, and give support to the view that in personal injury cases it is proper for the plaintiff to show the fact of his poverty. Thus, in a suit against a municipality, by a parent, for an injury to the person of her daughter, it was held proper, by the Supreme Court of Illinois, to show the fact of plaintiff's pov- erty. " If poor and dependent," the court said, ''she had suf- fered a greater loss than if rich and independent."* The idea ' Bailey v. Hannibal, etc., R. Co., 84 » Where a brakeman was suing for U. S. 96; Cornell v. Todd, 2 Denio the loss of an arm it was held compe- 130; Jacks.n v. Dunsbagh, 1 Johns, tent to prove that he had no educa- Cas. 91; Stow «. Tifft, 15 John. 457, tion. Helton t'. Alabama, etc., R. Co G Am. Deo. 266; Railroad Co. v. 97 Ala. 275, 12 So. Rep. 276 Crocker, 29 Vt. 540; Jackson v. Mfe- ^City of Chicago v. Powers 4'> 111 Kenny,3 Wend. 233, 20 Am. Dec. 690. 169, 89 Am. Dec. 418. 2 Stafford v. City of Oskaloosa, 64 Iowa 251, 20 N. W. Rep. 174. 108 INDIRECT AND COLLATERAL EVIDENCE, § 7o on which the above case proceeds finds still more explicit state- ment in an earlier Illinois case/ in which the action was for an assault and battery. It was there held that the plaintiff was en- titled to show that he was a poor man with a large famil}^ The court said : ''In actions of this kind, the condition in life and the circumstances of the parties are peculiarly the proper sub- jects for the consideration of the jury in estimating the dam- ages. Their pecuniary circumstances may be inquired into. It may be readily supposed that the consequences of a severe personal injury would be more disastrous to a person destitute of pecuniary resources, and dependent wholly on his manual exertions for the support of himself and family, than to an in- dividual differently situated in life. The effect of the injury might be to deprive him and his family of the comforts and necessaries of life." Another Illinois case upholds this view,^ and there are cases authorizing proof of the plaintiff's poverty in Maryland* and Missouri.* Some countenance is given to these cases by expressions of the courts in New York* and Massachusetts.® In a New York case,' which was an action of slander, it was held proper to prove that the plaintiff was a mother, for the reason that the jury had a right to consider, in aggravation of damages, that she had children who would be dis- graced by the charge. So in Cahill v. Murphy,* another slander case, where the defendant had charged the plaintiff with arson, in burning her property to defraud an insurance company, and the circumstances under which the charge was made rendered it probable that she would thereby be compelled to resort to litigation to recover the insurance, it was held that evidence that plaintiff had three children dependent upon her for support was competent, on the theory that she was entitled to recover for mental anguish.^ But the admission of evidence of the 1 McNamara v. King, 7 111. 432. ^^eed v. Davis, 4 Piciv. 216. ^Grable v. Margrave, 4 111.372, ^Enos v. Enos, 135 N. Y. 609, 32 N. 38 Am. Dec. 88. E. Rep. 123. SGaitherv. Blowers, 11 Md. 536. « Cahill v. Murphy, 94 Cal. 29, 30 * Beck V. Dowell, 111 Mo. 506, 20 S. Pac. Rep. 195, 28 Am. St. Rep. 88. W. Rep. 209. 9 See, also, to the same effect, Rhodes 5 Bump V. Betts, 23 Wend. 85. v. Naglee, 66 Cal. 677, 6 Pac. Rep. 863. § 76 COLLATERAL EVIDENCE. 109 number of plaintiff's children, in an action for negligence re- sulting in an injury to plaintiff's person, has been held reversi- ble error, as no recovery could be had for an injury to the coui- fort of the family.^ So in Michigan, in an action which sur- vived to a wife for the death of her husband, it was held im- proper to prove the number of living children by the marriage.^ But in another Michigan case,* Campbell, J., after indicating that in more remote relationships evidence should be more re- stricted, to avoid what would be merely problematical, says : " But where the head of a family is taken away, there is a dis- tinct relation between the family circumstances and the family supporter. In such a case we think the fullest insight into the family circumstances is of value in determining to what extent they are injured by the loss of their head."* In this class of actions evidence is competent as to the amount of property the deceased had acquired, as to his habits of industry, his ability to make money, his success in business, and other details of this character.® In actions for injuries to children it has been held error to introduce evidence as to the plaintiff's inability to employ persons to attend them, as bearing on the issue of contributory negligence, since there can not be one law for the rich and another law for the poor.® § 76. Pecuniary circumstances of defendant. — In suits for breach of promise to marry, the relevancy of evidence as to the pecuniary condition of the defondan'u can not admit of ^ Pennsylvania Co. i\ Roy, 102 U. S. be used in the support of the family 451; Dayharsh v. Hannibal, etc., E. may be shown. Lake Erie, etc., R. Co., 103 Mo. 570, 15 S. W. Rep. 55!, Co. v. Mugg, 132 lud. 168, 31 N. E. 23 Am. St. Rep. 900; Missouri, etc.. Rep. 564, R. Co. V. Lydc,57Tex. 505. ^Shaber v. St. Paul, etc., R. Co., 30 ^LarzGlerer. Kirchgessner, 73Mich. Mich. 179, 9 N. W. Rep. 575. But 276, 41 N. W. r.ep. 488. the jury is not at liberty to speculate ^StaaH\ Grand Rapids, etc., R. Co., on the probability of the deceased 57 Mich. 230, 23 N. W. Rep. 795. obtaining an appointment to a poUt- - Evidence of decedent's j!amily ical office. Richmond, etc., Co. v. expenses is competent. Hudson v. AlUson, 86 Ga. 145, 12 S. E. Rep. 352. Houser, 123 Ind. S09, 24 N. E. Rep. « Indianapolis, etc., R. Co.«. Pitzer, 243. Tho habit of the deceased to 109 Ind. 179, 6 N. E. Rep. 310, 58 Am. turn his earnings over to his wife to Rep. 387. 110 INDIRECT AND COLLATERAL EVIDENCE. §76 doubt, as such evidence tends to prove what the plaintiff has lost.* The authorities upon the subject for the most part hold that this class of evidence is admissible in actions for defama- tion, upon the ground that wealth is usually attendant with corresponding influence.^ The correctness of this doctrine has been doubted in some courts/ and denied in others." The gen- eral disposition in this country is to admit evidence as to the wealth of the defendant in actions where he may be punished with vindictive damages.^ Lord Mansfield has been quoted as saying that it should be immaterial whether the damages came out of a deep pocket or not,^ and there is eminent author- ity in this country against the admissibility of evidence of the defendant's wealth to enhance vindictive damages.' There has 1 Kelly V. Riley, 106 Mass. 339, 8 Am. Rep. 336; Kniffen v. McConnell, 30 N. Y. 285; Watson v. Watson, 53 Mich. 168, 18 N. W. Rep. 605, 51 Am. Rep. Ill; Bennett v. Beam, 42 Mich. 346, 36 Am. Rep. 442; Stratton v. Dole, 45 Neb. 472, 63 N. W. Rep. 875. 2 Rea V. Harrington, 58 Vt. 181, 2 Atl. Rep. 475, 56 Am. Rep. 561; Humphries v. Parker, 52 Me. 502; Larned v. Buffinton, 3 'Mass. 546, 3 Am. Dec. 185; Hayner v. Cowden, 27 Ohio St. 292, 22 Am. Rep. 303 ; Brown V. Barnes, 39 Mich. 211, 33 Am. Rep. 375; Hosley v. Brooks, 20 HI. 115, 71 Am. Dec. 252 ; Karney v. Paisley, 13 Iowa 89; Barkly v. Copeland, 74 Cal. 1, 15 Pac. Rep. 307, 5 Am. St. Rep. 413. 3 Case V. Marks, 20 Conn. 248; Holmes v. Holmes. 64 111. 294. * Donnell v. Jones et al., 13 Ala. 490, 48 Am. Dec. 59; Seay v. Glenwood, 21 Ala. 494; Ware v. Cartledge, 24 Ala. 622, 60 Am. Dec. 489 ; Morris v. Barker, 4 Harr. 520; Enos v. Enos, 135 N. Y. 609, 32 N. E. Rep. 123. 5 Webb V. Gilman, 80 Me. 177, 13 Atl. Rep. 688; Grable v. Margrave, 4 111. 372, 38 Am. Dec. 88; Meibus V. Dodge, 38 Wis. 300, 20 Am. Rep. 6; Watson V. Watson, 53 Mich. 168, 18 N. W. Rep. 605, 51 Am. Rep. Ill; White V. Gregory, 126 Ind. 95, 25 N. E. Rep. 806, and cases cited ; Sexson V. Hoover, 1 Ind. App. 65, 27 N. E. Rep. 105; Lavery v. Crooke, 52 Wis. 612, 38 Am. Rep. 768, 9 N. W. Rep. 599, and cases cited; Drapers. Baker, 61 Wis. 450, 21 N. W. Rep. 527, 50 Am. Rep. 143. « See Hodsoll v. Taylor, L. R., 9 Q. B. 79. 7 In Watson v. Watson, 53 Mich. 168, 18 N. W. Rep. 605, 51 Am. Rep. Ill, Cooley, J., after referring to the case of Toledo, etc., R. Co.v. Smith, 57 111. 517, in which it was held that evidence of the wealth of one of the defendants must be rejected, in a case where there are joint defendants, because of the tendency of the evidence to increase the verdict against the co-defendant, says: "The plaintiff's injury is no greater and no less because two per- sons united in committing it, and the measure of his redress ought not to depend on a circumstance un- important to the injury. When it is made to do so it is because the court, while nominally proceeding to give compensation, is really losing §76 COLLATERAL EVIDENCE. Ill been more of hesitancy in admitting this class of evidence in seduction cases, because of the technical character of the ac- tion, but even upon this point the strong tendency of the cases is in favor of admitting the evidence.' Within the principle of the doctrine of this section is the further doctrine that the defendant may show in evidence the fact of his poverty to keep down the allowance of vindictive damages.^ This proposition does not admit of doubt, assuming the admissibility of evidence of wealth, in cases, at least, where the evidence of the defendant's poverty is in rebuttal of affirmative evidence as to his posses- sion of means. Evidence of wealth, according to a Wisconsin case,^ should be confined to evidence of reputed wealth. This is, no doubt, the proper method of ascertaining the fact in a slander case, where the proof is offered to augment the compensa- tory damages,* but no good reason suggests itself for this as an exclusive method of proof of wealth, aside from the considera- sight of compensation in the endeavor to measure the desert of punishment. It is not redressing the plaintiff's in- jury, but it is punishing the defend- ant's misconduct, and it is doing this with the aid of a jury who in respect to it are laeld under none of the re- straints which govern judicial action when punishment is the avowed ob- ject of the proceeding. The anomaly, that a jury may have liberty to punish at discretion for a tort, when, if the act were a crime, the penalty would be carefully limited by law, and that they may award the penalty they agree upon to a private suitor, or to swell his actual damages, has never received much countenance in this state." The most serious objection to Judge Cooley's argument is that it proves too much, for he really adduces an argument against the allowance of vindictive damages. It is to be ob- served that the above case was a se- duction case. See Farrand v. Aldrich, 85 Mich. 593, 48 N. W. Rep. 628. ^ Clem V. Holmes, 33 Gratt. 722, 36 Am. Rep. 793; Grable v. Margrave, 4 111. 372, 38 Am. Dec. 88; White v. Murtland, 71 111. 250, "22 Am. Rep. 100; Applegate v. Ruble, 2 A. K. Marsh. 128 ; McAuley v. Birkhead, 13 Ired. Law 28, 54 Am. Dec. 427; Lav- ery v. Crooke, 52 Wis. 612, 38 Am. Rep. 768, 9 N. W. Rep. 599; Wilson w. Shepler, 86 Ind. 275. 2 Johnson v. Smith, 64 Me. 553; Rea V. Harrington, 58 Vt. 181, 56 Am. Rep. 561, 2 Atl. Rep. 475; Draper v. Baker, 61 Wis. 450, 21 N. W. Rep. 527, 50 Am. Rep. 143. But see Case u. Marks, 20 Conn. 248. In Larned v. Buffin- ton, 3 Mass. 546, 3 Am. Dec. 185, evidence of defendant's poverty was held proper, to show that he was a man of but little influence. But see Case V. Marks, supra ; Ware v. Cart- ledge, 24 Ala. 622, 60 Am. Dec. 489; Morris v. Baker, 4 Harr. 520. s Draper v. Baker, 61 Wis. 450. 21 N. W. Rep. 527, 50 Am. Rep. 143. * See Farrand v. Aldrich, 85 Mich. 593, 48 N. W. Rep. 628. 112 INDIRECT AND COLLATERAL EVIDENCE. § 77 tion of time, where the evidence is offered to increase the vin- dictive damages.^ § 77. Jury entitled to entire facts of case. — As will be seen by a reference to the chapter on res gestse, the authorities go far in authorizing all the facts to go in evidence which are really a part of the transaction under inquiry. One or two authorities must suffice to illustrate this proposition. Thus, in an Indiana case,^ where a brakeman was suing for an injury received by himself in a collision, it was held that he might show that at the cost of great suffering he went a quarter of a mile to flag an approaching passenger train. In ruling upon the competency of this testimony, the court said : "It was admissible, not because the act of flagging the train, however meritorious that was, could be considered by the jury in fixing the amount of compensation, but because the plaintiff was entitled to recover not only for the permanent injury sustained, but for the physical pain and mental suffering occasioned by the injury. He was entitled to communicate to the jury the character and extent of his injury, and the nature and inten- sity of the suffering resulting therefrom. If the plaintiff had voluntarily walked a quarter of a mile^ or any other distance, immediately after receiving the injury, and, after enduring great suffering, had been taken up by a passing train, and had thereupon become unconscious from pain, exhaustion and loss of blood, resulting from the injury, it can not be doubted that the facts might have been stated. The facts following immediately in connection with the injury are none the less admissible, because the plaintiff was impelled to exert himself by a high sense of duty to those on the approaching train. As brakeman upon the wrecked train, it was the plaintiff's duty, as it appeared to him under the circumstances, to flag the oncoming passenger train, and prevent the destruction of human life, which might have followed had no warning been ^See Webb v. Gilman, 80 Me. 177, ^Eyansville, etc., R. Co. v. Guyton, 13 Atl. Rep. 688; Barkly v. Cope- 115 Ind. 450, 17 N. E. Rep. 101, 7 land, 74 Cal. 1, 15 Pac. Rep. 307, 5 Am. St. Rep. 458. Am. St. Rep. 413. § 78 COLLATERAL EVIDENCE. _ 113 given. This was the highest conception of the duty of a brakeman." A case quite dissimilar as to its facts from the one just cited, but still illustrative of the principle involved, is one^ in which it was laid down, in a suit by a father for seduction, that evidence that it was accomplished under prom- ise of marriage was admissible. The court, in ruling upon this question, presents its views thus : " If the defendant, in order to accomplish his outrage upon the rights of the father, has assumed liabilities to the daughter, this is no reason for excluding the evidence in an action by the father. So far as the promise of marriage tends to show the nature of the injury to the parent, or the means by which it was accomplished, the evidence is as pertinent as any other circumstance."^ § 78. Collateral facts illustrative of principal fact. — It is competent to make use in evidence of collateral facts, where they are directly illustrative of the principal fact. Upon this ground it was held in a personal injury case, as tending to show the vigorous health of plaintiff before she was injured, that she might show that before her injury she did the house- work for a family of eight. ^ § 79. Same subject — Evidence relative to values. — In an Indiana case,* where the plaintiff was suing for an injury to a meadow injured by fire, the court, although it recognized the law that the measure of damages was the difference between the value of the meadow just before, and its value just after, the burning, held that evidence was properly admitted as to iPhelin v. Kenderdine, 20 Pa. St. let ??. Mead, 7 Wend. 193, as reported 354. in 22 Am. Dec. 578), but there are New 2 As a circumstance tending to lend York cases to the contrary. Gillet greater probability to the claim of se- v. Mead, supra ; Whitney v. Elmer, 60 duction there ought not to be a shadow Barb. 250. of question, concerning the admissi- ^ City of Joliet v. Conway, 119 111. bility of the evidence mentioned in 489, 10 N. E. Rep. 223. the above case. (See ante, §§51,57.) * Pittsburg, etc., Co. v. Hixon, 110 The Pennsylvania case has the sup- Ind. 225, 11 N. E. Rep. 285. port of other cases, (see note to Gil- 8— Ev. 114 INDIRECT AND COLLATERAL EVIDENCE. §79 the cost of re-seeding, as such evidence furnished a side-light which would enable the jury to more intelligently weigh the testimony relating to the extent of the diminution in value. It has been held in New York that bona fide offers afford some evidence of value/ but the courts of a number of the states have denied this proposition.^ There are, however, rulings and intimations, that where a witness is testifying, on behalf of the party seeking to recover, as to his own opinion of the value of property, it is competent for the party introducing him to prove by the witness that he has offered the sum for the property that he testifies it is worth, as evidence of this nature tends to prove the sincerity of the opinion of the wit- ness.^ There is a distressing conflict upon the authorities as to the right of a party producing a witness as to value to prove by such witness the prices received in recent sales of like prop- erty in the same neighborhood. The courts of Massachusetts, New Hampshire, Illinois, Wisconsin, Iowa, Kansas and Wash- ington may be cited as supporting the affirmative of this prop- osition,* while the negative is maintained by the courts of New > Harrison v. Glover, 72 N. Y. 451. ^ Fowler v. Commissioners, 6 Allen 92 ; Finley v. Quirk, 9 Minn. 194, 86 Am. Dec. 93 ; Hammersmith v. Avery, 18 Nev. 225, 2 Pac. Rep. 55; City of Santa Ana v. Harlin,99 Cal. 538, 34 Pac. Eep. 224, overruling Muller v. South- ern Pac. R. Co., 83 Cal. 240, 23 Pac. Rep. 265. In a suit to recover the value of a mule killed by the defend- ant, where the plaintiff had testified as to such value, it was held that on cross-examination the defendant was entitled to ascertain from the plaint- iff the price which he paid for the mule four months before. Jackson- ville, etc., R. Co. V. Jones, 34Fla. 286, 15 So. Rep. 924. ' Hammersmith v. Avery, 18 Nev. 225, 2 Pac. Rep. 55; Perkins v. Peo- ple, 27 Mich. 386; Dickenson v. Fitch- burg, 13 Gray 546. * Paine v. City of Boston, 4 Allen 168; Shattuck v. Railroad, 6 Allen 115; Patch v. City of Boston, 146 Mass. 52, 14 N. E. Rep. 770; Roberts V. Boston, 149 Mass. 346, 21 N. E. Rep. 668; Hunt v. City of Boston, 152 Mass. 168, 25 N. E, Rep. 82; March v. Railroad Co., 19 N. H. 372; Culberston v. City of Chicago, 111 111. 651 ; Peoria, etc., Co. v. Terminal R. Co., 146 111. 372, 34 N. E. Rep. 550; Watson V. Railroad Co., 57 Wis. 332, 15 N.AV. Rep. 468; Washburn v. Rail- road Co., 59 Wis. 364, 18 N. W. Rep. 328; Town of Cherokee v. Land Co., 52 Iowa 279, 3 N. W. Rep. 42; Truitt V. Baird, 12 Kan. 420; City of Seattle,, etc., R. Co. V. Gilchrist, 4 Wash. 509, 30 Pac. Rep. 738. The ground for these rulings is well expressed in the case last cited, where it is said: "The reason usually assigned for holding such testimony inadmissible, that it raises collateral inquiries which the 79 COLLATERAL EVIDENCE. 115 York, Pennsylvania, New Jersey, Georgia, Missouri, Minne- sota and California.^ As respects the objection that such evi- dence is collateral, it may be a sufficient answer that in deter- mining the question as to the value of property, the witnesses must, in their own mental operations, draw largely upon the same collateral considerations. From a practical standpoint it may be urged that while time may be consumed in the in- troduction of evidence as to the value of other lands, yet the jury should not be called upon to con- sider, is, to our minds, unsatisfactory. No witness is competent to testify as to a particular sale who is not person- ally cognizant of the fact, and, this being so, the character and situation of the land, and all the circumstances surrounding the 'l.rr.nsaction, may be sought on the examination of such witness, thus enabling the jury, with- out difficulty, to determine whether or not such sale should be considered a fair criterion of value." Under the rule, as recognized in the above cases, evidence is not competent of prices paid for other land at forced sale, Peoria, etc., Cc. v. Terminal R. Co., 146 111. 372, 34 N. E. Rep. 550; Diet- richs V. Lincoln, etc., Co., 12 Neb. 225, 10 N. W. Rep. 718. In a suit for timber converted, it was held improper for the defendant to show at what price the plaintiff had settled his action against another trespasser for the taking of like logs. Tuttle v. White, 49 Mich. 407, 13 N. W. Rep. 796. » In re Thompson, 127 N. Y. 463, 28 N. E. Rep. 389; East Pennsylvania Railroad v. Hiester, 40 Pa. St. 53; Pennsylvania, etc., R. Co. v. Bunnell, 81 Pa. St. 414; Montclair R. Co. v. Benson, 36 N. J. L. 557; Selma, etc., R. Co. V. Keith, 53 Ga. 178; Marko- witz V. Kansas City, 125 Mo. 485, 28 S. W. Rep. 642, 46 Am. St. Rep. 498; Stinson v. Chicago, etc., R. Co., 27 Minn. 284, 6 N. W. Rep. 784 ; Central, etc., R. Co. V. Pearson, 35 Cal. 247. The objections advanced to the admission of this class of evidence is expressed in the following extract from the opinion in East Pennsylvania Rail- road V. Hiester, 40 Pa. St. 53: "It did not pretend to fix the market value of the land, but assumed to ascortain by the special, and it may be oxcsptional, cases named. This wocjd not do, for, if allowed, each special instance adduced on the one :.:.:.(! must be permitted to be as- r.riledj and its merits investigat- ed; on the other; and thus there would be as many branching issues as instances, which, if numerous, would prolong the''contest intermina- bly. But even this is not the most serious objection. Such testimony does not disclose the probable and general estimate, which in such cases we have seen is a test of value. It would be as liable to be the result of fancj^, caprice or folly as of the sound judgment in regard to the intrinsic worth of the subject-matter of it, and consequently would prove nothing on the point to be investigated. The fact as to what one man may have sold or received for his property is certainly a collateral fact to an issue involving what another should re- ceive, and, if in no way connected with it, proves nothing. It is there- fore improper, irrelevant and danger- ous." 116 INDIRECT AND COLLATERAL EVIDENCE. § 80 very paucity of an opinion, which a skillful cross-examiner will often not permit the witness to reinforce, suggests the ne- cessity of an examination into such collateral instances as are fairly calculated to establish the opinion. If the criterion was inherent value, there could be no warrant for an examination into collateral instances, but as actual sales are at least a part of the indicia of market value, evidence of other sales can scarcely be regarded as collateral. In a case where there is no home market, a party seeking to recover damages may offer evidence of values in the nearest general market, if he pro- poses to accompany his offer by proof of the cost of transporta- tion,^ and if there is proof that the local market and a distant market are interdependent or sympathetic, no reason in prin- ciple would seem to exist why resort should not be had to evi- dence of values in the latter market, as an element tending to aid the jury in fixing the value in the former market.^ In a case where it is necessary to ascertain the value of an article which has no market value, resort may be had to evidence as to what the article sold for at a fair sale.* Supposed future value, while by no means to be taken as present value, is nev- ertheless an element which may afford light in the determina- tion of the latter question.* § 80. Fraud. — There is no occasion to cite authorities upon so familiar a proposition as that great latitude is to be allowed to a party in the development of the existence of fraud. "In many ^ Union Pacific, etc., R. Co. v. Will- ^This was the ruling in the case of iams, 3 Colo. App. 526, 34 Pac. Rep. Alabama, etc., R. Co. v. Searles, 69 731. Miss. 186, 16 So. Rep. 255, where the 2 Harris v. Panama R. Co., 58 N. Y. question was as to the value of dam- 660, was an action for the killing of a aged oats. race-horse on the Isthmus of Panama, * Portland, etc., R. Co. v. Inhabit- while in course of transportation to ants of Deering, 78Me. 61, 2 Atl. Rep. San Francisco. It was held that 670, 57 Am. Rep. 784; Boom Co. v. proof was admissible as to the value Patterson, 98 U. S. 403; Moulton v. of the horse at San Francisco, it ap- Newburyport Water Co., 137 Mass. pearing that there was no market for 163; Seattle, etc., R. Co. v. Murphine, such animals upon the Isthmus of 4 Wash. 448, 30 Pac. Rep. 720. Panama. § 81 COLLATERAL EVIDENCE. 117 cases," saj^s Grove, J.,^ "you can only prove fraud by what is behind ; the question being one of intention, the motive or the design is the only way of showing fraud." In a fraudulent conveyance case, no question can exist as to the competency of evidence of other fraudulent conveyances made by the grantor at about the time of the execution of the conveyance in question. There is an essential unity in such a series of trans- actions, for the reason that they are successive steps upon the part of the grantor by which he seeks to render himself proof against execution. But the authorities go still further than this, and authorize the introduction of similar collateral frauds as bearing on the question of the quo animoJ" As said in a United States case:' '^n actions for fraud large latitude is al- ways given to the admissibility of evidence. If a motive exist prompting to a particular line of conduct, and it be shown that in pursuing that line a defendant has deceived and de- frauded one person, it may justly be inferred that similar con- duct towards another at about the same time, and in relation to a like subject, was actuated by the same spirit." § 81. Resemblance. — The authorities are by no means agreed as to the right of juries to inspect two persons before them, whose relationship is in question, for the purpose of as- certaining whether there is such a resemblance between them as to justify the inference that they are related to each other. The most careful discussion of this subject is found in the case of Gaunt v. State,* where it is said: "In considering the first of these questions, viz., as to the relevancy of resemblance as an element of proof, it is clear that testimony of this character must be treated as a class. Thus viewed, whatever opinion 1 Blake v. The Albion Life Assur- Pa. St. 108, 3 Am. Rep. 633; Adams?', ance Society, 27 W. Rep. 321, L. R. 4 Kenney, 59 N. H. 133; Day v. Stone, C. P- D. 94. 59 Tex. 612; Moline-Milburn Co. v. ^Benham v. Gary, 11 Wend. 83; Franklin, 37 Minn. 137, 33 N. W. Jackson v. Timmerman, 12 Wend. Rep. 323 ; Ferbrache v. Martin, (Idaho) 299; Gary v. Hotailing, 1 Hill 311, 37 32 Pac. Rep. 252. Am. Dec. 323, and note; French v. * Butler u. Watking, 13 Wall. 456. White, 5 Duer 254; Wilmot v. Rich- « Gaunt v. State, 50 N. J. L. 490, 14 ardson, 6 Duer 328 ; Simmons v. Fay, Atl. Rep. 600. 1 E. D. Smith 107; Heath v. Page, 63 118 INDIRECT AND COLLATERAL EVIDENCE. § 81 may be held as to the illusory nature of such evidence in cases like the present [comparing a bastard child with its putative father] , there is no question that, as a class, resemblances are admitted wherever relevant. Incases involving handwriting, for instance, it has always been deemed pertinent to have a comparison of hands. Likewise in sales by sample, in patent cases, in trade-mark and iiifringement suits, resemblance is of the essence of the proof. Nor can it be said that the tendency of recent applications of this rule has been toward restriction — rather the reverse. In the courts of a sister state, New York, operas have been performed in court, and comic songs sung, plagiarized papers have been read, and the so-called ma- terialization of spirits exhibited — all within the scope of the doctrine of the relevancy of resemblance. * * * The ex- tension of this rule to cases of family likeness in bastardy and other suits of alleged parentage can not be questioned seriously on principle ; the illusory nature of such resemblances rather imposing a duty on the court in conjunction with the admis- sion of the proof than militating against the relevancy of the inquiry." In the notorious Douglass Case, House of Lords, 1769, Lord Mansfield allowed the resemblance of the appellant and his brother to Sir John Stewart and Lady Jane Douglass to be shown, as well as the dissimilarity of the former persons to the persons whose children they were supposed to be ; while as late as 1871, Lord Chief Justice Cockburn, in the Tichborne Case, held that the resemblance of the claimant to the family of Roger Tichborne was relevant, and intimated that a comparison of features between the claimant and the sisters of Arthur Orton would be permitted. The courts, so far as they have had occa- sion to pass on the question, for the most part hold that the fact of resemblance is a circumstance which may be considered as bearing on the question of relationship.^ Some of the cases 1 Scott V. Donovan, 153 Mass. 378, Hun 11,22N.Y. Supp. 634; Shorten v. 26 N. E. Rep. 871; Finnegan v. Du- Judd, 66 Kan. 43, 42 Pac. Eep. 337; gan, 14 Allen 197; Gilmanton u. Ham, Jones v. Jones, 45 Md. 144; State v. 38 N. H. 108; Udderzook v. Com., 76 Woodruff, 67 N. C. 89. Pa. St. 340; People v. Webster, 68 §82 COLLATERAL EVIDENCE. 119 deny the application of this proposition where one of the per- sons, with whom it is proposed to institute the comparison, is a very young child. ^ In a Mississippi case,^ where the ques- tion arose as to whether the defendant was a colored man, the court held that the inspection did away with the necessity of proof, saying: ''Juries may use their eyes as well as their ears." In a North Carolina case,* it was held, in the de- termination of the question as to whether a girl was of mixed blood, that the plaintiff had a right to exhibit her to the jury. § 82. Maps and photographs. — A sketch of a locus in quo, although not mathematically accurate, is competent, where it will assist the jury in locating the various objects under in- quiry.* Upon the same principle, whenever it is important to portray a locus in quo, or to show the character of an object which can not be conveniently brought into court, it is per- missible to put in evidence a photograph of it.^ Such evi- 1 State V. Danforth, 48 Iowa 43; 30 Am. Rep. 387 ; Hanawalt v. State, 64 Wis. 84, 24 N. W. Rep. 489, 54 Am. Rep. 588; Risk v. State, 19 Ind. 152. The ground of these decisions is thus expressed in Clark v. Bradstreet, 80 Me. 454, 15 Atl. Rep. 56, 6 Am. St. Rep. 221: "In a case like this, where the child was a mere infant, such evidence is too vague, uncertain and fanciful, and, if allowed, would establish not only an unwise, but dangerous and uncertain, rule of evidence. While it may be a well- known physiological fact that pe- cuHarities of form, feature and per- sonal traits are oftentimes transmit- ted from parent to child, yet it is equally true, as a matter of common knowledge, that during the first few weeks, or even months, of a child's existence, it has that peculiar imma- turity of features which characterize it as an infant, and that it changes often and very much in looks and ap- pearance during that period." In other states it is held that the youth of the child goes only to the weight of the evidence. Scott v. Donovan, 153 Mass. 378, 26 N. E. Rep. 871; Gaunt v. State, 50 N. J. L. 490, 14 Atl. Rep. 600. 2 Garvin v. State, 52 Miss. 207. 3 Warlick v. White, 76 N. Car. 175. * Brown v. Galesburg Pressed Brick Co., 132 111. 648, 24 N. E. Rep. 522. ^ Archer v. New York, etc., R. Co., 106 N. Y. 589, 13 N. E. Rep. 318; People V. Jackson, 111 N. Y. 362, 19 N. E. Rep. 54; Albert! v. New York, etc., R. Co., 118 N. Y. 77, 23 N. E. Rep. 35 ; People V. Fish, 125 N. Y. 136, 26 N. E. Rep. 319; People v. Webster, 139 N. Y. 73, 34 N. E. Rep. 730; Cooper V. St. Paul City R. Co., 54 Minn. 379, 56 N. W. Rep. 42; Locke v. S. C. & P. R. Co., 46 Iowa 109; Redden v. Gates, 52 Iowa 210, 2 N.W. Rep. 1079; Barker v. Town of Perry, 67 Iowa 146, 25 N. W. Rep. 100; State v. O'Reilly, 126 Mo. 597, 29 S. W. Rep. 120 INDIRECT AND COLLATERAL EVIDENCE. §82 dence is sometimes competent, after proper preliminary proof, where the original object is present, as where a signature, the genuineness of which is in question, is photographed upon a larger scale to show the peculiarities of the handwriting. In such a case the camera serves in some degree the func- tion of the microscope.' Photographs can not be introduced until they are proved to be correct.'^ As observed by the court in a Maryland case:' "As a general rule, in proportion as the media of evidence are multipled, the chances of error or mistake are increased." For this reason, photographs, as ordinarily used in evidence, are to be treated as secondary proof, and as not admissible when the original can reasonably be produced in court.* Thus, in a Texas case,^ where wit- nesses had testified in a deposition to their familiarity with the handwriting of certain persons, and to their belief that certain photographs exhibited to them were photographic 577 ; Franklin v. State, 69 Ga.36, 47 Am. Rep. 748 ; Luke v. Calhoun County, 52 Ala. 115; Blair w. Pelham, 118 Mass. 420; Marcy v. Barnes, 16 Gray 161, 77 Am. Dec. 405; Church v. City of Milwaukee, 31 Wis. 512 ; Dyson v. New York, etc., R. Co., 57 Conn. 10, 17 Atl. Rep. 137, 14 Am. St. Rep. 82; Kansas City, etc., R. Co. v. Smith, 90 Ala. 25, 8 So. R. 43 ; 31 Cent. L. J. 416. ^ Marcy v. Barnes, 16 Gray 161, 77 Am. Dec. 405. 2Farrell v. Weitz, 160 Mass. 288, 35 N. E. Rep. 783 ; Hynes v. McDermott, 82 N. Y. 41, 37 Am. Rep. 538 ; Buzard v. McAnulty, 77 Tex. 438, 14 S. W. Rep. 138; Ortiz v. State, 30 Fla. 256, 11 So. Rep. 611 ; State v. O'Reilly, 126 Mo. 597, 29 S. W. Rep. 577; Kansas City, etc., R. Co. V. Smith, 90 Ala. 25, 8 So. Rep. 43, 24 Am. St. Rep. 753. The preliminary question as to the verifi- cation of photographs is addressed to the court. Cleveland, etc., R. Co. v. Monaghan, 140 111. 474, 30 N. E. Rep. 869. In People v. Jackson, 111 N. Y. 362, 19 N. E. Rep. 54, a homicide case, it w^as held proper to introduce a picture of the locus in qno, although the photograjiher had taken the pict- ui'e with other persons standing at the places where the evidence showed the actors in the affair stood. 3 Tome V. Parkersburg, etc., R. Co., 39 Md. 36, 17 Am. Rep. 540. * Foster's Will, 34 Mich. 23; Tome V. Parkersburg, etc., R. Co., 39 Md. 36, 17 Am. Rep. 540; Miller v. John- son, 27 Md. 6; White S. M. Co. v. Gordon, 124 Ind. 495, 24 N. E. Rep. 1053, 19 Am. St. Rep. 109. In Leath- ers V. Salver Wrecking Co., 2 Woods (C. C.) 680, where the originals were archives of the government, and could not be produced. Judge Bradley, in speaking of the photographic copies which were admitted, said: "No better evidence of their character and authenticity can be had than such a reproduction of them by the operation of natural agencies." 5 Eborn v. Zimpelman, 47 Tex. 503, 26 Am. Rep. 315. 83 COLLATERAL EVIDENCE. 121 copies of such handwriting, it was held that such evidence was not admissible, because it was not a fact that the exact- ness of such handwriting was as certain as the original, and for that reason the evidence was regarded as secondary.^ It was held in a Massachusetts case,"^ that w^iere other evidence could be produced as to the physical condition of plaintiff (as to health, strength and agility) it w^as within the discretion of the court to reject a photograph offered in evidence, as courts are not required to try such questions by comparisons. A photographic likeness may be used for the purpose of indenti- fication, where no better evidence can be had.* § 83. Evidence in aggravation. — In actions for tort, it may be said that all of the circumstances surrounding the trans- action, and, unless some question of pleading arises, all of the consequences, may be shown, except where such conse- quences are too remote to warrant the assessment of damages. § 84. Evidence in mitigation. — Any circumstance, other- wise competent in evidence to reduce damages, maybe proved, although it may have come into existence after the commence- ment of the action.* It has been held that, in a suit for breach of promise to marry, it was competent to show the licen- tious or improper conduct of the plaintiff, not only before but subsequent to the breaking of contract.^ It was held, how- ever, in a Minnesota case of the same character, that it was not 1 In the brief of counsel in the case ^ Gilbert v. West End St. R. Co., 160 last cited, it is said that the camera Mass. 403, 36 N. E. Rep. 60. is "but the handwriting of nature, ^ -gdderzook v. Com., 76 Pa. St. preserved by nature's camera;" that 340. See State u. Windahl, (Iowa) 64 "until photography was discovered N W. Rep. 420; Farrell v. Weitz, 160 nothing in nature was exactly like Mass. 288,35 N. E. Rep. 783. any other thing, except that thing's * Marsh v. McPherson, 105 U. S. image reflected in a polished surface, 709. which disappeared when the object s^VjUard v. Stone, 7 Cowen 22, 17 was removed. Science now steps Am. Dec. 496; Johnson v. Caulkins, forward and relieves the difficulty, 1 Johns. Cas. 116, 1 Am. Dec. 102. by making permanent and mater- But see 2 Am. Dec. 122. iahzing with minute exactness the reflected image." 122 INDIRECT AND COLLATERAL EVIDENCE. § 84 competent for the defendant to show that some two weeks after the plaintiff was informed of the defendant's marriage to an- other she sought him out and shot him.^ The general rule is that to make evidence of provocation admissible, it must fall within the res gestse. Thus, in a civil action for an assault and battery, the fact of provocation can not be shown by the defendant, unless it was so recent as to warrant an inference that the act was committed under the immediate influence of the passion thus wrongfully ex- cited.^ The fact that the parties fought by agreement may be shown, at least for the purpose of reducing the amount of punitive damages.^ The most of the cases in which the question has been decided hold that such evidence is not admissible to reduce compensatory damages,* but it is held in New York and Pennsylvania that in cases like the above the evidence may be received to diminish the actual damages, since the right to sue at all in such a case grows out of public considerations, and not because of any tender- ness for the plaintiff/ The subject of the admissibility of proof, in suits for defamation, of the general bad reputation of the plaintiff, for the particular trait of character which the slander or libel involves, will be considered in another con- nection.^ 1 Schmidt v. Durnham, 46 Minn. Atl. Rep. 1008,30 Am. St. Eep. 413; 227, 49 N. W. Rep. 126. Adams v. Waggoner, 33 Ind. 531 ; ^Bonino v. Caledonio, 144 Mass. Logan v. Austin, 1 Stew. (Ala.) 476; 299, 11 N. E. Rep. 98; Lee u. Wool- Bell v. Hansley, 3 Jones (N. Car.) sey, 19 Johns. 319, 10 Am. Dec. 230; 131; Shay v. Thompson, 59 Wis. 540, Millard v. Truax, 84 Mich. 517, 47 18 N. W. Rep. 473, 48 Am. Rep. 538; N. W. Rep. 1100, 22 Am. St. Rep. 705 ; Corcoran v. Harran, 55 Wis. 120 ; Bar- Waters V. Brown, 3 A. K. Marsh. 557 ; holt v. Wright, 45 Ohio St. 177, 12 N. Barry v. Inglis, 1 Hayw. 402; Ireland E. Rep. 185, 4 Am. St. Rep. 535. V. Elliott, 5 Iowa 478, 68 Am. Dec. 715 ; * See cases cited in last section. Avery v. Ray, 1 Mo. 12; Coxe v. sxjfj «. Youmans, 86 N. Y. 324, 40 Whitney, 9 Mo. 531 ; Gonzales w. State, Am. Rep. 543; Robison t\ Rupert, 23 31 Tex. 495. See Baltimore, etc., R. Pa. St. 523. See Baltimore, etc., R. Co. V. Barger, 80 Md. 23, 30 Atl. Rep. Co. v. Barger, 80 Md. 23, 30 Atl. Rep. 560, 45 Am. St. Rep. 319. 560, 4S Am. St. Rep. 319. SGrotton v. Glidden, 84 Me. 589, 24 ^Post, Chap. X. § 85 COLLATERAL EVIDENCE. 123 § 85. Scientific books — Life tables. — If a fact is established by one of the exact sciences, the court is at liberty to con- sult a recognized authority upon the subject, and no reason exists why such authority should not be read to the jury. But in the field of the inductive sciences, it is not ordinarily com- petent to read from even the most approved and advanced authority. This statement has especial application to medical books. Judges and juries are without that foundation in ex- perience which would enable them to judge between authori- ties. The statement of an induction may have become recog- nized in the medical profession, in the light of a corrected and expanded data, as fallacious ; and a layman may well refuse to accept the most advanced scientific thought, if he observes that many men, who are skilled in the particular sci- ence, do not yet receive that induction as truth. Again, the statements of an author, upon a matter of uncertain inference, are open to the objection that they are made without the sanc- tion of an oath, and they also lack that important test of truth, cross-examination. It is therefore the law that medical books are not ^ evidence.^ It is not even competent to get before the jury the statement of a medical authority by asking an expert, if such statement agrees with his views. ^ But it is competent to read to an expert on his cross-examination contradictory statements from medical books,^ and, a fortiori, when he refers 1 Gallagher V. Market St. R. Co., 67 Jones, (Tex.) 14 S. W. Rep. 309; Cal. 13, 6 Pac. Rep. 869, 56 Am. Rep. Boehringer v. A. B. Richards Medi- 713; People v. Wheeler, 60 Cal. 581, cal Co., (Tex. Civ. App.) 29 S. W. 44 Am. Rep. 70; Ashworth v. Kitt- Rep. 508. ridge, 12 Cush. 193, 59 Am. Dec. 178; ^ Com. v. Sturtivant, 117 Mass. 122, Com. V. Wilson, 1 Gray 337; Com. v. 19 Am. Rep. 401; State v. Winter, 72 Sturtivant, 117 Mass. 122, 19 Am. Rep. Iowa 627, 34 N. W. Rep. 475 ; Marshall 401 ; People v. Hall, 48 Mich. 482, 12 N. v. Brown, 50 Mich. 148, 15 N.W. Rep, W. Rep. 665, 42 Am. Rep. 477 ; Pinney 55 ; People v. Millard, 53 Mich. 63, 18 V. Cahill, 48 Mich. 584, 12 N. W\ Rep. N. W. Rep. 562. In the case last cited 862; Epps v. State, 102 Ind. 539, 1 N. it is stated that attempts to evade the E. Rep. 491 ; Carter v. State, 2 Ind. excluding rule by examining or cross- 617; Melvin v. Easley, 1 Jones' Law examining in such a way as to get 386, 62 Am. Dec. 171; Johnson v. books before the jury should not be Richmond, etc., R. Co., (Ga.) 22 permitted. S. E. Rep. 694; Fowler ?;. Lewis, 25 ^pjnney v. Cahill, 48 Mich. 584, Tex. 380; St. Louis, etc., R. Co. v. 12 N. W. Rep. 862; Marshall v. 124 INDIRECT AND COLLATERAL EVIDENCE. §85 to them as authority.' In such instances, the book' can not serve the function of substantive evidence, but it is read to the witness to enable the jury to observe the manner in which he bears up under the assault of the cross-examination. There is authority, however, for permitting a medical witness to state what the books lay down as authority in substantiation of his opinion.^ A marked exception to the rule excluding the in- ductive conclusions of writers exists with reference to the use of life-tables, to prove the average expectancy of human life in its various periods. The observation of the unlimited data upon ^^his subject has been so considerable that the courts feel warranted in receiving this class of evidence in proper cases. Such tables are not to be treated as precise mathematical rules, binding on the jury, in deciding a question involving so many contingencies. Each individual case depends on its own cir- cumstances.® The Carlisle table has been frequently held ad- missible by the courts,* and as it was not based on selected Brown, 50 Mich. 148, 15 N. W. Eep. 55. 1 Gallagher v. Market St. R. Co., 67 Cal. 13, 6 Pac. Rep. 869, 56 Am. Rep. 713 ; Pinney v. Cahill, 48 Mich. 584, 12 N. W. Rep. 862; City of Ripon v. Bit- tel, 30 Wis. 614; Huffman v. Click, 77 N. Car. 55. 2 In Healy v. Visalia, etc., R. Co., 101 Cal. 585, 36 Pac. Rep. 125, it was held that a doctor, wdio was being ex- amined as to the probable effect of an injury to the head, might properly state that there are cases on record in w'hich such injuries have produced death. This ruling is put on the ground that what the witness said " must be assumed to have been a con- clusion reached by him after a judici- ous comparison of all that he had read or learned upon the subject." In Col- lier V. Simpson, 5 Car. & P. 73, it was held that a witness, who was president of a medical college, could state, not onlj' his judgment, but the grounds of it, which were in some degree founded on books, as a part of his general knowledge. ^Yicksburg, etc., R. Co. v. Putnam, 118 U. S. 545, 7 Sup. Ct. Rep. 1 ; Stein- brunner v. Pittsburg, etc., R. Co., 146 Pa. St. 504, 23 Atl. Rep. 239, 28 Am. St. Rep. 806. In Shippen & Rob- bins's Appeal, 80 Pa. St. 391, these tables were held not authoritative in determining the value of a life estate, and the common law rule of estimat- ing it at one-third the capital sum was adopted. * Steinbrunner v. Pittsburg, etc., R. Co., 146 Pa. St. 504, 23 Atl. Rep. 238, 28 Am. St. Rep, 806 ; Shover v. INIyrick, 4 Ind. App. 7, 30 N. E. Eep. 207; Louisville, etc., R. Co. v. Miller, 141 Ind. 533, 37 N. E. Rep. 343; Donald- son V. Mississippi, etc., R. Co., 18 Iowa 280, 87 Am. Dec. 391 ; McDonald V. Chicago, etc., R. Co., 26 Iowa 124, 95 Am. Dec. 114; Walters r. Chicago, etc., R. Co., 41 Iowa 71 ; City of Friend V. Ingersoll, 39 Neb. 717, 58 N.W. Rep. 281. § 86 COLLATERAL EVIDENCE. 125 lives, it may properly be treated as evidence of the average expectancy.^ § 86. Tiew and inspection.— Provision for the jury inspect- ing the vicinage in proper cases is generally a matter of statu- tory regulation. Such inspection is not ordinarily regarded as evidence per se, but as an aid to the application of the evi- dence. It is proper to put in evidence articles of clothing,^ tools, and, in fact, any object forming a part of the res gestse.^ It is proper to permit a plaintiff in a personal injury case to exhibit his injuries to the jury.' There are a number of cases which deny that courts have the power to compel a plaintiff to expose his person. The leading case to this effect is Union Pacific R. Co. v. Botsford,* in which Mr. Justice Gray, in pro- nouncing the judgment of the court, says : "No right is more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of oth- ers, unless by clear and unquestionable authority of law. The inviolability of the person is as much invaded by a com- pulsory stripping and exposure as by a blow. To compel any one, and especially a woman, to lay bare the body, or to sub- mit to the touch of a stranger, without lawful authority, is an indignity, an assault and a trespass; and no order of process, commanding such an exposure or submission, was ever known to the common law in the administration of justice between individuals, except in a very small number of cases, based upon special reasons and upon ancient practice, coming down 1 Steinbrunner v. Pittsburg, etc., E. N. E. Eep. 1078. In Blazinski v. Per- Co., 146 Pa. St. 50-t, 23 Atl. Rep. 238, kins, 77 Wis. 9, 45 N. W. Rep. 947, it 28 Am. St. Rep. 806. An explanation was held proper to put the model of a of the formation of this table will be scaffold in evidence, found in the Encyclopedia Britannica, ^ Mulhado v. R. Co., 30 N. Y. 370; vol 13 p 169. Hess v. Lowery, 122 Ind. 225, 23 N. E. 2 People V. Earned, 7 N. Y. 445 ; Peo- Rep. 156, 17 Am. St. Rep. 355 ; Citi- ple V. Buddensieck, 103 N. Y. 487, 9 N. zens' St. R. Co. v. Willoeby, 134 Ind. E. Rep. 44, 57 Am. Rep. 766 ; Indiana 563, 33 N. E. Rep. 627. Car Co. V. Parker, 100 Ind. 181 ; Tudor « Union Pacific R. Co. v. Botsford, Iron Works v. Weber, 129 111. 535, 21 141 U. fe. 250, 11 Sup. Ct. Rep. 1000. 126 INDIRECT AND COLLATERAL EVIDENCE. § 86 from ruder ages, now mostly obsolete in England, and never, so far as we are aware, introduced into this country.'" Not- withstanding this adjudication by the Supreme Court of the United States, it must be affirmed, according to the great weight of American authority, that, while the right to claim an examination of the plaintiff's person is not co-extensive with the power of cross-examination, and, while the request may be denied without error except in case of abuse of dis- cretion, the power to order an examination of the plaintiff's person in a personal injury case exists in the trial court. ^ The leading authority in support of this view is Schroeder v. Chicago, etc., R. Co." In that case the court said: "U is said that the examination would have subjected him to danger of his life, pain of body and indignity to his person. The reply to this is that it should not, and the court should have been care- ful to so order and direct. * * * As to the indignity to which an examination would have subjected him, as urged by counsel, it is probably more imaginary than real. An examina- tion of the person is not so regarded when made for the pur- pose of administering remedies. Those who effect insurance upon their lives, pensioners for disability incurred in the mil- itary service of the country, soldiers and sailors enlisting in the army and navy, all are subjected to rigid examinations of their bodies, and it is never esteemed a dishonor or indignity." 1 To the same effect see Penn. Co. fj. 53 Am. Eep. 14; Richmond, etc., R. Newmeyer, 129 Ind.401, 28 N. E.Rep. Co. v. Childress, 82 Ga. 719, 9 S. E. 860; Parker v. Enslow, 102 111. 272, Rep. 602, 14 Am. St. Rep. 189; Shep- 40 Am. Rep. 588; Sioux City and P. ard v. Mo. Pac. R. Co., 85 Mo. 629, R. Co. V. Finlayson, 16 Neb. 578, 20 N. 55 Am. Rep. 390; Loyd v. R. Co., 53 W. Rep. 860, 49 Am. Rep. 724; Stuart Mo. 509; Sidekum v. Wabash, etc., V. Havens, 17 Neb. 211, 22 N. W. Rep. R. Co., 93 Mo. 400, 4 S. W. Rep. 701, 419. 3 Am. St. Rep. 549; Turnpike Co. v. 2 Welsh V. Sayre, 52 How. Pr. 334; Baily, 37 Ohio St. 104; International, Shaw V. Van Rensselaer, 60 How. Pr. etc., R. Co. v. ITnderwood, 64 Tex. 463 ; 143; Schroeder v. Chicago, etc., R. Missouri Pac. R. Co. v. Johnson, 72 Co., 47 Iowa 375; Sibley v. Smith, 46 Tex. 95, 10 S. W. Rep. 325; White v. Ark. 275, 55 Am. Rep. 584 ; Atchison, Milwaukee City R. Co., 61 Wis. 536, 50 etc., R. Co. V. Thul, 29 Kan. 466,44 Am. Am. Rep. 154. Rep. 659 ; Hatfield v. St. Paul, etc., R. ^ Schroeder v. Chicago, etc., R. Co., Co., 33 Minn. 130, 22 N. W. Rep. 176, 47 Iowa 375. 86 COLLATERAL EVIDENCE. 127 The court further said: ''To our minds the proposition is plain, that a proper examination by learned and skilled physi- cians and surgeons would have opened a road by which the cause would have been conducted nearer to exact justice than in any other way. The plaintiff, as it were, had under his control testimony which w^ould have revealed the truth more closely than any other that could have been introduced. The cause of truth, the right administration of the law, de- mand that he should have produced it." In a Georgia case,^ the court said : "As to the suggestion made in argument, that 1 Richmond, etc., R.Co. v. Childress, 82 Ga. 719, 9 S. E. Rep. 602, 14 Am. St. Rep. 189. In Missouri Pac. R. Co. V. Johnson, 72 Tex. 95, 10 S. W. Rep. 325, the court said that if a committee to examine the plaintiff can be appointed at all, it should be appointed of one or more disin- terested experts of the court's selec- tion, except where the parties agree upon them. It was held in Schroeder V. Chicago, etc., R. Co., 47 Iowa 375, that the court might properly make an order for the examination of the plaintiff, out of the presence of the jury, by a number of physicians se- lected in equal number by both sides. In Shepard v. Missouri Pac. R. Co., 85 Mo. 629, 55 Am. Rep. 390, the court said: "The examination asked by the defendant was unreasonable, in that it asked that this lady should submit to a personal examination, not by one skilled surgeon, but by three." See Sidekum v. Wabash, etc., R. Co., 93 Mo. 400, 4 S. W. Rep. 701, 8 Am. St. Rep. 549. Where the request was to turn the plaintiff's person over for an examination by defendant's physicians alone, it was held that the request was properly refused. Sioux City, etc., R. Co. v. Finlayson, 16 Neb. 578, 20 N. W. Rep. 860, 49 Am. Rep. 724. In Hatfield v. St. Paul, etc., R. Co., 33 Minn. 130, 22 N. W. Rep. 176, 53 Am. Rep. 14, while the power upon the part of the trial court is af- firmed, to compel the plaintiff to do some physical act in the presence of the jury, to illustrate or show the ex- tent of the injuries complained of , yet it was held that the court below was war- ranted in refusing to require the plaint- iff to walk across the court-room so that it might be observed as to whether she limped. Where a suit against a life insurance company had been pend- ing eighteen months, it was held that it was not error to refuse the applica- tion of the insurance (company for leave to exhume the body, in support of the claim that the skull of the de- ceased had been fractured and had healed by the operation of trephin- ing. The court did not indicate the rule where the application is timely, but it characterized the effort, in the application before it, as " repugnant to the best feelings of our nature, and likely to be in many cases so abhor- rent to the sensibilities of the surviv- ing relatives that they would prefer an abandonment of the suit to a com- pliance with the order. Grangers' Life Ins. Co. v. Brown, 57 Miss. 308, 34 Am. Rep. 446. 3^28 INDIRECT AND COLLATERAL EVIDENCE. § 87 the rule would operate hardly upon delicate and modest females, we can only say that they would be guarded by the discretion of the trial judge. There would be no danger, we think, in this country, of an examination being ordered needlessly, or where an improper shock to modesty or feeling of delicacy would be likely. We decide simply that the power exists, and that in such case it is to be exercised or not, according to the sound discretion of the presiding judge." The existence of this power has been affirmed upon the ancient practice of courts to require parties to submit to examinations in inquiries as to impotency, and it has also been likened to the power of a court to compel a discovery of books and papers. It ought not to be a doubtful proposition, however, that a court, from whom a recovery is sought, has power to protect itself, to say nothing of the defendant, against imposture. As an authority some- what apropos to this discussion, although it is not to be given an unrestrained application in this direction, attention maybe called to the case of Bryant v. Stillwell.^ The action in that case was by a contractor on a building contract. The defense was improper construction. The plaintiff had sent a man to the house to examine it as a witness. In ruling upon the ques- tion as to the right of the defendant to exclude the witness, Black, J., said: "To smother evidence is not much better than to fabricate it. * * * It ought to be understood that where one party has the subject-matter of the controversy un- der his exclusive control, it is never safe to refuse the witnesses on the other side an opportunity to examine it, unless he is able to give a very satisfactory reason. Here there was no ground to believe that the witness would misrepresent what he might see. If the defendant had felt such a suspicion, he could have shown the house to as many others as he chose, and overwhelmed the perjured one by a host of honest ones." § 87. Inspection of defendant and his belongings in criminal case. — The courts have in many instances had pressed upon their consideration the question as to whether the constitutional 1 Bryant v. Stillwell, 24 Pa. St 314. § 87 COLLATERAL EVIDENCE. 129 provisions against unreasonable searches and seizures, and against compelling a person in a criminal case to give evi- dence against himself, should be so construed as to preclude the reception of evidence illegall}' obtained. There is, how- ever, little or no disagreement upon the authorities respecting this question. The courts will not use their own powers or process to obtain such evidence. They will not permit a per- son on trial for crime to be even called on, during the trial, to indulge in any experiments designed to establish his identity as the criminal.^ The right to interrogate him as to personal characteristics is somewhat broader, however, in the writer's judgment, where the defendant elects to go upon the stand as a witness. If a trial court, by the use of its own process, ob- tains evidence against a defendant in a criminal case, the evi- dence thus obtained can not be used. Thus, where a woman was charged with infanticide it was held that a physician could not testify to the fact that the defendant had been recently delivered of a child, it appearing that he had obtained his in- formation by an examination of the defendant's person, while he was acting as a member of a commission appointed by the court to make such examination.^ Although quite variant in its facts from the case last cited, the case of Boyd v. United States^ arranges itself within the same principle. It was there held that the constitutional rights of a defendant in a criminal case might be violated by obtaining incriminating evidence from him under the morally compulsory process of a subpoena duces tecum. But in cases where evidence has been obtained by the ^Blackwell v. State, 67 Ga. 76, 44 divided court in Nevada that it was Am. Eep. 717 ; Stokes v. State, 5 Baxt. not error to compel the defendant to (Tenn.) 619,30 Am. Rep. 72; State v. exhibit a tattoo mark on his arm. Jacobs, 5 Jones' L. (N. Car.) 259. In State v. Ah Chuey, 14 Nev. 79, 33 Am. State V. Prudhomme, 25 La. Ann. 523, Rep. 530. it was held proper to compel a defend- ^ People v. McCoy, 45 How. Pr. 216, ant to take his feet from underthechair and see Cluett v. Rosenthal, 100 Mich, in which he was sitting, in order that 193, 58 N. W. Rep. 1009, 43 Am. St. the jury might by inspection determine Rep. 446. whether his feet were about the size s^oyd v. United States, 116 IT. S. •of the tracks found. It was held by a 616, 6 Sup. Ct. Rep. 524. 9— Ev. 130 INDIEECT AND COLLATERAL EVIDENCE. § 87 wrongful act of officials or third persons, under circumstances not charging the court with responsibility for the acts by which the evidence was obtained, the rule is that such evidence is not thereby rendered incompetent.^ An Alabama case^ gives careful consideration to this subject, and also quotes approvingly the following, from the opinion of the Supreme Court of New Hampshire in State v. Flynn :* ''It seems to us an unfounded idea that the discoveries made by the oflScers and their assistants in the execution of process, whether legal or illegal, or where they intrude upon a man's privacy without any legal warrant, are of the nature of admis- sions made under duress, or that it is evidence furnished by the party himself upon compulsion. The information thus ac- (][uired is not the admission of the party, nor evidence given by him, in any sense. The party has in his power certain mute witnesses, as they may be called, which he endeavors to keep out of sight, so that they may not disclose the facts which he is desirous to conceal. By force or fraud access is gained to them, and they are examined, to see what evidence they bear. That evidence is their's, not their owner's. If a party should have the power to keep out of sight or out of reach per- sons who can give evidence of facts he desires to suppress, and lie attempts to do that, but is defeated by force or cunning, the testimony given by such witnesses is not his testimony, nor evidence, which he has been compelled to furnish against him- self. It is their'own." A Texas case* carries the doctrine of the above case so far as to hold evidence admissible against a 1 Com. V. Dana, 2 Mete. 329; Com. 245, 32 Am. Rep. 595; Shields r. State, V. Tibbetts, 157 Mass. 519,32 N. E. Rep. 104 Ala. 35, 16 So. Rep. 85 ; Bruce v. 910; Com. v. Byrnes, 158 Mass. 172, 33 State,,31 Tex. Cr. App. 590, 21 S. W. N. E. Rep. 343 ; State v. Flynn, 36 N. Rep. 681 ; Legatt v. Tollervey, 14 East H.64; Cluett V. Rosenthal, 100 Mich. 302; Jordan v. Lewis, 14 East 306, 193, 58N.W. Rep. 1009, 43 Am. St. Rep. note. 446; Gindrat v. People, 138 111. 103,27 ^g^jelds v. State, 104 Ala. 35, 16 So. N. E. Rep. 1085 ; Siebert v. People, 143 Rep. 85. 111. 571, 32N. E. Rep. 431 ; States. Gra- ^ State v. Flynn, 36 N. H. 64. ham, 74 N. Car. 646, 21 Am. Rep. 493; « Walker v. State, 7 Tex. Cr. App. Chastang v. State, 83 Ala. 29, 3 So. Rep. 245, 32 Am. Rep. 595. 304; Walker v. State, 7 Tex. Cr. App. § 88 COLLATERAL EVIDEjSTCE. 131 prisoner which was produced by him upon the requirement of the examining magistrate.' This is at least doubtful, for while the defendant is not technically on trial before the magistrate, yet the inquiry is a judicial one, and it is as much a reproach to the law to sanction the adoption of such methods, to ob- tain evidence in a criminal case, upon the part of a minor judicial officer, as it would be to wink at like acts if they were resorted to by the judge before whom the defendant was ulti- mately tried. Collateral Questions Relative to the Examination of Witnesses. § 88. Right to show circumstance by which ^ntiiess remem- bers. — It is an unsettled question, upon the authorities, as to the right of a party to show a collateral circumstance or re- mark because his witness asserts that such circumstance or remark tends to establish his recollection. The authorities against the proposition,'' and those affirming the existence of such a right,' seem to be about evenly balanced. Although no authority can be cited in support of the distinction, it is the writer's view, where a witness testifies to a mere negative, under circumstances which imply a doubt as to his recollec- tion, that the party producing the witness ought to be permit- ted to show why he remembers. It is to be recollected that it is a proposition of law that, all other things being equal, particu- larly in a matter where there was room for inattention, positive evidence is entitled to greater weight than negative evidence, for the reason that it is possible to forget a thing that did happen, while it is not possible to remember a thing that never exist- ^A like ruling was made in a case ^ Lo^jgyjiig^ gj^^ j^ q^ ^ Hart, 2 where the disclosure was made upon Ind. App. 130, 28 N. E. Rep. 218; the requirement of a coroner. State i;. Thompson on Trials, § 373, citing Garrett, 71 N. Car. 85, 17 Am. Rep. 1. Platnerv. Platner,78 N. Y. 90; O'Ha- ^Delanc^?;. Smith Charities, 138 gan v. Dillon, 76 N. Y. 170; Abbott's Mass. 63 ; Sanborn u. Detroit B. C. & Pr. Brief, citing Blackwell v. Ham- A. R. Co., 99 Mich. 1, 57 N. W. Rep. ilton, 47 Ala. 472; Angell v. Rosen- 1047; Cherry v. Butler, 4 Tex. App. bury, 12 Mich. 241. (Civ. Cas.) 7, 17 S. W. Rep. 1090. 132 INDIRECT AND COLLATERAL EVIDENCE. §89 ed;' indeed there are authorities going so far as to announce, where the question is as to whether a signal was given by a railway train, in the absence of special circumstances, induc- ing a reasonable inference that the witness would have heard and noted the fact of the signal, if it had been given, that his testi- mony that it was not given will not create more than a scin- tilla of evidence, which the judge may disregard for the pur- pose of directing a verdict.* In instances like this, the party producing a witness- ought to be allowed to substantiate his tes- timony, by showing, at least in outline, the happening of a contemporaneous circumstance which impressed the fact he testifies to upon the tablets of his memory. § 89. Right of party producing witness to prove his contra- dictory statements out of court. — If a party voluntarily intro- duces a witness, his act carries with it the implication that upon the point on which he produces him, at least, the wit- ness is entitled to credence. While there are authorities which hold that where it appears to the court that a party has been entrapped by his witness, the court may permit such party to impeach his witness,^ yet the common law rule, and 1 Stitt V, Huidekopers, 84 U. S. 385; Hauser v. Central, etc., K. Co., 147 Pa. St. 440, 23 Atl. Rep. 766 ; Sanborn V. Detroit B. C. & A. R. Co., 99 Mich. 1, 57 N. W. Rep. 1047; Crane 17. Michigan Central, etc., R. Co., (Mich.) 65 N. W. Rep. 527; Hep- burn V. Citizens' Bank, 2 La. Ann. 1007, 46 Am. Dec. 564; Draper v. Ba- ker, 61 Wis. 450, 21 N. W. Rep. 527, 50 Am. Rep. 143 ; Ralph v. Chicago, etc., R. Co., 32 Wis. 177, 14 Am. Rep. 725; Ford V. Central, etc., R. Co., 69 Iowa 627, 21 N. W. Rep. 587; Isaacs v. Skrainka, 95 Mo. 517, 8 S. W. Rep. 427 ; Murray v. Missouri Pacific, etc., R. Co., 101 Mo. 236, 13 S. W. Rep. 817, 20 Am. St. Rep. 601 ; Cunningham V. State, 5 Tex. 440; Paschal v. Perez, 7 Tex. 348; WiUis v. Lewis, 28 Tex. 185. 2 Hauser v. Central, etc., R. Co., 147 Pa. St. 440, 23 Atl. Rep. 766; Sanborn V. Detroit, B. C. & A. R. Co., 99 Mich. 1, 57 N. W. Rep. 1047. ^ Cowden v. Reynolds, 12 Serg. R. 281; Bank v. Davis, 6 Watts & S. 285; Smith v. Briscoe, 65 Md. 561, 5 Atl. Rep. 334; Moore t?. Railroad, 59 Miss. 243; Burkhalter v. Edwards, 16 Ga. 593, 60 Am. Dec. 744. See Wright V. Beckett, 1 Moody & R. 414. In England, and in some of the states, it is provided by statute that a wit- ness who is called by a party and testifies adversely to his interest, may be contradicted by his prior state- ments. But these statutes do not authorize proof of prior statements, where the witness merely fails to testify to anything helpful to the cause of the party calling him. Adams §89 COLLATERAL EVIDENCE. 133 the weight of authority in America, is against this proposi- tion, which means that a party may introduce a witness upon a point — thereby impliedly saying to the court and jury, this, my witness, is a person whose word is entitled to weight upon the point on which I call him — while the party is at the time prepared to destroy the word of the witness if he testifies con- trary to the party's claim/ Moreover, a rule which would permit a party to contradict his witness is open to the objec- tion that a designing party might by collusion with his wit- ness get in evidence statements made out of court by him for the very purpose of being repeated upon the stand. ^ But while a party can not impeach his own witness by the use of independent impeaching testimony, yet it is pretty generally agreed that if a witness testifies adverse to the party who pro- duced him, the latter may ask the witness as to prior state- ments in contradiction of his testimony. This may be done, not with a view to impeachment by other evidence, but in an V. state, 28 Fla. 511, 15 So. Rep. 905 ; Hull V. State, 93 Ind. 128; Champ v. Com., 2 Met. (Ky.) 17, 74 Am. Dec. 388; Blough v. Parry, — Ind. 463, 40 N. E. Rep. 70. ^Buller's N. P. 297; Best on Ev., §645; Coulter v. American Mer. Union Exp. Co., 56 N. Y. 585; Adams V. Wheeler, 97 Mass. 67; Cox v. Eayres, 55 Vt. 24, 45 Am. Rep. 583, and cases cited; Hildreth v. Aldrich, 15 R. I. 163, 1 Atl. Rep. 249; State v. Vickers, 47 La. Ann. , 18 So. Rep. 639; People v. Jacobs, 49 Cal. 384; Louisville, etc., R.Co. u.Hurt, 101 Ala. 34, 13 So. Rep. 130. * But there is no objection to a party contradicting his witness by other original testimony. It is one thing to affirm that a party shall not intro- duce evidence which could only be claimed to be admissible as impeach- ing, while it would be a different thing, and a perversion of justice, to hold that a tricky witness might com- mit a party to a certain theory of the facts beyond the hope of successful refutation. Olmstead v. Winsted Bank, 32 Conn. 278, 85 Am. Dec. 260; Snell V. Gregory, 37 INIich. 500; Nor- wood V. Kenfield, 30 Cal. 393. The authorities agree that where a party is bound to call a particular witness to satisfy the demands of the law, as the subscribing witness to a will, such party may impeach the witness, if he testifies adversely. Cox v. Eayres, 55 Vt. 24, 45 Am. Rep. 583 ; Thornton v. Thornton, 39 Vt. 122; Dennett v. Dow, 17 Me. 19; Harden v. Hayes, 9 Pa. St. 151 ; Coulter v. Am., etc., Express Co., 56 N. Y. 585 ; Diffenderfer v. Scott, 5 Ind. App. 243, 32 N. E. Rep. 87; Olinde v. Saizan, 10 La. Ann. 153; State ■!). Vickers, 47 La. Ann. , 18 So. Rep. 639; AVilliams v. Walker, 2 Rich. Eq. (S. Car.) 291, 46 Am. Dec. 53; Whitman v. Morey, 63 N. H. 448, 2 Atl. Rep. 899, 134 INDIRECT AND COLLATERAL EVIDENCE. § 90 effort to show the witness that he is mistaken, and to induce him, by the refreshing of his recollection, to change his testi- mony, and in order, some of the authorities add, to set the party right before the jury/ § 90. Collateral matters on cross-examination. — While the direct examination must be confined to evidence which is rel- evant,^ the cross-examination is in some respects much less circumscribed. Even here, however, it is necessaiy, to pre- vent the obscuration of the issue, to keep the examination from extending into matters purely collateral. With reference to cross-examination, however, it is to be recollected that the wit- ness's statements on his direct examination are to be tested, and the legitimate effort to do so is not collateral in the sense of being incompetent. Perhaps as luminous a statement of the law upon this subject as can be compacted within a few lines is found in a California case,^ where it is said : " Un- doubtedly the cross-examination can not go beyond that matter [the subject-matter of the examination-in-chief] , but it ought to be allowed a very free range within it. In order to do this, the witness may be sifted as to every fact touching the matters as to which he testifies, so that his temper, leanings, relations to the parties and the cause, his intelligence, the ac- curacy of his memory, his disposition to tell the truth, his means of knowledge, his general and particular acquaintance with the subject-matter, may be fully tested.* While the ^Bullard v. Pearsall, 53 N. Y. 230; of the witness upon the stand is not Cox V. Eayres, 55 Yt. 24, 45 Am. Eep. prejudicial to the partj^ calling him. 583; Hildreth v. Aldrich, 15 R. I. 163, White v. State, 87 Ala. 24, 5 So. Eep. 1 Atl. Eep. 249; Louisville, etc., E. 829; Arnold ■;;. State, (Wyo.) 40 Pac. Co. V. Hurt, 101 Ala. 34, 13 So. Eep. Rep. 967. 130; States. Vickers, 47 La. Ann.—, 2 ^rt. 127, Stephen's Dig. Law of 18 So. Rep. 639; White v. State, 87 Ev. Ala. 24, 5 So. Rep. 829; People v. » Jackson v. Feather, etc.. Water Jacobs, 49 Cal. 384; State v. Johnson, Co., 14 Cal. 19. 12 Minn. 476, 93 Am. Dec. 241; State « Quoted approvingly in Wendt v. V. Sorter, 52 Kan. 531, 34 Pac. Rep. Chicago, etc., R. Co., 4 S. Dak. 476, 1036; Melhnish v. Collier, 15 Q. B. 57 N. W. Rep. 226. See Schuster v. 878. The application of this rule is State, 80 Wis. 107, 49 N. W. Rep. 30. denied in cases where the testimony § 91 COLLATERAL EVIDENCE. 135 breadth of cross-examination is to some extent a matter of dis- cretion upon the part of the court, yet it may be said that in the sifting of the testimony of a witness upon cross-examina- tion, in order to ascertain its probative force, the law favors a slack rather than a taut rein.^ It is especially the rule to al- low great latitude where the evidence comes from an untrust- worthy source, as from an accomplice.^ In England, and in some of the states, the court may permit counsel, on cross-ex- amination, to go into the whole case with a witness, but this is not the general rule.' The rule respecting collateral matters is that, with certain exceptions, if a party cross-examines re- specting them, he is not at liberty to introduce evidence to the contrary ; and it may be added, that he can not impeach upon a collateral issue. The test of whether a fact inquired of on cross-examination is collateral, is this : Would the cross-ex- amining party be entitled to go into such matter on his case in chief ? If not, it is collateral.* The cross-examination may go far enough, not only to overthrow the direct evidence of the witness, but also to rebut inferences.^ § 91. Same subject — Collateral matters affecting standing of witness. — While there is a class of crimes the commission of which absolutely disqualifies a person as a witness, by ren- dering him infamous, yet the court may, as a matter of discre- tion, permit a witness to be otherwise discredited by an in- quiry on cross-examination as to specific collateral matters, ^ Amos V. State, 96 Ala. 120, 11 So. will not prevent an inquiry on cross- Eep. 424 J 1 Greenl. on Ev., §449. examination into the exact state of 2 Lee V. State, 21 Ohio St. 151 ; State the witness's feelings. Stewart v. V. Kent, (S. Dak.) 62 N. W. Rep. 631. Kindel, 15 Colo. 639, 25 Pac. Rep. 990, * It is within the discretion of the and cases cited, trial court to permit a cross-examina- * Welch v. State, 104 Ind. 347, 3 N. tion to extend to an inquiry as to the E. Rep. 850 ; Staser v. Hogan, 120 antecedents of a witness. Besselte u. Ind. 207, 21 N. E. Rep. 911; George State, 101 Ind. 85; Spencer v. Rob- v. State, 16 Neb. 318, 20 N. W. Rep. bins, 106 Ind. 580, 5 N. E. Rep. 726; 311. Parker v. State, 106 Ind. 580, 35 N. E. ^ Hildeburn v. Cnrran, 65 Pa. St. 59 ; Rep. 1105. The fact of an admission Drake v. State, 29 Tex. App. 265, 15 S. of ill-feeling or prejudice as to a party W. Rep. 725. 100 INDIRECT AND COLLATERAL EVIDENCE. §91 calculated to degrade him, and thereby shake his credibility as a witness.^ According to the weight of authority, this applies to a defendant in a criminal case, if he offers himself as a wit- ness.^ According to many authorities it is competent to ask a witness if he has been confined in jail on a criminal charge.* iLa Beau v. People, 34 N. Y. 223; Shepard v. Parker, 36 N. Y. 517 ; Real V. People, 42 N. Y. 270; State v. Car- son, 66 Me. 116; Wroe v. State, 20 Ohio St. 460; Bank v. Slemmons, 34 Ohio St. 142, 32 Am. Rep. 364 ; Wilbur V. Flood, 16 Mich. 40, 93 Am. Dec. 203 ; Foster v. People, 18 Mich. 265 ; People V. Arnold, 40 Mich. 710; City of South Bend v. Hardy, 98 Ind. 577, 49 Am. Rep. 792; State v. McCartey, 17 Minn. 76 ; Ter. v. O'Hare, 1 N. Dak. 30, 44 N. W. Rep. 1003 ; Hill v. State, 42 ^^eb. 603, 60 N. W. Rep. 916 ; State V. O'Brien, 81 Iowa 93, 46 N. W. Rep. 861 ; Madden v. Koester, 52 Iowa 692, 3 iS[. W. Rep. 790. See Com. v. Schalf- ner, 146 Mass. 512, 16 K.E. Rep. 280; State V. Chee Gong, 17 Ore. 635, 21 Pac. Rep. 882. 2 State V. Farmer, 84 Me. 436, 24 Atl. Rep. 985; People v. McCormick, 135 N. Y. 663, 32 N. E. Rep. 26; Peo- ple V. Webster, 139 N. Y. 73, 34 N. E. Rep. 730; State v. Chnton, 67 Mo. 380, 29 Am. Rep. 506; Ter. v. O'PIare, 1 N. Dak. 30, 44 N. W. Rep. 1003; State V. Black, 15 Mont. 143, 38 Pac. Rep. 674, and cases cited; State v. Wells, 54 Kan. 161, 37 Pac. Rep. 1005; State V. Phelps, 5 S. Dak. 480, 59 N. W. Rep. 471 ; State v. Probasco, 46 Kan. 310, 26 Pac. Rep. 749. Contra, People V. O'Brien, 96 Cal. 171, 31 Pac. Rep. 45; Thompson on Trials, §458. In People V. McCormick, siipra, which was a charge of murder, it was held that the trial court might permit the prosecution to ask the defendant, on his cross-examination, this question : " Is it not a fact that in the month of September, 1890, two months or about prior to Gillespie's death, in a saloon, known as the 'Manhattan,' in Chat- ham Square, that you drew a pistol oa two disreputable women, and threat- ened to shoot them? " In State v. Farmer, supra, the defendant was on trial as a common seller of intoxicating liquor. He was a witness, and on his cross-examination the state sought to show that he had been convicted of a like offense twenty-seven years before. Held, competent. The court said : "That evidence properly admis- sible for one purpose may be so per- verted in its use as to effect a different and illegitimate purpose is not alto- gether preventable. But such evidence can not on that account be wholly re- jected. The correction of its abuse lies in such explanation as the presid- ing judge may feel requii'ed to give to the jury concerning it. * * * We see no cause for rejecting the record of conviction in this case in the fact that it is an ancient record. Time may soften the effect of such a record, but can not destroj' its applicability." 3 Smith V. State, 64 Md. 25, 54 Am. Rep. 752, 20 Atl. Rep. 1026; Burdette V. Com., 93 Ky. 76, 18 S.W. Rep. 1011 ; Driscoll V. People, 47 Mich. 413, 11 N. W. Rep. 221; Hanoff v. State, 37 Ohio St. 178, 41 Am. Rep. 496; State v. Taylor, 118 Mo. 153, 24 S. W. Rep. 449; State v. Bacon, 13 Ore. 143, 57 Am. Rep. 8; State v. Ivey, 41 Tex. 35; Lights v. State, 21 Tex. App. 308, 17 S. W. Rep. 428. See Leland v. Kauth, 47 Mich. 608, 11 N. W. Rep. 292. ^ 91 COLLATERAL EVIDENCE. 137 But there are cases which hold, because the law presumes a person innocent until he is convicted, that it is not competent to show merely that a criminal charge has been preferred.' While there may be some reason for requiring that the record of conviction should be produced, where it is sought to dis- qualify a person as a witness on the ground that he is infa- mous, because the question as to whether he was convicted of an offense which renders him infamous is, to some extent, a technical one, yet where the only use that is sought to be made of the fact of conviction is to affect the weight of the testimony of a person as' a witness, no good reason can be suggested why he should not be interrogated upon cross-examination as to that point.^ In a Michigan case,^ Cooley, J., says: ''The rea- son for requiring record evidence of a conviction has very lit- tle application to a case where the party convicted is himself upon the stand, and is questioned concerning it, with a view to sifting his character on cross-examination. The danger that he will falsely testify to a conviction that never took place, or that he may be mistaken about it, is so slight that it may 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 im- minent." There are cases which seem to hold that the fact of acts of sexual intercourse committed by a witness with third persons has no bearing on the probability of the witness tell- ing the truth." This may be the correct doctrine as applied to 1 Com. V. Sullivan, 150 Mass. 315, 36 W. Rep. 389; Brandon ^.People 42 N E. Rep. 583; People v. Crapo, 76 N. Y. 265; State v. Murphy 45 La. N Y '^88 32 Am Rep. 302 ; Van Bok- Ann. 958, 13 So. Rep. 229; McLaughlin kelein".. Berdell, 130 N. Y. 141, 29 N. v. Mencke, 80 Md. 83 30 Atl. Rep E Rep. 254; People v. Hamblin, 68 603; State v. Black, 15 Mont. 143, 38 Cal. 101, 8 Pac. Rep. 687; State v. Pac. Rep. 674, and cases there c^ted; Murphy, 45 La. Ann. 973, 13 So. Rep. Wick v. Baldwin, 51 Ohio 51, 36 N. E. 229; Rex V. Lewis, 4 Esp. 225; Mac- Rep. 671. bride V. Macbride, 4 Esp. 242. ' Clemens v. Conrad 19 Mich. 1/0 2 Com. V. Bonner, 97 Mass. 587; « Lowery ^. State, 98 Ala. 45, 13 b. State V. Lawhorn, 88 N. Car. 634 ; State Rep. 498 ; Holtz v. State, 76 Iowa 99, V EUwood 17 R. L 763, 24 Atl. Rep. 44 N. AV. Rep. 1107.; Ketchingham v. 782- Peck V. State, 86 Tenn. 259, 6 So. State, 6 Wis. 432; 1 Greenl. on Ev., 138 INDIRECT AND COLLATERAL EVIDENCE. § 91 acts done in secret, but the opposite conclusion must be insist- ed on where a witness is a party to a relationship of such a brazen character as to indicate an utter disregard for the opin- ion of others. Thus, it was held proper in New York to show, on the cross-examination of a defendant, who was on trial for murder, that he was living at the time of the homicide with a mistress, notwithstanding the fact that this course of examina- tion tended incidentally to discredit the woman, who was also a witness.' A witness who admits his conviction of an offense can not be permitted to state that he was not guilty.' The cred- ibility of a witness may be impeached by proof of mental de- fects, such as loss of memory. This may be shown on cross- examination or independently.' If the answer to the question asked would furnish even a link in the chain of evidence which would fix upon the witness a criminal charge, or would expose him to a forfeiture of his estate, or to a penalty imposed by statute, it is his privilege, whether the matter inquired of be relevant or otherwise, to refuse to answer. So it is his privi- lege to refuse to answer if the question is collateral and intend- ed only to disgrace him. In all of these cases, however, the privilege is of a personal character, and is not to be asserted for the witness by the party producing him. If the answer would tend merely to degrade the witness, or subject him to a civil liability, yet if the matter of inquiry be relevant and ma- terial to the issue, he may be compelled to answer. We have already seen that if a witness is asked a question on cross-ex- amination concerning a purely collateral matter, the party ask- § 458. See City of South Bend v. Goodwyn v. Goodwyn, 20 Ga. 600. Hardy, 98 Ind. 577, 49 Am. Rep. 792, Some of the cases cited in this note as to the rule where character for deny the authority to introduce inde- chastity or consent is in issue. pendent evidence to the effect merely * People V. Webster, 139 N. Y. 73, 34 that a witness does not possess a good N. E. Rep. 730. memory; in other words, they confine *Coni. V. Galligan, 155 Mass. 54, 28 a party seeking to overthrow the tes- N. E. Rep. 1129. timony of a witness on this ground to ^Alleman v. Stepp, 52 Iowa 626,3 cross-examination, and only permit N. W. Rep. 636, 35 Am. Rep. 288, and independent evidence on the subject note; Isler v. Dewey, 75 N. Car. 466; where such evidence tends to show an McDowell V. Preston, 26 Ga. 528. See abnormal condition of mind. §91 COLLATERAL EVIDENCE. 139 ing it is not permitted to introduce substantive evidence to con- tradict it. It is not, however, regarded as collateral to show- prior ill-feeling, interest or other matter calculated to show the animus of the witness, and substantive evidence can be intro- duced on. this subject, as it goes to the root of the question as to whether the witness's testimony is true.' 1 McGinnis v. Grant, 42 Conn. 77 ; New Portland v. Kingfield, 55 Me. 172; Day v. Stickney, 14 Allen 255; People V. Webster, 139 N. Y. 73, 34 N. E. Rep. 736; People v. Brooks, 131 N. Y. 321, 30 N. E. Rep. 189; Hotch- kiss V. Insurance Co., 5 Hun 90; People V. Moore, 15 Wend. 419; New- ton V. Harris, 6 N. Y. 345; People v. Thompson, 41 N. Y. 1 ; Scliulz v. Rail- road Co., 89 N. Y. 242; Robinson v. Hutchinson, 31 Vt. 443; Hedge v. Clapp, 22 Conn. 262, 58 Am. Dec. 424; Cook v. Brown, 34 N. H. 460; McHugh V. State, 31 Ala. 317 ; Har- alson V. State, 82 Ala. 47, 2 S. Rep. 765; State v. Roberts, 81 N. Car. 605; Edwards v. Sullivan, 8 Ired. 302; State V. McFarlain, 41 La. Ann. 686, 6 S. Rep. 728 ; Scott v. State, 64 Ind. 400; Staser v. Hogan, 120 Ind. 207, 21 N. E. Rep. 911 ; Hollingsworth r. State, 53 Ark. 387, 14 S. W. Rep. 41; Martin v. Barnes, 7 Wis. 206; Bennett v. State, 28 Tex. App. 539, 13 S. W. Rep. 1005. There are a number of cages which hold that the fact of hostility or interest may be shown without first examining the witness whom it is sought to discredit upon the subject. People v. Webster, 139 N. Y. 73, 34 N. E. Rep. 730. (In this case the effort was to show the intimate social relations between the defendant and the witness) ; People v. Brooks, 131 N. Y. 321, 30 N. E. Rep. 189, and cases cited; Haralson v. State, 82 Ala. 47, 2 S. Rep. 765. Con- tra, Baker v. Joseph, 16 Cal. 173; State V. Stewart, 11 Ore. 52, 238, 4 Pac. Rep. 128. See cases citea in Hollingsworth v. State, 53 Ark. 387, 14 S. W. Rep. 41. In answer to a question at one time submitted to the judges by the House of Lords, the Lord Chief Justice said: "The gen- eral rule, and the general practice, is this : if it is intended to bring the credit of the witness into question by proof of anything that he may have said or declared touching the cause, the witness is first asked on cross-ex- amination whether or no he has said or declared that which is intended to be proved." 2 Phil, on Ev., (1849 ed.) 436. There is this difference be- tween the effort to prove hostility or interest on the cross-examination, and the attempt to show such facts as a part of the case of the party offering it : That in the foriner case the en- tire facts may be inquired into, while in the latter case it is necessary to in- troduce direct and positive evidence on the subject, for the reason that the trial of the main issue in the case can not be suspended to prove 'the facts sought to be shown by circumstantial evidence. Schultz v. Railroad Co., 89 N. Y. 242; Peoples. Brooks, 131 N. Y. 321, 30 N. E. Rep. 189; State v. Bilansky, 3 Minn. 246. In Com. v. Hobbs, 140 Mass. 443, 5 N. E. Rep. 158, it was held that while it was com- petent for the defendant to show tha' a witness who had testified against him had procured his arrest, yet it was not competent for the defendant, in order to prove that the bias of the witness was of a malignant character 140 INDIRECT AND COLLATERAL EVIDENCE. § 92 § 92. Corroboration of witness by proving his like state- ment out of court.— The fact that a witness has, before testi- fying, made a different statement, although not upon oath, necessarily impeaches either his veracity or his memory, but the fact of his having made a statement out of court in har- mony with his statement in court does not add any greater degree of probability to his statement under oath. For this reason the authorities agree that such evidence is ordinarily inadmissible, notwithstanding the fact that the witness has been contradicted.' There are a line of cases recognizing the admissibility of evidence of this character in cases where the witness has been sought to be impeached by proof of prior inconsistent statements made by him.' This is not the cor- rect rule on principle, as the first proposition of this section shows. The rule has its limitations and its purposes. If a party attacks his adversary's witness, either by cross-examina- tion or substantive evidence, in such manner as to warrant an inference that the statement of the witness is a recent fabrication, or that at the time of testifying he is under a strong bias, or in such a situation as to put him under a sort of a moral duress to testify in a particular manner, then it is competent to show that prior to the time when the existence of sinister motives could have been claimed, he made a like statement.^ In such a case the prior statement is not substan- to further prove that the charge was E. Rep. 1019, and cases cited ; State v. false, and was known by the witness Johnson, 47 La. Ann. — , 17 So. Rep. to be so when he preferred it. The 789. But even where this doctrine is court in ruling upon this point, after recognized it is not carried so far as stating that the evidence offered to admit the declarations of a party. would raise a collateral issue, said: Logansport, etc., Turnpike Co. t?. Heil, "It is impracticable to carry an in- 118 Ind. 135, 20 N. E. Rep. 703; Mcer- quiry into tiie precise degree of ill- ling «. Smith, 7 Ind. App.451, 34 N. E. feeling or bias so far as the defendant Rep. 675. sought." 3Robb V. Hackley, 23 Wend. 50; 1 Hodges V. Bales, 102 Ind. 494, 1 N. Conrad v. Griffey, 11 How. (U. S.) 480; E. Rep. 692 ; Hobbs v. State, 133 Ind. State v. Flint, 60 Vt. 304, 14 Atl. Rep. 404, 32 N. E. Rep. 1019. See Crooks 178; Com. v. Jenkins, 10 Gray 485; V. Bunn, 136 Pa. St. 368, 20 Atl. Rep. People v. Doyell, 48 Cal. 85; Stolp v. 529. Blair, 68 111. 541 ; English v. State, 30 " Hobbs V. State, 133 Ind. 404, 32 N. Tex. Cr. App. 470, 30 S. W. Rep. 233 ; § 93 COLLATERAL EVIDENCE. 141 live evidence of the fact so stated, but it is evidence tending to demolish the theory of the party attacking the witness, rela- tive to his evidence. There are a class of cases, as in prose- cutions for rape, where the failure to make early complaint is itself a suspicious circumstance, and the practice has grown up of overcoming such suspicion, by offering evidence of such complaint in advance of any distinct effort to discredit the witness by proof of silence. But this subject will be consid- ered in another connection.^ § 93. Impeachment by contradictory statements. — We have already seen that a witness can not be impeached except upon a point relevant to the issue, or upon matters affecting his bias as a witness. If the matter proposed to be proved be of an impeaching character, and not in any degree substantive, it is necessary that a foundation should first be laid by asking the witness whether he made the statement, calling his atten- tion to the time and place where it was made^' This is neces- sary to quicken the recollection of the witness, and to afford him an opportunity of explanation. If the statement is in writing, and there is no proof of its loss, the party interrogating the witness must produce the writing for the inspection of the witness, excepting possibly where the impeaching statement is contained in the deposition of the witness previously taken.* Silva V. Pickard, 10 Utah 78, 37 Pac. 114, 30 N. E. Eep. 641. This rule is Rep. 86. See Madden v. State, 65 not relaxed because the evidence of the ria. 176, 3 So. Rep. 328; Fallin v. witness is in the form of a deposition, State, 83 Ala. 5, 3 So. Rep. 525; State and no further opportunity exists to V. Porter, 74 Iowa 623, 38 N. W. Rep. lay the foundation for an impeach- 514; Chase v. Perley, 148 Mass. 289, ment. Stacy t. Graham, 14 N. Y. 19 N E Rep. 398; People v. Fong 492; Craft i;. Com., 81 Ky. 250, 50 Am. Ching 78 Cal. 169, 20 Pac. Eep. 396; Rep. 160; Ryan v. People, 21 Colo. Connor v. People, 18 Colo. 373, 33 Pac. 119, 40 Pac. Rep. 775. The precise Rep. 159, 36 Am. State Rep. 295; time need not be fixed, if the place State V. George, 8 Ired. L. 324, 49 Am. is mentioned and the occurrence other- j)gg 392 wise identified with reasonable cer- 1 Pos«7 Chap. V. tainty. Pendleton v. Empire Stone ^Mattox V. United States, 156 U. S. Dressing Co., 19 N. Y. 13. 237, 15 Sup. Ct. Rep. 337; State v. nvhart. on Ev., §557, and cases Hu'nsaker, 16 Ore. 497, 19 Pac. Rep. cited; Pearce v. Furr, 2 Sm. & M. 605: McCullough V. Dobson, 133 N.Y. (Miss.) 54; East Tenn., etc., R. Co. 142 INDIRECT AND COLLATERAL EVIDENCE. § 03 But, even in the latter case, he should be first interrogated concerning such statement. If the two statements are con- sistent or reconcilable with each other, the one made^out of court will not be received to impeach the witness.' The opinions or suspicions of a witness expressed out of court, although inconsistent with the conclusion which the facts he testified to upon the trial w^ould warrant, can not, except where his opinion is in issue, or where proof of his former statement goes to show the bias of the witness, be made the basis of an impeachment.' It is obvious, however, that these last two propositions have to do w^ith the right to impeach the witness; it is, of course, permissible to make use of possible contradictions and expressions of conflicting opinion on cross- examination. A witness can not escape an impeachment by the claim that he does not remember the contradictory state- ment.' Cases in opposition to this statement may be found,* but they are not well grounded in principle, for, although the witness whose testimony is in question may not in such a case be contradicted by the impeaching witness, yet if the statement of the latter is true, the testimony of the former stands in contradiction of his prior declaration — a method of impeachment which should ordinarily be regarded as sufficient. V. Thompson, 94 Ala. 636, 10 So. ^ Wagner v. State, 116 Ind. 181, 18 Rep. 280. In Queen's Case, 2 Brod. & N. E. Rep. 833 ; Whart. on Ev., § 558, B. 284, it was determined : That if the and eases cited. writing is in existence and can be pro- ^pg^pje v. Stackhouse, 49 Mich, duced, it should be shown to the wit- 76, 13 N. W. Rep. 364 ; Drake v. State, ness, although it is permissible to sub- 29 Tex. 265, 15 S.W. Rep. 725 ; Holmes mit but a part of it to him ; that if he v. Anderson, 18 Barb. 420. denies its authority, its contents can * Crowley v. Page, 7 Car. & P. 789; not be shown by cross-examination, Chapman v. Coffin, 14 Gray, 454; but only by the production of the let- Xute v. Xute, 41 X. H. 60 ; Gregg Town- ter, that the court may be possessed shipi'. Jamison, 55 Pa. St. 468; Payne of the whole ; that if the witness ad- v. State, 60 Ala. 80 ; Janeway v. State, 1 mits the authority of the writing its Head (Tenn.) 130; Stately. Johnson, contents can still only be shown by a 47 La. Ann. — , 17 So. Rep. 789. reading of it; that the writing should *Pain v. Beeston, 1 Mo. & R. 20; ordinarily be read as a part of the Long r. Hitchcock, 9 Car. & P. 619; rase of the cross-examining counsel, Wiggins v. Holman, 5 Ind. 502 (but but the court may permit it to be read see § 508, R. S. Ind. 1881). at once. § 94 COLLATERAL EVIDENCE. 143 §94. Impeaching eyitlence not substantive.— Impeaching testimony goes only to the credibility of the witness against whom it "is directed ; it can not be given any force as substan- tive evidence.^ § 95. Right to impeach character of witness.— Few rules of evidence are vindicated by more abundant authority than that which permits an impeachment of an opponent's witness by proof of his bad character. The word '^character," as used in this connection, is synonymous with general reputation.^ The witness or the party producing him can not be called upon to meet evidence of particular acts. ''Look ye," said Lord Chief Justice Holt, '' you may bring witnesses to give an ac- count of the general tenor of the witness's conversation ; but you do not think that we will try, at this time, whether he be guilty of robbery.'" The authorities are in serious disagree- ment as to whether the evidence must be confined to general reputation for truth and veracity, or whether it may go to gen- eral moral character as well. The former view is maintained by many authorities, in which it is argued that a person may have all of the other vices and yet be entirely truthful.* The doctrine that character may be impeached by proof of general immorality is also well maintained.' The argument in favor 1 Winchester, etc., Manufacturing ^Tesse v. Huntingdon, 23 How. 2; Co. V. Cleary, 116 U. S. 161, 6 Sup. Ct. United States v. Vansickle, 2 McLean Rep. 369 ; Trapnell v. Conklyn, 37 W. 219 ; State v. Bruce, 24 Me. 71 ; State Va. 242, 16 S. E. Rep. 670, 38 Am. St. v. Howard, 9 N. H. 486; Spears v. Rep.^30; Seller v. Jenkins, 97 Ind. Forrest, 15 Vt. 435 ; Com. ■y. Moore, 3 430; Ohio, etc., R. Co. v. Stein, 140 Pick. 194; Humphrey v. Humphrey, Ind'. 61, 31 N. E. Rep. 180; Hicks 7 Conn. 116; Gough v. St. John, 16 V. Stone, 13 Minn. 434; Heddles v. Wend. 645; Grose r. Rutledge, 81 HI. Chicago, etc., R. Co., 74 Wis. 239, 42 ,266; People v. Yslas, 27 Cal. 630; N. W. Rep. 237, 20 Am. St. Rep. 106; State v. Egan, 59 Iowa 636, 13 N. W. Josephi V. Furnish, 27 Ore. 260, 41 Rep. 730; Heath v. Scott, 65 Cal. 548, Pac. Rep. 424. 4 Pac. Rep. 557, See Gilchrist v. Mc- '^Knode v. Williamson, 17 Wall. Kee, 4 Watts 380, 28 Am. Dec. 721; (U. S.) 686; Kimmel v. Kimmel, 3 Quinsigamond Bank v. Hobbs, 11 Serg. & R. 336, 8 Am. Dec. 665. See Gray 250. State V. Egan, 59 Iowa 636, 13 N. W. « Gilliam v. State, 1 Head (Tenn.) Rep. 730. 38, 73 Am. Dec. 161 ; Peek v. State, 86 3 4 St. Tr. 693, 13 Howell's St. Tr. Tenn. 259, 6 S. W. Rep. 389 ; Tacket v. 211. May,3Dana(Ky.)80;Lockardu.Com., 144 INDIRECT AND COLLATERAL EVIDENCE. § 95 of the latter view finds forcible expression in a Texas case/ in which it is said: ''The proposition announced in Booni;. Weathered/ that one of vicious character 'may still preserve the priceless virtue of truth, though every other vir- tue is gone,' is not the teaching of human experience. Such a case would be deemed an exception so marked as should re- quire the fact to be affirmatively shown. Among the dissolute and degraded we do not naturally seek or expect to find this best characteristic of manhood. Without proof to the contra- ry, the jury may fairly assume that from the immoral and criminal character truth has fled with other virtues."' But, however this may be, it is entirely settled that the law rejects even general reputation of a particular immorality, unless that immorality be untruthfulness. Thus, in the case of a female witness, it is not competent to introduce evidence of her general reputation for chastity, where the question of her possession of that virtue is not in some way, either directly or indirectly, involved,* as might be possible in a suit for defamation, or seduction, or in a prosecution for rape, as bearing on the ques- tion of the woman's consent. The question as to the reputa- tion of the witness, being designed to impeach his evidence, should, according to many authorities, relate to the time at which he testifies.^ The better view, however, is that, as proof 87 Ky . 201, 8 S. W. Rep. 266 ; State v. ingdon, 23 How. 2 ; Bakeman v. Rose, Shields, 13 Mo. 236, 53 Am. Dec. 147; 18 Wend. 146; Gilchrist v. McKee, 4 State V. Rider, 95 Mo. 474, 8 S. W. Watts 380, 28 Am. Dec. 721 ; Spear v. Rep. 723 ; Birmingham Union R. Co. Forest, 15 Vt. 435 ; People v. Mills, 94 V. Hale, 90 Ala. 8, 8 So. Rep. 142; Mich. 630, 54 N. W. Rep. 488; People 24 Am. St. Rep. 748; Yarbrough v. v. Abbott, 97 Mich. 484, 56 N.AV. Rep. State, 105 Ala. 43, 16 So. Rep. 758. 862, 37 Am. St. Rep. 360; Kilburn v. » Carroll v. State, 32 Tex. App. 431, Mullen, 22 Iowa 498; State v. Larkin, 24 S. AV. Rep. 100, 40 Am. St. Rep. 11 Nev. 314; Cline v. State, 51 Ark. 786. 140, 10 S. W. Rep. 225 ; Jones v. State, 'Boon V. Weathered, 23 Tex. 675, 13 Tex. 168, 62 Am. Dec. 550; Smith 684, 686. V. State, 58 Miss. 867. » Bean w. State, 14 Tex. App. 35, 5 ^ Webber v. Hanke, 4 Mich. 198; S. W. Rep. 523. State v. Potts, 78 Iowa 656. 43 N. W. ♦Com. i\ Churchill, 11 Met. (Mass.) Rep. 534; Rawles v. State, 56 Ind. 638, 45 Am. Dec. 229 (Com. v. Murphy, 433 ; INIitchell v. Com., 78 Ky. 219, 39 14 Mass. 387,overruled) ;Tesset;. Hunt- Am. Rep. 227. 95 COLLATERAL EVIDENCE. 145 of reputation at a time near the date of the trial may justify a presumption of its continuance, the court may exercise a measure of discretion as to the receiving of evidence of prior reputation.^ Probably no dissent will be found from the prop- osition that, where a witness has not lived sufficiently long in his place of residence, at the time of the trial, to have ac- quired a reputation at such place, it is competent to show his reputation at the last place where he had remained long enough to have acquired a reputation.^ If there is evidence that the general reputation of a witness for truth and veracity at the time of the trial is bad, then it is competent to go back of that time and fortify the prior evidence by proof that such reputa- tion at a considerable time before had also been bad.' In a 1 See Pape v. Wright, 116 Ind. 502, 19 N. E. Rep. 459; Tesse v. Hunting- don, 23 How. (U. S.) 2 ; Sleeper v. Van Middlesworth, 4 Denio 431 ; Rathbun V. Ross, 46 Barb. 127 ; Snow v. Grace, 29 Ark. 131. In Com. v. Billings, 97 Mass. 405, it was held competent to show the general reputation of a wit- ness eighteen months before the time of trial. In Mynatt v. Hudson, 66 Tex. 66, 17 S. W. Rep. 396, it was held that it was proper to prove the bad general reputation of a witness at anothei- place, where he had resided until four years before the trial. The court said: "The law does not pre- sume that a person of mature age, whose reputation has been notorious- ly bad to within a period such as intervened between the time the ap- pellant resided in Johnson county and the time when the witness testi- fied, has so reformed as to acquire a different reputation." 2 In Pape w. Wright, 116 Ind. 502, 19 N. E. Rep. 459, it was held, where a witness had moved from Ft. Wayne to New York City, September 25, 1885, and his deposition had been taken in the following November, 10— Ev. that it was competent to impeach his general reputation at Ft. Wayne. In Sun Fire Office v. Ayerts, 37 Neb. 184, 55 N. W. Rep. 635, the facts were that a witness had lived one and one- half years in Omaha, where the trial was had, and that he had not lived at Sioux Falls for two and one-half years. Held, that it was incompe- tent to show his reputation at the lat- ter place. In State v. Taylor, 45 La. Ann. 605, 12 So. Rep. 927, it was held that the reputation of a witness at a home which he had occupied some five years before the trial could not be shown. 3 In People* v. Abbot, 19 Wend. 192, the court said: "The character of the prosecutrix for truth and ver- acity had already been slightly im- peached, when it was proposed to follow that up by showing that it was also bad several years ago. The inquiry is not in its nature limited as to time. The character of the habit- ual liar or perjurer seven years since would go at least to fortify the testi- mony which should now fix the same character to the same person. Wit- nesses must speak on this subject in 146 INDIRECT AND COLLATERAL EVIDENCE. § 05 Missouri case/ it was held improper to show the reputation of a witness at a place where he had only visited for three months several years before the trial. In holding this testimony in- competent, the court said : ''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." The character of a witness for truth and verac- ity can not be impeached by evidence of the individual opin- ions or declarations of the opposite party or of other persons on the subject of his credibility.^ A person who is sent into a neighborhood, for the purpose of ascertaining another's reputa- tion, can not form an adequate estimate of it, and for that reason the law excludes the testimony of a witness where knowl- edge has been acquired in that manner.^ But it is not indis- pensably required that a person who testifies as to reputation should himself reside in the immediate neighborhood of the person whose evidence it is sought to impeach.* While it is the estimate which a witness's neighbors generally put upon his character which is the criterion, yet the question as to who are to be regarded as neighbors rests to some extent in the dis- cretion of the court, as to the latitude of the inquiry. The evident purpose of the law is to accept the arbitrament, as to a person's character, of those persons w^ho are most likely to be acquainted with his character. The term neighborhood may therefore vary between a populous city and a rural community, the past tense. Character can not be 322, 17 N. W. Eep. 865. If a witness brought into court and shown to them says he is acquainted with the gen- at the moment of trial. A long estab- eral reputation of another, among his lished character for good or evil is neighbors, as to truth and veracity, always more striking and more to be it is error to refuse to permit the wit- relied on than that of a day, a month ness to testify until he has stated or a year." Stater. Espinozei, 20 Nev. that he has heard a majority of the 209, 19 Pac. Rep. 677, is a case where, neighbors speak of such reputation, under like circumstances, testimony Crabtree v. Hagenbaugh, 25 111. 214, was held competent as to the bad gen- 79 Am. Dec. 324. eral reputation of a defendant in an- » Douglass v. Tousey, 2 Wend. 352, other state fifteen years prior to the 20 Am. Dec. 616 ; State v. Forshner, trial. See Mitchell v. Com., 78 Ky. 43 N. H. 89, 80 Am. Dec. 132; Eeid 219,39 Am. Rep. 227. v. Reid, 17 N. J. Eq. 101 ; Griffith v. ' Waddingham v. Hulett, 92 Mo. 528, State, 90 Ala. 583, 8 So. Rep. 812. 5 S. W. Rep. 27. . 7 Am. St. Rep. 634; Williams v. State, 106 Ala. 58, 17 So. Rep. 546. State, (Miss.) 16 So. Rep. 296; Lam- speople v. Fox, 121 N. Y. 449, 24 N. bright V. State, 34 Fla. 564, 16 So. E. Rep. 923; Palmer v. State, 136 Ind. Bep. 582; Biscoe v. State, 67 Md. 6, 393, 37 N. E. Rep. 130; Murray v. 8 Atl. Rep. 571; Burdge v. State, 53 State, 25 Fla. 528, 6 So. Rep. 498. Ohio 512, 42 N. E. Rep. 594; Lefevre « State v. Miller, 42 La. Ann. 1186,8 V. State, 50 Ohio 584, 35 N. E. Rep. So. Rep. 309, 21 Am. St. Rep. 418. 52; Thompson v. Com., 20 Grat. 'Com. -y. Culver, 126 Mass. 464. 724; Palmer v. State, 136 Ird. 393, 36 168 INDIRECT AND COLLATERAL EVIDENCE. § 120 a question of fact. The prisoner lias always the right to re- quire of the judge a decision of the competency of evidence." In the determination of the question as to the competency of the evidence much latitude of discretion is vested in the trial judge, and his decision will not be overthrown except for a I^lain abuse of discretion.* If the evidence shows without dis- .pute that a threat was made to the defendant, or that a prom- ise of leniency was held out to him, by a person in authority, before the confession was made, the question as to its compe- tency would then be purely one of law, and, no doubt, an ap- pellate tribunal would feel at liberty to pass upon the question without greatly heeding the decision of the lower court, but if there is a plain conflict of evidence as to whether an induce- ment was held out, the trial judge may, without impropriety, and he ordinarily should, submit the question as to the weight of the confession to the jury.^ If he admits it, either the state or the defendant may adduce evidence as to the circumstances Tinder which the confession was given, and the jury may con- sider such circumstances.^ The jury is not in that event at liberty to determine the admissibility of the evidence, for that has been determined by the court as a matter of law, but it is lor the jury to say what weight, if any, shall attach to the con- fession.* There are authorities to the effect that the judge should exclude the confession if he has any reasonable doubt as to its competency,* and that if he admits it he should direct the jury not to give it any weight unless satisfied beyond a reasonable doubt that it was voluntary.* It is believed, how- ^ Com. V. Preece, 140 Mass. 276, 5 N. ^ Williams v. State, 72 Miss. 117, 16 E. Rep. 494; State v. Holden, 42 S. Rep. 296. Minn. 3-50, 44 N. W. Rep. 123; Corley * Williams v. State, 72 Miss. 117, 16 -v. State, 50 Ark. 305, 7 S. W. Rep. So. Rep. 296; Jackson v. State, 83 Ala. 255. 76, 3 So. Rep. 847. 2 Com. V. Piper, 120 Mass. 185; Com. s McGlothlin v. State, 2 Cold. (Tenn.) V. Preece, 140 Mass. 276, 5 N. E. Rep. 223; Williams v. State, 72 Miss. 117, 494 ; Com. v. Burrough, 162 Mass. 513, 16 So. Rep. 296 ; Ter. v. Underwood, 8 39 N. E. Rep. 184; Burdge v. State, 53 Mont. 131, 19 Pac. Rep. 398; Wilson Ohio 512, 42 N. E. Rep. 594; State v. r. State, 84 Ala. 426, 4 So. Rep. 383. Gorham, 67 Vt. 365, 31 Atl. Rep. 845; ^Com. v. Preece, 140 Mass. 276, 5 N. People V. Robinson, 86 Mich. 415, 49 E. Rep. 494; Burdge v. State, 53 Ohio N. W. Rep. 260. 512, 42 N. E. Rep. 594. § 121 CONFESSIONS. 169 ever, that these two propositions can not be given unrestricted application. No doubt, the judge should exclude the confes- sion in cases where the evidence without conflict generates a reasonable doubt as to whether the confession was voluntary, but, where there is a conflict of evidence on that subject, a question of fact is presented which may be submitted to the jury.i As to the duty of the jury, it may be said that if the case is one where, after proof of the corpus de- licti, the whole evidence against the defendant is his confes- sion, he ought not to be convicted unless the evidence shows beyond a reasonable doubt that it was voluntary. In such a case a reasonable doubt as to whether the confession should be given weight is the equivalent of a reasonable doubt as to guilt. But in cases where there is other evidence which, if true, would work a conviction of the defendant, an instruction that the jury should disregard the confession unless satisfied beyond a reasonable doubt that it was voluntary, would be clearly wrong, for it is not the law that the doctrine of reasonable doubt is to be applied to each item of testimony. The test ques- tion in such a case is, does a reasonable doubt remain as to the guilt of the defendant after all the evidence has been introduced? §121. Confession involving co-defendant. — The confession must go in evidence unmutilated and entire, although it may implicate a co-defendant.' In such a case the trial judge should inform the jury that the confession is not evidence against the latter. §122. Confessed accomplice failing to testify.— ''It is a rule of law that no witness shall be required to answer any question that may tend to criminate himself, yet the accom- plice, when he enters the witness box with the view of escap- ing punishment himself by a betrayal of his co-worker in crime, yields up and leaves that privilege behind him. He contracts to make a full statement ; to keep back nothing ; al- though in doing so he may but confess his own guilt and 1 See Com. v. Preece, 140 Mass. 276, ^ i pt^y. on Ev., (1849 ed.) 414. 5 N. E. Rep. 494. 170 INDIRECT AND COLLATERAL EVIDENCE. § 123 infamy. If he fails to do so in full, if he knowingly keeps back any portion of the history of the crime he undertakes to nar- rate, he forfeits his right to pardon, and may be proceeded against and convicted upon the confession already made."' § 123. Substance sufficient. — It is only necessary to prove the substance of a confession.* 1 Alderman v. People, 4 Mich. 414, See Neeley v. State, 27 Tex. App. 324, 69 Am. Dec. 321. To the same effect, 11 S. W. Rep. 376. Rex V. Rudd, 1 Cowp. 331; Com. v. * People v. Farber, 18 How. Pr. 493, Knapp, 10 Pick. 477, 20 Am. Dec. 534. CHAPTER IV. CUSTOM AND USAGE. § 124. Custom. § 127. Qualities which a usage must 125. Usage. possess. 126. Usage as affecting contract. 128. Custom and usage as affecting the question of negligence. § 124. Custom. — Anderson, in his Law Dictionary, defines the common law thus : "A collection of maxims and customs, of higher antiquity than memory or history can reach, * * * Custom handed down by tradition, use and experience." When the fact is recalled that the common law is largely com- posed of customs, the mind appreciates the proposition that " custom is something which has, by its universality and an- tiquity, acquired the force and effect of law, in a particular place or locality.'" A custom which stands in opposition to the common law must antedate the period of legal memory, because it must be founded upon the presumption either that the common law never did obtain, or that the right is based on the authority of some early law-making power other than Parliament.^ These customs were all local in their character, such as the customs of London, etc., and our ancestors did not, of course, bring them to America as a part of their laws.' We have no such customs in this coun- try. But in a more limited sense, customs may grow up, which the courts will recognize, which are not coeval with the common law, and which have not existed since a time before the time of legal memory, but these customs are to be distin- ^Morningstar v. Cunningham, 110 ing Brown on Corp., 29; Harland v. Ind. 328, 11 N. E. Rep. 593, 59 Am. Cook, Freem. 320. Rep. 211. 3 Harris v. Carson, 7 Leigh 632, 30 ' Lawson's Usages and Customs, cit- Am. Dec. 510. (171) 172 INDIRECT AND COLLATERAL EVIDENCE. § 125 guished from those above mentioned, for the reason that they do not oppose the common law, but fix the rights of parties in instances where the common law is silent. The law merchant, for instance, will import a well-recognized contract into a transaction in which a party signs his name upon the back of a promissory note. The enforcement of a contract of indorse- ment is based on a usage which is so general, and which has been so often proved, that the courts will judicially recognize it.* In this sense we have customs in America, as, for in- stance, the law of the road, which in this country requires meeting horses and vehicles to be kept to the right, and which in England requires them to be kept to the left. §125. Usage. — " Usage is the fact ; custom the law. There may be usage without custom ; there can be no custom without usage to accompany or precede it. Usage consists in a repeti- tion of acts; custom arises out of this repetition."^ § 126. Usage as affecting contract. — It is a well-known lact that in the making of contracts the parties often only express the leading provisions of their agreements, for the reason that they rely upon many matters being impliedly understood between them without words, because of the course of trade. It is therefore only just to look to such usage in construing a contract, at least upon points where the contract is silent. As Lord Campbell ^ In the English note to Wigles- of the law merchant,' and according- worth V. Dallison, as reported in ly, in Crawcour v. Salter, L. R. 18 Ch. Smith's Lead. Cases, is the following : D. and Ex Parte Turquand, L. R. 14 Q. " It must not be taken that when a B. D. 636, 54 L. J. Q. B. 242, the C. A. usage has once been proved as a took judicial notice of the custom of matter of fact, it is to be in all sub- hotel keepers to hire furniture, so as sequent cases judicially noticed as a to exclude the operation of the reput- matter of law. See Southwell v. Bow- ed ownership clause in the Bankrupt- ditch, in L. R. 1 C. P. D. 374, 45 L. J. cy Act; and see, also, the observa- C, p. 374,v 630. ' But,' says Lord tions of Brett, L. J., Lohre v. Aitchi- Justice Mellish, in Ex Parte Powell, son, L. R. 3 Q. B. D. at p. 562, as to the L. R. 1 Ch. D. 506, 'there is no doubt meaning attached by often-proved that a mercantile custom may be so custom to various clauses in a Lloyd's frequently proved in courts of com- policy." mon law that the courts will take ju- ^ Anderson's Law Dicty., tit. Usage, diciul notice of it, and it becomes part §126 CUSTOM AND USAGE. 173 said in one case, " it is the business of courts reasonabl}^ so to shape their rules of evidence as to make them suitable to the habits of mankind."^ The purpose in permitting evidence of usage being to effectuate the intent of the parties, it follows that such evidence will not be received in any case to contra- dict the plain words of a contract.^ Resort is frequently had to custom or usage "to annex incidents;" that is, to show such things as are accessorial or incidental to the contract. As said by Lord Mansfield in one case: ''The custom does not alter or contradict the agreement in the least ; it only superadds a right which is consequential to the taking."^ It is even more plain that it is proper to resort to usage for the interpretation of provisions in a contract which are ambiguous.* Upon the question of mercantile, technical or local usage of words the authorities do not harmonize. Upon this subject Mr. Starkie makes the following sensible observations : "The legitimate object of extrinsic evidence in such cases, as consistent with 1 Humphrey v. Dale, 7 El. & Bl. 266. 2Tilley v. County of Cook, 103 U. S. 155; Hostetter v. Gray, 11 Fed. 179; Smith V. Clews, 114 N. Y. 190, 21 N. E. Rep. 160, 11 Am. St. Rep. 627; Robertson v. National Steamship Co., 14 N. Y. Supp. 313, 34 N. E. Rep. 1053; Lowry «. Russell, 8 Pick. 360 ; Pickering t-.Weld, 159 Mass. 522, 34 N. E. Rep. 1081 ; Susquehanna Fer- tilizer Co. V. White, 66 Md. 444, 7 Atl. Rep. 802, 59 Am. Rep. 186; George v. Bartlett, 2 Fost. (N. H.) 496 ; Turney v.Wilson, 7 Yerg. 340, 27 Am. Dec. 515 ; Van Camp Canning Co. v. Hartman, 126 Ind. 177, 25 N. E. Rep. 901; Scott V. Hartley, 126 Ind. 239, 25 N. E. Rep. 826, Seavey v. Shurick, 110 Ind. 494, 11 N. E. Rep. 597; Lamb v. Hender- son, 63 Mich. 302, 29 N. W. Rep. 732; Kvammen v. Meridian Mill Co., 58 Wis. 399, 17 N. W. Rep. 22 ; Harrell V. Zimpleman, 66 Tex. 292 ; Holloway V. McNear, 81 Cal. 154, 22 Pac. Rep. 514; Wiglesworth v. Dallison, 1 Doug. 201, Smith's Lead. Cases. " We are especially bound," says Nel- son, C. J., in Allen v. Dykers, 3 Hill 593, 597, " to refuse effect to any gen- eral or particular usage when in direct contradiction to the fair and legal im- port of a written contract." 'Wiglesworth V. Dallison, 1 Doug. 201, Smith's Lead. Cases; Harris V. Carson, 7 Leigh 632, 30 Am. Dec. 510. " Parties who contract on a sub- ject-matter concerning which well- known usages prevail, incorporate such usages by implication into their agreements, if nothing is said to the contrary." Bradbury v. Butler, 1 Colo. App. 430, 29 Pac. Rep. 463; Hostetter r. Park, 137 U. S. 30, 11 Sup. Ct. Rep. 1 ; Robinson v. United States, 13 Wall. 363. As to the annexing of incidents, see Andrews v. Roach, 3 Ala. 590, 37 Am. Dec. 718; Helme v. Phila. Life Ins. Co., 61 Pa. St. 107, 100 Am. Dec. 621 ; Pickering v. Weld, 159 Mass. 522, 34 N. E. Rep. 1081, and cases cited. * Robinson v United States, 13 Wall. 363. 174 INDIRECT AND COLLATERAL EVIDENCE. § 126 general principles, seems to be to explain terms (in order to their due application), which are not intelligible to all who may understand the language, but which nevertheless have ac- quired, by virtue of habit, custom and usage, a known, definite sense and meaning among a particular class of persons, which can be well ascertained by means of the extrinsic testimony of ■ those who are conversant with the particular use of these terms. The witnesses for the purpose may be considered as the sworn interpreters of the mercantile language in which the contract is written. Beyond this, howe^^r, the 'principle does not ex- tend ; merchants are not prohibited from annexing what weight and value they place to words and tokens of their own peculiar coinage, as may best suit their own purpose, but they ought not to be permitted to alter and corrupt the sterling language of the realm. If they use plain and ordinary terms and expressions, to which a natural, unequivocal meaning be- longs, which is intelligible to all, then, it seems, according to the great principles so frequently adverted to, the plain sense and meaning ought not to be altered by evidence of a mercan- tile understanding and usage to the contrary. It is clear, in- deed, that if a contrary practice were to prevail, and be carried to its full extent, the effect would nearly be to annihilate spe- cial contracts in mercantile affairs, and to compel all persons, under all circumstances, to conform with the usage of trade ; the written contract would become a dead letter ; the question would not be, what is the actual contract ? but, what is the usage ? and the very same terms would denote different con- tracts as often as mercantile fashions varied. In short the jus et norma loquendi, in a legal sense, would become wholly dependent on the usage of trade. "^ This subject received ex- plicit consideration in an Alabama case,^ where it is said : "In mercantile contracts, as to the subject-matter of which known usage prevails, parties are found to proceed with the tacit as- sumption of those usages. They commonly reduce to writing *2 Starkie Ev., star p. 566; and see ^ McClure v. Cox, 32 Ala. 617, 70 also, Seccomb v. Provincial Insurance Am. Dec. 552. Co., 10 Allen 305. § 1-G CUSTOM AND USAGE. l75 the special particulars of their agreement, but omit to specify those known usages, which are included, however, as of course by natural understanding. Evidence, therefore, of such inci- dents is receivable. The contract, in truth, is partly expressed and in writing, partly implied or understood and unwritten. Such contracts are very commonly framed in a language pecu- liar to those engaged in the particular trade out of which they arise. * * * The intention of the parties, though fre- quently well known to themselves, would often be defeated if this language were strictly construed, according to its ordinary import in the world at large. Evidence, therefore, of mercan- tile custom and usage is admitted to explain it, and to arrive at its true meaning. But in these cases a restriction is estab- lished, on the principle that the evidence received must not be of a particular which is repugnant to or inconsistent with the written contract. Merely that it varies the particular contract is not enough to exclude the evidence ; for it is impossible to add any material incident to the written terms of a contract without altering its effect more or less. Neither in the con- struction of such contracts will the evidence be excluded be- cause the words are in their ordinary meaning unambiguous ; for the principle of admission is, that words perfectly unam- biguous in their ordinary meaning are used by the contractors in a different sense from that. The best test by which to de- termine the existence or non-existence of such repugnancy or inconsistency as will exclude the proposed evidence of the cus- tom and usage is to inquire whether the explanation furnished by the evidence is such as, if expressed in the written contract, would make it insensible or inconsistent." A few of the au- thorities making an application of the doctrine of usage will be found in the note,' but no attempt has been made to greatly ^In a case where a written con- proper to show a usage making it tract made no mention of samples, the duty of the buyer to accept or and where, according to the legal reject immediately on the receipt of effect of the contract, the buyer was samples, as such a usage would tend not bound to inspect the property to alter the contract. O'Donohue et contracted for until its delivery in a?, u. Leggett e« a/., 134 N Y 40 31 N bulk, it was held that it was im- E. Rep. 269, citing Corn Exchange 176 INDIRECT AND COLLATERAL EVIDENCE. §126 multiply them. The principle on which the authorities ought to rest has heen already suggested, but it must be admitted, view- ing the authorities upon this subject, ancient and modern, that it will be found that, so far from conforming to principle, they are for the most part a heterogeneous mass, in which principle has been wholly disregarded, or recognized only in its outlines. The early English authorities have no doubt served to carry Bank v. Nassau Bank, 91 N. Y. 74, 43 Am. Rep. 655; Beime v. Dord, 5 N. Y. 95 ; Wescott V.Thompson, 18 N.Y. 363 ; Bradleyv.Wheeler, 44 N.Y. 495; Barn- ard t7. Kellogg, 10 Wall. 383. InGreen- stine V. Borchard, 50 Mich. 434, 15 N. W. Rep. 540, 45 Am. Rep. 51, which in- volved the construction of a contract to build a walnut counter, it was held that it was not competent to prove a usage to put' white wood in the panels, although it was more desirable. In Atkinson v. Truesdell, 127 N. Y. 230, 27 N. E. Rep. 844, it was held that it might properly be shown that by the usage of the glass bottle trade the words, "to be taken by January 1, 1883," meant that a bill for the stock was to be sent upon the latter date, and that if the same was paid the seller was to hold the goods in store subject to the purchaser's order, for a reasonable time. Nonatum Worsted Co. V. North Adams Mfg. Co., 156 Mass. 331, 31 N. E. Rep. 293, was an action for the price of woolen yarn sold by the pound. The yarn was wound on paper tubes, called " cops." The plaintiff contended that the sale was of yarn on cops, and that the cops went to make up the pound, like the bones of a chicken. It was held proper to prove a trade usage to pay for the weight of the cops, although by the contract the weight was to be " net," as the word "net "might have been used to exclude the weight of the cases, and not of the cops. Where lum- ber was sold by the "1,000 foot" it was held proper to show that this meant linear measure. Brooks v. Brooks, 25 Pa. St. 210. In Kendall v. Russell, 5 Dana 501, 30 Am. Dec. 696, it was held, where the agreement was to pay so much per 1,000 for lay- ing brick in the wall, that evidence could not be introduced of a usage not to take account of openings. To the same effect, Sweeney v. Thomason, 9 Lea 359, 42 Am. Rep. 676; Jordan v. Meredith, 3 Yeates (Pa.) 318, 2 Am. Dec. 373. But in Ford v. Tirrell, 9 Gray 401, 69 Am. Dec. 297, evidence was held competent as to bricklayers' method of measurement in laying an octangular wall. So, in Walls v. Bailey, 49 N. Y. 464, 10 Am. Rep. 407, it was held proper to prove a usage for plasterers to measure the entire wall, without allowing for openings, base-boards, etc. See also, Pittsburg V. O'Neill, 1 Pa. St. 342. In Lowe v. Lehman, 15 Ohio St. 179, the action of the trial court in permitting evidence of usage as to the measurement of brick in the wall was upheld, it ap- pearing that the contract simply called for the laying of brick by the 1,000, without any specifications as to the dimensions, angles, openings and arches in the wall. In Smith v. Wil- son, 3 Barn. & Adol. 728, it was held proper to show that the term " thou- sand," as applied to rabbits, had a lo- cal meaning of 1,200 rabbits, on the ground that the word " thousand " as applied to rabbits did not necessarily denote 1,000 units. §126 CUSTOM AND USAGE. 177 the modern English cases further than the judges fain would go, although not without earnest remonstrance.' In America the English cases have afforded a colorable justification for many cases declaring a lax doctrine upon this subject, but this tendency of adjudication, relative to usage, on this side of the water has been much checked by the influence of such emi- nent judges as Story, Miller and Cooley.' In a ruder age, when learning was less diffused, and before the meaning of many terms in common mercantile use had not been settled judicially, there was perhaps more reason for an appeal to ex- ternal aids in interpretation,^ but it is not too much to insist * See opinion of Lord Denmann, C. J., in Trueman v. Loder, 11 Ad. & E. 589 ; Taylor on Ev., § 1190, citing Hut- ton V. Warren, 1 M. & W. 466 ; An- derson V. Pitcher, 2 B. & P. 168, per Lord Eldon ; Johnston v. Usborne, 11 A.& E. 557. 2 In the Schooner Eeeside, 2 Sumn. 569, Mr. Justice Story said: "I am, myself, no friend to the almost indis- criminate habit of late years, of set- ting up particular usages or customs in almost all kinds of business and trade, to control, vary or amend the general liabilities of parties, under the com- mon law as well as under the com- mercial law. It has long appeared to me, that there is no small danger in admitting such loose and inconclusive usages and customs, often unknown to particular parties, and always lia- ble to great misunderstanding and misinterpretations and abuses, to out- weigh the well known and well set- tled principles of law. And I rejoice to find that of late years the courts of law, both in England and America, have been disposed to narrow the limits of the operation of such usages and customs, and to discountenance any further extension of them. The true and appropriate office of a usage 12— Ev. or custom is, to interpret the other- wise indeterminate intentions of the parties, and to ascertain the nature and extent of their contracts, arising, not from express stipulations, but from mere implications and presump- tions or acts of a doubtful or equivocal character." Cited approvingly in Lanfear v. Blossman, 1 La. Ann. 148, 45 Am. Dec. 76. In Partridge v. In- surance Co., 15 Wall. 573, it was said by Mr. Justice Miller: "The ten- dency to establish local and limited usages and customs in the contracts of parties, who had no reference to them when the transactions took place, has gone quite as far as sound policy can justify. It places in the hands of corporations, such as banks, insurance companies, and others, by compelling individuals to comply with rules established for the inter- ests alone of the former, a power of establishing these rules aa usage or custom with the force of law." For the views of Judge Cooley upon this subject, see Strong v. Grand Trunk R. Co., 15 Mich. 206, 93 Am. Dec. 184. ^ See Seecomb v. Provincial Insur- ance Co., 10 Allen 305. 178 INDIRECT AND COLLATERAL EVIDENCE. § 127 at this time that parties shall have their rights established ac- cording to the words of their contracts, where they have seem- ingly made provision for the particular contingency by the use of words which have a plain and general meaning. A valid usage proved is in a sense the law of the contract to which it is applied/ and, therefore, the importance will be appreciated of confining usage to its proper function of explaining, and annexing incidents to, the expression of the parties. § 127. Qualities which a usage must possess. — In a case where it is sought to show a usage, its admissibility must de- pend upon whether it is of such a character as to render it likely that the parties contracted with reference to it. To this end, the law requires that a usage shall be certain, uniform and notorious, and of sufficiently long continuance to warrant a presumption of knowledge.^ It is also required that a usage shall not conflict with public policy or the law of the land, and that it shall be reasonable and not productive of injustice in its practical operation.* To create a presumption of knowl- ' See cases cited Lawson on Usages tacitly imported by the parties into and Customs, p. 22, et seq. their contract." Juggomohun Ghose 2 Eager v. Atlas Insurance Co., 14 v. Manickchund, 7 Moo. India App. Pick. 141, 25 Am. Dec. 363; Potts v. 263, 282. Aechternacht, 93 Pa. St. 138; Ambler ^Susquehanna Fertilizer Co. tJ.White, V. Phillips, 132 Pa. St. 167, 19 Atl. 66 Md. 444, 7 Atl. Rep. 802, 59 Am. Rep. 71; Lamb v. Henderson, 63 Rep. 186; Barlow v. Lambert, 28 Ala. Mich. 302, 29 N. W. Rep. 732; Sus- 704, 65 Am. Dec. 374; East Tennessee, quehanna Fertilizer Co. v. White, 66 etc., R. Co. v. Johnson, 75 Ala. 596, Md. 444, 7 Atl. Rep. 802, 59 Am. 51 Am. Rep. 489; Anderson ^j. Whit- Rep. 186; Bissell v. Ryan, 23 111. aker, 97 Ala. 690, 11 So. Rep. 919; Til- 517; Nippolt v. Fireman's Ins. Co., ley v. County of Cook, 103U. S. 155; 57 Minn. 275, 59 N. W. Rep. 191. To Van Camp Packing Co. v. Hartman, establish a usage "there needs not 126 Ind. 177, 25 N. E. Rep. 901 ; Walk- either the antiquity, the uniformity, er v. Transportation Co., 3 Wall. 150; or the notoriety of custom which Holmes v. Johnson, 42 Pa. St. 159; in respect of all these become a Snowden v. Warder, 3 Rawle 101 ; local law. The usage may still be Bowen v. Stoddar, 10 Mete. (Mass.) in course of growth; it may require 371; Lucke f. Yoakum, 25 Neb. 427,41 evidence for its support in each case; N. W. Rep. 255; Dunham v. Dey, 13 but in the result it is enough if it ap- Johns. 40; Waters v. Lilley, 4 Pick, pear to be so well known and acqui- 145, 16 Am. Dec. 333. The doctrine esced in that it may be reasonably concerning usages relates to contract- presumed to have been an ingredient ual, and not to statutory, obligations. §127 CUSTOM AND USAGE. 179 edge, the usage must be general ; that is, it can not be proved by isolated instances,^ but it may be confined to a compara- tively small locality, as a city.' The only basis upon which evidence of usage is admissible is the presumption of knowl- edge of it upon the part of the contracting parties f and if this presumption is successfully rebutted, the force of the evidence of usage is wholly lost.* If a person deals in a particular mar- ket, the presumption is that he deals in accordance with the established usages of that market.' It has been laid down that, if a person employs an agent at another place, the principal may become bound by a usage at that place, although he had no personal knowledge of the usage f the theory being that he impliedly authorized his agent to enter into contracts which were to be construed, where necessary, with reference to existing usages at the place where the contracts were to be made.' A mere private usage, if it amount to a uniform man- ner of doing business, may become binding, by a presump- tion of assent, if it appears that the other party knew of it.^ Osborne v. Nelson Lumber Co., 33 Minn. 285, 22 N. W. Rep. 540; Barnes V. Bakersfleld, 57 Vt. 375 ; Albright v. County of Bedford, 106 Pa. St. 582; Dunham v. Dey, 13 Johns. 40 ; Hatch- er V. Comer, 73 Ga. 418. But the re- ceived interpretation, or practical con- struction, which a statute has re- ceived, will be considered by the courts in case of doubt. Board of Commissioners Franklin Co. v. Bunt- ing, 111 Ind. 143, 12 N. E. Rep. 151. 1 Ambler v. Phillips, 132 Pa. St. 167, 19 Atl. Rep. 71; Bradford v. The Homestead Fire Ins. Co., 54 Iowa 598, 7 N. W. Rep. 48. It is not indispen- sable to the validity of a custom that it shall be universally acquiesced in ; for this would be to annul all customs as to those who are unwilling to abide by them. * * * It is enough if a custom be general and uniform." Desha v. Holland, 12 Ala. 513, 46 Am. Dec. 261. 2 Robertson v. National Steamship Co., 139 N. Y. 416, 34 N. E. Rep. 1053 ; Wilcox V. Wood, 9 Wend. 346. * Eager v. Atlas Ins. Co., 14 Pick. (Mass.) 141, 25 Am. Dec. 363; Nippolt V. Fireman's Ins. Co., 57 Minn. 275, 59 N. W. Rep. 191 ; Barlow v. Lambert, 28 Ala. 704, 65 Am. Dec. 374. * Lawson on Usages and Customs, §19. 5 Robertson v. National Steamship Co., 139 N. Y. 416, 34 N. E. Rep. 1053 ; Bayliffe v. Butterworth, 1 Exch. 425. « Sutton V. Tatham, 10 A. & E. 27; Bailey v. Bensley, 87 111.556; Hib- bard v. Peek, 75 Wis. 619, 44 N. W. Rep. 641. ''See Lawson on Usages and Cus- toms, p. 48. * Planters' Bank v. Markham, 5 How. (Miss.) 397, 37 Am. Dec. 162; Lawson on Usages and Customs, p. 53. 180 INDIRECT AND COLLATERAL EVIDENCE. §128 A party who offers evidence of a usage must show that he con- tracted with reference to it.' Evidence of a party's own usage or habit of business is competent, as against a party familiar with it, for the purpose of explaining an engagement, entered into with such usage in view.^ § 128. Custom and usage as affecting the question of negli- gence. — In the majority of negligence cases the question of negligence is of such a character that it must be presumed that the jurors, representing men taken from the various walks of life, are competent to decide the question, upon ascertaining the immediate facts, and upon being advised of the law. In such cases there is no occasion to appeal to the habits or cus- toms of others to aid the jury.' But in cases where the ques- ^Lawson on Usages and Customs, p. 38. 2 Pittsburg, etc., R. Co. v. Nash, 43 Ind. 423; Chicago, etc., R. Co. v. Dickson, 143 111. 368, 32 N. E. Rep. 380. 3 Bassett v. Shares, 63 Conn. 39, 27 All. Rep. 421; Ilwaco R. & Nav. Co. V. Hedrick, 1 Wash. 446, 25 Pac. Rep. 335, 22 Am. St. Rep. 169; Glass v. Memphis, etc., R. Co., 94 Ala. 581, 10 So. Rep. 215; Chicago, etc., R. Co. v. Bragonier, 119 111. 51, 7 N. E. Rep. ^688; Southern Kansas, etc., R. Co. v. Robbins, 43 Kan. 145, 23 Pac. Rep. 113, and cases there cited. In Coif ■;;. Chicago, etc., R. Co., 87 Wis. 273, 58 N. W. Rep. 408, where the plaintiff, a switchman, had been injured by trip- ping over a stub-switch, while attemp- ting to alight from a moving train, it was held that evidence of the practice of other men in the yard to get on and off engines while moving was incom- petent. " The necessary effect of such testimony," the court said, "would be to cause the jury to believe that, if others jumped from engines, it was not negligence for plaintiff to do so." In Louisville, etc., R. Co. v. Wright, 115 Ind. 378, 16 N. E. Rep. 145, 7. Am. St. Rep. 432, it was held that an offer to prove that there are bridges on all the railways in the United States which are too low for a brakeman to pass under in safety, while standing or w^alking on the cars, w^as properly re- jected. In Lake Erie and Western R. Co. V. Mugg, 132 Ind. 168, 31 N. E. Rep. 564, it was held that the defendant company could not prove that other railroad companies put slivered and worn-out rails in side-tracks. But see, Doyle V. Railroad Co., 42 Minn. 79, 43 N. W. Rep. 787. In O'Connor v. An- drews, 81 Tex. 28, 16 S. W. Rep. 628, proof was held properly rejected "that this house was built like the generality of houses at the time of its construc- tion, and that it w\ns not the custom in this city to tie back fire walls at that time." In Larson v. Ring, 43 Minn. 88, 44 N. W. Rep. 1078, the fact was that the plaintiff was injured by com- ing in contact with a guy used to sup- port a derrick. Held, error to permit defendant to prove the height at which it was usual for contractors to stretch or suspend guys. In Allen v. Burlington, etc., R. Co., 64 Iowa 94- U28 CUSTOM AND USAGE. 181 tion involved is of such a character that the jury will be aided by being advised of the practices of others under like circumstances such evidence is competent/ at least where 19 N. W. Rep. 870, it appeared that the plaintiff, a brakeman, had been struck by a cattle-chute, while hang- ing onto the side of a car. The de- fendant asked an instruction, which stated that if the chute was con- structed " at the usual distance from the track at which they are usually located on well regulated railroads generally," the defendant was not guilty of negligence. Upon this point the court said : "The usual custom or practice of railroad corporations in operating their roads, constructing their machinery and buildings, can not be the ground of relief from liabil- ity for injuries sustained, if the custom or practice disregards the safety of the employe as required by law." 1 In Maxwell v. Eason, 1 Stew. (Ala.) 514, the defendant was charged with negligence in directing a lamp to be carried into a gin-house, whereby the plaintiff's cotton, which was there stored, was destroyed by fire. In hold- ing evidence competent, of the gen- eral custom of persons working about gin-houses to carry lamps into them, when stored with cotton, Safford, J., said : "The necessary and usual custom for the security of gin-houses, and how far it is prudent to risk fire in or near them, is not presumed to be equally known to all persons. If it were so to be regarded, the evidence was in- admissible. But it is presumed that prudent gin-holders have something like a uniform practice in this respect. If so, every one who sends his cotton to a gin is entitled to expect the same care and prudence for the security of his property. Then to enable the jury to decide whether this defendant used that degree of care which is usual with a majority of prudent men in the same business or trade, evi- dence of the custom of such persons generally was relevant and admissi- ble, and should have been permitted to go to the jury." In Flanders v. Chicago, etc., R. Co., 51 Minn. 193, 53 N. W. Rep. 544, it was held that proof by the plaintiff of the general custom of brakemen to pass up and down the sides of cars and to jump off of them while in motion was compe- tent, as bearing on the question of contributory negligence ; "not that a negligent act will be excused because it is customary, but proof of custom is evidence, although not conclusive, as to whether the act is negligent." To the same effect, Whitsett v. Chicago, etc., R. Co., 67 Iowa 150, 25 N. W. Rep. 104. Where a defendant railway company had taken partially worn rails out of its main track, and put them in a siding, and it was claimed that they were defective and had caused the plaintiff's injury, it was held that the defendant was entitled to show a general and universal cus- tom of railroads in the northwest to so use their partially worn rails. The court said that the evidence was com- petent to rebut an inference of negli- gencearising fromthe fact that therails wereold. Doyle??. St. Paul, etc. ,R. Co., 42 Minn. 79, 43 N.W. Rep. 787. Where a railway company was charged with negligence in the mannerin whichitat- temptedto restore a highway, evidence was held competent as to the way planks are generally laid at the cross- ing of a railroad and highway. Kelly V. Railroad Co., 28 Minn. 98, 9 N. W. Rep. 588. Where the plaintiff alleged in his declaration "that the car was 182 INDIRECT AND COLLATERAL EVIDENCE. §128 the custom is a general or universal one. The very fact that it is general or universal tends strongly to show its reasonableness.^ Judge Story, in his work on bailments, §11, says: "Indeed, what is common or ordinary diligence is more a matter of fact than of law, and in every commun- ity it must be judged of by the actual state of society, the habits of business, the general usages of life, and the dangers as well as the institutions peculiar to the age ; so that, although it may not be possible to lay down any very exact rule applica- ble to all times and circumstances, yet that may be said to be common or ordinary diligence, in the sense of the law, which men of common prudence generally exercise about their own affairs in the age and country in which they live. It will thence follow that in different times and in different countries the standard is necessarily variable with respect to the facts, although it may be uniform with respect to the principle; so that it may happen that the same acts which in one country or so defectively constructed in its trucks and running gear that it would not turn a curve," it was held that evi- dence that the saroe kind of trucks were used on many of the leading railways of the country, constituted an affirmative showing in favor of that make of car, and tended to overcome any presumption of negligence from the fact of the accident. O'Connor v. Illinois, etc., R. Co., 83 Iowa 105, 48 N. W. Rep. 1002. "Where the better or safer course is one of doubt or un- certainty, the experience of others may be valuable in avoiding mistakes of negligence. In all affairs of life we are taught by experience, and the wise man will adopt the experience of others." Austin v. Chicago, etc., R. Co., — Iowa — , 61 N. W. Rep. 8-49, and cases there cited. In Daley v. American Printing Co., 152 Mass. 581, 26 N. E. Rep. 185, the facts were that plaintiff was injured by a set screw on a shaft, while trying to adjust a belt. Held, that the evidence of an old em- ploye as to the manner in which he put on the belt was competent for plaintiff, as tending to show that he conducted himself in the usual and ordinary way in which similar acts were done by persons engaged in the like employment. In Seeley v. Town of Litchfield, 49 Conn. 134, 44 Am. Rep. 213, the court said : "Where the people in the rural districts have by immemorial custom assembled to clear the highways of snow, such fact is to be considered in determining whether the select men have been guilty of negligence in omitting to tear down a snow drift in the road." In Veginan V. Morse, 160 Mass. 143, 35 N. E. Rep. 451, it was held that evidence that another shop had a particular safety appliance was competent, where it be- came important to prove the practica- bility of the use of such an appliance. ^ Cox V. Charleston F. & M. Ins. Co., 3 Rich. L. (S. Car ) 331, 45 Am. Dec. 771, and cases cited in preceding note. § 128 CUSTOM AND USAGE. 183 one age may be deemed negligent acts, may at another time or in another country be justly deemed an exercise of ordinary diligence. It is important to attend to this consideration, not only to deduce the implied obligations of a bailee, but also to possess ourselves of the true measure by which to fix the gen- eral rule. Thus, in times of primitive or pastoral simplicity, when it is customary to leave flocks to roam at large by night, it would not be a want of ordinary diligence to allow a neigh- bor's flock, which is deposited with us, to roam in the same manner, but if the general custom were to pen such flocks at night in a fold, it would doubtless be a want of such diligence not to do the same with them. In many parts of America, especially in the interior, where there are, comparatively speak- ing, few temptations to theft, it is usual to leave barns, in which horses and cattle are kept, without being under lock by night. But in our cities, where the danger is much greater and the temptation more pressing, it would be deemed a great want of caution to act in the same manner. If robbers were known to infest a particular district of country, much more precaution would be there required than in districts where robberies were of very rare occurrences. What, then, is usually done by prudent men in a particular country in respect to things of a like nature, whether it be more or less in point of diligence than what is exacted in another country, becomes in fact the general measure of diligence." These observations are quoted because of their helpfulness in the consideration of the admis- sibility of evidence of custom, as affecting negligence, in cases where the jury may be presumed not to be fully informed as to the extent of danger, but it is to be recollected that Judge Story's remarks had particular reference to bailments, a class of cases in which the quantum of care is a matter of implied contract. CHAPTER V. DECLARATIONS § 129. Scope of discussion. § 150. 130. Matters of public or general interest. 151. 131. Either reputation or particular statements may be proved. 152. 132. Rights must be ancient— Death of declarants. 133. Declarations must have been 153. made ante litem motam. 134. Declarations of persons in pari 154. jure. 135. Proof of exercise of right. 155. 136. Evidence admissible to defeat public right. 156. 137. Verdicts, judgments, etc., as evidence of ancient rights. 157. 138. Historical facts. 139. Common repute concerning 158. private boundaries. 140. General observations as to ped- igree. 159. 141. Relationship. 142. Declarations concerning legiti- macy. 143. What is meant by pedigree. 144. Of what such declarations may consist. 145. Such declarations admissible although not based on per- sonal knowledge. 146. INIust be ante litem motam and declarant must be dead. 147. Verdicts, judgments, etc., as evidence of pedigree. 148. Weight to be given to evidence of reputation. 149. Instruments thirtj'^ years old — Proper custody. (184) 160. 161. 162. 163. 164. 165. 166. Aliunde proof of age not neces- sary. Not necessary to prove posses- sion under instrument. Document a little more than thirty years old merely pre- sumed to be genuine. Rule where document very an- cient. Declarations of persons de- ceased. Must be against pecuniary in- terest. Need not be connected with principal act. Peculiar knowledge of declar- ant. Some phases of subject dis- cussed in connection with next topic. Declarations by deceased per- sons in ordinary course of business. Ground of admission. Statement need not be against interest. Business entries by deceased persons may prove facts in collateral controversies. Declarant must have been im- mediately and personally cognizant of fact. Evidence aliunde position of declarant. Evidence comj^etent although there are living witnesses. Admissibility of entry where declarant can testify. U29 DECLARATIONS. 185 § 167. Must be ante litem motam and declarant disinterested in collateral controversy. 168. When entry must be made. 169. Such declarations may be oral. 170. Declarations of deceased offi- cials. 171. Declarations of deceased per- sons as to boundaries. 172. Indorsements of payments- Do they toll the statute of limitations? 173. Leading case upon shop-books. 174. Shop-books in United States. 175. Character of transactions upon which books may be intro- duced. 176. To what classes of business the doctrine applies. 177. Transaction must be within scope of ordinary business. 178. To what subject entry must re- late. Relation of entry to transac- tion. Character of entry. Question of necessity as af- fecting right to introduce books. Party's own entries may be shown. Suppletory oath. Secondary evidence of books. Books of deceased persons. Mere memoranda not evidence. Bills to perpetuate testimony. 188. Testimony on former trial, when admissible. Admissibility in criminal case of testimony given on for- mer trial. Practice as to receiving former testimony. 191. Complaint of woman in case of rape. §179. 180. 181. 182 183 184 185 186 187 189. 190. § 129. Scope of discussion.— Attention will now be directed to some of the branches of derivative, or second-hand, evi- dence. The rule that requires that facts shall be proved by the best evidence is a practical rule, and, while it does not yield to every case of hardship because of an inability to pro- cure better evidence, yet there are certain circumstances in which the difficulty or impracticability of procuring primary evidence is so constant that certain well defined exceptions to the rule have grown up. The first of these exceptions which will engage our attention relates to — § 130. Matters of public or general interest.— Reputation is evidence of matters of public or general interest, within the limitations hereinafter mentioned. The matter of inquiry may refer to the rights of the state as a whole, or it may refer to the rights of some minor governmental subdivision. The purpose of the requirement that such matter shall be one of public or general interest is that there may be reasonable assurance, in accepting the reputation established by the 186 INDIRECT AMD COLLATERAL EVIDENCE. § 131 statements of the inhabitants of the locality, that such per- sons were at the time informed as to the facts concerning such matter.^ In England this exception to the rule excluding hearsay occupies a prominent place in the law. This is due to the fact that public or general rights in that country are ordinarily of greater antiquity than with us, to the fact that in this country such matters are more likely to be established by record, and to the further fact that under the feudal sys- tem a very considerable number of rights were enjoyed by the feudal tenants in common. The doctrine is most frequently invoked in this country to establish public boundaries or the public character of ways. § 131. Either reputation or particular statements may be proved. — The text-books ordinarily speak of proof of common reputation as the class of evidence which is admissible to estab- lish matters of public or general right, but it is well established that the particular declarations of deceased persons are admis- sible to this end.^ The receiving of such declarations finds analogy in the reception of evidence of ancient deeds, maps, leases, licenses, etc., containing declarations of public or gen- eral matters.' ^ See as to boundaries Boardman v. witness testifying to them should be Eeed, 6 Pet. (U. S.) 328; Conn. v. able to state the names of the persons Penn., 1 Pat. C. C. 496; Drury v. who made the declarations. Such Midland R. Co., 127 Mass. 571 ; Smith a doctrine would, in a large measure, V. Forrest, 49 N. H. 230; Curtis v. breakdown the exception. Moseley Aaronson, 49 N. J. L. 68, 7 Atl. Rep. v. Davies, 11 Price 162. 886, 60 Am. Rep. 337; Buchanan v. ^ gju-ues v. Mawson, 1 M. & S. 77; Moore, 10 S. & R. 275; Shook v. Pate, Brett v. Beales, 1 M. & M. 416; Free- 50 Ala. 91; Murray v. Spencer, 88 N. man v. Phillips, 4 M. & S. 486; Cur- Car. 357; Cline's Heirs v. Cattron, 22 zon v. Lomax, 5 Esp. 60; Plaxton v. Gratt. 378; Ralston v. Miller, 3 Rand. Dare, 10 Barn. & C. 17; Weld v. 44, 15 Am. Dec. 704; Taylor v. Shuf- Brook, 152 Mass. 297, 25 N. E. Rep. ford, 4 Hawks (N. Car.) 116, 15 Am. 719. See Clarkson v. Woodhouse, 5 Dec. 542 ; Stetson v. Freeman, 35 Kan. T. R. 412, n. To justify the introduc- 523; People v. Velarde, 59 Cal. 457; tionof an ancient map it should appear Cox V. State, 41 Tex. 1. that it was made by a person having ^Nor is it essential to the admissi- an adequate knowledge or that it is a bility of such declarations that the public document. § 132 DECLARATIONS. 187 § 132. Rights must be ancient— Death of declarants.— The foundation principle of the admission of hearsay evidence in this class of cases is the presumption that under the circum- stances better evidence could not be obtained. Consequently, the right must be of some antiquity. Just what limits should be fixed with reference to this depends upon whether the evi- dence tendered is that of the declaration of a particular person or of reputation. In a Massachusetts case/ where a contro- versy existed as to whether a strip of land was a highway, it was held competent, as a matter of public and general inter- est, to introduce a deed executed in the year 1862, by a grantor, who had subsequently died, in which he made refer- ence to such strip as a highway, in bounding his land. It is obvious, however, if an appeal is made to common reputation, that in the nature of things the right must be more anti- quated, in order to avoid the objection that there may be liv- ing witnesses. In such a case it may well be said with Pro- fessor Greenleaf :' "It is to be observed that the exception we are now considering is admitted only in the case of ancient rights, and in respect to the declarations of persons supposed to be dead."^ § 133. Declarations must have been made ante litem motam. We have already noted that the law in admitting hearsay evidence of ancient public or general rights, and thus abrogat- ing the necessity of an examination and an oath, has so hedged the doctrine about as to exclude, as far as possible, the declarations of persons who were unfamiliar with the right. The declarants are treated as witnesses present in court, and it is only the declarations of these who would have been wit- nesses competent to testify on the subject that are admitted. 1 Weld V. Brook, 152 Mass. 297, 25 (S. Car.) 258. It is not enough that N. E. Rep. 719. t^^ person be beyond the process of 2 1 Vol. on Ev., § 130. the court. Gervin v. Meredith, 2 N. » See Rex v. Millington, 1 Car. & K. Car. 635 ; Buchanan v. Moore, 10 Serg. 58; Moseley v. Davies, 11 Price 162; & R. 275. See Long's Lessee v. Pel- Davis V. Fuller, 12 Vt. 178, 36 Am. lett,l Har. & McH. (Md.) 531 ; Smith Dec. 334; Higley v. Bidwell, 9 Conn. r. Nowells, 2 Litt. 159; 3 Phil, on Ev. 447; Blythe v. Sutherland, 3 M'Cord (1849 ed.), 246. 188 INDIRECT AND COLLATERAL EVIDENCE. § 134 It now remains to state that in lieu of an oath and the oppor- tunity to cross-examine, it is inflexibly required that the declarations shall have been uttered ante litem motam. Upon this point the law concerning evidence of public or general rights is identical with the law relative to the introduction of hearsay evidence in matters of pedigree. As remarked by Lord Eldon, in a pedigree case:' ''The admissibility of tra- ditionary evidence is founded upon the presumption that the words given in evidence are the natural effusion of the party, upon an occasion when his mind stands even, without bias to exceed the truth or fall short of it." With reference to the meaning of the term lis mota, which is much used in this connection, Mr. Justice Lawrence said :^ "Declarations post litem motam — not merely after the commencement of the law suit, but after the dispute has arisen, for that is the pri- mary meaning of the word lis — ought not to be received in evidence." After the controversy has originated, all such declarations are to be excluded. The courts insist that the dip into the stream of time which flows from the event in question shall be taken at some place above the point where strife or dissension may have polluted the water. If it appears that a controversy existed at or before the time of a declaration, the courts invariably reject it, without pausing to inquire wdiether the fact of the controversy was known to the declarant. Cases' sometimes arise in which it appears that at the time of the declaration a controversy was being waged involving some collateral phase of the subject-matter. If it appears, however, that such controversy in no wise involved the question in issue the declaration will be received.* § 134. Declarations of persons in pari jure. — It has been urged that to receive the declaration of a person who stood iii ^Whitelock v. Baker, 13 Ves., Jr., ^ ggj-keley Peerage Case, 4 Camp. 511. 401. 2 IMonkton v. The Attorney-General, * Freeman v. Phillips, 4 M. & S. 486 ; 2 Euss. & Myl. 147. Duke of Newcastle v. The Hundred of BroxLowe, 4 B. & Ad. 273. § 135 DECLARATIONS. 189 pari jure with the person tendering it, would be to receive the declaration of a person having an implied bias against the truth. But since the rejection of such evidence would be to largely dry up the sources of information — for but few persons would know about the right who were not interested in it — it is regarded that the necessities of the case warrant the receiv- ing of the declaration, provided that there was no controversy at the time, and the declarant could gain no advantage from the statement. Thus, the declarations of deceased parishion- ers have been received relative to their claim of rights of com- mon on the wastes, although their declaration tended to en- large such common.^ The same self-interest often exists in pedigree and other cases, but it is settled that the mere fact that the declarant stood in pari jure with the person offering the declaration will not suffice to exclude it.'' § 135. Proof of exercise of right. — It was at one time held that evidence of reputation, or of declarations concerning mat- ters of public or general right, must be corroborated by proof of acts of enjoyment within the period of living memory," but the courts now view the omission to prove such acts of enjoy- ment as a circumstance which goes merely to the weight of the evidence.* § 136. Evidence admissible to defeat public right. — It has been held at nisiprius,^ where the question was as to whether a certain place on the bank of a river was a public landing, that evidence of reputation was competent to defeat such claim of right, to the same extent that evidence would have been ad- missible to establish it. In deciding the case, Chief Justice 1 Nicholls r. Parker, 14 East 331 M. ^ -^eeks v. Sparke, 1 Maule & S. See Harwood v. Sims, 1 Wight. 112; 680; Morewood w. Wood, 14 East 328, Moseley v. Davies, 11 Price 162 ; Deade n. ; White v. Lisle, 4 Madd. 214. V. Hancock, 13 Pr. 226; Monkton u. * Crease v. Barret, 1 Cr. M. & R. Attorney General, 2 Russ. &Myl. 147. 919; Steele v. Prickett, 2 Stark. C. 2 Doe V. Tarrer, Ry. & Moo. 141; 1 409; Curzon v. Lemon, 5 Esp. 60; Phil, on Ev. (1849 ed.) 237, 271. See Beebee v. Parker, 5 T. R. 26. Monkton V. Attorney-General, 2 Russ. sprint^ater v. Porter, 7 C. & P. & Myl. 147. 181. 190 INDIRECT AND COLLATERAL EVIDENCE. § 137 Coleridge observed that there could be no distinction between the admissibility of evidence of reputation to establish a public right and such as might be offered to show that such right did not exist. § 137. Verdicts, Judgments, etc., as evidence. — The extent to which verdicts, judgments and decrees are evidence is per- haps not generally understood. As stated by Mr. Freeman, in his work on judgments/ "A judgment is generally admissi- ble in an action between strangers to it, to prove any point upon which hearsay is competent evidence." This doctrine must not be confounded with the doctrine concerning reputa- tion as evidence. The principle of admission in this class of cases is properly stated by Littledale, J., in ruling upon the admissibility of a verdict in proof of an ancient public right, as follows : '' The finding of the jury, in the former proceeding, is as good evidence as reputation.'"^ It is to be recollected that we are dealing now with a class of cases in which the circum- stances ordinarily forbid the hope of obtaining primary evi- dence, and it is therefore plain that the solemn adjudication of a competent tribunal concerning the right in controversy, par- ticularly if entered many years before, must be even more sat- isfactory than hearsay evidence. The law is not settled as to whether the proceeding must be ancient to warrant its intro- duction,' but it would seem that it should at least appear that it was had a sufficient number of years before the case in which such proceeding is sought to be introduced as evidence as to reasonably justify the court in presuming that at the time the matter was determined the tribunal entering the judgment or decree had better facilities for the making of the investiga- tion. It is scarcely necessary to say, however, that such evi- dence may be received, although the investigation was had post litem motam.* To render the proceeding admissible, the tribunal must have been a judicial one.^ A mere interlocu- tory order is not competent.^ The theory upon which verdicts ^3ded., §419. s Rogers v. "Wood, 2 Barn. & Ad. ^ Brisco V. Lomax, 8 Ad. & Ell. 198. 245. An award is not evidence. Rex 3 See, however, Buller's N. P. 233. v. Cotton, 3 Camp. 444. « Brisco V. Lomax, 8 Ad. & Ell. 198. « Pirn v. Carrol, 5 31. & W. 266. ^ 138 DECLARATIONS. 191 are admitted in such cases is not quite plain, although the competency of such evidence is established, at least in Eng- land/ Mr. Taylor suggests' that the fact that juries were formerly summoned de vicineto may have influenced the es- tablishment of this exceptional practice of receiving verdicts as evidence. § 138. Historical facts.— In a United States case," Mr. Jus- tice Story said : " Historical facts of general and public noto- riety may, indeed, be proved by reputation, and that reputa- tion may be established by historical works of known character and accuracy. But evidence of this sort is confined in a great measure to ancient facts which do not presuppose better evi- dence in existence ; and when, from the nature of the transac- tion, or the remoteness of the period, or the public and general reception of the facts, a just foundation is laid for general con- fidence. But the work of a living author, who is within the reach of the process of the court, can hardly be deemed of this nature." It is required that the work shall be a general history,* and it is not received as proof of the existence of a mere private right or of a particular custom. ' Although no such case has come to the writer's notice, it may be suggested that a local history might be received concerning matters of general local interest, if there was such suppletory proof con- cerning the knowledge of the historian as would put his state- ment in line with other competent declarations. 1 Eeed V. Jackson, 1 East 355 ; Bris- " Morris v. Lessee of Harmer's Heirs CO V. Lomax, 8 Ad. & Ell. 198; City 7 Pet. 554. ' of London v. Gierke, Carth. 181 ; Cort « Evans v. Getting, 6 G. & P 586- ^^ Birkbeck, 1 Doug. 218. In Briscoe Buller's Nisi Prius, 248; Morris v V. Lomax, supra, Coleridge, J., said: Edwards, 1 Ohio 189. See Com. v. "The necessity of a decree or judg- Alburger, 1 Whart. R. (Pa.) 469. ment, to render the verdict admissi- s Buller's Nisi Prius, 248; Cockman ble, exists only where it is sought to v. Mather, 1 Barnadist 14, 2 C. B 240- bind the parties conclusively by the Phil, on Ev., (1849 ed.) 123; Morris v! ^"z^i^^'c ^o. Edwards, snpra ; Spalding i. Hedges, ^Ev., §624. 2Barr(Pa.). 192 INDIRECT AND COLLATERAL EVIDENCE. § 139 § 139. Common repute concerning private boundaries. — It was declared by Lord Kenyon/ that "although a general right may be proved by traditionary evidence, yet a par- ticular fact can not." This statement accurately voices the expression of the English cases, and they rest upon the consideration that particular facts are not ordinarily a mat- ter of notoriety and may be easily misunderstood or misin- terpreted.^ In a case where it is made to appear that a private boundary is coincident with a public one, there can, of course, be no objection to proving the latter by traditionary evidence.' Upon the proposition that reputation is not evidence of particu- lar facts English and American authorities substantially agree,* but upon the question as to what are facts of general interest with reference to boundaries we have two lines of authority in this country. One line of cases holds that public boundaries are confined to such boundaries as separate counties, cities, townships and the like. The other line of cases holds that boundaries, and monuments for boundaries, under the United States system of surveys, come within the reason of the rule as established by the English authorities. The reasoning in favor of the latter view is exemplified by a Minnesota case,^ where the court said : ''In the first place, the establishment of such boundaries is a public act, and not merely a private act or agreement between two owners of contiguous estates. In the second place, it may, and usually does, affect the interest of many persons. Thus, the location of the quarter-section post * Antrim v. Wood, 5 Term R. 123. pute of a private boundarj' where itis ^Phil. on Ev., (1849 ed.) 245; Meath the same as a public boundary. Mul- V. Belfleld, cited by Butler, J., in Eex laney v. Dufh-, 145 111. 559, 33 N. E. V. Eriswell, 3 T. R. 707; Moseley v. Rep. 750, and see Curtis v. Aaronson, Davies, 11 Pr. 162; Berkeley Peerage 49 N. J. L. 68, 7 Atl. Rep. 886, 60 Am. Case, 4 Camp. 401 ; Chatfield v. Fryer, Rep. 584 ; Boardman v. Lessees, 6 Pet. 1 Price 253 ; Garnons v. Bernard, 1 341. Anstr. 296; Outram v. Morsewood, 14 * But see Tate v. Southard, 1 Hawks East 330, n. ; Cooke v. Banks, 2 C. & (N. Car.) 45. P. 478; Crese v. Barrett, 1 Cr. M. & STj^ogn ^_ Roche, 57 Minn. 135, 58 R. 919. N. W. Rep. 686, 47 Am. St. Rep. 600, * Thomas v. Jenkins, 6 Ad. & Ell. and see, also, Boardman v. Reed, 6 525. The American cases would seem Pet. 328. to warrant evidence of common re- § 140 DECLARATIONS. 193 affects a boundary of eight quarter-sections and thirty-two quarter quarter-sections ; and, in the third place, highways are frequently laid out, and school districts may be established with reference to such boundaries." It will be recollected that in this section we are dealing only with common repute as evidence of boundaries. Within certain limits, evidence of declarations concerning private boundaries may be received, but this subject will receive attention in another portion of this chapter.^ Declarations as to Pedigree. § 140. General observations. — These declarations stand on much the same ground as reputation concerning public rights. Some modifications of the doctrines concerning the latter exist, however, in cases of pedigree, but these modifications conform to principle. We have seen that the law rejects evidence of reputation of a mere matter of private right, and requires that the right should be public or general to admit such evidence. The reason for this, as has already been explained, is the fact that the members of the public are not likely to concern them- selves with the affairs of individuals. In matters of pedigree, for the same reason, the law rejects the declarations of persons not connected with the family by blood or affinity; and it re- ceives the declarations of persons who are so connected, not only because they are likely to know whereof they speak, but because they are likely to be the sole possessors of accurate information upon the subject. Of course, exceptions in fact may exist, but this can not engraft exceptions upon the law of evidence, which consists of practical rules for the ascertainment of truth, and which, if violated, would result in a burden of error vastly outweighing the advantage that might possibly be gained in exceptional cases. § 141. Relationship. — In Johnson v. Lawson,^ the declara- tions of a housekeeper that a certain person was the heir of her 1 Post, § 171. * Johnson v. Lawson, 2 Bing. 86. 13— Ev. 194 INDIRECT AND COLLATERAL EVIDENCE. § 141 employer were rejected. Chief Justice Best observed, in ruling upon the question, that the limitation to the declarations of relatives or members of the family, connected by blood or af- finity, afforded a certain and intelligent rule ; and if that were passed, it might be necessary on every occasion to enter into a long and almost endless inquiry as to the degree of intimacy or confidence which existed between the family and the party who had made the declaration. Notwithstanding contrary rulings at nisi prius before that time, and the intimations of eminent judges in accord with such nisi prius rulings,^ John- son V. Lawson^ has since been treated as establishing the law upon the subject.' Judge Taylor, whose declarations as to the law of England respecting evidence are entitled to much weight, says: "Though it was long doubtful whether the declara- tions of servants, friends and neighbors might not be received, the settled rule of admission is now restricted to hearsay pro- ceeding from persons who were de jure related by blood or marriage."* As respects blood relations, the courts have not fixed any limit of competency,^ but in a relationship by affin- ity only the declarations of the immediate parties to the mar- riage are received.* Although it was once thought otherwise, it has now been determined that the declarations of a wife as to her husband's family are equally admissible with the decla- rations of a husband as to his wife's family.' An objection 1 King V. Inhabitants of Eriswell, 3 Gagoni, 84 Ky. 403, 1 S. W. Rep. 652 ; T. R. 719; Weeks v. Sparks, 1 M. & Northrop v. Hale, 76 Me. 306, 49 Am. S. 679, 2 Bull. N. P. 290; Bushnell v. Rep. 615; Sitler v. Gehr, 105 Pa. St. Gore, 9 B. Moore 187, n., and see 577, 51 Am. Rep. 207; Norris t?. Ed- Dudley V. Grayson, 6 T. B. Monroe wards, 90 N. Car. 382, 47 Am. Rep. (Ky.) 259; Jackson v. King, 5 Cow. 526. 237, 15 Am. Dec. 468; Jackson v. * Law of Ev., § 935. Cooley, 8 Johns. 128; Bennet v. Day, ^ Taylor on Ev., § 936, citing Davies 3 Wash. C. C. 243. v. Loundes, 7 Scott N. S. 140, 188 ; 2 Johnson v. Lawson, 2 Bing. 86. Shrewsbury Peerage, 7 H. of L. Cases 3 Sutton V. Ridgway, 4 B. & Aid. 53; 123. Crease v. Barret, 1 Cr. M. & R. 918; « Shrewsbury Peerage, 7 H. of L. Monkton v. Attorney-General, 2 Russ. Cases 1. &M.157; and see Blackburn ^^ Craw- 'Shrewsbury Peerage, 7 H. of L. ford's Lessee. 3 Wal. (U. S.) 175; Stein Cases 1. V. Bowman, 13 Pet. 209; Dupoyster v. § 142 DECLARATIONS. 195 was made in one case that a husband's declaration as to his wife's family was made after her death, but it was overruled, for the reason that although at the time of the declaration he was no longer connected with such family, yet he must have acquired his knowledge during the marriage.^ Where a ques- tion arises as to whether two persons were related, a declara- tion of such fact may be competent, although the declarant was related to but one of the parties.' The umbilical cord be- tween a declaration as to pedigree and its competency as evi- dence is the fact of relationship, and this fact must be mani- fested de hors the declaration.* Slight circumstances, how- ever, tending to prove the relationship may render the decla- ration prima facie competent.* § 142. Declarations concerning legitimacy. — There seems to be no legal objection to the evidence of a declaration of a deceased relative that a person was born out of wedlock.® Even the declarations of deceased parents have been received to this effect.* It would seem, however, that if a declaration 1 Vowles V. Young, 13 Ves. Jr. 140, ship. "But while it is quite clear as explained by Burrough, J., in that I can not prove my right to an Johnson v. Lawson, 9 Moore 194. estate of A., by proof that my father ^Monkton v. Attorney-General, 2 in his life-time declared that A. was Russ. & M. 147; Sitler v. Gehr, 105 his brother, yet I may do so by prov- Pa. St. 577, 51 Am. Rep. 207. ing that A. so declared." Wise v. » Fulkerson v. Holmes, 117 U. S. 389, Wynn, 59 Miss. 588, 42 Am. Rep. 381, 6 Sup. Ct. Rep. 780; Blackburn y. Craw- * Fulkerson v. Holmes, 117 U. S. ford's Lessees, 70, 3 Wall. (U. S.) 175 ; 389, 6 Sup. Ct. Rep. 780 ; De Leon v. Northrop v. Hale, 76 Me. 306, 49 Am. McMurray, 5 Tex. Civ. App. 280, 23 Rep. 615; De Leon v. McMurray, 5 S. W. Rep. 1038. Tex. Civ. App. 280, 23 S. W. Rep. ^ Goodright v. Moss, 1 Cowp. 591 ; 1038; Wise v. Wynn, 59 Miss. 588, 42 Haddock v. B. & M. R., 3 Allen 298, Am. Rep. 381 ; Banbury Peerage 81 Am. Dec. 656 ; Viall v. Smith, 6 r! Case, 2 Selwyn N. P. 764. In the latter I. 417 ; Taylor on Ev., § 637. case the petitioner offered in evidence « Goodright v. Moss, 1 Cowp. 591; the declarations of his ancestor, in Haddock v. B. & M. R., 3 Allen 289, depositions taken one hundred and 81 Am. Dec. 656; Taylor on Ev., § 637. fifty years before in a chancery litiga- The declarations of the wife's para- tion, in which the declarant styled mour are, of course, to be rejected, himself the legitimate son of A. B., Montgomery v. Montgomery, 3 Barb. but such declaration was held incom- Ch. 132. petent without proof of the relation- 196 INDIRECT AND COLLATERAL EVIDENCE. § 142 of a deceased parent was merely a statement that his putative child was illegitimate, the testimony ought to be rejected, as his statement might be based on a state of facts that, if he were living, it would be incompetent to prove by his statement under oath.^ The rigid adherence to the rule that the declar- ant must be a member of the family of the person whose ped- igree is in question has led to the ruling that where the two were only related through the reputed father the declaration was not competent.^ If this question can be considered open to discussion, it might be suggested that there is no reason, at least in such near putative relationships, why the negative of the fact of relationship should not be as much a part of the family history as the affirmative of such proposition.^ Both Mr. Taylor* and Mr. Wharton^ state that the better opinion is that the declarations of a person subsequently deceased as to his own illegitimacy are incompetent, except as an admission against himself and his successors in title. Mr. Taylor cites the case of Cooke V. Lloyd,' in which such a declaration was received, "as the representation of one of the family of the. degree of relationship he bore to it.'^ Mr. Taylor's objections to a per- son's declaration that he is illegitimate, viewed as one concern- ing the status of the declarant himself, is that as a bastard he has no family, and that he must have gained his information from the statement of others. As to Mr. Taylor's first objec- tion, the writer has already intimated his opinion that it is a vain one ; as to the second objection, it is refuted in almost every section of his chapter on pedigree. As bearing to some extent upon the last objection, attention may be called to a number of cases holding that even where the age of a person is an element in a criminal charge, such person may testify as to his age. This ruling is put on the ground not only that ^ Montgomery v. Montgomerj', 3 Shields v. Boucher, 1 DeG. & Sm. 40, Barb. Ch. 132. 52. 2 Bamford v. Barton, 2 Moody & R. * Taylor on Ev., § 636. 28; Northrop v. Hale, 76 Me. 306, 49 s^hart. on Ev., §203. Am. Eep. 615. ^ Cooke v. Lloyd, Peake's Ev. App. ' See, as supporting this view, the XXVIII. opinion of Knight Bruce, V. C, in § 143 DECLARATIONS. 197 the witness has gained some knowledge based on experience, comparison and observation, but that he may obtain such knowledge from his family history.^ § 143. What is meant by pedigree. — Questions of pedigree include not only descent and relationship, but also the facts of birth, marriage and death, the times when they occurred, and other matters of family history involved in genealogical controversies.^ It is an unsettled matter as to how far courts will go in receiving collateral declarations, because of their bear- ing upon matters of pedigree. Where the question arose as to which of three children born at a birth was heir, the court received the declaration of the deceased father as to which was his eldest son, and also his further statement that he called them Stephanas, Fortunatus and Achaicus (according to the order of names in St. Paul's epistle), for the purpose of dis- tinguishing their seniority, and the court also received evi- dence on the other side that an aunt who was present had declared that as the second and third of the children were born she tied strings around their arms to distinguish them from the eldest.^ It is probable, however, that the courts would reject a declaration where the inference from it as to pedigree was not a matter of necessary inference.* According to the weight of authority, evidence of declarations as to the place of a person's birth, or of his residence, is competent where the inquiry is strictly one of pedigree.^ There is a line of 1 Banks «. Metcalf, 1 Wheeler's Cr. 234; Cheever v. Congdon, 34 Mich. Cases 381 ; Hill v. Eldridge, 126 Mass. 296 ; Houlton v. Manteuffel, 51 Minn. 234; Com. v. Phillips, 162 Mass. 504, 185, 53 N.W. Rep. 541 ; Taylor on Ev., 39 N. E. Rep. 109; Watson v. Brew- §642. ster, 1 Pa. St. 381 ; State v. Cain, 9 W. ^ Referred to by Lawrence, J., in Va. 559; Cheever v. Congdon, 34 the Berkeley Peerage Case, 4 Camp, Mich. 296; State i;. McClain, 49 Kan. 403, 418; 1 Phil, on Ev. (1849 ed.), 730, 31 Pac. Rep. 790 ; Morrell v. Mor- 214. ' gan, 65 Cal. 575, 4 Pac. Rep. 580. * See Taylor on Ev., § 644. 2See Eisenlord v. Clnm, 126 N. Y. s^Vise v. Wynn, 59 Miss. 588, 42 552, 27 N. E. Rep. 1024; Com. v. Am. Rep. 381; Eisenlord v. Clura, Stevenson, 142 Mass. 466, 8 N. E. 126 N. Y. 552, 27 N. E. Rep. 1024; Rep. 341 ; Hill v. Eldridge, 126 Mass. Byers v. Wallace, (Tex. Sup.) 28 S. W. 198 INDIRECT AND COLLATERAL EVIDENCE. § 144 cases in which evidence as to place of birth is rejected/ but these cases involve questions of settlement. At this point direct mention is to be made of a proposition just intimated, that it is not every case which involves a question as to birth, relationship, age or like questions, in which declarations are received. Where such a question is merely incidental,, and the judgment will simply establish a debt for a person's liability on a contract, his proper settlement as a pauper, or some question of that character, the evidence is rejected." The facts concerning pedigree recede so fast into oblivion that it is not insisted that such matter be ancient to warrant the introduction of the declarations of deceased persons.^ § 144. Of what such declarations may consist. — Declara- tions concerning matters of pedigree may consist of conduct. As observed by Mansfield, C. J., in speaking of a father bringing up his putative son as legitimate : " This amounts to a daily assertion that the son is legitimate."* At this point the doctrine of declarations concerning pedigree seems substan- tially co-incident with the doctrine of res gestse. During the existence of the marriage relation between two persons, their conduct towards "each other may be shown in a proper case as the equivalent of a declaration of relationship or pedigree, but, as the natural emanations and expressions of the relation, such evidence may rise to the higher plane of res gestse evi- dence, which is always primary.^ The older authorities furnish many illustrations of declarations and conduct held competent Eep. 1056 ; Shields v. Boucher, 1 D. G. 27 N. E. Eep. 1024 ; Westfield v. War- &Sm. 40; Taylor on Ev., §647. Ex- ren, 3 Halst. (N. J. L.) 249; Whit- amine Mima Queen v. Hepburn, 7 tuck v. Waters, 4 Car. & P. 375; Cranch 290. Haines v. Guthrie, 13 Q. B. Div. 818, ^ Rex V. Erith, 8 East 539; Shearer and authorities cited in last note. V. Clay, 1 Litt. 260; Independence v. ^Eisenlord v. Clum, 126 N. Y. 552, Pompton, 4 Halst. (N. J. L.) 209; 27 N. E. Rep. 1024; 1 Phil, on Ev. Braintree v. Hingham, 1 Pick. (Mass.) (1849 ed.), 212. 245; Wilmington v. Burlington, 4 * Berkeley Peerage Case, 4 Camp. Pick. (Mass.) 174. See Jackson v. 401. People, 5 Cow. 320. « See post, § 283. 2Eisenlord v. Clum, 126 N. Y. 552, § 144 DECLARATIONS. 199 as coming within the law concerning proof of pedigree. Among others may be mentioned a declaration of relationship in a canceled will/ engravings upon rings, charts of pedigree, armorial shields, etc. Entries in family Bibles and records are admissible without proof that they were made by members of the family, for they amount to family acknowledgments.^ It must not be forgotten, however, that evidence of declara- tions of pedigree is only secondary, and before it can be ad- mitted the absence of the primary evidence must be accounted for.' Inscriptions on tombstones and coffin-plates are received as evidence.* Such declarations are admitted upon the prin- ciple of family acknowledgments, because of the presumption that if the statements were incorrect they would not pass uncon- tradicted, and possibly the evidence maybe said to be admissi- ble upon the broader principle that the persons who made such statements must have known the truth and had no object to mis- tate the facts.^ Certain facts may be proved by parish records and other documentary evidence, where the entries are made by third persons, but the admissibility of such entries rests on another ground.® 1 Johnson??. Earl of Pembroke, 11 «. Loyd, 3 Whart. (Pa.) 538; Yahoo- East 504. If a declaration in a deed la, etc., Mining Co. v. Irby, 40 Ga. as to heirship is competent on the 479 ; Lamar v. Turner, 48 Ga. 329. ground that it amounts to a declara- ^ Campbell v. Wilson, 23 Tex. 252, tion concerning pedigree, it is proper 76 Am. Dec. 67; Leggett v. Boyd, 3 evidence, in the absence of better Wend. 376; Monkton v. Attorney- evidence, even as against strangers. General, 2 Russ. & M. 147. Bowser v. Cravener, 56 Pa. St. 132; * Taylor v. Hawkins, 1 McCord 164; Scharff v. Keener, 64 Pa. St. 376; Dobson v. Cothran, 34 S. Car. 518, McMurtry v. Keifner, 36 Neb. 522, 54 13 S. E. Rep. 679; Campbell v. Wil- N.W. Rep. 844; Chamblee V. Tarbox, son, 23 Tex. 252, 76 Am. Dec. 67; 27 Tex. 139, 84 Am. Dec. 614. But Leggett v. Boyd, 3 Wend. 376. unless a deed can be made competent * Goodright v. Moss, Cowper 591 ; on such ground, it is not evidence as Bullen's N. P. 233; Haslam v. Crow, against persons who are not privies. 19 W. R. 969; McClaskey v. Barr, 54 McMurtry v. Keifner, 36 Neb. 522, 54 Fed. Rep. 781 ; Smith v. Patterson, 95 N. W. Rep. 844; Potter v. Washburn, Mo. 525, 8 S. W. Rep. 567. 13 Vt. 558, 37 Am. Dec. 615; Harden- ^ Hj^gj^m ^^ Crow, 19 W. R. 969; burg V. Lakin, 47 N. Y. 109; Carver v. McClaskey v. Barr, 54 Fed. Rep. 781. Jackson, 4 Pet. (U. S.) 1; Murphey ^ Post, §170. 200 INDIRECT AND COLLATERAL EVIDENCE. § 145 § 145. Declarations admissible although not based on per- sonal information. — If a declarant be competent, and makes a declaration concerning a matter of pedigree, the law does not exclude such evidence even if it appear that the declarant had no personal knowledge upon the subject. Evidence of decla- rations as to family repute are competent/ and even declara- tions based on the declarations of another member of the fam- ily have been received.^ Where the issue was as to whether a man was dead at a certain time, the declaration of his deceased wife was received that subsequent to that time she had received a letter from him.' § 146. Must be ante litem motam and declarant must be dead. — The last proposition is an obvious one, and the former one has been discussed at length in connection with declara- tions concerning matters of -public or general interest.* It only remains to add to that discussion the statement that the mere fact that a declaration concerning pedigree was made for the express purpose of declaring and establishing facts will not suffice to exclude it, provided it was made before the lis mota and was not in effect a preparation for future litigation.* In this connection attention may again be called to the proposi- tion that the fact that the declaration is made by a person in pari jure with the person tendering it does not render it inad- missible.® § 147. Verdicts, judgments, etc., as evidence of pedigree. — The reader's attention is directed to a discussion of this sub- ject in another connection.' § 148, Weight to be given to evidence of reputation. — In a King's Bench case' Lord EUenborough said : ' ' Reputation is, in 1 Banning v. Griffin, 15 East 294. ^ Munn ■;;. Mayes, (Tex. Civ. App.) 2Futter V. Randall, 2 M. & P. 20; 30 S. W. Rep. 479; Monkton v. At- Monktonu. Attorney-General, 2 Russ. torney-General, 2 Russ. & M. 147; & M. 147; Eisenlord 1?. Clum, 126 N. Goodright v. Moss, Cowper 591; Y. 552, 27 N. E. Rep. 1024. Berkeley Peerage Case, 4 Camp. 401. 3Norris v. Edwards, 90 N. Car. 382, ^Ante, § 134. 47 Am. Rep. 526. ' Ante, § 137. *Ante, § 133. « Weeks v. Sparke, 1 M. & Sel. 680. § 149 DECLARATIONS. 201 o-eneral, weak evidence ; and when it is admitted, it is the duty of the judge to impress on the minds of the jury how lit- tle conclusive it ought to be, lest it should have more weight with them than it ought to have."* This observation is to some extent applicable to evidence of the declarations of de- ceased persons ; such declarations, if oral, possess even more infirmities than evidence of verbal admissions. It admits of doubt, however, whether, under the practice as it exists in most of the state courts, the trial judge would be justified in going further in his instructions upon this subject than to di- rect the attention of the jury to the considerations which sug- gest to the mind the possibility of error in giving too great a degree of credence to such testimony. Ancient Instruments and Declarations with Reference to Ancient Possessions. §149. Instruments thirty years old — Proper custody. — In view of the difficulty which would ordinarily attend the effort to prove the due execution of an instrument which was more than thirty years old, the law presumes in favor of its due exe- cution, provided that there are no circumstances which justly infect it with suspicion, and it comes from the proper custody.' The purpose of the latter requirement is to give authenticity to the instrument.^ If the above circumstances combine, the law very justly throws the onus upon the party who would im- peach the instrument. Attention need not be given to the il- lustrations of the English cases generally as to what is a proper custody, for such illustrations would afford but little aid to the practitioner or student of to-day. The most valuable expres- sion upon this subject is found in a North Carolina case,* in ^And see Morewood v. Wood, 14 Wynne v. Tyrwhitt, 4 Barn. & Aid. East 326, 330. 376; Thomas v. Benyon, 12 Add. & E. 2 This principle of evidence applies 431 ; Bertie v. Beaumont, 2 Price 303 ; not only to formal instruments but to Fenwick v. Reed, 6 Madd. 8; Thomas informal papers, such as receipts, let- v. Beyton, 4 P. & D. 193. ters, etc. Bell v. Brewster, 44 Ohio s ^ gtarkie on Ev., star p. 332. St. 690, 10 N. E. Rep. 679; Aldrich v. *Meath v. Winchester, 3 Bing. N. Griffith, 66 Vt. 390, 29 Atl. Rep. 376; C. 283. 202 INDIRECT AND COLLATERAL EVIDENCE. § 150 which Tindall, C. J., said : "Documents found in a place in which, and under the care of persons with whom, such papers might naturally and reasonably be expected to be found, are precisely in the custody which gives authenticity to documents found within it, for it is not necessary that they should be found in the best and most proper place of deposit. If docu- ments continue in such custody, there would never be any question as to their authenticity ; but it is when documents are found in other than their proper place of deposit, that the in- vestigation commences whether it was reasonable and natural under the circumstances in the particular case, to expect that they should have been in the place where they were actually found; for it is obvious that, while there can be only one place of deposit strictly and absolutely proper, there may be many and various that are reasonable and probable, though differing in degree, some more so, some less ; and in these cases the proposition to be determined is, whether the actual custody is so reasonably and probably accounted for that it impresses the mind with the conviction that the instrument found in such custody must be genuine."^ § 150. Aliunde proof of age not necessary. — While the lack of marks of antiquity might afford a suspicion sufficiently great to exclude an instrument, yet in the absence of discredit- ing circumstances it is sufficient proof of the age of the instru- ment if it purports to be thirty years old.^ In the case of a will the thirty years are to be computed from the date which the will bears, and not from the death of the testator.' § 151 . Not necessary to prove possession under instrument. — Mr. Phillips, in his work on evidence,* contends that to per- mit a deed to go in evidence without proof of its execution it ^ See Jackson v. Laroway, 3 Johns. ^ 1 Starkie on Ev., star p. 330; Fen- Cas. 283; Ammons v. Dwyer, 78 Tex. wick v. Reed, 6 Mad. 8. 639, 15 S. W. Rep. 1049 ; Havens v. ^ Man v. Ricketts, 7 Beav. 93. See Sea Shore Land Co., 47 N. J. Eq. 365, Staring v. Bowen, 6 Barb. 109. 20 Atl. Rep. 497, and cases cited. * Phillips on Evidence, (1849 ed.) 276. § 151 DECLARATIONS. 203 must be further authenticated by a showing of possession under it. While a few American cases have followed ISlr. Phillips on this proposition, the weight of authority, both of court and text-writer, justifies the statement that the lack of possession is only a circumstance going to the weight of the evi- dence.' Professor Greenleaf states' that " if a deed is found in the proper custody, and is corroborated by evidence of an- cient or modern corresponding enjoyment, or by other equiva- lent or explanatory proof, it is to be presumed that the deed constituted part of the actual transfer of the property therein mentioned." A number of American courts have used sub- stantially this language,' although it would seem that it was inaccurate, in that the idea is at least implied in the statement that the instrument must be corroborated in some other man- ner in addition to evidence that the deed came from the proper custody. Mr. Starkie, whose work on evidence is exception- ally accurate, says : "If the deed or other instrument, when produced, appear to be thirty years old, no further proof is re- quired."* Mr. Best contents himself with stating that to guard against the manifest dangers of this kind of proof it '* is established, as a condition precedent to its admissibility, that the document must be shown to have come from the proper custody."* Judge Taylor says:® ''Care is especially lApplegate v. Lexington Mining ton v. Mass, 2 Nott & MoC. 55; Co., 117 U. S. 255, 6 Sup. Ct. Rep. 742; Dishazer v. Maitland, 12 Leigh 524; Barr r. Gratz's Heirs, 4 Wlieat. 213; Carroll v. Norwood, 1 Har. & J. 174. Hewlett V. Cock, 7 Wend. 371 ; Caru- ^ 1 Vol. on Ev., § 144. thersv. Eldridge, 12 Gratt. 670; Har- ^ ^pplegate v. Lexington Mining Ian V. Howard, 79 Ky. 373; Jackson Co., 117 U. S. 255, 6 Sup. Ct. Rep. V. Laroway, 3 Johns. Cases 283 ; Am- 742 ; Stroud v. Springfield, 28 Tex. mons V. Dwyer, 78 Tex. 639, 15 S. W. 649. Rep. 1049; 1 Greenl. on Ev., §144, *Vol. 1, star p. 330, and see star p. note; Wliart. on Ev., §199; Taylor 332. At star p. 67, Mr. Starkie says on Ev., §665. See Shaller v. Brand, that "in order to give it any weight, 6Binn. 439,6 Am. Dec. 482; Lau v. it should be supported by proof of Mumma, 43 Pa. St. 267 ; Bank of Mid- possession or enjoyment, correspond- dlebury v. Rutland, 33 Vt. 414 ; Homer ing and consistent with it." V. Cilley, 14 N. H. 85; Thompson v. ^2 Vol. on Ev., §499. Bullock, 1 Bay (S. Car.) 364 ; Middle- ^ Ev., § 659. 204 INDIRECT AND COLLATERAL EVIDENCE. § 152 taken to ascertain the genuineness of the ancient documents produced, and this may in general be shown, prima facie, by proof that they come from the proper custody." If the docu- ment was found in a place where it would not naturally be sought, it is necessary, in order to show that the paper was in proper custody, to show where it had been kept.^ If it is pro- duced by one who has an interest in it, there must still be affirmative proof, according to the later view, as to where the document was found. ^ § 152. Document a little more than thirty years old merely presumed to be genuine. — The mere fact that a deed is a little more than thirty years old does not give rise to the presump- tion that the grantor had title." The most that can be affirmed is that in respect to genuineness such a deed proves itself.* If there is proof of long possession, there may be a presumption drawn in favor of such possession.^ § 153. Rule where document yery ancient. — If, for example, a deed is offered in evidence which is dated thirty-one years ago, and is shown to have come from the proper custody, it goes in evidence without calling witnesses to prove its execu- tion. As stated in the preceding section, it proves itself. But it will be remembered, even if the presumption in favor of au- thenticity was more than prima facie — if it was conclusive, — the establishment of the authenticity of the deed is a fact which might co-exist with the fact that the grantor had no title to the 1 Buller's Nisi Prius, 255, 648 ; 1 ^ See Stevenson's Heirs v. McReary, Starkie on Ev., star p. 632. 12 S. & M. (Miss.) 9, 51 Am. Dec. 102; 2 Taylor on Ev., §664, citing Evans Buhols v. Boudousquie, 8 Mart. N. S. V. Rees, 10 A. & E. 151. See Eex v. 153; Knox v. Jenks, 7 Mass. 488; Col- Eyton, 5 T. R. 259. See Ely v. Stew- man v. Anderson, 10 Mass. 105; Pe- art, 2 Atk. 44; Fry v. Wood, Sel. N. P. jepscut Proprietors ■??. Ransom, 14 Mass. 535 ; Rex v. Netherthong, 2 M. & S. 337. 145 ; Hazard v. Martin, 2 Vt. 77 ; Blair 3 McClellan v. Zwingle, 70 Hun 600, v. Kiger, 111 Ind. 193, 12 N. E. Rep. 24 N. Y. Supp. 371. 293. *Bell V. Brewster, 44 Ohio 690, 10 N. E. Rep. 679. X ;[53 DECLARATIONS. 205 land and the further fact that every recital in the deed was false. The standard writers on evidence generally, with the exception of Starkie, leave the inference, if a deed is more than thirty years old, and is entitled to be introduced in evidence, that the authorities give countenance to the view that the deed is some evidence of title in the grantor. But when the author- ities are examined it will be found that the documents received for such purpose are of a much greater age than thirty years.' It is not strange, however, that the text-writers have not given anything more than a general recognition to this proposition, for they ordinarily only follow where the cases lead, and it must be confessed that the courts have not usually expressed themselves upon the subject with that definiteness which makes the law certain. A number of the authorities which, upon super- ficial consideration seem strong and clear upon the subject, are impaired in their force as precedents by the consideration that the instruments were acts of dominion with reference to what was a matter of public or general right, so that their admissi- bility might be claimed on another ground ; but, taking the utterances of the judges together, without too nice a discrim- ination between the points in judgment and the dicta, and con- sidering whatever of formative influence the expressions of the text-writers have had, and it maybe affirmed that very ancient acts of dominion may be shown, as some evidence of title.' This doctrine has obtained a foothold in the United States,' and it » This fact has not escaped the atten- eighty years old and more were admit- tion of the writer of tlie article on an- ted. The youngest document admitted cient documents in the American and on this ground was over sixty years old. Enghsh Encyclopedia of Law. He Boston v. Eichardson, 105 Mass. 351." says: "As to the age of a document ^Rogersv. Allen, l.C|pp.309; Clark- admissible to show ownership, it would son v. Woodhouse, 5 TTR. 412 ; Yates seem that such document must be older v. Harris, Hil. Ass. 1702, cited by Gil- than an 'ancient document,' as that bert's Ev., 3d ed. 78; Newburgh v. phrase is used in regard to proof of au- Newburgh, 5 Madd. 223 ; Biddulph v. thenticity. In most of the cases the Ather, 2 Wils. 23; 2 Evans' Pothior, documents admitted have been more 292; Taylor on Ev., §463; 1 Starkie on than a hundred years old. In Clarkson Ev., star p. 66 ; 1 Greenl. on Ev., § 144. V. Woodhouse, 3 Doug. 189, a lease fifty » Boston v. Richardson, 105 Mass.351. years old was rejected, while leases 206 INDIRECT AND COLLATERAL EVIDENCE. § 153 must be admitted that it is eminently reasonable to admit evi- dence of such acts, where the claim of right antedates living memory.^ Professor Greenleaf's view is that this class of evi- dence is res gestae, as ancient documents purport to be "a part of the transactions to which they relate."^ This suggestion is not without value, for it at least puts the mind into the proper channel of thought. But it is not possible to thus lift this class of evidence onto the plane of primary evidence. To be res gestse the connection between the document and principal act must be shown, and as that is confessedly impossible, it is evi- dent that the most can be done is to claim the establishment of the doctrine as an exception to the ordinary rule, to the extent that proof of the connection between the principal act and the document is dispensed w^th. Mr. Starkie gives the following excellent statement of the philosophy of the exception : ' 'As the possession and enjoyment of disputed property are always in- direct evidence of right, by reason of the obvious and natural presumption, when the right is in other respects doubtful, that such possession and enjoyment so acquiesced in had a lawful origin ; so acts of open delivery of possession, or written state- ments by which a dominion over such property was exercised, and with which the possession and enjoyment corresponded, are also presumptive evidence of right; for these are, in fact, not mere recitals of a fact, but are themselves acts of dominion and ownership. Hence when such instruments are so ancient that their connection with acts of enjoj^ment and dominion can not be proved by the testimony of living witnesses, they are nevertheless admissible as the best and most proximate ev- idence to explain the origin and nature of such possession and enjoyment, where they can by other evidence be sufficiently connected with those facts. Hence, it seems that to support any presumption or inference from such an instrument, first, its antiquity is essential ; secondly, that it should have been found in the place or repository in which a true and genuine deed or writing of that kind would have been deposited ; thirdly, that it should be free from all suspicion which may * Necessity will not alone justify the Mima Queen v. Hepburn, 7 Cranch 291, introduction of hearsay testimony. ^Greenleaf on Ev., § 144. ^ 154 - DECLARATIONS. 207 rebut the presumption raised in its favor ; fourthly, in order to give it any weight, it should be supported by proof of posses- sion or enjoyment, corresponding and consistent with it. Upon such a connection the force, if not the admissibility, of such evidence actually depends. Declarations are, as has been seen, evidence explanatory of the act which they accompany; and where long continued enjoyment, and user of a right, has been proved, extending as far back as the duration of human life will permit, a deed or writing which is consistent with such usage and enjoyment, and explanatory of it, may, under the same principle, be fairly admitted, as affording a presumption that it was a genuine instrument which has been used and acted upon. And where proof of the actual execution and use of such instruments would have been evidence, then when such proof is absolutely excluded by lapse of time, the produc- tion of the deed, coupled with such circumstances as give it credit, appears to be the next best evidence which the case ad- mits of, and when accompanied with proof of actual enjoyment, affords a strong presumption as to the existence of the right according to that deed."^ Declarations Against Interest by Persons Deceased as Evidence Against Third Persons. § 154. Declarations of persons deceased. — If the statement of a third person, against his pecuniary interest, were offered, such statement would be calculated to lead th3 mind to a belief that what was thus said was true, but the incontestable objec- tion to the statement in a court of justice would be, if the de- clarant was in life, that his statement under oath would be of a higher class of evidence. Where, however, the declarant is dead,^ the law, within limits, receives his declarations, even as against strangers. His declarations, however, can not dero- gate from a title which he is estopped to dispute.' * 1 Starkie on Ev., star p. 66. compelled to testify were received in ^If the declarant is insane, his dec- one case on the same principle. Har- larations may go in evidence as if he riman v. Brown, 8 Leigh 697. were dead. Union Bank v. Knapp, 3 * Papendick v. Bridgwater, 5 E. & Pick. 96, 15 Am. Dec. 181. The dec- B. 166. larations of a person who could not be 208 INDIRECT AND COLLATERAL EVIDENCE. § 155 § 155. Must be against pecuniary interest. — The declaration must be against the pecuniary or proprietary interest of the de- clarant.' For this reason, on an issue in ejectment, the declara- tion of the plaintiff's deceased ancestor to the effect that his relatives, who were claiming by adverse possession, were al- lowed to occupy the premises as a matter of charity on his part, was held incompetent.^ In another case the declaration of an ancestor as to his intent to treat certain moneys, turned over to certain of his children, as advancements, not being a part of the res gestse, and having been made subsequently, was held inadmissible, since it did not affect him personally whether the money was treated as a gift or as an advance- ment.^ It is not enough to render the statement admissible that it amounts to an affirmance of a matter which, if true, would render the person liable to prosecution.* Instances, of course, occur where a declaration involves pecuniary as well as criminal liability. Thus, in a suit against a county treasurer for failing to account for certain moneys, it was held that the declarations of a third person, subsequently deceased, who was employed in the office by the board of supervisors, that he had converted the money and falsified the books, were evidence in favor of the defendant. * "It seems not to be sufficient," observes Professor Greenleaf, ''that in one or more points of view, a declaration may be against interest, if it appears, upon the whole, that the interest of the declarant would be rather pro- moted than impaired by the declaration."® § 156. Need not be connected with principal act. — It is to be recollected that this class of declarations is received because * Sussex Peerage Case, 11 CI. & F. tions of a person since deceased are 85 ; Davis v. Lloyd, 1 Car. & K. ; Re- held incompetent in prosecutions for gina V. Exeter, L. R. 4 Q. B. 341 ; crime, although such declarations, if Bird V. Hueston, 10 Ohio St. 418. See accepted as true, would work an ac- Tate V. Tate, 75 Va. 522. quittal. See, post, § 227. 2 Duff V. Leary, 146 Mass. 533, 16 N. « Sussex Peerage Case, 11 CI. & Fin. E. Rep. 417. 85. ^Thistlewaite v. Thistlewaite, 132 sg^ott Qq ^ Fluke, 34 Iowa 317. Ind. 355, 31 N. E. Rep. 946. At this See Mahaska Co. ■y.Ingalls, 16 Iowa 81. point attention is called to a line of ^Ev., vol. 1, § 149. cases in which mere hearsay declara- § 157 DECLARATIONS. 209 such declarations were made against interest. It is this con- sideration principally which raises them above the level of mere res infer alios declarations. They must, however, be broadly distinguished from res gestec evidence, which owes its admissibility to the fact that it is connected with the event or act in question. From those observations it will be plain that the fact that a declaration made by a deceased person against his interest was separated by a considerable space of time from the event or act his admission related to, will not render the declaration incompetent, although it may affect its weight/ The competency of the declaration is not affected by the con- sideration that it was not made in the course of a business transaction.^ § 157. Peculiar knowledge of declarant. — It is ordinarily the case, where declarations of deceased persons are sought to be introduced, that the fact is apparent that they had adequate knowledge at the time of the declaration. Whether the fact of such knowledge must appear, to make the declaration com- petent, is not an entirely settled question, although the greater authority, and the weight of reason, justifies the statement that the fact that the declaration was against interest gives a sufficient assurance of knowledge to admit the declaration, unless, indeed, the statement should carry on its face the evidence of a want of knowledge, or the surrounding facts should make it apparent.^ § 158. Some phases of subject discussed in connection with next topic— The next topic it may be said, in view of the course of the adjudications, is a graft upon the topic we are now concluding, if, indeed, it is not, as some contend, one and * Scott V. Berkshire Sav. Bank, 140 '^Boe v. Turford, 3 Barn. & Ad. 890. Mass. 157, 2 N. E. Rep. 925 ; Dean v. ^ Doe v. Turford, 3 Barn. & Ad. 890 ; Wilkerson, 126 Ind. 338; 26 N. E. Crease v. Barrett, 1 C. M. & R. 918; 1 Rep. 55; Doe v. Turford, 3 Barn. & Starkie on Ev., star p. 298. Consult Ad. 890; 1 Greenl. on Ev., § 147, and Taylor on Ev., §669; County of Ma- cases cited; 1 Phil, on Ev., (1849 ed.) h^ska v. Ingalls' Executors, 16 Iowa 294. n. 81. 14— Ev, 210 INDIRECT AND COLLATERAL EVIDENCE. § 159 the same topic. While the writer does not take this view, it is recognized that the subjects have some phases in common, and, therefore, the attention of the reader is directed to what- ever of supplementary discussion is found in the following pages. Declarations hy Deceased Persons in Ordinary Course of Business. § 159. Prelimiuary observations as to declarations in course of business. — Clearness is especially important at this point, not only because there is an inherent liability to confusion, but because the subject has been confused to some extent by courts and text-writers. The class of declarations we are about to consider do not owe their admissibility to the fact that they are against interest, as in the class of cases we have just been considering, but to the fact that they are entries made in the course of business, and furthermore, they are to be distin- guished from mere shop-book entries (which are only evidence between seller and buyer),for entries of the character that now engage our attention may ,be evidence against strangers. Dec- larations in the ordinary course of business and declarations against interest occupy common ground in respect to the fact that they constitute an inferior class of evidence which is re- sorted to because the declarant can no longer speak. § 160. Ground of admission. — ^This exception to the law excluding hearsay evidence rests on a recognition of the prop- osition that if a person in the ordinary course of his business commits a statement to writing, such statement is probably true, for it would not ordinarily conserve his purpose if he stated other than the fact. As the court said in a Massachusetts case:' "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 a jury."^ ^ Welsh t\ Barrett, 15 Mass. 380. may be proved by a party's own . ^Without being committed to the books, although the person making proposition tliat an independent fact the entry can be called, the following §161 DECLARATIONS. 211 §161. Statement need not be against interest.— Reference has already been made to the fact that courts and text-writers have confused declarations against interest with the class of declarations we are considering, and the point of confusion has been the insistence in the latter class of cases that the entry must be against interest. Judged by the standard of what the English courts have said, rather than by what they have ruled, and it must be admitted that the element of opposition to the declarant's interest is an essential one, at least in business, as distinguished from professional entries. There are, however, rulings and expressions among the English cases which show a tendency in the other quotation is made from the case of Donovan v. Boston, etc., R. Co., 158 Mass. 450, 33 N. E. Rep. 583, as illus- trative of the fact that business en- tries have a probative force: "The principal question is whether the train sheet, with the testimony of the witness who made the entries upon it, was competent evidence for the defendant. It is clear that the sheet was worse than useless if its state- ments, as seen by the dispatcher, were not accurate. Every interest of the defendant demanded that an en- try, when made, should be true ; and no reason can be conceived why the defendant should procure or permit a false or incorrect entry to be placed under the eye of the official who con- trolled the movement of its trains; nor is there any reason to presume that the operator who observed the passing of the trains at a station and telegraphed the information to the dispatcher's office, or the person who there received the messages and made the entries on the sheet, had any in- terest to misstate the facts or to make false entries. The system was the established course of the defendant's business, so that the sheet was not an accidental memorandum; and every step by which the information spread upon it was gathered, trans- mitted and entered was an act per- formed by some person in the line of his duty and in the usual course of his employment, under a sanction tending to make his statements true, and these acts were so connected with and dependent upon each other as to form parts of one transaction. If the sheet had been used and kept in the course of business by a third person, and not by the party by whom it was offered, there is authority in the decisions of this court for its competency. In Briggs v. Rafferty, 14 Gray, 525, after evidence that the plaintiff's clerk had marked packages of goods and sent them to be carried by rail to the defendant's place of residence, a servant of the railway corporation produced its regular freight business books, kept by him- self, and testified that, while he had no personal recolleciion of the facts, he had no doubt the entries in them were correct, and that the transac- tions therein recorded took place, and the evidence was held competent to prove the delivery of the goods at their place of destination. As the corporation received the goods in 212 INDIRECT AND COLLATERAL EVIDENCE. §161 direction. Thus, in one case/ Lord Ellenborough, in hold- ing competent an entry of charges in an attorney's book, which were marked paid, says that "the ground upon which Boston and delivered them in Law- rence, and no other witnesses than the book-keeper appeared in support of the entries, and as it is apparent that they could not have all been made ujion the personal knowledge of the book-keeper, the evidence was held competent upon no better footing than the train sheet in the present case, except that the latter was made by a servant of the party in whose favor it was offered, and is thus evi- dence which it has made for itself. In Adams v. Coulliard, 102 Mass. 167, 173, entries from railway freight books were held to have properly been read to the jury, although it does not appear that the persons who made out the way bills, from which some of the entries were made, were called as witnesses, the court saying that ' inferences of fact are always to be legitimately drawn from the known course of business.' In these two cases the entries were declara- tions which tended directly to sup- port the right of the carrier to claim , compensation for a service, and one purpose of making them was to pre- serve evidence in support of a claim. In Townsend v. Pepperell, 99 Mass. 40, 43, 46, the account of the medical history of the case of a patient in the Massachusetts general hospital was held competent evidence, when pro- duced by the superintending physi- cian, although he testified that he did not know by whom the entries were made, and that the book in which the account was entered was one of a series in his custody, in which, in the regular course of business of the hospital, it was the duty of the phy- sicians to enter the history of the cases under their charge, and in Cos- tello V. Crowell, 133 Mass. 352, 355, a book entry, identified by the testimony of the book-keeper who made it, was held competent to prove a date, al- though it does not appear that the fact stated in the entry was within his personal knowledge, and no other witness was called in support of it. In our opinion, because there is no reasonable possibility that any de- signed untruth had part in placing upon the train sheet the statements of which it is the vehicle, and all known circumstances concerning it favor its accuracy, and because it was an act rather than a declaration, and was sufficiently identified as genuine, it was competent evidence without the production or proof of the death of the operator who sent the messages, and its entries, material to the issue, were admissible and proper for the jury to consider, notwithstanding the fact that it was made by the servants of the party by whom it was offered. Enti'ies possibly similar, offered by the corporation by whose servants they were made, were held inadmis- sible in Pittsburg, etc., R. Co. v. Noel, 77 Ind. 110, 121, because in the opinion of the court neither res gestcB nor pub- lic records, but private entries in the private books of the company, made by its agents in the course of its busi- ness. But in the present case the train sheet, with its entries, and the messages from which they were made, were acts rather than declarations, and acts done before any controversy had arisen, when all concerned had no interest except to know and t'> state the truth." » Doe V. Robson, 15 East 32. §1(31 DECLARATIONS. 213 their evidence has been received is, that there is a total ab- sence of interest in the persons making the entries. In an- other case/ Le Blanc, J., observed: "I do not mean to give any opinion as to the mere declarations or written entries of a midwife who is dead, respecting the time of a person's birth, being made of a matter peculiarly within the knowl- edge of such a person ; it is not necessary now to determine that question ; but I would not be bound at present to say that they are not evidence." In a later case," Lord Eldon said: "The cases satisfy me that evidence is admissible of declarations made by persons who have a complete knowlege of the subject to w^hich such declarations refer, and where their interest is concerned ; and the only doul)t I have enter- tained was as to the position that you are to receive evidence of declarations where there is no interest. At a certain period of my professional life, I should have said that the doctrine was quite new to me ; I do not mean to say more than that I still doubt concerning it.'" The question under consideration ^ Higham v. Eidgway, 10 East 109. ^Barker v. Ray, 2 Russ. 63. ' Starkie, whose discriminating judg- ment is recognized by those familiar with his writings, says : (Ev., Vol. 1, star p. 298.) "It may, however, be observed, that the consideration that the entry was made in the course of discharging a professional or official duty, or even in the ordinary course of business in which the party was engaged, seems both in reason and upon the authorities to afford a much safer warrant for giving credit to such evidence, than is supplied by the con- sideration that the entry or declara- tion might possibly have been used to the prejudice of the party, and in many instances the doctrine of ad- missibility on that ground has been pushed to an extraordinary, if not untenable extent. * * * Let it, by way of illustration, be supposed, that an attorney has on the same book two accounts, in one of which are contained the items in detail relating to the marriage settlement of A, in the other a similar detail relating' to the marriage settlement of B; that the first appears to have been paid, the other does not, it may be asked, is any man's mind so constituted, that whilst he believed the former entries to be true, he could withhold his be- lief as to the latter ; could any one, in the absence of all suspicion of fraud, believe that a professional man would misspend his time by indicting a string of falsities, asserting that he took such and such instructions, and prepared this or that conveyance, without aim or object? If any one could conceive to himself, in the ab- sence of any evidence to justify such a supposition, that the latter account was inserted for some sinister pur- pose or other, would it not occur that the admission of payment, tacked to 214 INDIRECT AND COLLATERAL EVIDENCE. §161 arose in a Maine case/ and Shepley, J., in pronouncing the judgment of the court, said : "It has been considered in several of the states that neither the best administration of justice, nor any well established rule, required the adoption of the limitation that the entry must appear to have been made against the interest of the party making it, and the de- cisions of this country are more in accordance with those of Warren v. Greenfield'^ and Doe d. Pattershall v. Turford,^ than with most of the English cases." The case just quoted from fairly voices the American authorities.* the other, could not repel a similar suspicion as to its truth. What war- rant could the admission of payment afford to obviate such a suspicion ? How could the party be prejudiced by admitting that he was paid for business that was never done? On the same ground, therefore, that credit was given to the former, viz. : the improbability of invention for some unknown sinister purpose, some, if not the same degree of credit, would also be given to the other. A pre- sumption arises from the usual course of affairs, that an entry made by a professional man was made at the time, or nearly so, of the date, such an entry is not to be considered as equal in force to direct evidence of the fact, the tests of an oath, and of cross-examination, being wanting, but it is impossible to say that it is not evidence which in itself affards a reasonable presumption as to the truth of the fact to which it relates, because it would be contrary to the usual course of human affairs, and to the experience of mankind, that a person who must have known wheth- er the fact which he recorded was true or false, should have wantonly, and long before the importance of such adornment could have been fore- seen, and therefore, without any con- ceivable motive, have stated that which was false rather than that which was true." Mr. Phillips says: "There seems, however, to be more reason for considering that a rule ex- ists, which allows of declarations of deceased persons being received in evidence, even though not made against their interest, provided that in addition to a peculiar knowledge of the facts, and the absence of all in- terest to pervert them, the declara- tions appear to have been made in the ordinary course of official, profes- sional, or other business or duty, and to have been immediately connected with the transacting or discharging of such business or duty, and to be con- temporaneous or nearly contempo- raneous, with the transaction to which they relate." Ev., Vol. 1 (1849 ed.), 318. 1 Augusta V. Windsor, 19 Me. 317. 2 Warren v. Greenville, Strange 1129. aPatteshall v. Turford, 3 B. & Aid. 890. * Chaffee v. United States, 18 Wall. 516; Welsh v. Barret, 15 Mass. 380; State V. Phair, 48 Vt. 366 ; Barber's Admr., v. Bennett, 58 Vt. 476, 4 Atl, Rep. 231, 56 Am. Rep. 565; Bridge- water V. Roxbury, 54 Conn. 213, 6 Atl. Rep. 415; Batchelder i'. Sanborn, 22 N. H. 325; Wheeler v. Walker, 45 § 1G2 DECLARATIONS. 215 § 162. Business entries of deceased persons may prove facts in collateral controYersies. — If a person have a peculiar means of knowing a fact, and make a written entry of it in the ordi- nary course of business, such entry, upon his decease, is competent evidence in a collateral controversy, provided al- ways that the declarant stood wholly disinterested as to such collateral controversy. The case of Higham v. Ridgway,^ reported in Smith's Leading Cases, while it holds to the view that the entry must be against interest, is an important case. It was there held that a charge by a deceased person for at- tending upon a woman in childbirth, which charge was marked paid (on this ground the entry was conceived to be against interest) might be introduced in evidence upon an issue as to the age of the child: In a Maine case,^ it was held that the date when a person broke his leg might be proved by an entry in the book of a deceased physician making a charge against him for reducing the fracture. In a Vermont case,' it was held competent, in a prosecution for murder, where it be- came important to prove that the defendant pawned the watch of the deceased, to introduce an entry in a book of the person to whom it was claimed the watch was pawned, and who was deceased, showing the repairs made, and containing the num- ber and description of the watch.* In a New York case, an entry by a deceased attorney in his register of the issuance of an execution was held competent. A valuable case on the , subject under discussion is Lassone v. Boston, etc., R. Co.* In that case it was a disputed question as to whether the plaint- iff's buggy actually came in contact with the defendant's loco- motive. The plaintiff introduced some evidence of the character of the injury to his buggy, and it was held that he was then N. H. 355 ; Lassone v. Boston, etc., Co., N. J. L. 343 ; Dow v. Sawyer, 29 Me. 66 N. H. 345, 24 Atl. Rep. 902 ; Merrill 117 ; Culver v. Marks, 122 Ind. 554, 23 V. The Ithaca, etc., R. Co., 16 Wend. N. E. Rep. 1086, 17 Am. St. Rep. 377. 586, 30 Am. Dec. 130; Leland v. Cam- ^ Higham v. Ridgway, 10 East 109. eron, 31 N. Y. 115; Livingstone v. Ar- ^ Augusta v. Windsor, 19 Me. 317, nonx, 56 N. Y. 507 ; Spann v. Baltzell, ^ state v. Phair, 48 Vt. 366. 1 Fla. 301, 46 Am. Dec. .346 ; Nourse u. « Leland v. Cameron, 31 N. Y. 115. McCay, 2 Rawle 70; Poole v. Dicas, 1 ^Lassone v. Boston, etc., R. Co., 66 Bing.N. C. 649; Bay v. Cook, 22 N. H. 345, 24 Atl. Rep. 902. 216 INDIRECT AND COLLATERAL EVIDENCE. § 163 entitled to call the administrator of a deceased wagon-maker, whom the evidence showed had repaired the wagon, and to prove the following charge against the plaintiff: ''June 8, 1887. To sixteen spokes, 20 cents apiece, $3.20." § 163. Declarant must have been immediately and person- ally cognizant of fact. — In discussing declarations against in- terest, it has already been said, that it need not to be shown that the declarant had knowledge of the matter whereof he spoke at the time of the declaration, because the presumption would be that a person would not make a declaration against interest unless he was prompted to do so by a knowledge of its truth. It is obvious, however, that if what may be termed the modern doctrine, that entries made by deceased persons in the usual course of business may be admissible, although not made against interest, be accepted, this presumption in such a case is removed, and it ought therefore to be shown that the declarant had immediate and personal cognizance of the facts stated by him.' Within this rule it was held that a report which had been made by a person who was dead, as to the amount of damage to certain goods, while acting as appraiser for an insurance company, which had written insurance thereon, was not evidence in a suit against the steamship company which was carrying the goods at the time of the injury. The court put its ruling on the ground that while damage is a fact, yet it can not be ob- served by mathematical calculation, but is an opinion. "An opinion upon such a question," the court said, "however honestly formed, and by however competent a man, is too re- mote from the indisputable data of the senses to be admitted without being subjected to cross-examination."^ So a declara- tion made in a lodge record, by a deceased secretary, as to the age of a member is not evidence as to the latter's age.* * Bradford v. Cunard S. S. Co., 147 ^ Bradford v. Cunard S. S. Co., 147 Mass. 55, 16 N. E. Rep. 719; White v. Mass. 55, 16 N. E. Rep. 719. Chouteau, 1 E. D. Smith 493; Humes * Conn. Life Ins. Co. v. Schwenk, V. O'Bryan, 74 Ala. 64; County of 94 U. S. 593. See Heglerr. Faulkner, Mahaska v. Ingalls, 16 Iowa 81. 153 U. S. 109, 14 Sup. Ct. Rep. 779. ^ ;[64 DECLAKATIONS. 217 § 164. Evidence aliunde position of declarant.— As in every case where a person seeks to introduce a declaration which is only admissible under particular circumstances, the compe- tency of the declaration can not be shown by the declaration itself. It therefore follows that, if the fact has not been in- cidentally shown before, there must be proof aliunde of the facts necessary to render the declaration competent before it can be introduced.^ § 165. Evidence competent although there are living wit- nesses.— The fact that there are persons living who are cogni- zant of the matter sought to be proved by the declaration will not render it incompetent.* §166. Admissibility of entry where declarant can testify. —An entry made in the usual course of business is not admissible as proof of a collateral fact where the declarant is present, because his testimony is the best evidence. A resort to the book can not be justified, unless it is made neces- sary by the evidence of the witness that he does not remember the transaction.' In such a case the entry is admissible, as secondary evidence, if the witness is able to depose as to its correctness.* It is not to be denied, however, that the tenden- cy of more recent decisions favors the receiving of the entry as a circumstance corroborative of the testimony of the witness concerning it.® § 167. Must be ante litem motam and declarant disinterested in collateral controversy.— We have seen that modern author- ity justifies the proposition that the entry need not be against interest to authorize its introduction, but it can be gathered UGreenl. onEv., §149; Whart. on •» Pittsburg, etc., R. Co. v. Noel, Ev., §233. sttpra; post, § 186. "Middleton v. Melton, 10 B. & C. s Donovan v. Boston, etc., R. Co., 317- 1 Starkie on Ev., star p. 308. 158 Mass. 450, 33 N. E. Rep. 583; "Pittsburg, etc., R. Co. v. Noel, 77 Spann v. Bartzell, 1 Fla. 301, 46 Am. Ind 110- 1 Phil, on Ev., 389, (1849 Dec. 346, and see Beedy r. Macomber, Q^\ ' 47 Me. 451 ; Blattner ». Weis, 19 Me. 245. 218 INDIRECT AND COLLATERAL EVIDENCE. § 168 from the authorities, more often by implication than by actual ruling, that the declaration must be made under circumstances which practically preclude the idea that it might have been de- signed to affect the controversy in which it is sought to be used.* § 168. When entry must be made. — It has been expressly ruled that there need not be proof of the time when the entry was made to render it admissible ;* in this respect the rule seems to be somewhat different from the rule with reference to shop- books. But, nevertheless, the theory of the law is that the en- try was a practically contemporaneous record of the fact,' and if the evidence destroys this a priori assumption, no doubt the entry is rendered incompetent. § 169. Such declarations may be oral. — The cases concern- ing declarations in the course of business were for many years uniformly cases involving written declarations, so that it came to be a question whether such a declaration could be received if it was oral. The law may now be regarded as reasonably set- tled in favor of the affirmative of this proposition;* although there is a Massachusetts authority to the contrary.^ § 170. Declarations of deceased officials. — It is not the pur- pose to treat of that class of official declarations which the law contemplates shall be made for the express purpose of estab- ' lishing a fact concerning the subject-matter of such declara- tions. These are, of course, evidence. We have now to deal with official declarations as evidence in collateral controver- sies, because made in the course of official business. The En- glish cases which have been made the basis of the departure ' County of Mahaska v. Ingalls, 16 * Best on Ev., § 502; Taylor on Ev., Iowa 81; Gilchrist v. Martin, 1 Bai- §672; note to Higham u. Ridgway, as ley's Eq., (S. Car.) 492. reported in Smith's Lead Cases. *Doe V. Turford, 3 Barn. & Add. ^ Framingham Mfg. Co. v. Barnard, 890; Bridgewaterv. Roxbury,54Conn. 2 Pick. 532; Lawrence «. Kimball, 1 213, 6 Atl. Rep. 415. Met. 524. ^ Barber's Admr. v. Bennett, 58 Vt. 476, 4 Atl. Rep. 231, 56 Am. Rep. 565, § 170 DECLARATIONS. 219 of the American courts in favor of admitting declarations made in the usual course of business, as a reading of the precednig pages will show, were confined to entries made in the usual course of business, either by officials or quasi-officials or pro- fessional persons. This distinction between business entries and professional and official entries has been practically broken down in America. But as to official entries made by deceased persons, it may be claimed for them that they are entitled to more consideration than business entries, because, as to the former, the maxim "omnia prxsumuntnr rite esse acta'' obtains with greater force. In this connection, the following remarks from Justice Story, in holding competent an entry of notice to an indorser, made by a deceased notary in his record book, may be quoted as applicable to all declarations made in the usual course of business : " It is the best evidence that the nature of the case admits of. If the party is dead, we can not have his personal examination on oath, and the question then arises whether there shall be a total failure of justice, or sec- ondary evidence shall be admitted to prove facts, where ordi- nary prudence can not guard against the effects of human mortality.'" Upon this ground tlie cases rest which permit the declarations of deceased surveyors as to boundaries, made in the usual course of their business, to go in evidence.' Of the admissibility of the field notes of a surveyor who is de- ceased, there can be no question.' Official and church regis- ters of births, marriages and burials may be competent evi- dence, particularly when they relate to past generations." All of these cases have for their foundation the fact that the entry was made in the usual course of business by a person deceased, 1 And gee, also, as to Notaries, Hal- 104 ; Adams v. Blodgett, 47 N. H. 219, May V. Martinet, 20 John. 168, 11 90 Am. Dec. 569; George r. Thomas, Am. Dec. 262; Wilbur v. Seldon, 6 16 Tex. 74, 67 Am. Dec. 612, note; Cow. (N. Y.) 62; Butler v. Wright, 2 Whart. on Ev., § 248. Wend. 369; Nichols v. Goldsmith, 7 s Aldrich v. Griffith, 66 Vt. 390, 29 Wend. 160; Bell v. Perkins, Peck Atl. Rep. 376; Suavely t^. McPherson, (Tenn.) 261, 14 Am. Dec. 745; Farm- 5 Har. & John. 150; Richardson v. ers' Bank v.' Whitehall, 16 Serg. & R. Carey, 2 Rand. (Va.) 87. 89 ; Nourse v. McCay, 2 R*vwle 70. y * Jackson v. King, 5 Cowen 237, 15 ^McCormick v. Barnum, 10 Wend. Am. Dec. 468. 220 INDIRECT AND COLLATERAL EVIDENCE. § 171 and the reader is therefore referred to the preceding discussion of that subject. § 171. Declarations of deceased persons as to boundaries. — The autliorities upon tliis subject are in a state of great con- fusion. This is due in part to the fact that many courts have confused reputation and declarations, as evidence of boundaries. The former subject we have already discussed/ and, as was there shown, well considered cases reject evidence of reputation to establish boundaries, except where they are public or quasi- public. The reason for this is obvious. If the question be: shall the court permit the declaration of a deceased person, whom the evidence shows was familiar with the boundary, to go in evidence, then it is plain that whatever the objections may be to permitting his declaration to be introduced, it can not be urged that he did not have knowledge. But on the other hand, if it is proposed to receive evidence of reputation — which is drawn from the community at large — the insupera- ble objection to such a proposal is that there is not even room for a just presumption that the community was informed about what was a mere matter of private concern. Upon the former question it must be admitted that even the conservative judi- cial opinion of America has pressed the law beyond the con- fines of English doctrine. "But,'" as said by Messrs. Cowen and Hill in their notes to Phillips on Evidence/ "in settling the litigated boundaries of corporeal property, no courts have, probably, been more extensively engaged, or upon questions of greater difficulty, than the American. In conducting the inquiry, therefore, how far can hearsay be brought to bear on the boundaries of private property, while the English decisions are doubtless, as usual, very high evidence of the common law, yet American courts ought not hastily to be condemned, though they may appear to have gone beyond them . " ' 'This, '* says the Texas Supreme Court, ^ "has been the result of neces- sity. Our land-marks are usually of perishable materials, and ^Ante, §§ 130, 139. ^ Stroud v. Springfield, 28 Tex. 649. 2 Phillips Ev., Vol. 3, (1849 ed.) 241. §172 DECLARATIONS. 221 by the settlement and improvement of the country, and from other causes, they are constantly being destroyed." But we can not acquiesce in the conclusion of that court that necessity will justify the reception of mere reputation. There is a line of cases in this country that authorizes the introduction of the declarations of deceased persons as to boundaries, while in possession of land owned by them, in the act of pointing out their boundaries, and at a time when they had no reason to deceive or misrepresent.^ There are also cases which hold that such declarations are competent although made while off the land and not accompanying an act of pointing out the boundaries. The first line of cases has the preponderant voice, but it is to be observed that the effort of the leading case of Long V. Colton,' to establish the limitation that the declaration must be made while pointing out the lines, on the ground that such declaration is a part of an act and therefore res gestx, was futile, for the reason that if the declaration is res gestx, it could be proved, although the owner was alive and seeking to in- troduce it in his own favor. None of the cases go that far. A study of them will show that the declarations of deceased owners are admitted upon a principle analagous to that of declarations concerning pedigree, and the only question is, at what point shall a stopping place be established?' § 172. Indorsements of payment— Do they toll the statute of limitations ?— Suppose that in a suit upon a specialty or note, 1 Hunnicatt .. Peyton, 102 U. S. 333 ; N. H. 532, 15 Atl. Rep. 543 ; Mutter r. Daggett V. Shaw, 5 Met. (Mass.) 223; Tucker (N. H.), 30 Atl Rep. 352; Bartlett«. Emerson, 7 Gray 174; Bart- Powers .. Sil/by, 41 ^ t^288; Coate lett V. Brookhouse, 7 Gray 454; Long v. Speer, 3 McCord (S. Car.) 227. 15 V Colton, 116 Mass. 414; Curtis v. Am. Dec. 627, note. Aaronson 49 N. J. L. 68, 7 Atl. Rep. » See further on the general subject. 886 60 Am. Rep. 584; Bender «.Pitzer, Boardman v. Feed's Lessees, 6 Pet. '>7Pa St 333- Royal r. Chandler, 81 327 ; Redding's Lessees t^. McCubbin, Me. 118. 21 Atl. Rep. 842. 1 Har. & McHen. 368; Blythe j. «Long V Colton, 116 Mass. 414. Sutherland, 3 McCord (S. Car.) 258; Great Falls Co. v. Worster, 15 N. H. Beard's Lessee v. Talbot, 1 Cooke 412; Adams v. Blodgett, 47 N. H. 219, (Tenn.) 142; Conn v. Pennsylvania, 90 Am. Dec. 569; Smith v. Forest, 49 1 Pet. C. C. 496. N. H.230; Lawrence v. Tennant, 64 222 INDIRECT AND COLLATERAL EVIDENCE. § 172 where the statute of limitations is pleaded, it appears that the statute had run except for what purports to be an indorse- ment of payment, which bears a date prior to the expiration of the period of limitation. Would such indorsement be evi- dence in favor of the holder without further proof, the person who held the obligation at the date on which the indorse- ment purports to have been made being dead ? The im- perfectly reported case of Searle v. Harrington,' has been cited in support of this proposition,^ and in Smith v. Battey,* the proposition was decided in the affirmative. It has been claimed, however, that in Searle v. Barrington, there was other evidence as to the date of the indorsement,* and the force of the case is very much shaken by Rose v. Bryant,^ in which Lord EUenborough said : "I think that you must prove that these indorsements were on the bond at or recently after the times when they bear date, before you are entitled to read them. Although it may seem at first sight against the interest of the obligee to admit part payment, he may thereby in many cases set up the bond for the residue of the sum secured. If such indorsements were receivable whensoever they might have been written, this would be allowing the obligee to man- ufacture evidence for himself to contradict the fact of payment." It would seem that Searle v. Barrington,^ as subsequently in- terpreted, declares the true rule, for if it was shown by the evi- dence, de hors the declaration, that the indorsement was made while the courts were still open to the holder of the obligation, it must be that a declaration made at that time would be against interest. Professor Parsons suggests as an objection to this view "that an entry while the note is still enforceable, but near the period of limitation, is almost as much in favor of the creditor, and almost as likely to be made in fraud as one made ^Searle v. Barrington, 2 Stra. 826, 8 Cr. & M. 410, and see 3 Bro^yn P- C. Mod. 278; 3 Brown P. C. 535. 535; Turner v. Crisp, 2 Str. 827; 2 Smith V. Battens, 1 M. & Ro. 341. Glynn v. Bank of England, 2 Ves., See Taylor on Ev., § 695. Senior. 3 Smith V. Battens, 1 M. & Ro. 341. s^ose v. Bryant, 2 Camp. .321. *Bayley, B., in Gleadow v. Atkin, 1 " Searle v. Barrington. 2 Stra. 826. § 173 DECLARATIONS. 223 a short time later."' This assertion will scarcely bear analy- sis, however, for in the latter case the purpose which it would be sought to make the indorsement subserve would be to gain a remedy for the balance of the obligation, while in the former case his remedy would exist, and the only possible purpose the entry might serve would be to enable his representatives to wait un- til the statute of limitations had almost a second time expired, in the hope that the debtor would not then be prepared with evidence of payment. While it is conceded that the indorse- ment might be made for this very purpose, yet the possibility that the holder of the obligation, conscious that it could be de- feated, would make an indorsement upon the obligation, affix- ing a date just prior to the expiration of the period of limita- tion, trusting not only that lapse of time might destroy the adverse evidence, but also that his own death might oppor- tunely occur, so as to make his entry competent, is so remote that the law, as a practical science, ought to account such a pos- sibility as nil. The conflict which has been waged on this sub- ject was set at rest in England by Lord Tenterden's act' as to all written obligations, except bonds and other specialties, by providing that such indorsements should not operate to extend the statute. Like legislation is found in some of the states. Shop-Books as Evidence Between Seller and Purchaser. § 173. Leading case upon shop-books.— The case most fre- quently cited on this subject is that of Price v. Earl of Tarring- ton.' It is as follows : '' The plaintiff being a brewer, brought an action against the Earl of Tarrington for beer sold and de- livered, and the evidence given to charge the defendant was, that the usual way of the plaintiff's dealing was, that the dray- men came every night to the clerk of the brew-house and gave him an account of the beer that they had delivered out, which he set down in a book kept for that purpose, to which the dray- men set their names, and that the drayman was dead, but that ^Parson's Notes and Bills, 663. splice v. Earl of Tarrington, Ralk. '9 G. 4 c. 14. 285, reported in Smith's Lead. Cas. 224 INDIRECT AND COLLATERAL EVIDENCE. § 174 this was his hand set to the book : and this was held good evidence of a delivery; otherwise of the shop-book itself singly, without more." While the English courts have manifested a disposition not to extend the doctrine of this case, yet its au- thority has never been questioned. It will be observed that it bears this essential difference from a class of cases we have lately been discussing : that the evidence was admitted only as proof between the seller and the buyer ; in discussing the sub- ject of entries in the usual course of business, as proof in collateral controversies, we have seen that in England, at least, the authorities can not be said to go further than to admit an entry which is not against interest where it is made in the usual course of business of official or professional employment. We see, however, in Price v. Tarrington,' that as between seller and buyer a mere business entry, not against interest, is admitted. § 174. Shop-books in United States. — It is not probable that any American court would hold that Price v. Tarrington^ was decided wrong, in fact in most of the states the courts have gone considerably beyond that case, in this : that they admit shop-books, even where the clerk is living, provided that they are accompanied by his suppletory oath, where it can be procured, and in many of the states, the plaintiff being a competent witness, even his own entries are received under the same limitation. But evolutionary processes go on even in the law of evidence, and the American courts, in extending the English doctrine upon the subject under discussion, have only yielded to the imperative demand of a commercial age. For- tunately, however, this innovation upon the English law is not an excrescence upon the law of evidence, for it is approxi- mately the law concerning the res gestae, a doctrine which has also developed within the last century. If goods are purchasd on credit, it may be said, with practical accuracy, that in the business world a charge is a necessary concomitant. Now, if this charge be entered at a time substantially contemporaneous 1 Price V. Earl of Tarrington, Salk. ^ Price v. Earl of Tarrington, Salk. 285. 285. § 175 DECLARATIONS. 225 with the extension of the credit, it may be said that the charge is a part of the res gestx. Of course it will not do to attempt to tie the doctrine of the admissibility of shop-books down to the doctrine of res gestae, for that would lead to error in respect to the element of contemporaneousness, but the analogy is suffi- ciently strong, and the necessity sufficiently great, to pretty thoroughly intrench the modern cases relative to the admissi- bility of merchants' books. § 175. Character of transactions upon which books may be introduced. — The innovation of permitting books to go in evi- dence in inquiries as to transactions between buyer and seller has not been accomplished by the influence of some masterful precedent, the logic of which settled the law and the practice upon the subject. But we find instead, in each state where the innovation has been judicially sanctioned, that an inde- pendence of spirit has been manifested which has made the decisions, viewed as a whole, somewhat heterogeneous. There are some states in which the doctrine has never been carried beyond Price v. Tarrington/ in which the necessity for the in- troduction of the books was absolute. In other states the courts have manifested a disposition to admit entries made in the usual course of business, when accompanied with a suppletory oath, although no absolute necessity exists. Between these extremes there are various shades of doctrine. In the main, however, the courts have kept quite close to Price v. Tarring- ton,^ in the disposition to confine evidence of book entries to such as are made in the regular books used by persons in their business, and to such entries as relate to such business, and not to permit such entries to evidence anything but the sale and delivery of goods or the rendition of services. As we shall see hereafter, a mere private memorandum is not evidence, except under exceptional circumstances.^ 1 Price V. Earl of Tarrington, Salk. « Price v. Earl of Tarrington, Salk. 285. 285. ^ Post, § 186. 15— Ev. 226 INDIRECT AND COLLATERAL EVIDENCE. §176 § 176. To what classes of business the doctrine applies. — According to the current of authority at this time, the doctrine is not confined to shop-books. The majority of the cases upon the subject sanctions the use of book entries to evidence the sale and delivery of goods, or the performance of service.* In a South Carolina case,* where the books of a billiard table keeper were offered to prove an assumpsit for the use of the table, the judge who wrote the opinion of the court said : " The plaintiff in this action is not a shop-keeper, merchant, handi- craftsman or mechanic, nor can the case be brought within the description of any of those in which books of entries have been allowed. The action is not for articles of any kind sold or delivered, service rendered, or for work or labor, and if these books are to be allowed, I do not see why the books of showmen, rope-dancers, and gamblers of every description may not be admitted.'" § 177. Transaction must be within scope of ordinary busi- ness. — Books can not be used to prove transactions isolated from the party's regular business. Thus it has been held, where a person was not engaged in the selling of horses, that an entry in his books showing the sale of a horse was not com- petent.* So, in a case where a person claimed to have sold his * See Charlton v. Lowry, Mart. (N. missible in Orcutt v. Hanson, 70 Iowa Car.) 26; Mitchell d. Clark, Mart. (N. 604, 31 ]^. W. Rep. 950, where the Car.) 25; Sargeant v. Pettibone, 1 Aik. plaintiff was engaged in the business (Vt.) 355; Fry r. Slyfield, 3 Vt. 246; of loaning money. In a number of ,Howell V. Barden, 3 Dev. (N. Car.) the states cash entries as evidence is a 442; Easly v. Eakin, Cooke's Rep. subject of statutory regulation. (Tenn.) 295; Phenixv.Prindle, Kirby ^ Boyd v. Ladson, 4 McCord (S, (Conn.) 207; Boardman v. Keeler, 2 Car.) 76, 17 Am. Dec. 707. Vt. 65. The decided preponderance ^ In this case, the case of Frazier v. of authority is in favor of the proposi- Drayton, 2 Nott. & McCord 471, where tion that charges on account of money it was held that the books of a ferry- loaned, or paid at the request of the man wei-e admissible to prove an ac- other party, can not be proved. Ins- count for ferriage, is criticized for the lee V. Prall, 3 Zab. (N. J. L.) 457; reason that it is not the habit of ferry- Bailey V. McDowell, 1 Harr. (Del.) men to give credit. 346 ; Peck v. Von Keller, 76 N. Y. 604 ; « Shoemaker v. Kellog, 11 Pa. St. 300. Sanford v. Miller, 19 111. App. 536. See Corr v. Sellers, TOO Pa. St. 169, 45 Contra,Warden v. Johnson, 11 Vt. 455. Am. Rep. 370 ; Smith v. Law, 47 Conn. It was held that such entries were ad- 431 ; Veiths v. Hagge, 8 lov/a 163 ; § 178 DECLARATIONS. 227 interest in certain property, a book was excluded which con- tained the single entry, "To 1,079 head at 30 cents per head.'" Entries of cash advances in a merchant's book have been re- jected on the same ground.^ § 178. To what subject entry must relate. — As already stated, the cases confine book entries to cases where they tend to prove the sale and delivery of goods or the rendition of some kind of service. They can not be used to prove facts that are collateral thereto, as, for instance, that the defendants were partners f that a mistake existed in a former settlement; * or to prove a balance struck on book accounts,* or to whom credit was given, where that fact is in issue.* Books can not be used as negative evidence, as where a defendant seeks to show that there is nothing on his books relative to the claim plaintiff is asserting.' § 179. Relation of entry to transaction. — There must be a right to charge when the service is done or the goods deliv- ered,' and the circumstances must be such that there is a trust implied that the book shall be kept for the benefit of the per- son performing the service or selling the goods.' The trans- action must be of such a character that it is the just expectation that the charge is to accompany the rendering of the service or the furnishing of the goods." On this ground it has been held that books could not be used in an action for part per- formance under a special contract, or for goods which were to Moody V. Roberts, 41 Miss. 74; Bald- « Kaiser v. Alexander, 144 Mass. 71, ridge v. Penland, 68 Tex. 441, 4 S. W. 12 N. E. Rep. 209. liep. 565. 7 Mattocks v. Lyman, 18 Vt. 98, 46 ' Ryan v. Dunphy, 4 Mont, 356, 47 Am. Dec. 138. Am. Rep. 355. See Corr v. Sellers, ^ Work and labor must in general be 100 Pa. St, 169, 45 Am. Rep. 370. executed before it is charged. How- 2 Young V. Jones, 8 Iowa 219 ; Case ell v. Barden, 3 Dev. 442. But see V. Potter, 8 Johns. 211; Low v. Payne, Kaughley v. Brewer, 16 S. & R. 133, 4 N. Y. 247 ; Maine v. Harper, 4 Allen 16 Am. Dec. 554. 115. 9 Merrill v. Ithaca, etc., R., 16 •Severance v. Lombardo, 17 Cal. 57. Wend. 586, 30 Am. Dec. 130; Terrill * Punderson v. Shaw, Kirby (Conn.) v. Beecher, 9 Conn. 344. 150; Rogers v. Moor, 2 Root 58. lo Alexander v. Hoffman, 5 W, & S. 5 Prest V. Mercereau, 4 Halst. 268. 382; Eshleman v. Harnish, 76 Pa. St. 97. 228 INDIRECT AND COLLATERAL EVIDENCE. § 180 be delivered at a future day.^ The invoice book of an agent is not evidence of the sale and delivery of goods.' § 180. Character of entry.— It is an inflexible requirement that the entry offered shall be the first permanent memorial of the transaction. But it has been held that a day-book was a book of original entries, although a primary entry had been made on a slate," or upon a butcher's cart;* and a like ruling was made in a case where the plaintiff kept an account in a book, made up from marks upon his wagon indicating the number of loads of dirt hauled by him.' In cases like these it is necessary to prove that the transfer to the permanent record was made with reasonable promptitude.® The cases are not uniform as to the exact time ; a very considerable delay was held not to exclude the book in one case' and in another the idea is suggested that the delay may be explained.* The governing principle is not difficult to ascertain, however. The reason why the law permits the permanent memorial to be intro- duced, notwithstanding the temporary entry, is that the for- mer alone is the one which the parties have impliedly agreed shall be an evidence of the transaction. The case, therefore, stands as though no temporary memorandum had been made. With respect to the time of entering the charge, whether there has been a preceding minute of the transaction or not, it may be said that while the law does not fix the precise time when 1 Rheem ^>. Snodgrass, 2 Grant (Pa.) 649; Landis i>. Turner, 14 Cal. 573; 379 Forsythe v. Norcross, 5 Watts 432, 30 ^Cooperw. Morrel, 4 Yeates341. Am. Dec. 334. See Miller v. Shay, 8 Faxon v. Hollis, 13 Mass. 427; 145 Mass. 162, 13 N. E. Rep. 468, 1 Whitney v. Sawyer, 11 Gray 242 ; Lan- Am. St. Rep. 449 ; Sickles v. Mather, dis V. Turner, 14 Cal. 573; Sickles v. 20 Wend. 72, 32 Am. Dec. 521 ; Faxon Mather, 20 Wend. 72, 32 Am. Dec. v. Hollis, 13 Mass. 427; Woolsey v. 521. Bohn, 41 Minn. 235, 42 N. W. Rep. 4 Smith V. Sanford, 12 Pick. 139, 22 1022; Hall v. Glidden, 39 Me. 445. Am. Dec. 415. 'Hall v. Glidden, 39 Me. 445. 5 Miller v. Shay, 145 Mass. 162, 13 « Landis v. Turner, 14 Cal. 573. Ex- N. E. Rep. 468, 1 Am. St. Rep. 449. amine Drummond v. Hyams, Har- ^Drummond v. Hyams, Harper's per's (S. Car.) Law Rep. 268, 18 Am. (S. Car.) Law Rep. 268, 18 Am. Dec. Dec. 649. § 180 DECLARATIONS. 229 the charge must be made/ and literal contemporaneousness is not required, yet it must appear, from evidence of business custom, or otherwise, that the entry was a substantially con- temporaneous record of the transaction. Mr. Wharton's state- ment of the law on this subject is that *'the entries must be made as soon after the transaction as is consistent with the due course of business."^ The charge must be reasonably spe- cific, for the reason that the book is 'prima facie evidence of the item charged and the price or value carried out.^ The follow- ing entries have been rejected as too indefinite : "One hun- dred and ninety days' work;"* "Seven gold watches, $308;"^ * ' To repairing brick machine ; "® * ' $13 for medicine and attend- ance on one of the General's daughters in curing the whooping cough.'" No particular form of book-keeping is required. If a merchant's original entries are put down in ledger form, that affords no reason for excluding the book.* It is competent to explain such characters in the entry as are in common use in the particular line of business, and which would be readily understood by persons conversant with its terms, but with this exception the suppletory oath can not go to the extent of ex- plaining the item offered.^ In order to be competent the book which is offered must be that in which the party was in the habit at the time of recording the transactions of the line of iCurren v. Crawford, 4 S. & R. ^Corr v. Sellers, 100 Pa. St. 169, 45 (Pa.) 3. Am. Rep. 370. "Ev., § 683. See Walter v. Boll- * Lynch's Admr. v. Petrie, 1 Nott. & man, 8 Watts 544 ; Kent v. Garvin, 1 McCord 130. Gray 148; Taggart t;. Fox, 11 Daly ' Bustin v. Rogers, 11 Gush, 346. 159. In Jones v. Long, 3 Watts 325, « Corr v. Sellers, 100 Pa. St. 169, 45 it was said by Sergeant, J.: "The Am. Rep. 370. entry need not be made exactly at the ' Hughes v. Hampton, 2 Const. Rep. time of the occurrence ; it suffices if it 745. be within a reasonable time, so that it 'Faxon v. Hollis, 13 Mass. 427; may appear to have taken place vvhi'e Cummings v. Nichols, 13 N. H. 420, the memory of the fact was recent, or 38 Am. Dec. 501. The fact that a the source from which a knowledge of ledger is not a book of original en- it was derived, unimpaired. The law tries operates to exclude it where not fixes no precise instant when the en- so used. Griesheimer v. Tanenbaum, try should be made. If done at or 124 N. Y. 650, 26 N. E. Rep. 957. about the time of the transaction it is ^ Cummings v. Nichols, 13 N. H. sufficient." 420, 38 Am. Dec. 501. 230 INDIRECT AND COLLATERAL EVIDENCE. § 181 business to which the entry pertains, and there must be noth- ing about the entry, or indeed about the book generally, which is calculated to infect the entry in question with suspicion.* Slight circumstances will suffice to destroy the competency of book entries, as it is a class of evidence which stands on the verge of incompetency, and entries may be excluded where there are interlineations, erasures and impossible dates in connec- tion with the entries in question which justly subject them to sus- picion.^ "The question of competency," says the court in a Mississippi case,* " must be determined by the appearance and character of the book, regard being had to the degree of edu- cation of the party, the nature of his employment, the manner of his charges against other people, and all the circumstances of the case." While the trial court should be quick to seize upon circumstances which discredit entries, yet the court ought to exercise a keen discrimination to avoid the exclusion of entries which in their very mistakes show the artlessness of the unde- signing.* In some of the states affirmative evidence is re- quired that the party keeps honest books. § 181. Question of necessity as affecting right to introduce books. — Upon this point the authorities can not be reconciled. The cases which hold to the doctrine of necessity maintain , where a sale is made of articles of great bulk or weight, that book entries thereof must be excluded, for the reason that there is better evi- dence of the fact of delivery. So where a service is rendered of a character which presupposes that third persons are in- formed of it, there are cases which hold the book-entry incom- petent. On this ground an entry was held inadmissible which read: "To repairing brick-machine, 1932.76."' In another *Funk V. Elj^, 45 Pa. St. 444; practice is to submit even suspicious Churchman v. Smith, 6 Whart. 146, entries to the jury, and allow it to de- 36 Am. Dec. 211; Curren v. Crawford, termine what weight, if any, shall be 4 Serg. & R. 3; Johnson v. Fry. 88 given them. Wood's Prac. Ev., p. Va. 695, 12 S. E. Rep. 973, 14 S. E. 394, citing Gosewich v. Zebley, 5 Rep. 183. Harr. 124; Sargeant v. Pettibone, 1 ^ See cases in preceding note. Aik. 355. 8 Moody V. Roberts, 41 Miss. 74. ^Corr v. Sellers, 100 Pa. St. 169, 45 * In Delaware and Vermont the Am. Rep. 379. ^ 182 DECLARATIONS. 231 cLse it was held that a school-master's book, although regularly kept, was not evidence, as he must have had many witnesses at his command to prove his service.* It is not to be denied, howiiver, that the courts have not kept close to the doctrine of necessity in the United States, for the practice has become quite general to receive book entries, when accompanied by the suppletory oath, without regard to the consideration as to whether there is any person who is a competent witness having a recoLection of the transaction. In this class of cases such entries are regarded as original evidence. Thus, in a Massa- chasett£case,'itissaid: "The use of one's own books, verified by his oath, is not secondary evidence, nor is it necessary to its ad- mission first to show the loss of other evidence. It is original, bit feeble and unsatisfactory evidence." In a New Hamp- sHre case,' the court said : " It is the book which is the evi- i^nce, and the party testifies in chief only to verify it. The party is not a witness who testifies to facts, and then appeals to the book in corroboration of his story ; but the book is the source of information, and the party is limited to testifying that it is a true record." § 182. Party's own entries may be shown The tendency to give credence to contemporaneous business entries has led the courts of the United States, with few exceptions, to admit the entries of parties made under the limitations heretofore stated. The following is from the note of Judge Freeman to the case of Union Bank v. Knapp,* as reported in 15 American Decis- ions 181 : '* Entries made at the time acts took place, by one whose duty it was to keep a record of such acts, or by the tradesman whose duty it was, in the course of his business dealings, to preserve a minute of them himself, ought equally to be received as evidence of these acts. The mere fact that the accounts in th& latter case may be to the interest of the party making them should not of itself cause their rejection. In the former case it is uniformly urged in support of the ad- 1 Pelzer v. Cranston, 2 McCord 328. a Little v. Wyatt, 14 N. H. 23. ' Mathes V. Robinson, 8 Met. 269, 41 « Union Bank v. Knapp, 3 Pick Am. Dec. 505. (Mass.) 96, 15 Am. Dec. 181. 232 INDIRECT AND COLLATERAL EVIDENCE. §185 missibility of the book of items that it will be presumed that he who was in duty bound to keep a faithful transcript of events has performed his duty. The presumption drawn ft"om honesty of purpose appears to be just as strong in the fetter case, where the merchant writes up his own books of debits and credits, and at least should not be overthrown by th« mere appearance of a balance in his favor." The disposi;ion to treat book entries as primary evidence leads to the further ruling, where this view of the law obtains, that the feet that the statute has rendered the party a competent witness will not operate to exclude his book.' § 183. Suppletory oath. — The preceding discussion has made it manifest that there must be evidence offered, at least wlun it can reasonably be obtained, that the conditions exist whi;h render the entry competent. If the sale was by a clerk, ae must ordinarily be called to make the suppletory proof. 11 the clerk is dead or insane his handwriting may be proved. There are authorities which excuse the production of the evi- dence of the clerk where he is permanently out of the state.'' * In Nichols v. Haynes, 78 Pa. St. 174, it is said: "Now the party him- self is a competent witness, and may prove his own claim as a stranger would have done before the act of 1869. That the facts contained in the book, either of charge or discharge of cash or goods, or whatever else is in his personal knowledge, might be proved by a stranger, no one doubts. A clerk, for instance, could prove the account, including cash items, from his own knowledge, and might use the book to refresh his memory. The party now stands by force of the act on the same plane of competency as the stranger stood upon, and, there- fore, may make the same proof that a stranger could." 2 Chaffee v. United States, 18 Wall. (U. S.) 516 ; Burton v. Driggs, 20 Wall. 134; Cummings v. Fullam, 13 Vt. 434; Union Bank v. Knapp, 3 Pick. (Mass.) 96, 15 Am. Dec. 181 ; Bartholomew v. Farwell, 41 Conn. 107 ; Bridgewater v. Roxbury, 54 Conn. 213, 6 Atl. Rep. 415; Sterrett v. Bull, 1 Binn. (Pa.) 234 ; Alter v. Berghaus, 8 Watts 77 ; Hay V. Kramer, 2 Watts & S. 137; Culver V. Marks, 122 Ind. 554, 23 N. E. Rep. 1086, 17 Am. St. Rep. 377; Elms V. Chevis, 2 McCord (S. Car.) 349; Tunn v. Rogers, 1 Bay 480; McDonald v. Carnes, 90 Ala. 147, 7 So. Rep. 919; Vinal v. Oilman, 21 W. Va. 301, 45 Am. Rep. 562. In the case last cited it was held that there should be proof that the clerk was not fraudulently sent out of the juris- diction. In other cases it is held that the fact that the clerk resides out of the state will not excuse the produc- tion of his evidence with the books. Welsh V. Barret, 15 Mass. 380; Merrill § 184 DECLARATIONS. 233 § 184. Secondary evidence of books. — There is an early case in which it was held that extracts from a foreign merchant's book might be received, if verified by the oath of a clerk, the court saying that it would be unreasonable to require the pro- duction of the books.' It has been held in Idaho that sec- ondary evidence of account books might be introduced upon proof of their loss or destruction.^ It would seem, however, that when the books of a party can not be produced it is time to stop. It would be an intolerable practice to permit a party to prepare self-serving declarations in the way of book entries, and then, upon their loss or destruction, to prove them by a class of proof which of necessity excludes from consideration all those tests of truth which lift entries made in the usual course of business above the plane of hearsay. A very forcible opinion upon the subject under consideration is that of Lump- kin, J., in a Georgia case.^ In the case referred to the learned justice says : "So long as the books themselves are required to be produced, the defendant may by their inspection defeat such proofs by showing such a want of fairness and regularity as to create suspicion, or throw discredit upon the account with which he is sought to be charged. But allow the party, in the absence of his books, to establish the demand by a copy claimed to have been drawn or transcribed by himself, and what protection has the defendant? Is he not delivered over, bound hand and foot, to his adversary? Better that the debt be lost for want of sufficient testimony, as many rights are, than to establish a principle and practice so fraught V. Ithaca, etc., R, Co., 16 Wend. 586; Donald v. Carnes, 90 Ala. 147, 7 So. 30 Am. Dec. 130; Brewster v. Doan, 2 Rep. 919; Chaffee v. United States, 18 Hill 537; Mahaska County v. Ingalls, Wall. 516; Holbrook v. Gay, 6 Cush. 16 Iowa 81. The general argument ad- 215; Mahaska County v. Ingalls, 16 vanced in the cases last cited is that as Iowa 81. the clerk's evidence can be procured, it ^ Bell v. Keely, 2 Yeates (Pa.) 255. would be to incur an unnecessary dan- See Lewis v. Bacon, 3 Hen. & Munf. gertodispense with his evidence, since 89; Elms v. Chevis, 2 McCord 349. it might lead to fraud and there would ^ Mills v. Glennon, 2 Idaho 95, 6 be no such responsibility for false en- Pac. Rep. 116. tries as there would be if he testified 'Creamer v. Shannon, 17 Ga. 65, 63 under oath. As to insanity see Me- Am. Dec. 226. 234 INDIRECT AND COLLATERAL EVIDENCE. § 1^5 with mischief." The following is an extract from the opinion of the court in a Pennsylvania case:^ "The rule that makes shop-books evidence is founded in the necessities of justice. They are evidence manufactured by the shop-keeper himself, ■for his own purposes, and without any chance of supervision by the customer. In their best estate, therefore, it is proper to subject them, when offered in evidence, to severe scrutiny." § 185. Books of deceased persons. — The extension of the doctrine concerning the admissibilit}'' of entries made by the party himself , leads, in principle, to the doctrine that upon his decease his books, if competent while he was in life, are still admissible. This is the prevailing view.^ There seems to be some difference of opinion as to the character of the suppletory proof which should be made in such cases. It would seem, however, if the executor or administrator testifies that the books came into his possession as the books of the deceased, and, if proof is made of his handwriting, that further testimony should not be required, to render the books prima facie competent.* § 186. Mere memoranda not evidence. — Mere private mem- oranda is not ordinarily competent, even where their correct- ness is testified to,* but under exceptional circumstances such ^ Weamer v. Juart, 29 Pa. St. 257, 72 seller had become insane. A different Am. Dec. 627. doctrine obtains where the book is a 2 Bentley's Admr., v. Hollenbeck, mere diarj"^ or personal memoranda. Wright's Rep. (Ohio) 168; Prince v. Costello v. Crowell, 139 Mass. 588, 2 Smith, 4 Mass. 455 ; Pratt v. White, N. E. Rep. 698 ; post, § 186. 132 Mass. 477; Dwight v. Brown, 9 ^ Hoover v. Gehr, 62 Pa. St. 136. Conn. 83; McLellan v. Crofton, 6 See Bentley's Admr. v. Hollenbeck, Greenl. 307; Dodge v. Morse, 3 N. H. Wright's Rep. (Ohio) 168. 232 ; Hoover v. Gehr, 62 Pa. St. 136 ; < Watt v. Howard, 7 Met. 478 ; Cos- Howard V. Patrick, 38 Mich. 795; tello v. Crowell, 139 Mass. 588, 2 N. Martin «. Scott, 12 Neb. 42, 10 N. W. E. Rep. 698; City of New York v. Rep. 532. Examine Mason v. Wed- Second Ave. R. Co., 102 N. Y. 572, 7 derspoon, 43 Hun 20 ; Bland ». Warren, N. E. Rep. 905, 55 Am. Rep. 839 ; Na- 65 N. Car. 372 ; Treadvvay v. Treadway, tional Ulster County Bank v. Madden, 6 111. App. 478. In Holbrook v. Gay, 6 114 N. Y. 280, 21 N. E. Rep. 408, 11 Cush. (Mass.) 215, the doctrine of the Am. St. Rep. 633 ; Barber v. Bennett, text was extended to a case where the 58 Vt. 476, 4 Atl. Rep. 231, 56 Am. Rep. § 186 DECLARATIONS. 235 memoranda may be competent as res gestse.^ There is a broad distinction between insulated memoranda, not part of the res gestse, and business entries, which are made in pursuance of business obligation and bear on their face a degree of evi- dence that they are a practically contemporaneous record of transpiring business affairs.^ Where, however, a witness testifies that he has no recollection of the facts of a transac- tion independent of a private memorandum, but is able to state that he knows the entry is correct, because of his invari- able custom to make correct entries, or because he recollects making or examining the entry when the facts were fresh in his mind and he recollects that it was correct, such a case is a proper one for the introduction of the memorandum itself.* It is to be observed that these circumstances warrant the in- troduction of the entry by reason of the combined facts that without the memorandum the evidence of the witness would go for naught, while, if received, his suppletory oath veri- fies the memorandum. If he has an independent recollec- tion of the facts, or if an inspection of the memorandum quickens his memory to the point of recollection, the mem- 565 ; Barnes v. Dow, 59 Vt. 530, 10 Atl. not under the sanction of duty or Rep. 258; Lassone v. Boston, etc., R. other obligation." A purely private Co., 66 N. H. 345, 24 Atl. Rep. 902. record kept by a locomotive inspector ^Nat. Ulster Co. Bank ». Madden, for his own purposes is not evidence. 114 N, Y. 280, 21 N. E. Rep. 408, 11 Hoffman v. Chicago, etc., R. Co., 40 Am. St. Rep. 633; post, § 286. Minn. 60, 41 N. W. Rep. 301. 2 In City of New York v. Second ^ Brown v. Jones, 46 Barb. 400; Ave. R. Co., 102 N.Y. 572, 7 N. E. Rep. Meacham v. Pell, 51 Barb. 65 ; Nat. 905, 55 Am. Rep. 839, the court said : Ulster Co. Bank v. Madden, 114 N.Y. " We are of opinion, however, that it 280, 21 N. E. Rep. 408, 11 Am. St. is a proper qualification of the rule Rep. 633, and cases cited; Merrill v. admitting such evidence that the ac- Ithaca, etc., R. Co., 16 Wend. 586; 30 count must have been made in the Am. Dec. 130; Lapham v. Kelly, 35 ordinary course of business, and that Vt. 195 ; Schettler v. Jones, 20 Wis. it should not be extended so as to ad- 412; Curran v. Witter, 68 Wis. 16, 31 mit a mere private memorandum, not N. W. Rep. 705, 60 Am. Rep. 827 ; made in pursuance of any duty owing Butler v. Chicago, etc., R. Co., 87 by the person making it, or when Iowa 206, 54 N. W. Rep. 208 ; Insur- made upon information derived from ance Co. v. Weides, 14 Wall. (U. S.) another who made the communica- 375. See Bates v. Preble, 151 U. S. 149, tion casually and voluntarily, and 14 Sup. Ct. Rep. 277. 236 INDIRECT AND COLLATERAL EVIDENCE. § 187 orandum is incompetent, because there is better evidence of the facts, while if his oath is lacking, the memorandum has nothing to lift it above its hearsay plane/ Depositions in Perpetuam Memoriam. § 187. Bills to perpetuate testimony. — Courts of chancery exercise a jurisdiction to perpetuate testimony, where the fact which it is desired to obtain testimony concerning can not be immediately investigated at law, as, for example, where the party filing the bill has merely a future interest, or, having an immediate interest, is himself in possession and not actually disturbed, though threatened by the defendant with a disturb- ance at a future time.* In most of the states this subject is regulated by statute. Testimony of Witness Given Upon Former Trial. § 188. Testimony on former trial, when admissible. — The testimony of a witness upon a former trial is secondary evi- dence. Our present concern is to ascertain the exceptional circumstances which will warrant its introduction. While the law does not require that the former action should be the same as that which is upon trial, yet it is essential that the witness should have deposed as to the same subject-matter, and that the issue upon the former trial should have been of ^ Although entries by deceased per- where suit is pending, and the regu- sons in the regular course of business iar opportunity for taking depositions are competent, as shown in earlier has not arrived, because the cause is portions of this chapter, yet the death not at issue. Some special reason of the maker will not render a mere ought to exist for the taking of the private memorandum competent, testimony in advance, as the fact that Lassone v. Boston, etc., K. Co., 66 N. the witness is aged, sick, or the only H. 345, 24 Atl. Rep. 902; Barber v. witness upon an important point. Bennett, 58 Vt. 476, 4 Atl. Eep. 231 ; Courts of chancery issue commissions 56 Am. Rep. 565; Costello v. Crowell, to examine witnesses abroad. This 139 Mass. 588, 2 N. E. Rep. 698. jurisdiction originated in the incapac- 2 Adams Eq., star p. 23. Courts of ity of courts of law to issue such com- chancery also entertain jurisdiction of missions without the consent of the bills for leave to take the depositions parties, of witnesses de bene esse ; that is, § 188 DECLARATIONS. 237 such a character as to challenge a full crOb>3-cxamination re- specting the right asserted in the subsequent case. Thus, where the issue raised in the former action was as to the ex- istence of a common or free fishery, it was held that the testi- mony of a witness examined in that case, and who had subse- quently deceased, was not admissible in an action where a sev- eral right of fishery was asserted.^ Professor Greenleaf cor- rectly remarks that the admissibility of this class of evidence " seems to turn rather on the right to cross-examine than upon the precise nominal identity of all the parties."^ Within the limitations above stated, the cases agree that the testimony of a witness upon a former trial may be introduced if such wit- ness is dead.' The authorities agree that such evidence is also admissible in all cases where the witness is to all intents dead for the purposes of evidence — as where the witness is insane,* or has become disqualified. At common law the former testi- mony of a witness was competent if he was beyond seas. The authorities in this country in the main hold that such testi- mony may be introduced if the witness is permanently or in- definitely absent from the state.* There are, however, a num- ber of authorities to the contrary.® These authorities proceed upon the theory that if the witness's residence is known, due diligence requires the taking of his deposition. Preference 1 Melvin v. Whiting, 7 Pick. 79. Rep. 435; Perry v. State, 78 Ala. 22, 2 1 Greenl. on Ev., § 164. 6 So. Eep. 425, Thompson v. State, 106 3 Euch z>. Rock Island, 97 U. S. 693 ; Ala. 67, 17 So. Rep. 5.12; State v. InsuranceCo.v.Weide, 9Wall. (U.S.) Riley, 42 La. Ann. 995, 8 So. Rep. 677;Halseyw. Sinebaugh, 15N.Y.485; 469; Magill v. Kauffman, 4 S. & R. Calvert v. Coxe, 1 Gill 95; Thomp- 317,8 Am. Dec. 713; Howard v. Pat- son V. State, 106 Ala. 67, 17 So. Rep. rick, 38 Mich. 795; Sneed v. State, 47 512: Marler v. State, 67 Ala. 55, 42 Ark. 180, 1 S. W. Rep. 68; Peoples Am. Rep. 95; Sage v. State, 127 Ind. Devine, 45 Cal. 46; Omaha Street R 15, 26 N. E. Rep. 667; Bass v. State, Co. v. Elkins, 39 Neb. 480, 58 N. W 136 Ind. 165, 36 N. E. Rep. 124; Chi- Rep. 164. cago, etc.. R. Co. v. O'Connor, 119 111. « Wilbur «. Selden,6 Cow.(N.Y.)162 586, 9 N. E. Rep. 263. Berney v. Mitchell, 34 N. J. L. 337 « Marler v. State, 67 Ala. 55, 42 Am. Hobson v. Doe, 2 Blackf. (Ind.) 308 Rep. 95; Thompson v. State, 106 Ala. Bergen v. People, 17 111. 426, 65 Am 67, 17 So. Rep. 512; Emig v. Diehl, Dec. 672; Wilder w. City of St. Paul, 76 Pa. St. 359. 12 Minn. 192 ; Gerhauser v. North *Lowe V. State, 86 Ala. 47, 5 So. British, etc., Insurance Co., 7 Nev. 174. 238 INDIRECT AND COLLATERAL EVIDENCE. § 189 must be given to the former line of cases, as absence from the state is the practical equivalent of beyond seas.' In a Minne- sota case^ it was held, where the testimony of a witness, who was a non-resident of the state, 'had been taken upon a former trial by an official shorthand reporter, thereby overcoming the objection that the witness upon the second trial was testifying from memory, that the evidence of the reporter as to the for- mer testimony of the witness was competent. The soundness of this conclusion can scarcely be doubted, as the law ought not to require a party under such circumstances to do the vain act of taking the deposition of the witness. If the whereabouts of a witness can not be ascertained, after diligent inquiry, the case stands, to all intents and purposes, as though the witness were dead.' To prevent a party from taking advantage of his own wrong, the law is that if by his wrongful contrivance a witness is kept from attending upon court, his former testi- mony may be used by the opposite party, as in other cases men- tioned in this section.* It has been sometimes stated in general terms that the fact that a witness is sick will justify the intro- duction of his prior testimony, but this statement is too broad. * It has been held that the former testimony of a witness might be used who was so old and bedridden that it appeared that his disability was permanent.^ If the sickness is only tempo- rary, the party ought to apply for a postponement of the cause, or, if the statute permits it, and the witness is able, take his deposition. § 189. Admissibility in criminal case of testimony given on former trial. — The view is to a considerable extent prevalent that the constitutional guaranty of the right of a person 1 Davie v. Briggs, 97 XJ. S. 628 ; State 145. See authorities cited in last note, ■jj. Johnson, 12 Minn. 476, 93 Am. Dec. ^ Le Baron v. Crombie, 14 Mass. 241. 234; Com. t). Eichards, 18 Pick. (Mass.) 8 Minneapolis Mill Co. v. Minn., 434, 29 Am. Dec. 608; Com. ?'. McKen- etc, R. Co., 51 Minn. 304, 53 N. W. na, 158 Mass. 207, 33 N. E. Rep. 389; Rep. 639. State v. Staples, 47 N. H. 113, 90 Am. 3 Drayton v. Wells, 1 Nott & Mc- Dec. 565. Cord 409,9 Am. Dec. 718; 1 Greenl. «Regina?;. Wilshaw, 1 Car. & Marsh. on Ev., § 163. 145. * Reynolds v. United States, 98 U. S. § 189 DECLARATIONS. 239 charged with crime to face his accusers renders evidence of the testimony of a witness upon a former trial incompetent. This view is erroneous. In Cooley's Constitutional Limitations, at page 389, the learned author, in speaking of this constitutional provision, says : ''If the witness was sworn before the exam- ining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there was a former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examina- tion, if the witness has since deceased, or is insane or sick and unable to testify, or has been summoned, but appears to have been kept away by the opposite party." In a New York case^ the New York Court of Appeals said: "This constitutional provision was not intended to secure to the accused person the right to be confronted with the witnesses against him upon his final trial, but to protect him against ex -parte affidavits and depositions taken in his absence, as was frequently the prac- tice in England at an early day. It was never regarded as an invasion of the fundamental rights of an accused person to read depositions upon his trial, if at some stage of his case he could be confronted with and cross-examine the witnesses to be used against him.'"^ There is but little dispute upon the proposition that the fact that a witness upon a former trial has deceased will authorize the use of his evidence, even if the case be a criminal one. Many cases go the length of holding that the permanent absence from the state of a witness in a criminal case will make it competent to use his former testi- mony.* There is even greater necessity for admitting such 1 People V. Fish, 125 N. Y. 136, 26 N. Rep. 202; State v. Beyers, 16 Mont. E. Rep. 319. 565, 41 Pac. Rep. 708 ; State v. Elliott, 2 To the same effect. People v. Wil- 90 Mo. 350, 2 S.W. Rep. 411. liams, 35 Hun 516 ; Mattox v. United » Lowe v. State, 86 Ala. 47, 5 So. Rep. States, 156 U. S. 237, 15 Sup. Ct. Rep. 435; Perry v. State, 78 Ala. 22, 6 So. 337; Com. v. Richards, 18 Pick. 434, Rep. 425; State v. Riley, 42 La. Ann. 29 Am. Dec. 608; Summons v. State, 995, SSo. Rep.469; McNamara v.State, 5 Ohio St. 325 ; Sage v. State, 127 Ind. 60 Ark. 406, 30 S. W. Rep. 762. Contra 15, 26 N. E. Rep. 667; Hair v. State, Bergen v. People, 17 111. 426, 65 Am. 16 Neb. 601, 21 N.W. Rep. 464; State Dec. 672; Sullivan v. State, 6 Tex. V. Fitzgerald, 63 Iowa 268, 19 N. W. App. 319, 32 Am. Rep. 580. 240 INDIRECT AND COLLATERAL EVIDENCE. § 190 testimony in a criminal case than there is in a civil case, be- cause depositions can not be taken, but there is both common law and American authority for the rejection of evidence upon a former trial except where the witness is dead^ or insane, or, .possibly, where the defendant has spirited the witness away.^ § 190. Practice as to receiving former testimony. — It was formerly required that the witness should give the very words," but this strictness has been quite generally relaxed, since it rendered the rule an impracticable one, and in most jurisdic- tions it is regarded as sufficient if the witness can give the whole substance of the testimony, including that given on cross-examination.* In a case where a witness stated the sub- stance of the examination-in-chief but was unable to recollect the whole of the cross-examination, it was held that his testi- mony was properly excluded.** In a Pennsylvania case,* the court said : "All that is required is that the recollection of the witness be reasonably clear as to the fact testified to, and iLord Marley's Case, Kel. 55, 6 born, 22 N. H. 372; Euch v. City of How. St. Tr. 771; Taylor on Ev., Rock Island, 97 U. S. 693; Caton v. §474 (citing), Reg. v. Austen, Pearce Lenox, 5 Rand. (Va.) 31; Ballengery. & D. 612, 7 Cox Cr. Cas. 55, and Regina Barnes, 3 Dev. (N. Car.) 460 ; Wolf v. V. Hagan, 8 C. & P. 167; Com. v. Mc- Wyeth, 11 S. & R. 149; Watson v. Gil- Kenna, 158 Mass. 207, 33 N. E. Rep. day, 11 S. & R. 337; Jones v. Ward, 3 389, and cases cited; Finn «. Com., 5 Jones' L. (N. Car.) 24,64 Am. Dec. Rand. 701, and see Brogy v. Com., 10 590; Gildersleeve v. Caraway, 10 Ala. i'Gratt. 722; Collins v. Com., 12 Bush. 260, 44 Am. Dec. 485; Thompson v. (Ky.), 271; Sullivan v. State, 6 Tex. State, 106 Ala. 67, 17 S. Rep. 512. App. 319, 32 Am. Rep. 580. s Qjijersleeve v. Caraway, 10 Ala. 2 Reynolds v. United States, 98 U. S. 260, 44 Am. Dec. 485. X45. ^Hepler v. Mt. Carmel Savings » Rex V. Jolliffe, 4 T. E. 285 ; United Bank, 97 Pa. St. 420, 39 Am. Rep. 813. States V. Wood, 3 Wash, (C. C.) 440; As to the use of the stenographer's Wilbur V. Selden, 6 Cow. (N. Y.) 162; notes, see People v. Murphy, 45 Cal. Foster v. Shaw, 7 S. & R. 156; Com. v. 137; Sage v. State, 127 Ind. 15, 26 N. Richards, 18 Pick. 434, 29 Am. Dec. E. Rep. 667; Hair v. State, 16 Neb. 608; Warren v. Nichols, 6 Met. 261. 601, 21 N. W. Rep. 464. The judge's *Hale V. Silloway, 1 Allen 21; notes are not evidence, per sc, unless Wood V. Keyes, 14 Allen 236 ; Corey v. made so by statute. Simmons v. Spratt, Janes, 15 Gray 543; Young v. Dear- 26 Fla. 449, 1 So. Rep. 860. § 191 DECLARATIONS. 241 how, if at all, such testimony was affected by the cross-exami- nation."^ Complaint of Woman in Case of Rape. § 191. Complaint of outrage by prosecutrix.— It is settled law that it is competent to show the complaints of the female in a prosecution for rape. Such complaints are not res gestsej" The philosophy of the competency of this class of evidence is well stated by Woodruff, J., in Baccio v. People.' The learned justice says, that the reason for admitting the declarations lies in the fact "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 con- fidential friend ; and inasmuch as her failure to do so would be so strong evidence that her affirmation on the subject, when examined as a witness, was false, that the prosecution may an- ticipate such a claim by affirmative proof that such complaint was made."" Mere lapse of time between the perpetration of the act and the complaint is not the test of its admissibility.* ' " I take it that wherever the facts 2 ^^^^^ ^ Campbell, 20 Nev. 122, 17 from which a witness received an im- Pac. Rep. 620; 3 Greenl., § 213. pression are too evanescent in their ^ Baccio v. People, 41 N. Y. 265» nature to be recollected, or are too * To the same effect, People v. O'SuI- complicated to be separately and dis- livan, 104 N. Y. 481, 10 N. E. Rep. 880,, tinctly narrated, his impression from 58 Am. Rep. 530. In 1 Hale, P. c'. these facts becomes evidence; and 632, it is said that "the complainant this on the ground that it is the best must make fresh discovery and pursuit evidence of which the nature of the of the offense and offender, otherwise case is susceptible. * * * I can it carries a presumption that her suit not, therefore, see why the same ne- is but malicious and feigned." In 1 cessity which opens the way for ren- East, P. C. it is said that the evidence dering evidence of the very words of of the complainant "is confirmed if a deceased witness should not also she presently discovered the offense open the door for the substance of his and made pursuit for the offender," testimony, when his very words can and that "her evidence is discredited not be recollected ; or discern the pol- if she concealed the injury for any icy of a rule which would shut out the considerable time after she had an httle light that is left, merely because opportunity to complain." It may not be sufficient to remove ^gt^te v. Mulkern, 85 Me. 106, 26 anything like obscurity." Gibson, C. Atl. Rep. 1017. J., in Cornell v. Green, 10 S. & R. 14. 16— Ev. 242 INDIRECT AND COLLATERAL EVIDENCE. §191 As said in one case:* '"Any considerable delay on the part of the prosecutrix to make complaint of the outrage is a circumstance of more or less weight, depending on the sur- rounding circumstances. There may be many reasons why a failure to make immediate or instant outcry should not dis- credit the witness. A want of suitable opportunity, or fear, may sometimes excuse or justify a delay. There can be no universal law on the subject. The law expects and reasons that it should be prompt ; but there is and can be no particular time specified."^ In a New York case,^ it was held, as a matter of law, that an unexplained delay in making disclosure for over eleven months required a reversal of the judgment of convic- tion. But in Connecticut convictions have been upheld al- though there were omissions to divulge for long periods.' In Connecticut, Michigan and Ohio it is held that the details of the female's complaint are admissible,* but most of the author- ities exclude all evidence except of the insulated fact that com- plaint was made.® There is no question that this is the correct » Higgins V. People, 58 N. Y. 377. ^That delay may be explained, see, State V. DeWolf, 8 Conn. 93, 20 Am. Dec. 90; Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355, and note ; State V. Knapp, 45 N. H. 148 ; State v, Niles, 47 Vt. 83 ; State v. Ivins, 36 N. J. L. 233 ; Turner v. People, 33 Mich. 363 ; State V. Reid, 39 Minn. 277, 39 N. W. Rep. 796. 3 People V. O'Sullivan, 104 N. Y. 481, ION. E. Rep. 880, 58 Am. Rep. 530. * State V. DeWolf, 8 Conn. 93, 20 Am. Dec. 90 (deaf and dumb girl) ; State v. Byrne, 47 Conn. 465 (12 year old girl) . « State V. Kinney, 44 Conn. 153, 26 Am. Rep. 436 ; People v. Glover, 71 Mich. 303, 38 N. W. Rep. 874; Brown V. People, 36 Mich. 203 ; McCombs v. State, 8 Ohio St. 643 ; Burt v. State, 23 Ohio St. 394 ; Dunn v. State, 45 Ohio 249, 12 N. E. Rep. 826. In People v. Gage, 62 Mich. 271, 28 N. W. Rep. 835, 1 Am. St. Rep. 578, and Dunn v. State, 45 Ohio 249, 12 N. E. Rep. 826, it is held that the declarations of the prosecutrix should not be given in evi- dence until any material delay is ex- plained. ^ People V. McGee, 1 Denio 19 ; Bac- cio V. People, 41 N. Y. 265; Stephen V. State, 11 Ga. 225 ; State v. Niles, 47 Vt. 82; Parker v. State, 67 Md. 329, 1 Am. St. Rep. 387; Lacy v. State, 45 Ala. 80; Ellis v. State, 25 Fla. 702, 6 So. Rep. 768; State v. Richards, 33 Iowa 420; State v. Mitchell, 68 Iowa 116, 26 N. W. Rep. 44 ; Lee v. State, 74 Wis. 45, 41 N. W. Rep. 960; State v. Shettleworth, 18 Minn. 208; McGee v. State, 21 Tex. App. 670, 2 S. W. Rep. 890; Castillo v. State, 31 Tex. Cr. R. 145, 19 S. W. Rep. 892, 37 Am. St. Rep. 794; State v. Campbell, 20 Nev. 122, 17 Pac. Rep. 620; Kirby r. Ter., (Ariz.) 28 Pac. Rep. 1134; People v. :\rayes, 66 Cal. 675, 56 Am. Rep. 126, 6 Pac. Rep. 691. U91 DECLARATIONS. 243 rule on principle, for, as we have seen, the evidence is only admitted to rebut a presumption against the female which would arise in case she failed to divulge the fact that she had been outraged. There may be exceptional circumstances where the details of the woman's statement, made about the time, may be shown, as in cases where there is testimony that she made contrary statements at another time and there is room to claim that at the time of testifying she is under the domination of a person who has an object in prosecuting the defendant, but this would bring the case within an ordinary rule as to the corroborating of a witness.' The failure to com- plain goes to the credibility of the woman's story as a whole and not to the single question of consent.' ^Ante, §92. zst^te v. Wilkins, 66 Vt. 1, 28 Atl. Eep. 323. CHAPTER VI. DYING DECLARATIONS. § 192. Admitted only in prosecutions § 200. for homicide. 201. 193. Introducing does not violate constitutional right. 202. 194. ground of introduction. 195. Circumstances under which 203. declaration made. 196. Sense of impending death may 204. be inferred. Fact that death occurred some 205. time after not conclusive. On what subject dying declara- 206. tions received. 199. Matters of opinion excluded. 197. 198. Must be complete in itself. Dying declaration may be by signs. Question of competency for court. Weight to be given to dying declarations. Right of accused to impeach or discredit declarations. Competency of declarant as witness. When written declaration is primary evidence. §192. Admitted only in prosecutions for homicide. — The rule is generally stated that dying declarations, as such, are admis- sible only where the death of the person who made the decla- ration is the subject of the investigation.^ But it has been held, where a person was indicted for the murder of A. by poison, some of which was taken by B., who also died in consequence, that B.'s dying declaration was competent, as the whole was one transaction.^ In prosecutions for abortion, under statutes m which the fact of death is not an element of the offense, but only goes to fix the grade of the punishment to be suffered by iRex V. Mead, 2 Barn. & Cres. Ind. 338, 41 Am. Rep. 815; People v, 605; Rex v. Lloyd, 4 Car. & P. Hall, 94 Cal. 595, 30 Pac. Rep. 7. As 233; Wilson v. Boerem, 15 Johns, to hearsay declarations of deceased 286; People v. Davis, 56 N. Y. 95; persons see post, § 230. Railing v. Com., 110 Pa. St. 100, 1 Atl. « Rex v. Baker, 2 Mood. & Rob. 53; Rep. 314; Com. v. Homer, 153 Mass. State v. Terrell, 12 Rich. L. (S. Car.) 343, 26 N. E. Rep. 872; Morgan v. 321. See Brown v. Com., 73 Pa. St. State, 31 Ind. 193; Binns v. State, 46 321,13 Am. Rep. 740. Ind. 311; Montgomery v. State, 80 (244) § 193 DYING DECLARATIONS. 245 the criminal, the dying declarations of the woman are not ad- missible.^ Such evidence has been held competent in Wiscon- sin, under a statute which provides that if death ensue, as the result of a criminal abortion, the person performing the opera- tion shall be guilty of manslaughter,^ and such evidence has been held admissible in Indiana, in a strongly reasoned opin- ion by Elliott, J., under a statute which specifically punished the act of causing the death of a woman by performing a crim- inal abortion upon her.* It is to be observed, however, that in this case the allegations of the indictment were such, that, in view of the statute, it was essential to prove the fact of the woman's death in order to convict of any offense. It is neces- sary in every case to show the corpus delicti, or, in other words, that the declarant died from the wrongful act of some one, be- fore the state is entitled to introduce the declaration.* § 193. Introducing does not violate^ constitutional right. — The right of an accused to be confronted with the witnesses against him is not violated by the introduction of dying decla- rations.* The deceased is not, strictly speaking, a witness. It is to be recollected that " a constitution is not the beginning of law for the state, but that it assumes the existence of a well- understood system which is still to be administered, but under such limitations as the instrument imposes." ^ It is not to be presumed that the constitutional requirement that witnesses are to be produced was designed to exclude all such evidence as was competent at common law except such as falls from the lips of witnesses. iRex V. Lloyd, 4 C. & P. 233; « Brown u. Com., 73 Pa. St. 321, 13 Reg. V. Hind, 8 Cox C. C. 300; Am. Eep. 740; Com. v. Casey, 11 People V. Davis, 56 N. Y. 95; Railing Cush. 417, 59 Am. Dec. 150; Com. v. ??. Com., lid Pa. St. 100,1 Atl. Rep. Carey, 12 Cush. 246; Woodsides v. 314 ; State v. Harper, 35 Ohio St. 78, State, 2 How. (Miss.) 655 ; Anthony 35 Am. Rep. 596; Com. v. Homer, 153 v. State, Meigs 265, 33 Am. Dec. 143; Mass. 343, 26 N. E. Rep. 872. State v. Nash, 7 Iowa 347; State v. , 2 State V. Dickinson, 41 Wis. 299. Kindle, 47 Ohio 358, 24 N. E. Rep. 'Montgomery v. State, 80 Ind. 338, 485. 41 Am. Rep. 815. « Cooley's Const. Lim., 37, 60. * McBride v. People, 5 Colo. App. 91, 37 Pac. Rep. 953. 246 INDIRECT AND COLLATERAL EVIDENCE. §194 § 194. Ground of iutroduction. — Dying declarations are ad- mitted upon the single ground of necessity. The necessity rests primarily and principally upon the presumption that in a majority of cases there will be no equally satisfactory proof of the fact/ and therefore such declarations, when pre- ceded by the proper preliminary proof, are admissible in all prosecutions for homicide. § 195. Circumstances under which declaration made. — To be admissible, the declaration must be made under a sense that dissolution is not only impending but certain.^ In an English case' it is said : "The result of the decisions is that there must be an unqualified belief in the nearness of death ; a be- lief, without hope, that the declarant is about to die. If we look at the reported cases, and at the language of learned judges, we find that one has used the expression, ' every hope 1 Boyle V. State, 105 Ind. 469, 5 N. E. Rep. 203, 55 Am. Rep. 218; Nelms V. State, 13 Sm. & M. 500. 2 Reg. V. Jenkins, L. R. 1 Cr. Cas. 187; Com. v. Densmore, 12 Allen 535; Starkey v. People, 17 111. 17; West- brook V. People, 126 111. 81, 18 N. E. Rep. 304 ; State v. Nash, 7 Iowa 347 ; Wall V. State, 51 Ind. 453 ; Montgom- ery V. State, 80 Ind. 338, 41 Am. Rep. 815; Adwellv.Com.,17B. Monr. 310; State V. Wensell, 98 Mo. 137, 11 S. W. Rep. 614; Collins v. State, 46 Neb. 37, 64 N. W. Rep. 432. In Peak v. State, 50 N. J. L. 179, 12 Atl. Rep. 701, the evidence showed that a pistol ball had traversed the brain of the deceased ; that she lay in a stupor, except when awakened; that the doctor had said in her conscious presence that she was liable to die at any moment, and that she had not a possible chance to live except through an operation; that the deceased had said that " she did not expect to get well, but she would like to." Held, that her dec- larations as to the circumstances of her injury were inadmissible. In Rex V. Van Butchell, 3 C. & P. 629, the de- ceased had said, " I feel that I have received such an injury in the bowels that I shall never recover." The declaration was held incompetent for the reason that a belief on the part of the injured person that he would not ultimately recover did not necessarily involve that condition of mind which would render a dying declaration competent. In Reg. v. Megson, 9 C. & P. 418, the surgeon had stated to the deceased, two days before her death, that she was in a very precarious state. She was worse on the follow- ing day, and she said to the surgeon that she had been in hopes of getting better, but as she was getting worse she thought it her duty to mention what had taken place. If was held by Rolfe, B., that her declaration, which was then made, was inadmis- sible, as it did not appear that she had abandoned hope of recovery. 3 Reg. V. Jenkins, L. R. 1 Cr. Cas. 187. § 195 DYING DECLARATIONS. 247 of this world gone ;' another, 'settled, hopeless expectation of death ;' another, ' any hope of recovery, however slight, ren- ders the evidence of such declarations inadmissible.' We, as judges, must be perfectly satisfied, beyond any reasonable doubt, that there was no hope of avoiding death ;^ and it is. not unimportant to observe that the burden of proving the facts that render the declaration admissible is upon the prose- cution." It was said by Skinner, J., in an Illinois case,^ that " dying declarations are such as are made by the party relat- ing to the facts of the injury of which he afterwards dies, un- der the fixed belief and moral conviction that his death is im- pending and certain to follow almost immediately, without opportunity for repentance and in the absence of all hope of avoidance ; when he has despaired of life, and looks forward to death as inevitable and at hand." While, as already stated, the introduction of this class of evidence rests on neces- sity, yet the courts strenuously insist that the mind of the vic- tim shall so realize tbat death is imminent and certain as to impose upon him the same obligation to speak the truth as if he were under oath. As the witness upon the stand calls upon God to witness the truth of his asseveration, so the injured man, although he does not invoke the Deity,* has cast upon him the full sense of obligation to speak the truth, by a realization that he stands upon the threshold of the verities of the eternal world. As was said by Eyre, C. B.:" "The general principle upon which evidence of this kind is admit- ted is that it is of 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 imposed by an oath administered in court." ^ As to the correctness of the last an objection to the declaration. State statement, see posf, § 202. v. Talbert, 41 S. Car. 526, 19 S. E. 2 Starkey v. People, 17 111. 17. Eep. 852. 'The fact that an oath was in point * Rex v. Woodcock, 2 Leach 563. of fact administered does not afford 248 INDIRECT AND COLLATERAL EVIDENCE. § 190 § 196. Sense of impending death may be Inferred. — Although it is an inflexible requirement that the declaration shall be made after an abandonment of hope of recovery, and under a realization that death is impending, still this condition of mind may be inferred from the surrounding circumstances, even in the absence of any express declaration.^ §197. Fact that death occurred some time after not conclu- siye. — While the fact that the death did not follow for some time after the making of the declaration is an important considera- tion in determining the state of the mind of the deceased, yet such fact does not conclusively establish the incompetency of the declaration.^ Although in all the cases where dying declara- tions have been held competent death was not postponed for any considerable time, yet in no case has it been held improper to admit a declaration merely because too long a time elapsed between the uttering of the declaration and the death. In a Massachusetts case,^ the action of the trial court in admitting the declaration was upheld, although death did not occur until seventeen days thereafter.* § 198. On what subject dying declaration received. — Dying declarations ought to be confined to the circumstances imme- diately connected with the receipt of the fatal injury. The fact of prior difficulties or prior threats can not be shown.® It ^People V. Green, 1 Park. Cr. Rep. prompted by the hope that he might 11; People v. Simpson, 48 Mich. 474, obtain relief from pain. McQueen v. 12 N. W. Rep. 662; Collins v. State, State, 103 Ala. 12, 15 So. Rep. 824. 46 Neb. 37, 64 N. W. Rep. 432 ; Lewis ^ Roscoe's Cr. Ev., star p. 32 ; 1 Phil. V. State, 9 Sm. & M. 115; McLean v. on Ev., (1849 ed.) 285; 1 Greenl. on State, 16 Ala. 672; Hill v. Com., 2 Ev., §158; Com. v. Cooper, 5 Allen Oratt. 594 ; People v. Lee Sare Bo, 72 495, 81 Am. Dec. 762 ; State v. Schmidt, Cal. 623, 14 Pac. Rep. 310. Where the 73 Iowa 469, 35 N. W. Rep. 590; Jonea deceased was suffering the most ex- v. State, 71 Ind. 66. treme pain, and repeatedly declared ^Com. v. Cooper, 5 Allen 495, 81 that he was going to die, the action of Am. Dec. 762. the lower court in receiving his decla- *See Jones v. State, 71 Ind. 66. ration as to how he received his wound ^Binns v. State, 46 Ind. 311; Jones was upheld, notwithstanding the fact v. State, 71 Ind. 66; Reynolds i>. State, that he sent for a physician. His 68 Ala. 502; Sullivan v. State, 102 Ala. motive in so doing may have been 135, 15 So. Rep. 264,48 Am. St. Rep. 22; § 199 DYING DECLARATIONS. 249 was said in an Alabama case/ that the declarant ''can only speak of the transaction which causes the death, and such ac- companying statements and conduct as shed light upon it — the res gestae in a strict sense." § 199. Matters of opinion excluded. — Dying declarations are only admissible as to matters that the declarant, if living, might have testified to upon the stand.' Matters of conjecture are especially objectionable, as where the victim states his bare suspicion as to who injured him.' The question as to how far the deceased may go in the expression of an opinion is not an entirely settled one upon the authorities. It would seem that it would be at least permissible for him to give an opinion — if it may be called such — as to the identity of the accused, not only for the reason that that would be a fact which was based upon the immediate knowledge of his own senses, but for the further reason that it would be difficult, if not impossible, to put in evidence the grounds or reasons of such knowledge.* Where the declaration included the statement that the act was " purposely done," it was excluded.' In another case the fol- lowing declaration was held incompetent: "Bill, it is pretty hard to go through the whole war, and come home and be mur- dered on my own farm."' The correctness of the conclusions reached in these cases seems quite clear, but there is a class of cases where the courts are far from agreed ; that is, where a statement is made of a negative matter in the shape of a con- Warren V. state, 9 Tex. App. 619, 35 s State v. Donnelly, 69 Iowa 705, 27 Am. Rep. 745; State t». Perigo, 80 N. W. Rep. 369, 58 Am. Rep. 234. See Iowa 37, 45 N. W. Rep. 399. State v. Nettlebush, 20 Iowa 257. 1 Sullivan v. State, 102 Ala. 135, 15 « State v. Perigo, 80 Iowa 37, 45 N. So. Rep. 264, 48 Am. St. Rep. 22. W. Rep. 399. In this case the court 2 Boyle V. State, 105 1.iJ. 4G9, 5 N. E. said : '«A11 vague and indefinite ex- Rep. 203, 55 Am. Rep. 218; Matherly pressions, all language that does not V. Com. (Ky.),.19 S. W. Rep. 977. distinctly point to the cause of death 3 Shaw V. People, 3 Hun 272; People and its attending circumstances, but V. Shaw, 63 N. Y. 36 ; People v. Was- requires to be aided by inference or son, 65 Cal. 538, 4 Pac. Rep. 555. supposition in order to establish facta * Brotherton v. People, 75N. Y. 159. tending to criminate the respondent, See People v. Wasson, 65 Cal. 538, 4 should be held inadmissible." See Pac. Rep. 555. State v. Center, 35 Vt. 378. 250 INDIRECT AND COLLATERAL EVIDENCE. § 199 elusion. In an Indiana case,* a statement was held proper that the defendant had shot the declarant " without cause." In an Alabama case,^ the court upheld the admission of the follow- ing statement: " He cut me for nothing. I never did any- thing to him," The court said that the statement evidently related to the transaction, and was proper as a collective fact. The same ruling was made in a Louisiana case/ where the statement was : " He ought not to have shot me ; he had no reason to shoot me ; there was no offense given." In Wroe V. State* the court held that it was competent for the declar- ant to state that the shooting w^as without provocation. The case last cited was followed in a Mississippi case.^ On the other hand, it was held in Kentucky,^ that it was not competent for the declarant to state that the defendant "killed" him "for nothing." A number of cases upholding the admissi- bility of this class of declarations are founded on Wroe v. State, supra.'' In that case the court admits that the fact was not stated in its most elementary form, but based its ruling on the authority of Rex v. Scaife,* M^here the declaration was: "I don't think he would have struck me if I had not provoked him." It will be observed, however, that this declaration was favorable to the defendant, and although it is a petitio principii, there has been a disposition manifested to waive the question in favor of the defendant.^ Even as against the weight of authority, the writer ventures to express his dis- approbation of the cases admitting non-elementary conclusions made in dying declarations, in instances where the facts could be stated and where such conclusions relate to matters which are in controversy upon the evidence. The anxiety of courts to bring man-slayers to justice has led to the disregard of strict principle upon a point where it ought not to be relaxed, be- 1 Boyle V. State, 105 Ind. 469, 5 N. ^Payne v. State, 61 Miss. 161. E. Rep. 203, 55 Am. Rep. 218. « Collins v. Com., 12 Bush 271. 2 Sullivan v. State, 102 Ala. 135, 15 ' Wroe v. State, 20 Ohio St. 460. So. Rep. 264, 48 Am. St. Rep. 22. ^Rex v. Scaife, 1 Moody & R. 551. estate V. Black, 42 La. Ann. 861, 8 ^McPherson v. State, 22 Ga. 478; So. Rep. 594. Brock v. Com., 92 Ky. 183, 17 S. W. * Wroe V. State, 20 Ohio St. 460. Rep, 337. §199 DYING DECLARATIONS. 251 cause of the want of opportunity upon the part of the defend- ant to test such opinion by cross-examination/ In the dis- senting opinion of Zollars, J., in the case of Boyle v. State, supra,^ the objections to the reception of the chiss of evidence are very strongly set forth/ iln Shaw v. People, 3 Hun 272, it is said : "It is even more important to ex- clude an opinion in articulo mortis than in an ordinary case, where the witness may be subjected to a cross-examina- tion." In Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815, it is said: " What the purpose of an act was is an inference from facts, and witnesses must state facts, and not their conclu- sions. A witness would have been required to state what was said and done. Facts are to lie stated by wit- nesses ; inferences to be made by the jury. This rule should be applied with zealous care to dying declara- tions. As the accused can not cross- examine, there is no means of testing the correctness of the conclusions. It may be entirely without foundation in fact. But we need not discuss this question, for it is settled that dying declarations must speak to facts only, and not to mere matters of opinion." 2 Boyle V. State, 105 Ind. 469. 'In the opinion mentioned, Zollars, J., says: "It must be kei)t steadily and prominently in view that appel- lant admits the shooting, and defends upon the sole ground that he had a ' reason ' or ' cause ' for so doing. In other words, his defense is that the shooting was justifiable because done in self-defense. * * * "Whether appellant had a ' reason ' or ' cause ' for the shooting is, in some sense, a fact, but it is not a fact that a witness may state. It is the ultimate fact to be found from all the facts and cir- cumstances attending the killing. If a fact, in any sense, it is the ultimate fact, which, in this case, settles the guilt or innocence of appellant. If a fact at all, it is an inferential fact, de- pending upon other and primary facts. No person, not present, could say that there was no ' reason ' or ' cause ' for the shooting. Why ? Because he would have no knowledge of the facts and circumstances attending the shoot- ing. A knowledge of these facts is absolutely essential to such a state- ment. How then is such a conclusion and statement to be arrived at? Clear- ly, the witness must take the facts and circumstances, weigh them, reason about them, and by this process ar- rive at a conclusion. The conclusion that there was no ' reason ' or ' cause,' is the result of mental process, and can be arrived at in no other way. It can not be settled by the physical senses. It can neither be seen, heard, nor felt, but must be the result of reasoning from other facts. If so, clearly the result of such mental pro- cess is not, in the common and legal sense, a fact. * * * How shall the jury get at the facts ? Shall they per- form the mental process, make the in- ference and form their opinion from the facts and circumstances attending the shooting, or shall that be done for them by the witnesses— in this case by the dying man? Shall he give to the ju- ry the facts and circumstances, or shall he keep them to himself, and give to them the ultimate fact that he has in- ferred from the facts and circum- stances, his opinion upon those facts and circumstances ? Could the jury have the facts and circumstances, they 252 INDIRECT AND COLLATERAL EVIDENCE. §200 § 200. Must be complete in itself. — Professor Greenleaf says: " But whatever the statement may be, it must be complete in might readily disagree with him as to the existence of a ' reason ' or ' cause ' .for the shooting. Had he stated the facts and circumstances, it might read- ily have appeared to the court that the declaration was but an opinion without sufficient facts upon which to rest. It is stated in the principal opin- ion that such a conclusion (the decla- ration) 'is not the expression of an opinion, but is the statement of a con- clusion of fact, from observed facts, which, under all the authorities, is competent.' I can not concur in this, either as a general proposition of law or as applied to this case. My under- standing of the law is, that in no case is it competent for a witness to state an inference or conclusion from the facts, where it is possible to give the facts to the jury. A non-expert witness may, ifi some cases, express an inference or opinion, but the uniform holding of this court has been, as I understand It to be the rule everywhere, that he can not express an opinion until he has first, so far as it is possible, stated the facts upon which the opinion is based. * * * There are cases where the witness can not put before the jury, in an intelligible and compre- hensible form, the whole ground of his judgment or opinion. In such cases, after the witness has stated all the facts that it is possible to state, he may, from the necessity of the case, give an opinion. * * * In the case of State v. Williams, 67 N. C. 12, after holding that statements of personal identity are opinions, admit- ted from necessity, that there must be a limit to the admission of opinions, and that the witness can not substi- tute bis judgment for that of the tri- bunal to whom the law has committed the decision of the fact, it was said : ♦ * * ' Whenever the opinion of the witness upon such a question, or of one coming under the same rule, is the direct result of observation through his senses, the evidence is admitted. * * * But if the opinion of the wit- ness is the result of a course of rea- soning from collateral facts, it is inad- missible. * * * In such case the tribunal is as competent to reason out the resultant opinion as the witness is ; and by the theory of law, it alone is competent to do so.' * * * It is further stated in the principal opinion that the declaration was the statement of a negative fact, and that nega- tive facts can only be proven by a de- nial. I respectfully submit that this assumes the point in controversy. A negative fact, it may be, can be proven by a denial ; but a negative conclusion cannot. * * * The principal opin- ion distinguishes between the exist- ence of a sufficient or insufficient rea- son, and holds that a witness may state that there was no reason, be- cause he thereby but states a fact, and that he can not state that there was a sufficient or insufficient reason, be- cause he would thereby express an opinion. In my judgment, the differ- ence is in degree and not in quality. In either case, the witness must rea- son from the primary facts. If he says there was no reason, he expresses a conclusion and opinion. If he says there was no sufficient reason, he ex- presses a double conclusion and opin- ion ; one as to the existence, and the other as to the sufficiency of the rea- son. The declaration that appellant ' had no reason that I know of,' I sub- mit, shows upon its face that Casey was not stating a fact, but an opinion. § 201 DYING DECLARATIONS. 253 itself ; for if the declarations appear to have been intended by the dying man to be connected with and qualified by other statements, which he is prevented by any cause from making, they will not be received.'" The Supreme Court of Vermont,^ after quoting this statement, said : " What we understand by the expression 'must be complete in itself,' is, not that the declarant must state everything that constituted the res gestse 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." § 201. Dying declaration may be by signs. — In cases where the victim is unable to speak, the facts may be communicated by signs. In a Massachusetts case,' the injured person was requested to squeeze the hand of her interrogator, if it was the defendant who had injured her, and thereupon she responded as indicated. Her purpose so to express herself was verified in a like manner on two other occasions. The court held the evidence admissible.* § 202. Question of competency for court. — It is for the court to determine whether the declaration was made under such cir- cumstances as to warrant its reception. The question can not be left to the jury. This was settled in England, by a confer- ence of the judges, held in the year 1790.® While a cause will be reversed for clear error in admitting the declaration of a deceased person, yet the cases recognize that there is such a considerable degree of discretion vested in the trial court, in determining as to the competency of the declaration, that its action in admitting it will not be ground for reversal unless And for such an opinion a witness ^ State v. Patterson, 45 Vt. 308, 12 could not be convicted upon the Am. Rep. 200. chargeof perjury, however unfounded ^ Com. v. Casey, 11 Cush. 417, 59 it might be, because it is not the state- Am. Dec. 150. ment of a fact. Commonwealth v. * See Jones u. State, 71 Ind. 66. Brady, 5 Gray 78." ^3 Rygg, qq Cr. (4 Eng. ed.), 226; 1 1 Greenl. on Ev., § 159. Donnelly v. State, 26 N.J. L. 463; Starkey v. People, 17 111. 17. 254 INDIRECT AND COLLATERAL EVIDENCE. § 203 the error is manifest.^ It has been laid down, that the judge should not admit such declarations " if the proof does not sat- isfy the court beyond a reasonable doubt that they were made in extremity and that they are dying declarations under the ■law ;"^ but this doctrine has been denied in Kansas/ the court saying : "It was a question of the admissibility of evidence, and was governed by the same rules that govern the admission of all other evidence." An analagous question is discussed in another portion of this work.* § 203. Weight to be given to dying declarations. — If the judge decides that the evidence is competent, then the jury is entitled to know all the attending circumstances, and it is then a question for the jurors to determine what weight, if any, shall be given the declaration.^ Although the expression is often used that a declaration made in extremis is equivalent to an oath, yet such expression has reference to the philosophy of this ex- ception to the general rule excluding hearsay evidence, and is not to be regarded as warranting an instruction that such a declaration should receive the same weight as if made under oath. Such an instruction would be palpable invasion of the jury's province.® In a strict sense there is no warrant for a discussion of the weight of dying declarations in a legal work, because this is a question of fact and not of law, but it is not inappropriate to call attention to some matters which affect the 1 Swisher v. Com., 26 Gratt. 963, 21 « Rex r. Crockett, 4 C. & P. 544 ; State Am. Rep. 330; State v. Cantieny, 34 v.Vansant.SOMo. 67; State t-. Mathes, Minn. 1, 24 N. W. Rep. 458. See 90 Mo. 571, 2 S. W. Rep. 800; State v. ante. Confessions, § 120. Eddon, 8 Wash. 292, 36 Pac. Rep. 2 Skinner, J., in Starkey v. People, 139. In State v. Pearce, 56 Minn. 226, 17 111. 17. 57 N. W. Rep. 652, it is said: "When 3 State V. Furney, 41 Kan. 115, 21 a court in such cases assumes to de- Pac. Rep. 213, 13 Am. St. Rep. 262. termine for the jury the degree or « See ante, Confessions, § 120, amount of credit which should be giv- 5 1 Phil, on Ev. (1849 ed.), 291; 3 en to the evidence, it is passing the Phil, on Ev. (1849 ed.), 256; People danger hne, and trenching upon the V. Abbott, (Cal.) 4 Pac. Rep. 769; general and well-settled rules of evi- Hays V. Com., (Ky.) 14 S. W. Rep. dence." 833. § 203 DYING DECLARATIONS. 255 weight of this class of evidence. In an Alabama case/ it is suggested that dying declarations usually possess the following infirmities: 1. There is no cross-examination; 2. The jury can not observe the temper and manner of the declarant ; 3. Such declarations are usually testified to by friends, relatives and other biased persons ; 4. There is a liability of misunder- standing ; and, 5. There is a liability that the deceased has asserted as facts those things of which he has only strong con- victions, but of which he has no knowledge from his senses. In an Illinois case,' it is said: "It is in vain to attempt to disguise the infirmities and imperfections of the human mind, and its susceptibility to false impressions, under circumstances touching the heart and exciting the sympathies ; and the law has wisely, in the case of dying declarations, required all the guaranties of truth the nature of the case admits of.'" In the dissenting opinion of Zollars, .1., in an Indiana case,* are found the following thoughtful observations:- ''Such evi- dence, doubtless, has a most potent influence with juries be- cause of the solemnity of the occasion under which it is ren- dered, and yet the truth is that, in many, if not in most, cases, it is the weakest kind of evidence when looked upon aside from mere sentiment. The dying man is not allowed to make his statements until those about him think that he is near the end, and he sees, or thinks he sees, the shadows of death set- tling about him. Under such circumstances, and at such a moment, if he is a believer in personal responsibility and a future state, the mind will be centered upon and more con- cerned about that near future than about the things that are receding from view. And hence statements made under such circumstances, as to how the injury was received, etc., come with that infirmity that always attends inattention. Especial- ly will this be the result of a process of reasoning, as an infer- ence, conclusion or opinion. It often happens, too, that in such an extremity the mind is not in its full vigor. The 1 Shell V. State, 88 Ala. 14, 7 So. State, 25 Tex. App. 293, 7 S. W. Rep. Rep. 40. 868. ^Starkey v. People, 17 111. 17. « Boyle u. State, 105 Ind. 469, 5 N. 'Quoted approvingly in Drake v. E. Rep. 203, 55 Am. Rep. 218. 256 INDIRECT AND COLLATERAL EVIDENCE. § 203 memory may have been confused and the reason blunted from physical suffering or mental anxiety. In such a condition the mind yields ready assent to what may be suggested, and the person states as a fact what is in truth a conclusion or an opinion, which would clearly appear to be erroneous were the facts stated upon which they are based. And if facts are stated, it may be that but a part are stated, and the most im- portant being omitted. * * * However depraved a person may be, there is yet an unwillingness to be thought to have been in the wrong, and hence there is an inclination to so warp and color statements that surviving friends, at least, shall believe in the innocence of the dead. It is a fact, too, that the expectation of death does not always make a good man of a bad one, nor a truthful man of a reckless one. Many have gone to their death with vengeance in their hearts and curses upon their lips. The cases are many where guilty mur- derers have stood upon the gallows, and with dying breath as- severated their innocence. As a rule, persons injured in per- sonal collisions are not of the most blameless character. The rule is doubtless otherwise. Not infrequently they are persons who have no regard for others' rights, and regard not the law except as they fear it. When the fear of prosecution for per- jury is removed, they have no incentive for truth, even in the face of death."' While the considerations suggested in the ^ The necessity for great care in the some time, holding her hand. Her reception of dying declarations is il- father said to her, " Katie, this is too lustrated by the case of Peak v. State, bad," and the reply was, "Yes, father; 50 N. J. L. 179, 12 Atl. Rep. 701. In but I couldn't help it." Again, on that case a girl had been shot by an the following morning, the defendant, unknown person. The defendant, in the presence of her mother, kissed her suitor, was charged with, and put the deceased, she kissing him; and on trial for, her murder. It appeared he again asked, "Katie, who shot from the evidence that when the de- you?" the response being, " Well, he fendant heard she had been shot, he is a nasty, dirty rascal." Again he hastened at once to her house, and pressed the question, and the reply found the neighbors in the act of lay- made this time the mother could not ing her on the bed. He instantly remember. At still another interview went to her, and kissed her, saying, the defendant importuned her to state " Katie, who shot you ? " She made who shot her. Finally, at another no reply. Then he sat by her for time, in the defendant's absence, she § 204 DYING DECLARATIONS. 257 opinion quoted should serve to prevent the giving of unlimited credence to dying declarations, yet it is equally certain that the circumstances under which such utterances are made give to them a sanction which under some circumstances may war- rant their implicit acceptance. As said in a Minnesota case/ " It may he that some men do go down to death with a lie upon their lips, and that their last utterances are full of false- hoods, but such cases are exceptions to the general rule, and do not furnish proper ground for the rejection of dying decla- rations as evidence when offered within the ordinary rules upon the subject, any more than it would be proper to exclude any testimony because some witnesses perjure themselves when testifying under oath." § 204. Right of accused to impeach or discredit declaration. — While in a particular case it may be contended as a matter of fact that a dying declaration has all the sanction of an oath, yet it must be remembered that the opportunity of investigat- ing the truth is very different, and for that reason the accused is entitled to every allowance and benefit that he may have lost by the absence of the opportunity of a fuller investigation by means of cross-examination.' The declarations of the deceased are open to direct contradiction' or to other impeachment.* said, when her mother asked the ^ State v. Pearce, 56 Minn. 226, 57 question as to how she was shot: N. "W. Eep. 652. "Bert [the defendant] did it." Both ^Ashton's Case, 2 Lewin C. C. 147. the incriminating declaration and the In Com. v. Cooper, 5 Allen 495, 81 prior interviews are well authenticat- Am. Dec. 762, it was held competent ed. It is very difficult to account for to show that the deceased frequently the strange conduct of the deceased, mistook the identity of persons he It might be explained upon the theory was well acquainted with, that the defendant accidentally shot ^ people v. Lawrence, 21 Cal. 368; her; that they had agreed, or she had Battle v. State, 74 Ga. 101; Felder v. determined, that the defendant should State, 23 Tex. App. 477, 5 S. W. Eep. he shielded, and that when importun- 145, 59 Am. Rep. 777; Eoscoe's Cr. ity did lead her to make the state- Ev., star p. 55. See Wroe v. State, 20 ment implicating him, her power to Ohio St. 460. concentrate her mind upon the sub- « Eoscoe's Cr. Ev., starp. 35; Whar. ject was so impaired that she failed to on Homicide, § 773. make the explanation. 17— Ev. 258 INDIRECT AND COLLATERAL EVIDENCE. 205 The defendant is entitled to show the exact state of mind of the declarant at the time he made the declaration/ and, as a belief in a future state of rewards and punishments is necessary to justify the reception of dying declarations, it is competent for the defendant to show that the declarant was a disbeliever." So far as the matter of belief is concerned, there is no doubt that the prima facie intendment is in favor of the competency of the declaration. § 205. Competency of declarant as witness. — If for any rea- son the declarant would have been an incompetent witness, had he continued in life, that fact will operate to exclude his dec- larations.* § 206. When written declaration is primary evidence. — The authorities agree, if a dying declaration is reduced to writing and is signed by the declarant, that the writing becomes the primary evidence.* Even if the statement is not signed, yet if it is reduced to writing as the formal statement of the declarant, and is read by or to him, and receives his sanction, authority is not wanting that the writing must be produced.^ Where, however, declarations were made which were not reduced to writing, the fact that a declaration in writing was made at an- other time will not suffice to exclude the oral declaration.* ^Roscoe's Cr. Ev., star p. 36. ^Goodall V. State, 1 Ore. 333, 80 Am. Dec. 396 ; Rex v. Pike, 3 Car. & P. 598. In Pike's Case, 3 Carr. & P. 598, the dying declarations of a child of four years were rejected because it was considered that, however preco- cious her mind, she could not possibly have any idea of a future state. «! Greenl. on Ev., § 157. *Rex V. Gay, 7 Car. & P. 230; State V. Kindle, 47 Ohio 358, 24 N. E. Rep. 485; Saylor v. Com., (Ky.) 30 S. W. Rep. 390; Turner v. State, 89 Tenn. 547, 15 S. W. Rep. 838; State v. Tweedy, 11 Iowa 350. nVhar. Cr. Ev., § 295; People v. Callaghan, 4 Utah 49, 6 Pac. Rep. 49; State v. Cameron, 2 Chand. 172. See State v. Kindle, 47 Ohio 358, 24 N. E. Rep. 485. «1 Phil, on Ev., (1849 ed.) 290, cit- ing Rex V. Reason, 16 Howell St. Tr. 1, 31, 1 Stra. 499. CHAPTER VII. EXPERT AND OPINION EVIDENCE. §207. Opinion evidence incompetent, § 214a, Limitations upon the compe- except under special circum- stances. 208. Questions on which the opin- ions of experts can be re- ceived. 209. Who is an expert. 210. Form of question to expert. 211. Distinction between expert and opinion evidence. 212. Opinions as to value. 213. Opinions received from neces- sity. 214. Non-expert evidence upon the subject of sanity. tency of non-expert opinion evidence. 215. Speed of trains, etc. 216. Subscribing witnesses. 217. Modes of proving handwriting. 218. Extent of familiarity with handwriting. 219. Comparison of handwritings. 220. Same subject. 221. Cross-examination of witness as to handwriting. 222. Secondary evidence of stand- ard of handwriting. 223. Qualification of expert as to handwriting. § 207. Opinion evidence incompetent, except under special circumstances. — It is evident, upon even superficial considera- tion, that a legal tribunal, which possesses compulsory pro- cess, and which is authorized to weigh evidence and to draw all proper inferences from facts proved, should ordinarily reject evidence of mere opinions. '' It is no satisfaction for a witness to say that he thinks, or persuadeth himself, and this for two reasons : First. Because the judge is to give an absolute sentence, and for this ought to have a more sure ground than thinking. Secondly. The witness can not be sued for perjury."^ In cases, however, involving questions of science, skill, trade and the like, and in cases where it is difficult for a witness to adequately state the facts without resort to opinion, it is competent to introduce opinion evi- dence. These cases, although in the nature of exceptions, are as thoroughly vindicated as the principal rule. ^Dyer, 53 b., pi. 11, in marg. ed. 1688. (259) 260 INDIRECT AND COLLATERAL EVIDENCE. §208 § 208. Questions on which the opinions of experts can be received. — The rule excluding opinion evidence operates to the point where the jury will be materially aided by receiving an opinion. An expert can not testify upon a matter, capa- ble of being explained, concerning which men in the ordinary walks of life would usually be capable of forming a correct opinion, if they were informed as to the facts upon which the opinion would have to be based. ^ If, however, the inquiry is of such a character that a person, who has a special familiarity with the nature of the matter involved, can be said to stand upon a higher plane of judgment than the ordinary individual, then the inquiry is one which may properly be elucidated with the aid of expert opinion. It is not necessary that the question involved should be of an abstruse, scientific charac- ter. The opinion of a mechanic or workman is frequently competent, on a matter pertaining to his business or employ- ment ; thus, such opinions may be competent on questions concerning the use of materials and appliances,^ and as to the sufficiency of the construction of unusual or complicated ma- 1 Clifford V. Richardson, 18 Vt. 620; Eogers v. Tyley, 144 111. 652, 32 N. E. Rep. 393; Clark v. Fisher, 1 Paige 171, 19 Am. Dec. 402; Connelly v. Hamilton Woolen Co., 163 Mass. 156, 39 N. E. Rep. 787; Dooner v. Dela- ware & H. Canal Co., 164 Pa. St. 17, 30 Atl. Rep. 269; Lincoln, etc., R. Co. V. Sutherland, 44 Neb. 526, 62 N. W. Rep. 859; Colorado Coal & I. Co. V. Lamb, 6 Colo. App. 255, 40 Pac. Rep. 251; Donnell v. Jones, 13 Ala. 490, 48 Am, Dec. 59; Otis v. Thom, 23 Ala. 469, 58 Am. Dec. 303. Space will permit the use of but a few illus- trations of this proposition, although there are many authorities. An ex- pert can not be permitted to testify that a shaft in which a key way with sharp edges is sunk is more likely to catch clothing than a plain shaft, Connelly r. Hamilton Woolen Co., 163 Mass. 156, 39 N. E. Rep. 787; or that a car unprovided with handles was unsafe for brakemen, Dooner v. Delaware & H. Canal Co., 164 Pa. St. 17, 30 Atl. Rep. 269; or as to the cause of a fire. Cook v. Johnston, 58 Mich, 437. 55 Am. Rep. 703, 25 N. W. Rep. 388 ; or as to the proper time to burn a fallow, Ferguson v. Hubbell, 97 N. Y. 507, 49 Am. Rep. 544; or as to whether it is prudent and careful to leave a horse unhitched in a mill- yard. Stowe V. Bishop, 58 Vt. 498, 56 Am. Rep. 569; or as to whether a sidewalk is dangerous. District of Columbia v. Haller, 22 Wash. L. Rep. 761. ^IWhar. on Ev., §444, and cases cited; Lawson on Expert and Opin- ion Ev., Chap. 5, and cases cited. § 209 EXPERT AND OPINION EVIDENCE. 261 chinery.^ The opinion of an expert can not be received upon matters of legal or moral obligation, nor on the manner in which other persons would probably be influenced if the par- ties acted in one way rather than another.^ It is seldom, if ever, that a witness, whether an expert or not, can be per- mitted to express an opinion on the ultimate question the jury is called upon to decide.^ For instance, an expert, after describing a machine or appliance, may, under some circum- stances, testify that it was so constructed as to render its use attendant with danger, but he would not be permitted to state that it was negligent to permit it to be used. So, an expert on mental disease, while he might be permitted to testify that a person he had treated had sufficient mental capacity at a cer- tain time to know the extent and value of his property, the number and names of the persons who were the natural ob- jects of his bounty, their deserts with reference to their con- duct and treatment of him, and their capacity and necessity, yet the witness should not be permitted to testify that such person had at the time a sufficient capacity to make a will, where that is the question in issue. § 209. Who is an expert. — In a Pennsylvania case,* the supreme court of that state said : "An expert, as the word imports, is one having had experience. No clearly defined rule is to be found in the books as to what constitutes an expert. Much depends upon the nature of the question in regard to which the opinion 1 Lau V. Fleteher, 104 Mich. 295, 62 124 Ind. 212, 24 N. E. Rep. 986; John- N. W. Rep. 357; Neubauer v. North, son v. Anderson, 143 Ind. 493, 42 N, Pac. R. Co., 60 Minn. 130, 61 N. W. E. Rep. 815; Lawson on Expert and Rep. 912; Excelsior Electric Co. v. Opinion Ev., 137, et seq. A possible Sweet, 57 N. J. Law 224, 30 Atl. Rep. exception to this rule may be found 553; Lang v. Terry, 163 Mass. 138, to exist in cases where the value of 39 N. E. Rep. 802; McGonigle v. property, concerning which witnesses Kane, 20 Colo. 292, 38 Pac. Rep. 367 ; may testify, is identical with the meas- Grant v. Varney, 21 Colo. 329, 40 Pac. ure of damages. See Yost v. Conroy, ^^P- 771.' 92 Ind. 464, 47 Am. Rep. 156, and ^1 Greenl. on Ev., §441, citing cases there cited. Campbell v. Rickards, 5 B. & Ad. 840. « Ardesco Oil Co. v. Gilson, 63 Pa. 3 Chicago, etc., R. Co. u. Modesitt, St. 146. 262 INDIRECT AND COLLATERAL EVIDENCE. § 210 is asked." As Mr. Lawson states:* "An expert may be qualified by study without practice, or by practice without study. But mere observation without either is insufficient." The law does not fix any precise degree of knowledge which a •witness must possess to give expert evidence, but, if he would so testify, he must have such a familiarity with the subject as qualifies him to express an opinion.^ A considerable degree of discretion is vested in the trial judge, in determining whether a witness shall be permitted to testify as an expert, and his decision will not be reversed on appeal except for plain § 210. Form of question to expert. — The value of an ex- pert's opinion is largely dependent upon the facts which he takes into consideration in forming his conclusion. As a con- sequence, he is not allowed to pass on disputed facts in evi- dence, by expressing an opinion on the evidence.* For the same reason, it is a general rule that the facts on, which the witness is expected to express an opinion must be stated to him in the form of a hypothetical question, in all cases where the facts are in dispute, unless it appears from his testimony just what he assumes the facts to be in answering the question.* In the case of a physician, however, it is permissible, in asking him a hypothetical question as to the physical condition of another, to include in the question the knowledge which the physician obtained by a personal examination of such person.® Upon a matter of this kind, which is largely the result of the direct evidence of his senses, he is competent to express an ^ Lawson on Expert and Opinion prior evidence, where it admits of but Ev., 210. one interpretation. Stoddard r. Win- 2 Parker v. State, 136 Ind. 284, 35 N. Chester, 157 Mass. 567, 32 N. E. Rep. E. Rep. 1105. 948. 'Lawson on Expert and Opinion ^ In re Snelling's Will, 136 N. Y. Ev., 236. 515, 32 N. E. Rep. 1006; Frankfort v. *Tn re Snelling's Will, 136 N. Y. Manhattan R. Co., 12 Misc. 13, 33 515, 32 N. E. Rep. 1006; Carpenter v. N. Y. Supp. 36; Mucci v. Houghton, Leavitt, 10 Misc. 49, 30 N. Y. Supp. 89 Iowa 608, 57 N. W. Rep. 305. 808. But he may testify to his opinion ^Tebo v. Augusta, 90 "Wis. 405,63 based on his understanding of the N. W. Rep. 1045. § 210 EXPERT AND OPINION EVIDENCE. 263 opinion, upon grounds which will be considered in the course of this chapter/ and it is therefore not a valid objection that there is involved in the question the element as to his opinion concerning facts which he is called on to take into consideration because of his personal knowledge, but the wit- ness should first be required to state such facts as fully as possible. There may be other cases which fall within this exception to the rule which forbids the blending of expert testi- mony with matters of which the witness claims personal cognizance. It is not ordinarily a ground of objection to a hypothetical question that there is an omission in the question of one or more matters upon which there is evidence, because it is for counsel to determine, in framing his question, as to whether he will assume that a certain point upon which there is evidence has been sufficiently proved.^ There must be some evidence tending to support each element of the hypothesis, but it is not necessary that this evidence should be direct ; it will suffice, to meet an objection on this ground, that evidence has been introduced from w^hich the jury might draw the in- ference.^ It is the right of a party producing an expert witness to an explanation of the grounds of his opinion.* If any fact which opposite counsel deems material is omitted from the hypothesis, his remedy is to include such fact in questions propounded on cross-examination,® and, it is apprehended, that on cross-examination it is competent, in the discretion of the court, to call for the opinion of an expert upon a purely fanciful hypothesis, as one of the means of testing his expert character. A physician may testify as to the probable effect of a physical injury,* but since even experts are not permitted to ^Post, §213. «Lawson's Expert Ev.. 230, citing 2 Stearns V. Field. 90 N.Y. 640; Dav- Hawkins v. City of Fall River, 119 idson V. State, 135 Ind. 254, 34 N. E. Mass. 94; Dickenson?). Inhabitants of Rep. 972; Lee v. Heuman, (Tex. Civ. Fitchburg, 13 Gray 546; Woodman v. App.) 32 S. W. Rep. 93. Dana, 52 Me. 9. 3 Smith V. Chicago, etc., R. Co., 119 ^ j^j^^j^jg^j^ ^ gj.j^j.g^ jgg j^^ 254, 34 Mo. 246, 23 S. W. Rep. 784; Powers v. N. E. Rep. 972. Kansas City, 56 Mo. App. 573 ; Barber « Barr v. City of Kansas, 121 Mo. 22, V. Hildebrand, 42 Neb. 400, 60 N. W. 25 S. W. Rep. 562. Rep. 594 ; Baker v. State, 30 Fla. 41, 11 So. Rep. 492. 264 INDIRECT AND COLLATERAL EVIDENCE. § 211 offer merely speculative opinions/ it has been held that it is incompetent for a plaintiff in a suit for an injury to her person to prove by a physician the effects which are apt to result from her injury.^ § 211. Distinction between expert and opinion evidence. — In a general sense all opinion evidence may be said to consist of the opinion testimony of persons who have had an experi- ence which especially qualifies them for the expression of such opinion. But strictly speaking, however, the expert is a per- son who by special study or practice has become qualified to express an abstract opinion upon a particular subject, while the ordinary witness may only be permitted to express his opinion upon a concrete matter, the ground for the expression of his opinion being especial opportunity for observation, and, in some cases, the necessity of the case.^ § 212. Opinions as to value. — ''These opinions," says Gray, J., in a Massachusetts case,* '* are admissible, not as being the opinions of experts strictly so called, for they are not founded on special study or training or professional experience, but rather from necessity, upon the ground that they depend upon knowledge which any one may acquire, but which the jury may not have, and that they are the most satisfactory, and often the only attainable evidence of the fact to be proved." Two questions ordinarily arise concerning the reception of evi- dence of value. First. Is the witness acquainted with the in- 'Lawson on Expert and Opinion his hip-pockets. Walker v. People, Ev., 164. 133 111. 110, 24 N. E. Rep. 424; or that 2 Lewis V. Brooklyn Elev. R. Co., 7 if a ladder had been thoroughly in- Misc. 286, 27 N. Y. Supp. 889. spected the defect could have been * It is not competent for a witness to discovered, Allen v. Union Pac, etc., state that he was in a better position R. Co., 7 Utah 239, 26 Pac. Rep. 297; to see up the track than J., Helton v. or that the appearance of a room in- Alabama Midland, etc., R. Co., 97 Ala. dicated that there had been a scuffle. 275, 12 So. Rep. 276; or that a dance State r. Coella, 8 Wash. 512, 36 Pac. was indecent, Brinkley v. State, 89 Rep. 474. Ala. 34, 8 So. Rep. 22, 18 Am. St. Rep. *Swan v. County of Middlesex, 101 87 ; or as to what the deceased in- Mass. 177. tended to do when he put his hand to § 212 EXPERT AND OPINION EVIDENCE. 265 herent properties of the object? Second. Is he acquainted with the market?' Doubtless the first element may be supplied in most cases by a resort to hypothesis. As to the second ele- ment, it is to be recollected that such experience is gained as the business world usually gains knowledge, and it would, therefore, be a mistake to exclude the testimony of such a wit- ness until it appeared that he had resorted to the primary sources of information.' It is therefore held that men engaged in business, and of considerable experience, may testify to val- ues, in a distant city, of products in which they deal, although their information comes chiefly from price-current lists and re- turns from sales.' In Michigan the courts admit market reports of such newspapers as it is shown that the commercial world relies on as evidence of market value,* but it was held in a New York case' that it was error to permit a shipping and price-current list to go in evidence, without some proof as to how the quotations were obtained, and as to whether they were based on actual sales. It would seem that the true rule should be, as in the case of books relative to the non-exact sciences, in order to guard against error, to insist on the exclusion of these secondary sources of evidence, and to take the evidence of value from witnesses who, although they may have resorted for their information to these very sources, have such a meas- ure of experience that the misprinting of a figure would not 1 If the article is one of such a com- national, etc., R. Co. v. Dimmitt, etc., mon character that all persons may be Co., 5 Tex. Civ. App. 186, 23 S. W. presumed to have some knowledge of Rep. 754; Hudson v. Northern Pac, its value, or if the witness, from his etc., R. Co., 92 Iowa 231, 60 N. W. employment, may be presumed to have Rep. 608, and see Finnerstein's Cham- such knowledge, formal proof of that pagne, 3 Wall. 145; Lush v. Druse, 4 element may be dispensed with. Wend. 313; Keith u. Haggart, 2 N. D. Tubbs V. Garrison, 68 Iowa 44, 25 N. 18, 48 N.W. Rep. 432 ; Fairley v. Smith, W. Rep. 921 ; State v. Johnson, 1 Mo. 87 N. Car. 367, 42 Am. Rep. 522. App. 219; Mercer v. Vose, 67 N. Y. « Sisson v. Cleveland, etc., R. Co., 56; Storms v. Lemon, 7 Ind. App. 14 Mich. 489, 90 Am. Dec. 252; Cleve- 435, 34 N. E. Rep. 644. land, etc., R. Co. v. Perkins, 17 Mich. 2 Whitney v. Thacher, 117 Mass. 523. 296, and see Finnerstein's Champagne, 3 Whitney r. Thacher, 117 Mass. 523; 3 Wall. 145. Central Railroad, etc., Co. v. Skellie, s whelan v. Lynch, 60 N. Y. 469, 19 86 Ga. 686, 12 S. E. Rep. 1017 ; Inter- Am. Rep. 202. 266 INDIRECT AND COLLATERAL EVIDENCE. § 213 lead them into any gross mistake. If an article has no mar- ket value, its value may be shown by proof of its utility and other elements properly entering into an estimate of value, to- gether with the opinions of witnesses as to its value. ^ § 213. Opinions receiyed from necessity. — It does not admit of doubt that the leading case on this subject is Hardy v. Mer- rill.^ The follow^ing extract from the opinion in that case is a fitting introduction to this sub-topic: " But if a general rule will comfort any who insist upon excluding and suppressing truth, unless the expression of the truth be restrained within the confines of a legal rule, standard or proposition, let them be content to adopt a formula like this : Opinions of witnesses derived from observation are admissible in evidence, ivhen, from the nature of the subject under investigation, no better evidence can be obtained. No harm can result from such a rule prop- erly applied. It opens a door for the reception of important truths which would otherwise be excluded, while, at the same time, the tests of cross-examination, disclosing the witness's means of knowledge, and his intelligence, judgment and honesty, restrain the force of the evidence within reasonable limits, by enabling the jury to form a due estimate of its weight and value. * * * How can a witness describe the weight of a horse, or his strength, or his value? Will any description of the wrinkles of the face, the color of the hair, ' the tones of the voice, or the elasticity of the step, convey to a jury any very accurate impression as to the age of the per- son described? And so, also, in the investigation of mental and psychological conditions ; because it is impossible to con- vey to the mind of another any adequate conception of the truth by a recital of visible and tangible arppearances ; because you can not, from the nature of the case, describe emotions, sentiments and affections, which are really too plain to admit 1 Bowers v. Horen, 93 Mich. 420, 53 etc., R. Co. v. Chapman, 38 Kan. 807, N. W. Rep. 535, 32 Am. St. Rep. 513; 16 Pac. Rep. 695. See Dunlap v. Sny- Brill V. Flagler, 23 Wend. 354; Sulli- der, 17 Barb. 561. van V. Lear, 23 Fla. 463, 2 So. Rep. ^jjardy v. Merrill, 56 N. H. 227, 22 846, 11 Am. St. Rep. 388; St. Louis, Am. Rep. 441. §213 EXPERT AND OPINION EVIDENCE. 267 of concealment, but, at the same time, incapable of descrip- tion, the opinion of the observer is admissible from the neces- sity of the case ; and witnesses are permitted to say of a per- son : ' He seemed to be frightened ;' ' he was greatly excited;' * he was much confused;' ' he was angry.' All these emotions are expressed to the observer by appearance of the counte- nance, the eye and the general manner and bearing of the in- dividual." Among the many rulings on this general subject the following may be noted : A non-expert may give his opinion as to whether another appeared sick or well, in good or in bad health,^ as to whether he appeared feeble and un- able to work.' So he may testify as to whether he observed in another the manifestations of joy, despondency, fright, in- toxication, friendliness or hostility.' If the opinion which it is ^Smalley v. City of Appleton, 70 Wis. 340, 35 N. W. Rep. 729; Carthage Turnpike Co. v. Andrews, 102 Ind. 138, 1 N. E. Eep. 364, 62 Am. Rep. 653; Bennett v. Fail, 26 Ala. 605; Wilkinson v. Moseley, 30 Ala. 562; Cannady v. Lynch, 27 Minn. 435, 8 N. W. Rep. 164; People v. Monteith, 73 Cal. 7, 14 Pac. Rep. 373; Parker v. Boston Steamboat Co., 109 Mass. 449; Com. V. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401, A non-expert may testify as to whether a horse appeared well and free from disease, but he can not testify as to whether it had the heaves. Spear v. Richardson, 34 N. H. 428. 2 Winter v. Central Iowa R. Co., 74 Iowa 448, 38 N. W. Rep. 154; Stone V. Moore, 83 Iowa 186, 49 N. W. Rep. 76. ^Tobin V. Shaw, 45 Me. 331, 71 Am. Dec. 547; Blake t;. People, 73 N. Y. 586; People v. Eastwood, 14 N. Y. 562; People ». Packenham, 115 N. Y. 200, 21 N. E. Rep. 1035; Brownell v. People, 38 Mich. 732; Darling v. Westmoreland, 52 N. H. 401, 13 Am. Rep. 55; McKillop v. Duluth St. R. Co., 53 Minn. 532, 55 N. W. Rep. 739; Culver V. Dwight, 6 Gray 444; Com. V. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401 ; State v. James, 31 S. Car. 218, 9 S. E. Rep. 844. In the case of Hardy v. Merrill, 56 N. H. 227, already quoted from in the text, it is furtlier said : "A man is tried for the murder of his wife. It is material to know how his mind was affected when he was first informed of her death. A witness, who says he told the prisoner of it, is asked how the prisoner -was affected. The answer is, ' He was very much overcome,' or 'I thought he was deeply affected,' or, perhaps, 'The news did not disturb him at all', or ' He showed no signs of grief,' or, ' I saw no indications of sorrow,' or, ' He seemed depressed and gloomy.' Did anybody ever object to such evidence? and if any objection was ever made on the ground that it was a matter of opinion, was the objection ever sus- tained?" In a breach of promise case, where the witness had lived in the house Avith the plaintiff, as a member of the same family, it was held proper to ask the witness whether 268 INDIRECT AND COLLATERAL EVIDENCE. §213 sought to have the witness express is based on multifarious facts (the right to sum up those facts resting on the ground of necessity), the witness should be first required to state, so far as possible, the facts upon which he bases his opinion.* Witnesses may be called on to express an opinion as to the identity of persons and things, and to give their judgment as the plaintiff was sincerely attached to the defendant. The court said: "There are a thousand nameless things, indicating the existence and degree of the tender passion, which language can not specify. The opin- ion of witnesses, on this subject, must be derived from a series of instances passing under their observation, which yet they never could detail to a jury." McKee v. Nelson, 4 Cowen 355, 15 Am. Dec. 384. In Clary v. Clary, 2 Ired. L. 78, Gaston, J., speak- ing for the court, said: "In regard to questions respecting the temper in which words have been spoken or acts done, were they said or done kindly or rudely, in good humor or in anger, in jest or in earnest? What answer can be made to these inquir- ies, if the observer is not permitted to state his impression or belief? Must a facsimile be attempted, so as to bring before the jury the very tone, look, gesture and manner, and let them collect therefrom the disposi- tion of the speaker?" To the same effect. Powers v. State, 23 Tex, App. 42, 5 S. W. Rep. 153; Raisler v. Springer, 38 Ala. 703. In Whittier V. Town of Franklin, 46 N. H. 23, 88 Am. Dec. 185, it was held competent for a witness to testify that a horse did not appear frightened, but ap- peared to be sulky. Quere: Can a witness express an opinion that an- other person was feigning illness ? Enos V. St. Paul Fire & M. Ins. Co., 4 S. D. 639, 57 N. W. Rep. 919, 46 Am. St. Rep. 796. In Wright v. City of Fort Howard, 60 Wis. 119, 50 Am. Rep. 350, 18 N. W. Rep. 750, this question was asked the plaintiff: " What injury are you suffering from now in consequence of that fall?" Held proper. The court said : "Where a plaintiff sues for a personal injury and is a witness in his own behalf, and his pain, suffering, or internal condition is pertinent to the issue and perceptible to his senses, a ques- tion put to such party eliciting a de- scription of such pain, suffering or condition, and not necessarily requir- ing scientific skill or knowledge, is a question calling for facts and not mere opinion." In Creed v. Hart- man, 8 Bosw. 123, the plaintiff's coun- sel said to her, while she was upon the stand: "State to the jury the effect of that injury upon you, and how your situation is." It was held that this was admissible, as she was simply called upon to state "facts of which she, in some respects, could alone be fully apprised, and of all was best apprised." ^ Foster's Executors v. Dickerson, 64 Vt. 233, 24 Atl Rep. 253 ; Stewart V. Redditt, 3 Md. 67; Carthage Turn- pike Co. V. Andrews, 102 Ind. 138, 1 N. E. Rep. 364, 52 Am. Rep. 653; Stephenson v. State, 110 Ind. 358, 11 N. E. Rep. 360; 59 Am. Rep. 216; Potts V. House, 6 Ga. 324, 50 Am. Dec. 329; Paine v. Aldrich, 133 N. Y. 544, 30 N. E. Rep. 725 ; Morse v. State, 6 Conn. 9; Baughman «. Baughman, 32 Kan. 538, 4 Pac. Rep. 1003. § 213 EXPERT AND OPINION EVIDENCE. 269 to the correspondence between boots and footprints/ and to state whether certain hair was human hair/ A different rule would doubtless prevail, where the witness is a non-expert, in cases where the objects can be produced in court.' The neces- sity for receiving opinion evidence on occasion is strongly exemplified in cases where it is necessary to examine witnesses as to sound, distance, weight, time, smell, heat, darkness, etc.* In the well considered case of Com. v. Sturtivant,® it was held that a witness who had observed an elongated blood- stain, upon a wall, might testify to his opinion as to the direction from which the blood moved, although he had never made any experiments of that kind.® Where, immediately after the collision of two boats, a person looked at their condi- tion, he was permitted to testify to the impression made upon his mind as to the position in which they came together.' In a New York case,' the question was asked a witness: "How did the driver drive from the time he left Pawtucket until he got to this railroad crossing?" The witness answered, "Well, he had his horses under pretty good control, and he seemed to drive carefully." Held competent. In a California case,' it was held proper to ask a witness, who was upon the same car 1 Com. V. Pope, 103 Mass. 440; State ^ Com. v. Sturtivant, 117 Mass. 122, V. Shinborn, 46 N. H. 497, 88 Am. 19 Am. Rep. 401. Dec. 224 ; State v. Pike, 49 N. H. 399, ^ See further as to direction of blows 6 Am. Eep. 633; Clark v. State, 28 or force, Steamboat Clipper ?j. Logan, Tex. Cr. App. 189, 26 S. W. Rep. 68, 18 Ohio 375; Hopt v. Utah, 120 U. S. 19 Am. St. Rep. 817; Bunnt>. Timber- 430, 7 Supt. Ct. Rep. 614; State v. lake, 104 Ala. 263, 16 So. Rep. 97. Rainsbarger, 71 Iowa 746, 31 N. W. 2Com. V. Dorsey, 103 Mass. 412. Rep. 865. A non-expert may be per- 3 Sprague v. Atlee, 81 Iowa 1, 46 N. mitted to express an opinion that a W. Rep. 756; Knoll v. State, 55 Wis. stain which he saw and which can 249, 42 Am. Rep. 704. not be produced in court was a blood * Hachett v. Boston, etc., R. Co., 35 stain. People v. Deacons, 109 N. Y. N. H. 390; Stephenson v. State, 110 374, 16 N. E. Rep. 676; Greenfield v. Ind. 358, 11 N. E. Rep. 360, 59 Am. People, 85 N. Y. 75, 39 Am. Rep. 636. Rep. 216; Ward v. Charleston City R. 'Patrick v. Steamboat J. Q. Adams, Co., 19 S. Car. 521, 45 Am. Rep. 794; 19 Mo. 73. Snyder v. Witwer, 82 Iowa 652, 48 N. « Wilson v. N.Y., etc., R. Co., 18 R. I. W. Rep. 1046. See Stater. Donnelly, 598, 29 Atl. Rep. 300. 69 Iowa 705, 27 N. W. Rep. 369, 58 » Healy v. Vistula, etc., E. Co., 101 Am. Rep. 234. Cal. 585, 36 Pac. Eep. 125. 270 INDIRECT AND COLLATERAL EVIDENCE. § 214 as the plaintiff when she received her injury: " Under the circumstances, was it possible for an ordinary person, sitting in the position Mrs. Healy was sitting in, to stand the force of the jars, and still retain her seat upon the car?" The court said: "The border line between fact and opinion is often very indistinct, and the statement of a fact is frequent- ly only an opinion of the witness. Impressions or sensa- tions caused by external objects are not susceptible of exact reproduction or description in words." § 214. Non-expert evidence upon the subject of sanity. — But little remains to be said upon this subject. Many of the decisions cited in the preceding section are applicable here. It has been many times ruled that if a non-expert states that he has had an opportunity to observe, and has observed, the mental condition of another, he may, after stating the facts Vifithin his knowledge as fully as possible, express an opinion upon his sanity.^ § 214a. Limitations upon tlie competency of non-expert opinion evidence. — Negatives are difficult to prove, and as a result, where the facts are such as to address themselve direct- ly to the faculties of a witness, he may be permitted to express 1 Connecticut, etc., Insurance Co. v. 498; Carr v. State, 24 Tex. App. 562, Lathrop, 111 U. S. 612, 4 Sup. Ct. Rep. 7 S. W. Rep. 328, 5 Am. St. Rep. 905 ; 533; Hardyv. Merrill, 56 N.H. 227, 22 State v. Lewis, 20 Nev. 333, 22 Pac. Am. Rep. 441 ; Foster's Executors v. Rep. 241, or may express an opinion Dickerson, 64 Vt. 233, 24 Atl. Rep. 253 ; that he was childish. Potts v. House, Paine v. Aldrich, 133 N. Y. 544, 30 N. 6 Ga. 324, 50 Am. Dec. 329; or that E. Rep. 725; Mull v. Carr, 5 Ind. App. he was incapable of transacting busi- 491, 32 N. E. Rep. 591; Baughman v. ness. Stewart v. Spedden, 5 Md. 433. Baughman, 32 Kan. 538, 4 Pac. Rep. In Keyser t?. Chicago, etc., R. Co., 66 1003; Holcomb v. State, 41 Tex. 125; Mich. 390, 33 N. W. Rep. 867, it was McClackey v. State, 5 Tex. App. 320; held competent to ask a witness, who Territory v. Hart, 7 Mont. 489, 17 Pac. was well acquainted with_ a certain Rep. 718; Potts v. House, 6 Ga. 324, 50 child, as to whether he was an ordi- Am. Dec. 329. So a witnes may testify, narily bright child. In Sprague v. after a proper foundation has been Atlee, 81 Iowa 1, 46 N. W. Rep. 756, laid, as to whether a person knew it was held that an objection to a right from wrong. Pflueger v. State, like question was properly sustained, 46 Neb. 493, 64 N. W. Rep. 1094; Mhere the child had been on the stand United States v. Guiteau, 1 Mackey and fully examined. § 214a EXPERT AND OPINION EVIDENCE. 271 an opinion by a negative answer. Thus, in a Minnesota case/ it was held error to exclude an answer to the following ques- tion : " State whether or not any person or persons acting for you, as your agent, or otherwise, had the right or authority to make the sale of a thresher or any piece of machinery, with- out first having submitted a printed order for the same?"^ But in cases where the fact sought to be proved is affirmative in its nature, and is made up of resultant facts which can rea- sonably be shown upon the trial, the court will not accept the deduction of the witness.' In the carefully considered case of State V. Williams,* it is said : " We think the limit may be drawn without any difficulty, and consistently with the habit- ual practice of courts. Whenever the opinion of the witness upon such a question, or one coming under the same rule, is the direct result of observation, through the senses, the evi- dence is admissible ; * * * but if the opinion is the result of reasoning from collateral facts, it is inadmissible. * * * In such case the tribunal is as competent to reason out the re- sultant opinion as the witness is ; and, by the theory of the law, it alone is competent to do so. To allow any influence to the opinion of the witness would be of necessity to substitute him to the function of the tribunal." The cases which have been cited in the section immediately preceding, in which affirmative conclusions based on primary facts have been held competent, are cases involving questions like insanity, where the facts can not be shown ; but even in those cases, as we have seen, the party offering the evidence must show the facts as fully as possible. ^Peerless Machine Co. v. Gates, 61 Rep. 725. For an interesting discus- Minn. 124, 63 N. W. Rep. 260. sion of this question, see the case of 2 See Over v. Schiffling, 102 Ind. 191, Boyle v. State, 105 Ind. 469, 5 N. E. 26 N. E. Rep. 91; Walker v. Lake Rep. 203, 55 Am. Rep. 218, a liberal Shore, etc., R. Co., 104 Mich. 606, 62 extract from which will be found in N. W. Rep. 1032. note 3, p. 251, of this work. It was held ^Simpson v. Smith, 27 Kan. 565; in Woodstock Iron Co. v. Roberts, 87 Hite V. Stimmell, 45 Kan. 469, 25 Pac. Ala. 436, 6 So. Rep. 349, that collect- Rep. 852: Evansville, etc., R. Co. v. ive facts may be shown on cross-ex- Fitzpatrick, 10 Ind. 120; Central R. amination. Co. V. Allmon, 147 111. 471, 35 N. E. « State v. Williams, 67 N. Car. 12. 272 INDIRECT AND COLLATERAL EVIDENCE. § 215 § 215. Speed of trains, etc. — Any intelligent man who is accustomed to observe moving objects may testify as to the rate of speed at which a train or other object which he was watching was proceeding.^ § 216. Subscribing witnesses. — Subscribing witnesses to a will, being regarded as the plighted witnesses to the instru- ment they attest, may be called on to express an opinion as to the mental condition of the testator, although no foundation is laid.' § 217. Modes of proving handwriting. — There are two, and in most jurisdictions three, ways of proving handwriting. The direct and simplest evidence of such a fact is by the testimony of a person who saw the paper or signature written, and who swears to its identity. The second method of proving that fact is by the testimony of a witness who, although he did not see the person whose writing is in question write, is nevertheless familiar with his handwriting ; and the third method is the purely expert method of proving the handwriting by compari- son. There is no occasion for discussing the first method. § 218. Extent of familiarity with handwriting. — There is no dispute upon the proposition that if a witness testifies that he has seen a person write, and that he knows his writing, he is a competent witness upon that question.^ Indeed, the author- ities seem to be sufiiciently lax on the subject to admit the wit- ness's opinion or belief based merely on having seen the person write, although the witness does not swear that he knows the person's handwriting.* The knowledge of another's writing 1 Detroit, etc., R. Co. v. Van Stein- 328; Smith v. Walton, 8 Gill 77; Ede- burg, 17 Mich. 99; Guggenheim v. len v. Gough, 8 Gill 87. Lake Shore, etc., R. Co., 66 Mich. 150, *Garrells v. Alexander, 4 Esp. 37; 33 N. W. Rep. 161 ; Missouri, etc., R. Talbott v. Hedge, 5 Ind. App. 555, 32 Co. V. Hildebrand, 52 Kan. 248,34 N. E. Rep. 788; 1 Greenl. on Ev., Pac. Rep. 738. § 577 ; Rogers' Expert Testimony, 286. ^Rapalje's Law of Witnesses, §291, In Jackson v. Van Dusen, 5 Johns, and cases there cited. 144, 4 Am. Dec. 330, it was held that 8 Karrv. State, 106 Ala. 1, 17 So. Rep. a person might testify to a signature § 219 EXPERT AND OPINION EVIDENCE. * 273 need not be acquired in an ocular manner. Upon this subject Mr. Greeiileaf says : " The second mode is, from having seen letters, or other documents, purporting to be the handwriting of the party, and having afterwards personally communicated with him respecting them ; or acted upon them as his, the party having known and acquiesced in such acts, founded upon their supposed genuineness; or, by such adoption of them into the ordinary business transactions of life as induces a reasonable presumption of their being his own writings ; evidence of the identity of the party being of course added aliunde, if, the witness be not personally acquainted with him."^ If a witness has become familiar with the handwriting of an- other by the receipt of writings which the witness knows to be genuine, and which writings he has in his possession, there is no objection to his refreshing his memory by an inspection of them, and, even the common law authorities hold that he may do this while holding the genuine and the disputed writings in juxtaposition.^ § 219. Comparison of handwi'itings. — The proposition to compare two writings, neither of which is known to the wit- who had only seen the supposed The receipt of one or more letters writer sign his initials. Jackson v. purporting to be written by a certain Van Dusen, 5 Johns. 144, 4 Am. Dec. person, without anything further to 330. If the witness is unfamiliar with show that they emanated from him, the person's signature, except by see- will not qualify the person receiving ing the person write for the express them to express an opinion as to the purpose of proving or disproving such handwriting of the person from whom signature, the witness is not qualified, the letters purport to come. Cunning- Stranger V. Searle, 1 Esp. 14; Reese v. ham v. Hudson Riv. Bank, 21 Wend. Reese, 90 Pa. St. 89, 35 Am. Rep. 634 ; 556; Pinkham v. Cockell, 77 Mich. Territory v. O'Hare, 1 N. Dak. 30, 44 265, 43 N. W. Rep. 921 ; Putnam v. N. W. Rep. 1003. Wadley,40I11.346; Brantv. Dennison, ^1 Greenl. on Ev., §577; Johnson r. (Pa. St.) 5 Atl. Rep. 869; Talbott v. Daverne, 19 Johns. 134, 10 Am. Dec. Hedge, 5Ind. App. 555, 32 N. E. Rep. 198; Titford v. Knott, 2 Johns. Cas. 788. 211;Tuttle t'. Rainey, 98 N. Car. 513, ^A telegram in an agreed cipher 4 S. E. Rep. 475 ; Berg v. Peterson, 49 identifies itself. Oregon Steamship Minn. 420, 52 N. W. Rep. 37; Rey- Co. v. Otis, 100 N. Y. 446, 3 N. E. burn V. Belotti, 10 Mo. 597; Tucker v. Rep. 485, 53 Am. Rep. 221. Kellogg, 8 Utah 11, 28 Pac. Rep. 870. 18— Ev. 274 INDIRECT AND COLLATERAL EVIDENCE. § 210 ness to be genuine, is quite a different one from the proposi- tion just preceding. Tlie common law did not recognize the right to make such comparisons, excepting where tlie antiquity of the writing was so great as to render it impossible, or, at least, difficult, to obtain witnesses familiar with it ; the com- parison in such a case being made with ancient writings which had been treated and preserved as authentic documents.^ This rule was changed by statute in England.^ The former exclu- sionary rule was based on the consideration of the difficulty in obtaining a standard, in that if a comparison was instituted between the writing in question and a supposed standard, it would be not impossible that the genuiness of the standard would be attacked by a comparison with another supposed standard, and further that a party might cause unfair speci- mens to be selected. According to many authorities in this country, a comparison can only be made of a disputed writing with another writing, where the latter is already a part of the record or evidence in the case and where its genuineness is ad- mitted.^ In some of the states it is held that papers may be introduced solely for the purpose of comparison, if their genu- ineness is admitted.* In a third class of states, the courts go iBurr V. Harper, Holt's N. P. C. States, 91 U. S. 270; Little v. Beazley, 420; 2 Phil, on Ev., (1849 ed.) 257; 2 Ala. 703, 36 Am. Dec. 431. This Rowt's Admx.v. Kite's Admr., 1 Leigh rule was applied in State v. Miller, 47 216; Jackson v. Brooks, 8 Wend. 426, Wis. 530, 3 N. W. Rep. 31, where the 15 Wend. Ill ; Strother v. Lucas, 6 defendant was on trial for arson, and Peters 763 ; Clark v. Wyatt, 15 Ind. the state sought to compare a letter, 271, 77 Am. Dec. 90. See Best on written to the prosecuting witness, Ev., §240. containing threats of arson, with a "17 and 18 Y. C. 125, §§27, 103; 28 copj^ of the same letter, written by and 29 V. C. 18, C. 18. the defendant after his arrest, at the 'Rogers v. Tyley, 144 111. 652, 32 N. dictation of an officer. E. Rep. 393 ; White S. M. Co. v. Gor- * Ort v. Fowler, 31 Kan. 478, 2 Pac. don, 124 Ind. 495, 24 N. E. Rep. 1053; Rep. 580, 47 Am. Rep. 501 ; Morrison Swales V. Grubbs, 126 Ind. 106, 25 N. v. Porter, 35 Minn. 425, 29 N. W. Rep. E. Rep. 877; Randolph v. Loughhn, 64, 59 Am. Rep. 331 ; State v. Clinton, 48 N. Y. 456; Hynes v. McDermott,. 67 Mo. 380, 29 Am. Rep. 506; Darnell 82 N. Y. 41, 37 Am. Rep. 538 ; Yates v. v. Sowden, 5 Utah 216, 14 Pac. Rep. Yates, 76 N. Car. 142; People v. Par- 334; Tucker v. Kellogg, 8 Utah 11, 28 ker, 67 Mich. 222, 34 N. W. Rep. 720, Pac. Rep. 870. 11 Am. St. Rep. 578; Moore v. United § 220 EXPERT AND OPINION EVIDENCE. 275 further than the courts of the states last mentioned, and admit other writings, for the purposes of comparison, not only where their genuineness is admitted but in cases where the proof of genuineness is strong and clear (in some of the cases it is said that the proof must establish the standard beyond a reasonable doubt, y The still different view is taken in Pennsylvania and South Carolina that comparison of hands is not an original method of proof, but is only to be used as corroboratory evi- dence.^ § 220. Same subject. — Although most of the states are com- mitted to some definite rule concerning the reception of evi- dence of this character, it will not be amiss to consider the various rules above stated from the standpoint of principle. As to the first mentioned rule, that papers already in the case, and admittedly genuine, may be used, it would seem, granting that there is evidence of identity in the similarity of different specimens of handwriting, that there could be no possible ob- jection to admitting expert evidence in that kind of a case, for, it is to be observed, the jury will make the comparison any way, as, indeed, they have a strict right to do under a relaxation of the common law,' and they should therefore be aided by ex- pert evidence. It was said by Lord Denman in an English case,* decided in the year 1836 : '' There being two documents in question in the cause, one of which is known to be in the handwriting of a party, the other alleged, but denied, to be so, no human power can prevent the jury from comparing them, 1 Com. v. Coe, 115 Mass. 481 ; State ^jyicCorkle v. Binns, 5 Binn. 340, V. Thompson, 80 Me. 194, 13 Atl. Rep. 6 Am. Dec. 420; Farmer's Bank v. 892, 6 Am. St. Rep. 172 ; State v. Hast- Whitehill, 10 S. & R. 110 ; Benedict v. ings, 53 N. H. 452; Adams ^7. Field, 21 Flanigan, 18 So. Car. 506, 44 Am. Vt. 256; Rowell v. Fuller's Estate, 59 Rep. 583. Vt. 688, 10 Atl. Rep. 853; Mardes v. » Griffith v. Williams, 1 Cr. & J. 47; Meyers, (Tex. Civ. App.) 28 S. W. Doe v. Newton, 1 Nev. & P. 4, 5 Ad. & Rep. 693; Bragg v. Colwell, 19 Ohio Ell. 514; Solita v. Yarrow, 1 Mo. & St. 407; Pavey v. Pavey, 30 Ohio St. R. 133; Eaton v. Jervis, 8 C. & P. 273. 600; Winch v. Norman, 65 Iowa 186, *Doe v. Newton, 1 Nev. & P. 4, 5 21 N. W. Rep. 511 ; Sankey v. Cook, Ad. & Ell. 514. 82 Iowa 125, 47 N. W. Rep. 1077; Hanriot v. Sherwood, 82 Va. 1. 276 INDIRECT AND COLLATERAL EVIDENCE. § -20 with a view to the question of genuineness ; and therefore it is best for the court to enter \vith tlie jury into that inquiry, and to do the best it can under the circumstances which can not be helped."^ As to the second-mentioned rule, that pa- pers admittedly genuine may be used as standards, it may be said that there can be no objection urged to this rule, so far as the standard is concerned, but there is a danger in having col- lateral papers put before the jury, which, although they might contain matter quite prejudicial to the cause of the party against whom they are produced, could not be explained. With regard to both of the rules already mentioned in this sec- tion, there has been some question as to who may make the ad- mission of genuineness. One of the reasons assigned at com- mon law for the exclusion of evidence of handwriting by com- parison was the danger of fraud in the selection. But this difficulty could only arise from a wrong application of the rule, as where a trial court, as in a Missouri case, permitted the de- fendant, in a suit on a note, where he had pleaded non est factum, to call an expert to prove that the signature to the note and the signature to the plea were not the same.^ In an Indiana case it is said : "The question arises, who shall make the ad- mission ? The appellee insists that if the maker of the papers admits the signatures to them to be genuine, this is an admis- sion within the meaning of the rule. We think otherwise. The admission must be made by the party against whom the admission is sought to be used, whether he is or is not the maker of the paper. A claim that a signature is genuine by a party who seeks to use it is no admission at all.'"* As to the third rule, permitting evidence to be introduced to establish the standard, it is to be observed that it is ordinarily open to the objection that a possibility can not be supported by a hy- ^ Approved, Williams v. Conger, 125 signatures or handwriting executed U. S. 397, 8 Sup. Ct. Rep. 933; Van post litemmotam cannot he used. King Wyck V. Mcintosh. 14 N. Y. 439. v. Donohue, 110 Mass. 155, 14 Am. Rep. «Springerv. Hall,83Mo.693,53 Am. 589; Com. v. Allen, 128 Mass. 46. 35 Rep. 598. In Massachusetts, where, Am. Rep. 356. as already shown, the standard may be ^ Shorb v. Kinzie, 80 Ind. 500. proved by evidence, it is held that § 221 EXPERT AND OPINION EVIDENCE. 277 pothesis whicli itself rests on a possibility.' That is to say, if a witness goes upon the stand, and there is submitted to him a proposed standard of handwriting, and he, after examining it, testifies,from his recollection, that it is similar to the handwriting of the person whose writing is in question, that it is his hand- writing, then the point stands thus : the proposed standard resembles the handwriting of such person, and therefore it is to be assumed that the genuine writing and the standard writ- ing were written by the same person, and if it should further appear from the evidence of the witness that the standard writing and the writing in question resemble each other, the jury will be asked, first, to infer that the standard writing is the genuine writing of such person, and, second, to infer from that assumption that the writing in dispute was written by the person whom the party introducing the evidence claims that it was written by. Some of the cases cited as supporting this rule avoid this objection by requiring the evidence of the standard writing to be direct, and not opinion evidence, while others seek to avoid the objection by holding that the first in- ference may be treated as an established fact by the accumula- tion of evidence upon that point to an extent which practically puts the question out of the realm of controversy. § 221. Cross-examination of witness as to handwriting.— It is a matter of serious question to what extent, if at all, the rule concerning collateral writings broadens on the cross-ex- amination. It has been held in a number of cases that it is not competent to submit a forged signature to a witness on cross-examination, for the purpose of testing his expert char- acter,' and in two carefully considered Indiana cases it was held that other papers not already in evidence could not be submitted to him, because, if his testimony upon the collateral point was adverse to the party calling him, the latter might ^AVinch v. Norman, 65 Iowa 186, 21 91 Mo. 399, 3 S. W. Rep. 876, 60 Am. N. W. Rep. 511 ; ante, § 52. Rep. 258 ; Massey r. Bank, 104 III. 327 ; 2 Gaunt V. Harkness, 53 Kan. 405, 36 Tyler v. Todd, 36 Conn. 218. Pac. Rep. 739 ; Rose v. First Nat. Bank, 278 INDIRECT AND COLLATERAL EVIDENCE. § 221 with equal right insist upon rebutting the collateral issue.* A close question exists as to whether the exclusionary rule is changed, as to the introduction of collateral documents, where a party to the suit, who has denied his signature to a writing on the main examination, is examined on cross-examination as to collateral signatures purporting to be his, if there is no one to be prejudiced by his admission but himself. It would seem, however, in jurisdictions where the rule is to admit in evidence, for the purpose of comparison, only such writings as are admittedly genuine and are already in evidence, that such a cross-examination would not be proper. If he volun- tarily admits his signature, not as a witness but as a party, then, if it be a paper in the case, it may well be treated as a standard, but it is quite within the realm of possibility that an honest witness might be morally coerced by his oath, the sig- nature to the collateral paper being similar to his own, to give it as his judgment that it was his own, while as a party mere- ly he would not be so satisfied as to feel justified in making the admission. It is to be recollected that the effort is to establish a standard, and if that be uncertain, it is in vain that a superstructure of evidence is built upon it. Shakes- peare, whose powerful mind ran the whole gamut of human experience, makes one of his characters in Twelfth Night say : " I can write very like my lady, your niece ; on a forgotten matter we can hardly make distinction of our hands.'"' Pass- ing the above question by, however, it may be said that it is competent for the court in its discretion, upon cross-examina- tion, to require a witness, who has denied on his direct exam- ination that a signature is his, to write his name.^ ^McDonald v. McDonald, 142 Ind. signature was attached to a note 55, 41 N. E. Eep. 336; Tucker r. H}'- which was a forgery throughout, att, 144 Ind. 635, 41 N. E. Rep. 1047, 43 whereas he spoke hesitatingly in re- N. E. Rep. 872. gard to his genuine superscription. 2 Mr. Best, in his work on evidence, » Smith v. King, 62 Conn. 515, 26 § 247, mentions an instance in which Atl. Rep. 1059. a bank clerk swore distinctly that his § 222 EXPERT AND OPINION EVIDENCE. 279 § 222. Secondary evidence of standard of handwriting.— It has been held in several cases that a letter-press copy of a writ- ing can not be used as a standard because the mechanical process of copying spreads the ink and blots the letters, there- by affecting somewhat the general appearance of the writing.' It would probably be more correct to state that such a copy is not primary evidence. Although photographic copies of a writing are ordinarily secondary evidence,' yet where the orig- inal signature is present, it is held that a magnified photo- graphic copy of it may be primary evidence, for the purpose of more plainly exhibiting the characteristics of the writing." § 223. Qualification of expert as to handwi-iting.— While it requires an especial knowledge to enable a witness to testify from an examination of a disputed writing that it is the hand- writing of a particular person, yet that knowledge is based on recognition. Indeed, it is conceivable that a totally unlettered person might be a competent witness on this question. But it is in the comparison of two specimens of handwriting, which the witness takes up without any a-priori opinion as to their particular characteristics, that the function of the expert is ex- hibited. Upon this latter point it is to be observed that there are experts and there are experts. If a witness goes upon the stand, where such a question is raised, and testifies that it has been his business habit, to make comparisons of writings, he is legally qualified to testify.* Authorities can doubtless be found' which state the rule of qualification in such man- A ' ^T" '• S.TT"'' ^ ^'''^- ^^^' ^^ " " ^^ *^^ ^"ter's observation that t'^'J^T.'. ^^^^^f ^" ^- Teller, 93 while the testimony of the thorough- l^a. bt 123. But the genuineness of going expert upon handwriting is sat- the letter-press copy may be proved isfactory, yet that the testimony of by testimony where that fact is in ordinary experts, such as cashiers question. Com. .Jeffries, 7 Allen etc., is very unsatisfactory. In th^ mI r«2 • '''' '' ^ ^™^*^ ^°^^-^' the i->^ -" ^fue, s o^. appreciate the difference between the Marcy. Barnes, 16 Gray 161, 77 false and the true as readily as the ex- t^T^ ^\t U ^^"'^ '• ^^^^^'^^tt, pert, while in cases of skillful forger- 82 N. Y. 41, 3 Am Rep. 538. ies, the ordinary expert is deceived P tn !r. ' i^ ^''"- '''' ^ ^''- ^^'^^^^^ «^ "^^ similitude between the Hep. 580, 47 Am. Rep. 501. genuine writing and the forgery, when 280 INDIRECT AND, COLLATERAL EVIDENCE. § 223 ner as to admit as experts persons having much familiarity with handwriting, although they never instituted comparisons between different specimens, the truth is that, if it be assumed that taking effort in its execution ; and he the act was done by an expert forger, also, by a study of many of the genu- similitude— at least to the superficial ine specimens of the handwriting, if observation— is a condition which is they can be procured, endeavors to always present. The real expert in become acquainted with the charac- handwriting brings to his aid the mi- teristics of the handwriting which lie croscope or the camera to reveal the below any mere question of simili- fact that the writing has been traced, tude. or that there has been other pains- CHAPTER VIII. HEARSAY. § 223a. Scope Of discussion. §229. Admissions of injured party 224. Definition of hearsay evidence. not competent in criminal 225. Hearsay should always be ex- case. pljj^g(j 230. The rule is the same where the 226 Circumstances giving credit to injured party is dead. hearsay do not render it ad- 231. Self-serving acts of party, j^jggjl^lg 232. Res inter alios acta alien nocere 227 Admissions of guilt by third no7i debet. persons. 233. Party offering hearsay evidence 228. Acts and declarations of third must show it within excep- person tending to prove that tion. he is guilty person. 234. Probative force of hearsay if not objected to. 235. General reputation. § 223a. Scope of discussion.— Many writers upon the law of evidence treat important branches of the subject as ex- ceptions to the general rule excluding hearsay. It is the writ- er's purpose to treat these exceptions in other portions of the work, and to use this chapter to enforce the principle of the law of evidence relative to hearsay in the strict sense of the term. There are but few exceptions to the general rule ex- cluding hearsay evidence, but these exceptions are as firmly established as the rule itself. Much of the evidence which is often spoken of falling within the exceptions to the rule ex- cluding hearsay is really original evidence. As this proposi- tion will find abundant illustration in the chapter on res ges- tse, a single illustration must now suffice. If, for instance, a question existed as to whether a person had acted prudently or in good faith, it would be clear that the information on which he acted whether true or false, would be original and mate- (281) 282 INDIRECT AND COLLATERAL EVIDENCE. § 224 rial evidence/ but if the question was as to the existence of a specific fact, it would be clearly incompetent to show the re- sult of inquiries among those who would be likely to possess information upon the subject.^ § 224. Definition of hearsay evidence. — Mr. Phillips says; "The term, hearsay evidence, is used with reference both to that which is written, and that which is spoken. But, in its legal sense, it is confined to that kind of evidence which does not derive its effect solely from the credit to be attached to the witness himself, but rests also in part on the veracity and competency of some other person, from whom the witness may have received his information."' The general rule of evidence is that testimony must be given on oath by persons speaking to matters within their own knowledge, and liable to be tested by cross-examination.* As was said by Justice Buller, in an English case :^ "The true line for courts to adhere to is, whenever evidence, not on oath, has been repeatedly received and sanctioned by judicial determination, it shall be allowed ; but beyond that, the rule that no evidence shall be admitted but what is upon oath, shall be observed."* In a California case,' the court stated that " hearsay evidence is a species of derivative evidence, which is offered for the purpose of estab- lishing some specific fact in a case, and rests on the veracity and competency of some other person than the witness. Such 1 Phelps V. Foot, 1 Conn. 387; Hurl- affected thereby had not an opportu- burt T. Hurlburt's Estate, 63 Vt. 667, nity of cross-examining; but such 22 Atl. Rep. 850. speeches or discussions may be made 2 Hurlburt v. Hurlburt's Estate, 63 use of by way of inducement or illus- Vt. 667, 22 Atl. Rep. 850. tration of what is properly evidence. ^IPhil. onEv. (1849ed.),185; Mima Also what a witness hath been heard Queen v. Hepburn, 7 Cranch 290; to say at another time maybe given Hopt V. People, 110 U. S. 574, 4 Sup. in evidence, in order either to invali- Ct. Rep. 202. date or confirm the testimony to be * Sturla V. Freccia, L. R. 5 App. Cas. given in court." 623, L. R. 12 Ch. Div. 411. In 3 s Rex t\ Eriswell, 3 T. R. 707. Bacon's Abridgement, 629, it is ^ Quoted approvingly in Ellicott v. said : " It seems agreed that what an- Pearl, 10 Pet. 412. other has been heard to say is no evi- "^ Smith v. Whittier, 95 Cal. 279, 30 dence, because the party was not on Pac. Rep. 529. oath; also, because the party who is § 225 HEARSAY. 283 testimony is excluded whenever it appears that a higher degree of evidence of that fact can be obtained by the production of the person from whom the evidence offered was derived ; but whenever the testimony of such person is of no higher degree in establishing the fact to be shown," the evidence is compe- tent. § 225. Hearsay should always be excluded. — In the case of Mima Queen v. Hepburn/ it was said by Chief Justice Mar- shall, in pronouncing the opinion of the court : " This court can not perceive any legal distinction between the assertion of this, and of any other right, which will justify the application of a rule of evidence to cases of this description which would be inapplicable to general cases in which a right to property may be asserted. The rule, then, which the court shall establish in this cause will not, in its application, be confined to cases of this particular description, but will be extended to others where rights may depend on facts which happened many years past. It was very justly observed by a very great judge, 'that all questions upon the rules of evidence are of vast importance to all orders and degrees of men ; our lives, our liberty and our property are all concerned in the support of those rules, which have been matured by the wisdom of ages, and are now revered from their antiquity and the good sense in which they are founded.' One of those rules is that ' hearsay ' evidence is in its own nature inadmissible. 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 ex- istence of the fact, and the frauds which might be practiced under its cover, continue to support the rule that hearsay evidence is to- tally inadmissible. To this rule there are some exceptions which are said to be as old as the rule itself. These are cases of ped- igree, of prescription, of custom, and in some cases of bound- ary. There are also matters of general and public history which may be received without that full proof which is neces- ^ Mima Queen v. Hepburn, 7 Cranch 290. 284 INDIRECT AND COLLATERAL EVIDENCE. § 220 sary for the establishment of a private fact. It will be neces- sary only to examine the principles on which these exceptions are founded to satisfy the judgment that the same principles will not justify the admission of hearsay evidence to prove a specific fact/ because the eye-witnesses to it are dead ; but if other cases standing on similar principles should arise, it may well be doubted whether justice and the general policy of the law would warrant the creation of new exceptions. The dan- ger of admitting hearsay evidence is sufficient to admonish courts of justice against lightly yielding to the introduction of fresh exceptions to an old and well-established rule, the value of which is felt and acknowledged by all. If the circumstance that the eye-v/itnesses of any fact be dead should justify the in- troduction of testimony to establish that fact from hearsay, no man could feel safe in any property, a claim to which might be supported by proof so easily obtained." § 226 . Circumstances giving credit to liearsay do not render it admissible. — The fact that a declaration is made under circum- stances which render it probable that it is true will not suffice to render such declaration competent, if the fact be that the declaration is hearsay, and the proposed testimony does not fall within any of the recognized exceptions to the excluding rule. Thus, it was held in one case that it was incompetent to show that the mistress of the defendant had warned the deceased, on the night of the homicide, as to the purpose of the defendant.' So it has been held a number of times, where the defendant was on trial for larceny, that it could not be shown by the prosecuting witness what description he gave the officer of the thief, for the purpose of showing that he described the defend- ant.' In still another case, where a witness had testified that 1 As supporting this proposition, see So. Rep. 479, 28 Am. Rep. 392. See Rex V. Inhabitants, 8 East 539; Rex People v. Martell, 138 N. Y. 695, 33 V. Inhabitants of Erith, 3 T. R. 721 ; N. E. Rep. 838. Bradshaw v. Com., 10 Bush 576 ; Chou- ^ Chilton v. State, 105 Ala. 98, 16 So. teau V. Searcy, 8 Mo. 733; Felder v. Rep. 797; Com. v. Fagan, 108 Mass. State, 23 Tex. App. 477, 5 S. W. Rep. 471; People v. Johnson, 91 Cal. 265, 145, 59 Am. Rep. 777. 27 Pac. Rep. 663 ; People v. McNamara, ^Hairston v. State, 54 Miss. 689, 10 94 Cal. 509, 29 Pac. Rep. 953. § 227 HEARSAY. 280 he saw a pistol handed to the accused by his brother, and an ef- fort had been made to impeach the witness, it was held incom- petent to prove that the brother, whom it was claimed had handed the pistol to accused, had stated that he had done so before the shooting began.' § 227. Admissions of guilt by tliird persons.— A defendant in a criminal case can not be permitted to show that a third person has admitted that he had committed the crime.' To permit such a statement to go in evidence would be not only to admit pure hearsay, but the establishment of such a doctrine w^ould cause courts of justice to be imposed upon, by reason of the fact that it would often happen that a friend of the defend- ant would be willing, by his admission, to incur some degree of jeopardy, in order to relieve the defendant of his present pressing jeopardy. § 228. Acts and declarations of tliird person tending to prove that he is guilty person.— It has been ruled in a number of cases that it is not competent for a defendant, who is on trial charged with the commission of crime, to prove that a third person had threatened to commit the crime.' It was held in a 1 State V. Gumory,45 La. Ann. 31, State, 65 Ga. 199; Kelly v. State, 82 12 So. Rep. 314. Ga. 441, 9 S. E. Rep. 171; State v. "2 Farrell v. Weitz, 160 Mass. 288, 35 West, 45 La. Ann. 14 and 928, 13 So. N E Rep 783; Com. ■;;. Chabbock, 1 Rep, 173; State v. Smith, 35 Kan. 618, Mass 144; Com. v. Sanders, 14 Gray 11 Pac. Rep. 908; State v. Fletcher, 24 394 77 Am Dec. 335; Com. ». God- Ore. 295,33 Pac. Rep. 575; People tJ. dar'd, 2 Allen 148 ; Benton v. Starr, 58 Hall, 94 Cal. 595, 30 Pac. Rep. 7. See Conn. 285, 20 Atl. Rep. 450; State t^. Com. v. Trefethen, 157 Mass. 180, 31 Hack, 118 Mo. 92, 23 S. W. Rep. 1089; N. E. Rep. 961. Davis V. Com., 95 Ky. 19, 23 S. W. ^ United States v. Mulholland, 50 Rep. 585, 44 Am. St. Rep. 201 ; Green- Fed.Rep.413; Crookhamv. State, 5 W. field V. People, 85 N. Y. 75, 39 Am. Va. 510; State?;. Duncan, 6 Ired. L. 236; Rep 636; United States v. Miilhol- Alston v. State, 63 Ala. 178; Stater. land 50 Fed. Rep. 413; Owensby v. Davis, 77 N. Car. 483; Carlton v. Peo- State 82 Ala. 63, 2 So. Rep. 764; pie, 150 HI. 181, 37 N. E. Rep. 244, 41 West' V. State, 76 Ala. 98; Snow v. Am.St.Rep.346; RheatJ.State.lO Yerg. State 58 Ala. 372; Smith v. State, 9 258; Greenfield v. People, 85N.Y.75, Ala. 990;Bowent;. State,3Tex. App. 39 Am. Rep. 636; State v. Beaudet, 617 • Rhea v. State, 10 Yerg. 258 ; State 53 Conn. 536, 55 Am. Rep. 155 ; Sible V White, 68 N. Car. 158; Daniel u. «. State, 3 Heisk. 137 ; Walker v. State, 286 INDIRECT AND COLLATERAL EVIDENCE. § 229 West Virginia case/ that it was incompetent to prove in such a case the fact of threats by a third person, even when the prof- fered testimony w^as accompanied by an offer to prove that . such third person had fled the country immediately after the crime was committed. The reason assigned for these rulings is that such evidence is too remote from the inquiry before the jury and has no legal tendency to establish the innocence of the defendant.^ Such evidence does not carry the mind to any definite conclusion; it leads nowhere. It is believed, how- ever, that evidence of the character mentioned would be com- petent if there were some evidence tending directly to prove the guilt of such third person ; it is one thing to affirm that a defendant shall not introduce evidence which merely suggests a possibility that a third person has committed the crime; and it would be a very different thing to deny to a defendant wdio had introduced evidence tending to show that a third person had committed the crime, the right to show an antecedent disposition on the part of such third person to commit such crime. In such a case there would be proof of the principal fact that he had committed the crime, and his prior declaration would be a part of the res gestx} § 229 . Admissions of iujiired party not competent in criminal case. — Even the admission of the person who has sustained the injury can not be used by the defendant, except by way of im- peachment, where the defendant is on trial charged with the commission of crime,* for the state is not bound by the mere hearsay statement of the injured party. 6 Tex. App. 576 ; Woolfolk v. State, 85 31 N. E. Rep. 961 ; Woolfolk v. State, Ga. 69, 11 S. E. Eep. 814. 85 Ga. 69, 11 S. E. Rep. 814; Walker iCrookham v. State, 5 W. Va. 510. v. State, 6 Tex. App. 576; Hensley v. 2 Carlton v. People, 150 111. 181, 37 State, 9 Humph. 243; State v. Davis, N. E. Rep. 244, 41 Ani. St. Rep. 346; 77 N. Car. 483. See post, § 276, 278. Alston V. State, 63 Ala. 178; States. *Com. v. Densmore, 12 Allen 535; Davis, 77 N. Car. 483 ; Walker v. State, Com. v. Sanders, 14 Gray 394, 77 Am. 6 Tex. App. 576; State v. Duncan, 6 Dec. 335; States. Molisse, 38 La. Ann. Ired. L. 236. 381, 58 Am. Rep. 181. 3 Com. V. Trefethen, 157 Mass. 180, § 230 HEARSAY. 287 § 230. The rule is the same where the injured party is dead. — As we have already seen, in the chapter on declarations, the fact that death has deprived a party of evidence will not render the declarations of the person deceased competent except in certain cases constituting exceptions to the rule excluding hearsay. It only remains to state, so far as this section is concerned, that in a criminal case the mere statement of the injured person exculpating the defendant is not evidence, notwithstanding the fact that the decease of such person may have deprived the defendant of the power to prove the fact to which such statement related.^ In a Massachusetts case,' the defendant was tried for emhezzlement. The defendant offered to prove that subsequent to the alleged embezzlement the per- son who the indictment alleged owned the property, and who had thereafter died, had stated that the defendant had an in- terest in the property. In ruling as to the competency of this testimony the court said : "The evidence of the declarations and statements of Allen Mason were mere hearsay, and for that cause rightly rejected.' It makes no difference that he was dead and that therefore his testimony could not be obtained." § 231. Self-serving acts of party.— For the same reason that the self-serving declarations of a party are incompetent as evi- dence in his favor, so his self-serving acts are also excluded. In a Georgia case,* it was held that a party could not show his manifestation of surprise when he learned that he was regard- ed as a partner. It has been held in a number of criminal cases that the refusal of the defendant to flee could not be shown, because it was an act which, if adduced in his favor, must be pronounced a self-serving act.® » Com. V. Sanders, 14 Gray 394, 77 * Bowie v. Maddox, 29 Ga. 285, 74 Am. Dec. 335; Com. v. Densmore, 12 Am. Dec. 61. Allen 535 ; People v. Hall, 94 Cal. 595, s Com. v. Hersey, 2 Allen 173 ; State 30 Pac. Eep. 7. v. Wilkins, 66 Vt. 1, 28 Atl. Rep. 323; 2 Com. V. Sanders, 14 Gray 394, 77 People v. Rathbun, 21 Wend. 509; Am. Dec. 335. Jordan v. State, 79 Ala. 9, 1 So. Rep' » 1 Greenl. Ev. § 124. 577 ; Pate v. State, 94 Ala. 14, 10 So. Rep. 665. 288 INDIRECT AND COLLATERAL EVIDENCE. § 232 § 232. Res inter alios acta alteri nocere non debet. — This maxim is translated by Broom, in his work on legal maxims, thus : "A transaction between two parties ought not to oper- ate to the disadvantage of a third." This maxim, while of no certain import, has come into common use — its usual form being, "Res inter alios acta." The rule is only of general, and not of universal application, and while the expression " Res inter alios acta'' has become a part of the current coin- age of legal literature — being used particularly with reference to hearsay evidence — there is much occasion for discrimination in its use. § 233. Party offering hearsay evidence must show it within exception. — The general rule being that hearsay evidence is in- competent, an objection to such evidence is prima facie valid, and imposes on the party offering the evidence the burden of showing that it is within one of the exceptions.^ § 234. Probative force of hearsay if not objected to. — In a Massachusetts case,^ an interesting question was presented as to the probative force of two returns, which were introduced in evidence without objection. In each of them facts were stated which the law did not authorize the officer to state in his re- turn. In disposing of the question the court said : "If the jury believed the statements to be true, they should make from them the reasonable necessary inferences of other facts, and with the facts explicitly stated and necessarily inferred, they should find a verdict for the plaintiffs. It is the ordinary case of something less than the best evidence, but of evidence ad- mitted and to be dealt with by the jury. The return was the statement of a sworn ofiicer, and the commissioner's certificate, although not required by statute to be indorsed upon the exe- cution, was also a statement of a sworn officer, and no statute forbade him to put it upon the execution. Papers signed by trustworthy persons, if put in e.yidence before a jury, although not competent, if objected to, naturally tend to induce a belief 1 Wallace v. Howard, (Tex. Civ. ^ Damon v. Carroll, 163 Mass. 404, 40 App.) 30 S. W. Rep. 711. N. E. Rep. 185. § 235 HEARSAY. 289 of the matters contained in them. Hearsay evidence usually is rejected because it lacks the corroboration of an oath or af- firmation, and not because it has no natural tendency to in- duce belief. When hearsay evidence is incompetent, the reason for its exclusion is the same in principle as that which former- ly excluded testimony from interested witnesses. It was thought that the effect of interest made it unsafe to consider the testimony of such witnesses, just as the lack of an oath made it unsafe to consider hearsay testimony. But it was always held that if testimony, incompetent by reason of the interest of a witness, was allowed to go before the jury, they might consider it as they would any other testimony [citing authorities] . Hearsay evidence is treated by Bentham as in the nature of secondary evidence.^ It is admitted in Scotland. Upon some questions hearsay evidence is competent every- where, as in questions of age and pedigree. In the case at bar the certificate and the return tend to show that the recogni- zance declared on was made in the same way, if with a less de- gree of certainty, that the record of the Dorchester municipal court tends to show that the debtor caused to be given notice of his desire to take the oath for the relief of poor debtors, and the other matters there stated as facts." § 235. General reputation. — This subject will be discussed in another connection.^ A reference to that chapter will dis- close the extent that courts have gone in accepting general reputation in lieu of direct evidence. 1 See Whart. Ev., §§ 170, 172. ^Post, Chapter X. 19— Ev. CHAPTER IX. RES GEST^. §236. 237. 238. 239. 240. 241. 242. 243. 244. 245. 246. 247. 248. 249. 250. 251. 252. 253. 254. 255. 256. 257. 258. 259. 260. Meaning of term, § 261. Its history. 262. Technically accurate definition 263. not possible. 264. Definitions of text- writers. 265. Definitions of courts. 266. Doctrine stated by a thought- ful writer. Must tend to elucidate. Declarations must harmonize with act. Must derive credit from act. Must be connected with main event. Contemporaneousness — Taylor on Evidence. Commonwealth v. McPike— Lund V. Tyngsborough. Insurance Company v. Mosley. People V. Vernon. Expressions from the courts. Some vigorous western expres- sions. • Contemporaneousness not al- ways necessary. The res gestce broader in some cases than in others. A test proposed. Excitement extending the res gestae. Declarations made at place of occurrence. Same subject — Actor absent. Period of unconsciousness. Declarations before person ex- tricated from place of injury. Constructively continuing act. (290) 267. 268. 269: 270. 271. 272. 273. 274. 275. 276. 277. 278. 279. 280. 281. 282. 283. Death protracting the res gestw. Statements against interest. Narrative excluded. Exclamations of pain, etc. Declarations of past pain. Declarations of past pain to doctor. Exclamations of pain after suit brought. Declarations to doctor after suit brought. Statements of physician. . Statements of physical condi- tion— Statute permitting parties to testify. Same subject — The cases con- sidered. Prior statements by person whose life is insured. Subsequent statements by per- son whose life is insured. Declarations preceding act. Declarations showing state of mind. Subject continued. Declarations by deceased per- sons as to intent. Same subject — Mutual Life In-' surance Co. v. Hillmon. Declarations by deceased per- sons of other facts. Declarations showing fraud. Declarations of testator. The res gestce in questions of domicile. Evidence of affection — Proof of marriage. ^ 236 RES GEST/E. 291 § 284. Certain analagous res gestae § 289. Declarations of person in pos- topics suggested but con- session in favor of himself sidered elsewliere. or another. 285. A limitation upon declarations 290. Declarations of by-standers. where mental state is in- 291. Matter of opinion. volved. 292. Principal fact must be estab- 286. The res gestm in business trans- lished by direct proof. actions. 293. Res gestce is primary. 287. The res ^esto in criminal cases. 294. Duty of state to prove the 288. Declarations of grantor where whole of res gesta;. fraud is charged. 295. Certain res gestce topics treated elsewhere. § 236. Meaning of term. — This expression is not used in a tecimical sense in the Latin. Its singular form is res gesta. Res acta is another form of the term. The converse of this ex- pression is res inter alios acta, wliich is used, althougli not with entire accuracy, in connection witli hearsay evidence. § 237. Its history. — The use of the term res gestse in con- nection with the law is of comparatively recent origin. It is not found in any of the works on evidence which were pub- lished during the first years of this century. So far as the writer can ascertain, the first reference to it in the books will be found in a case decided in the year 1794.^ § 238. Technically accurate definition not possible. — It is impossible to formulate within the limits of a definition a statement of the rule of evidence relative to res gestse which will be comprehensive enough to include all cases within the rule, and yet at the same time draw the line of demarkation between the competent and the incompetent.^ It is said that an ideal definition is one that puts the thing to be defined into a class, and then proceeds to differentiate it from other things in the same class. It may therefore be said that the res gestse are the circumstances, facts and declarations which are con- nected with and illustrate a litigated fact. The limitations » 25 Howell's State Trials, 440. So. Rep. 702 ; State v. Martin, 124 Mo. 2 Archer v. Helm, 70 Miss. 874, 12 514, 28 S. W. Rep. 12. 292 INDIRECT AND COLLATERAL EVIDENCE. § 239 upon the doctrine will be developed during the course of this chapter. § 239. Definitions of text-writers. — While, as stated, a per- fect definition of the term res gestse can not be formulated, yet a firmer grasp of the subject may be secured by a statement of some of the definitions offered by text-writers and judges. Starkie says,* "that all the surrounding facts of a transaction, or, as they are usually termed, the res gestse, may be submitted to a jury, provided that they can be established by competent means, and afford any fair presumption or inference as to the question in dispute." Greenleaf states the general doctrine thus:* "There are other declarations which are admitted as original evidence, being distinguished from hearsay by their connection with the principal fact under investigation. The affairs of men consist of a complication of circumstances so intimately interwoven as to be hardly separable from each other. Each owes its birth to some preceding circumstances, and in its turn becomes the prolific parent of others ; and each, during its existence, has its inseparable attributes, and its kindred facts, materially affecting its character, and essen- tial to be known, in order to a right understanding of its na- ture. These surrounding circumstances, constituting parts of the res gestse, may always be shown to the jury, along with the principal fact ; and their admissibility is determined by the judge, according to the degree of their relation to that fact, and in the exercise of his sound discretion ; it being extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description.'" Wharton says :* "The res gestse may be therefore defined as those circumstances which are the automatic and undesigned incidents of a partic- ular litigated act, and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may con- * 1 Starkie on Ev., star p. 57. of this definition, will be found in 21 ^ 1 Greenl. on Ev., 108. Albany Law Journal 504. 'A sharp criticism by Lord Chief * 1 "Wharton on Ev., 259. Justice Cockburn, on the vagueness § 240 RES GEST^. 293 sist, as we will see, of sayings and doings of any one absorbed in the event, whether participant or by-stander (sic); they may comprise things left undone as well as things done. Their sole distinguishing feature is that they must be the auto- matic and necessary incidents of the litigated act ; necessary in this sense that they are part of the immediate preparations for or emanations of such act, and are not produced by the calculating policy of the actors. They are the act talking for itself, not what people say when talking about the act. In other words, they must stand in immediate causal relation to the act — a relation not broken by the interposition of volun- tary individual wariness, seeking to manufacture evidence for itself."^ § 240. Deflnitioiis of courts. — In a Georgia case,'' the court said: ''The circumstances, facts and declarations which grew out of the main fact, and are contemporan'b'ous with and serve to illustrate its character, are part of the res gestx." The Wisconsin Supreme Court gives the following definition of the term : " The facts surrounding or accompanying a transaction or occurrence which is the subject of legal investigation. They are not themselves the facts which constitute the transaction or occurrence itself, but such as attend it and give character to it."' § 241. Doctrine stated by a thoughtful writer. — The follow- ing is the conclusion of a thoughtful writer in the American Law Review, in an article on Bedingfield's Case :* "The lead- ing notion of the doctrine, so far as, upon analysis, it has any- thing to do with the law of evidence, seems to have been that of withdrawing from the operation of the hearsay rule declara- tions of fact which were very near in time to that which they tended to prove, fill out or illustrate — being at the same time not narrative, but importing what was the present or but just gone by, and so was open, either immediately, or in the indi- 1 Quoted with approval in State v. ^ g^einhofel v. Chicago, etc., R. Co., Martin, 124 Mo. 514, 28 S. W. Rep. 12. 92 Wis. 123, 65 N. W. Rep. 852. ^Carter v. Buchannon, 3 Ga. 5i^. *Vol. 14, 817, vol. 15, 1, 71. 294t INDIRECT AND COLLATERAL EVIDENCE. §242 cations of it, to the observation of the witness who testifies to the declaration, and who can be cross-examined as to these in- dications ; this nearness of time is made specific by the terms 'contemporaneous' and 'a part of the res gestae,' and it is enough that the declaration be substantially contemporaneous ; it need not be literally so. It was either the thing itself which was in issue that was conceived of as the res gestae, or, some- times, some other thing evidentiary of that ; in either case the fact or thing which, relatively to the declaration, is the princi- pal fact — is the res gestae. The notion of ' res gestae ' as being the concomitant facts of something else, came in with Starkie's text-book and has bred confusion."* § 242. Must tend to elucidate. — To admit declarations there must be a main or principal fact or transaction,^ and only such declarations are admissible as grow out of the principal trans- action and tend to illustrate its character.' Where an act is done, it is competent to show the acts and declarations connected with it in all cases where its quality is in question.* 1 The stricture of this learned writer upon the view that the res gestae does not include the act itself is hardly warranted. The litigated act lies at the basis of the controversy, and no one would venture to question the ad- missibility of evidence concerning such act. The questions which call for the discriminating application of the doctrines concerning the res gestcc relate to the admissibility of evidence concerning the acts, circumstances and declarations surrounding or ac- companying particular acts, the qual- ity of which is in question. ^ By this it is not meant to state that the 7'es gestce relates only to the prin- cipal question or issue in the case — the authorities afford no warrant for this view — but the thought sought to be expressed is that there must be a fact — whether of a major or a minor character is not important — that re- quires an explanation ; and it is about this that the res gesta' of that question crystallizes. s Lund V. Inhabitants of Tyngsbor- ough, 9 Cash. 3G ; Plumer r. French, 22 N. H. 450; Woods v. Banks, 14 N. H. 101 ; Mahurin v. Bellows, 14 N. H. 209 ; Wright V. City of Boston, 126 Mass. 161 ; Sessions v. Little, 9 N. H. 271 ; State V. Walker, 77 Me. 488; Tilson v. Terwilliger, 56 N. Y. 273; Equitable M. A. Assn. V. McCluskey, 1 Colo. App. 473,29 Pac. Rep. 383 ; Wiggin ij.Plumer, 31 N. H. 251; Frink v. Coe, 4 G. Gr. (Iowa) 555, 61 Am. Dec. 141 ; Piles v. Hughes, 10 Iowa 579; Miller v. State,. 8 Gill 141; Enos v. Tuttle, 3 Conn. 247; /« re Taylor, 9 Paige 611; Hoar V. Abbott, 146 Mass. 290, 15 N. E. Rep. 659. 4 Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22; Russell v. Frisbie, 19 Conn. 205; Sessions v. Little, 9 N. H. §242 RES GESTAE. 295 This is particularly true in cases where the character of the act depends upon the motive or intent with which it was per- 271; Elkins v. Hamilton, 20 Vt. 627; Yarborough v. Moss, 9 Ala. 382; Strange v. Donohue, 4 Ind. 327 ; Hub- bard V. Harrison, 38 Ind. 323; Creigh- ton V. Hoppis, 99 Ind. 369; Lund r. Tyngsborough, 9 Cush. 36 ; Ranger v. Goodrich, 17 Wis. 78; Mack v. State, 48 Wis. 271, 4 N. W. Rep. 449; Wig- gin V. Plumer, 11 Fost. 251; Baker c. Kelly, 41 Miss. 696, 93 Am. Dec. 274; Gardner v. O'Connell, 5 La. Ann. 353 ; Downs V. Lyman, 3 N. H. 486. Within this principle it was held in a breach of promise case that the plaintiff's declarations to her sister, at the time she was preparing her wedding outfit, that the same was to be used for such purpose, were competent. Wetmore r. Mell, 1 Ohio St. 26, 59 Am. Dec. 607. See as to declarations and conduct of plaintiff in such cases prior to the estrangement, Jones v. Layman, 123 Ind. 569, 24 N. E. Rep. 363, and cases cited. A suit was brought for dam- ages for killing a horse by overdriv- ing. The defendant offered to prove a conversation he had with one C. about the appearance and condition of the horse at a time when the defend- ant stopped to water it. Held compe- tent, as the conversation " bore upon the questions whether the defendant was rash, heedless and indifferent, or awake, watchful and circumspect." Pinney v. Cahill, 48 Mich. 584, 12 N. W. Rep. 862. In ]\Iatteson«. New York, etc., R. Co., 62 Barb. 364, it appeared that an accident was caused by the failure to relay ties in time. Held, that the declaration of the defendant's fore- man, at the time of doing the work, "that there was sufficient time to re- lay the ties before the arrival of the train" was admissible. Where letters were destroyed under circumstances which would justify an inference of spoliation, thereby precluding the in- troduction of secondary evidence, it was held that the declarations of. the person who destroyed them, made at the time, were proper evidence. Tobin. V. Shaw, 45 Me. 331, 71 Am. Dec. 547. An interesting case upon this subject is Travellers' Insurance Co. v. Sheppard, 85 Ga. 751, 12 S. E. Rep. 18, which was a suit instituted on an accident policy. The facts in evidence were as follows : Deceased and two companions were hunting. The latter were separated from the former. A gun was dis- charged. The boat in which deceased was sitting was found empty and his gun was found in the bottom of the river. His body was not recovered. A moment after the discharge of the gun, one of the deceased's companions came to the other and in an excited voice said that the deceased had killed himself, or had shot himself. In passing upon the competency of 'this statement, the court said : " The dis- appearance, as a whole, was a mate- rial evidentiary fact, relevant to the matter in issue. As a whole it was a composite or complex fact, consisting of divers particulars, including the hunt, its abandonment by Boykin and Turner, and the search which imme- diately ensued. To understand the significance of the disappearance, it is necessary to investigate both the hunt and the search, together with the cir- cumstances attending them. The hunt was a concerted enterprise for joint execution upon a given scene by three actors, each of whom assumed a part and entered upon its performance. It was never finished, but was abandon- ed, first by Boykin, then by Turner. There can be no doubt that the aban- 296 INDIRECT AND COLLATERAL EVIDENCE. § 242 formed. In negligence cases the declaration of the person re- sponsible for the injury is frequently clearly indicatory of the possession of a mind wholly careless of the rights of others.^ donment of the hunt and institution of the search constituted a part of the res -pestce of the disappearance; for, though the disappearance,as a physical fact, was coruplete before the search began, as an evidentiary fact to throw- all the light that it is capable of throw- ing on the question of death, it was incomplete until it was verified by the results of the search. Boykin and Turner,as well as Sheppard, were actors in the disappearance, and their acts, as throwing light upon it, are to be in- vestigated and explained. The disap- pearance did not consist alone of Shep- pard's exit from the boat, but inclu- ded his subsequent absence therefrom and failure to return until a rea!?on- able time had elapsed for his return, had his absence been temporary only. It embraced both affirmative and neg- ative elements and, as a whole, was a continuous act. Its time relation was unchanged until failing to return. He was looked for and could not be found. It is certain that Boykin did not abandon the hunt and enter upon the search by reason of the same causes which influenced Turner. Turner heard the report of the gun, and at the same time some noise, but these alone did not induce him to give up the hunt. He remained in it until he heard some one calling him, and then did not enter upon the search until after he had met Boykin and heard a part of his declarations. "Without knowing what Boykin said to him when they met, it would be only a matter of conjecture why Turner abandoned the hunt permanently and engaged in the search ; and, without a recital of the subsequent declara- tions, — those made while he and Boy- kin were on the way to the river, — it would be a matter of conjecture only as to what induced Boykin to leave the hunt, seek Turner and engage in the search. The search itself being a relevant and material fact, declara- tions made at the time, calculated to account for and explain it, are also relevant." In this connection atten- tion is called to the provision of the Georgia code defining res gesta-, but the case does not appear to rest upon such provision. ' A steam-boat collided with a flat- boat. After the collision, and when the steam-boat was about fifty yards away, those on board the flat-boat called for assistance. Immediately afterwards some one on board the steam-boat called out, in a loud and commanding tone, "Go ahead, and let her sink ; its nothing but a d — d flat- boat any way." Held competent, as admiralty courts always regard as suspicious the fact that a boat involved in a collision goes on after its ofticers are apprised of the fact of a collision. Otis V. Thorn, 23 Ala. 469, oS^ Am. Dec. 303. In a case where the plaint- iff sued for injuries he received while driving in a wagon, by reason of a grip car running into the wagon, the court held that the plaintiff was en- titled to show that at the time of the collision the gripman exclaimed, "G-d d — n you ! Get out of the way !" Lightcap V. Philadelphia Traction Co., 60 Fed. Rep. 212. See Hooker v. Chi- cago, etc., R. Co., 76 Wis. 542, 44 N. W. Rep. 1085. In Butler r. :\ranhat- tan Ry. Co., 143 N. Y. 417, 38 N. E. Rep. 454, 42 Am. St. Rep. 738, the de- fendant was charged with negligence, bv reason of the act of or.e of its §242 RES GEST^. 297 The act must be material declarations/ and it must guards in closing the gate to the plat- form of one of its cars, whereby the plaintiff was injured. The guard, ac- cording to the plaintiff's testimony, was looking the other way. The gate struck her, and she uttered a cry of pain. The guard answered her cry by the words: "Gotoh— 1! Shut up." It was held improper to admit the guard's exclamation. The court said : "The act was complete before the re- mark of the guard was made, although closely connected with it in point of time, and was not one naturally ac- companying the act, or calculated to unfold its character or quality." The question of literal contemporaneous- ness will be treated hereafter. It may be suggested, however, that the ruling of the court, in the above case, seems clearly wrong. The guard's atti- tude indicated that he was inat- tentive, and his brutal remark strongly suggested the fact that as he stood there inattentive a moment be- fore it was with a mind indifferent to the safety of those in his charge. The case as reported in 4 Misc. Rep. 401, 24 N. Y. Supp. 142, is the better rea- soned. 'Carlton v. Patterson, 29 N. H. 580. The case of Fiske v. Cole, 152 Mass. 335, 25 N. E. Rep. 608, affords an illus- tration of this proposition. In that case the issue was as to whether cer- tain notes were in existence. Two witnesses testified to seeing them. Held that their declarations at the timeof seeing them were incompetent. In Lander v. People, 104 111. 248, the defendant was charged with rape. Two persons claimed to have wit- nessed the crime. The next day, as the defendant passed, one of them exclaimed, "There goes the man," and the other answered, "Yes, there to admit the accompanying be equivocal in its char- he goes." Held competent, on the ground that the declaration accom- panied the act of recognition. This case has, at most, but a scant cover of principle. Somewhat analagous to it is the case of Chase v. City of Lowell, 151 Mass. 422, 24 N. E. Rep. 212, but the evidence there admitted is more clearly competent. The following quotation from the case sufficiently explains it: "If the fact that these persons looked at the roots was com- petent as tending to show the noto- riety of the defect, then clearly the accompanying declarations which tended to show the nature of the act of looking were also competent." In the case of Hoover v. Cary, 86 Iowa 494, 53 N. W. Rep. 415, the issue was as to whether the defendant had pur- chased a machine. The machine was set up several days after the alleged purchase. Held, that the declarations of the defendant that he had not pur- chased the machine, made while it was being set up, were not admissible in his favor, as there was no contro- versy as to the bringing and setting up of the machine. In a case where a debtor was sued for a bill of whisky it was held that what the debtor said at the time a draft was presented to him by a bank messenger could not be shown in the defendant's behalf. Maurer v. Miday, 25 Neb. 575, 41 N, W. Rep. 395. In a homicide case it was held that evidence was properly excluded that a witness had re- marked, two days after the killing, as he picked up a pistol at the place of the encounter: "This is Bob's [the deceased] pistol." The court said: "It was a mere comment or observa- tion of a by-stander as to a collateral fact and was clearly hearsay." Hall V. State, 86 Ala. 11, 5 So. Rep. 491. 298 INDIRECT AND COLLATERAL EVIDENCE. §243 acter.' The shadow should never be substituted for the sub- stance. The res gestse is never competent except by way of illustrating the principal fact.^ § 243. Declarations must harmonize with act. — Since the purpose of admitting the res gestse in evidence is to explain a litigated act, it follows that the only acts or declarations which are admissible are those which are germane to such act. The surrounding acts or declarations may to a considerable extent modify the inferences which would be drawn from the naked act — and it is the purpose in admitting them that they should do this — but if the}^ will not so harmonize with the act in question as to make a composite whole, they are inadmissible.^ § 244. Must derive credit from act. — As the doctrine of res gestse constitutes an exception to the general rule excluding hearsay, the integrity of the exception depends upon its foundation in principle, and that principle when applied will be found to be the touchstone which will distinguish between the res gestse and incompetent hearsay. That principle is not found in the instinctiveness of the act or utterance, as a few cases assert,* but in the fact that the proffered evidence, if For further illustrations, see Home Ins. Co. V. Marple, 1 Ind. App. 411, 27 N. E. Rep. 633 ; Shauver v. Phillips, 7 Ind. App. 12. 32 N. E. Eep. 1131. ^Russell V. Brosseau, 65 Cal. 605, 4 Pac. Rep. 643. Where no question was made upon a trial of a decedent's ownership in his life-time of a note and mortgage sued on, but it was claimed in defense that an agreement existed for the liquidation of the obli- gation by the debtor's taking care of the decedent during his life-time, it was held that evidence that the de- cedent had expressed a fear that the defendant would cheat him out of the mortgage was immaterial. Brown V. Kenyon, 108 Ind. 283, 9 N. E. Rep. 283. 2 Garrison v. Goodale, 23 Ore. 307, 31 Pac. Rep. 709. The res gestce must be a res gestce that has something to do with the case and then the declara- tion must have something to do with the res gestce." Waldele v. New York, etc., R. Co., 95 N. Y. 274, 47 Am. Rep. 41. ^ Lund V. Inhabitants of Tyngsbor- ough, 9 Cush. 36 ; Tilson v. Terwilliger, 56 N. Y. 273; Moore v. Meacham, 10 N. Y. 207 ; Miller v. State, 8 Gill (INId.) 141 ; Equitable M. Asso. v. McCluskey, 1 Colo. App. 473, 29 Pac. Rep. 383; Enos r. Tuttle, 3 Conn. 247; State v. Daugherty, 17 Nev. 376; People v. Dewey, 2 Idaho 79, 6 Pac. Rep. 103. * Insurance Co. v. Mosley, 8 Wall. 397; State' v. Murphy, 16 R. I. 528; Linderberg v. Crescent Mining Co., 9 Utah 163, 33 Pac. Rep. 692; §245 RES GEST^. 299 otherwise admissible, has such a connection with the act which is the subject-matter of the inquiry as to derive some degree of credit from it.^ § 245. Must be coimeeted with main event. — Upon this ques- tion a stubborn conflict exists among the cases. Tiie great weight of ^authority is in favor of the proposition laid down in the head line, and it is in accord with principle, but there are a few divergent authorities of importance, and, though they have been for the most part overruled or modified, they still serve in some degree as false lights which occasionally cause some court to be steered upon the rocks of error. The importance of this subject demands that it should not be passed over with an ex cathedra statement of the law, accom- panied by a citation of authorities, but that the question Augusta Factory v. Barnes, 72 Ga. 217, 53 Am. Rep. 838; Territory v. Davis, (Ariz.) 10 Pac. Rep. 359; People V. Vernon, 35 Cal. 49, 95 Am. Dec. 49 (overruled) ; Harriman v. Stowe, 57 Mo. 93 (modified in Adams V. Hannibal, etc., R. Co., 74 Mo. 553, 41 Am. Rep. 333). See Leahey v. Cass Avenue, etc., R. Co., 97 Mo. 165, 10 S. W. Rep. 58, 10 Am. St. Rep. 300 Lewis V. State, 29 Tex. App. 201, 15 S. W. Rep. 642, 25 Am. St. Rep. 720 Castillo V. State, 31 Tex. Cr. R. 145 19S. W. Rep. 892; 37 Am. St. Rep 794; International, etc., R. Co. v Anderson, 82 Tex. 516, 17 S. W. Rep 1039, 27 Am. St. Rep. 902. In the case last cited, the court said, that the rule admitting contemporaneous declarations, and excluding past oc- currences, " is a convenient and salu- tary rule, and probably the most logical one ; and if it were an open question in this state, we should hesitate long before adopting an- otlier." A good illustration of a declaration excluding the idea of pre- meditation or design, but which the court was compelled to reject, is af- forded by the case of Lambright v. State, 34 Fla. 564, 16 So. Rep. 582, where the deceased made a statement several hours after the shooting, that a person other than the defendant had shot him. The court frankly said: "In the investigation of this iwint, we have labored under a bias in favor of allowing the statement of the deceased as to who shot him to go to the jury, but under the facts of this case we have been unable to find any sound rule of law permitting it." ^Lund V. Inhabitants of Tyngsbor- ough, 9 Cush. 36; Tilson c.Terwilliger, 56 N. Y. 273; Bush v. Roberts, 111 N. Y. 278, 18 N. E. Rep. 732, 7 Am. St. Rep. 741; Wiggin v. Plumer, 31 N. H. 251; Woods v. Banks, 14 N. H. 101 ; Mahurin v. Bellows, 14 N. H. 209 ; Plumer r. French, 22 N. H.450; Ranger V. Goodrich, 17 Wis. 78; Mack v. State, 48 Wis. 271, 4N.W. Rep. 449; Equita- ble M. A. Asso. V. McClnskey, 1 Colo. App. 473, 29 Pac. Rep. 383; Ehrlinger V. Douglas, 81 Wis. 59, 50 N. W. Rep. 1011 , 29 Am. St. Rep. 863, A citation to other cases may be found in the text. 300 INDIRECT AND COLLATERAL EVIDENCE. §246 should be critically examined, and the expressions of the courts upon the subject shown. § 246. Contemporaneousness — Taylor on evidence. — Mr. Tay- lor, in his work on evidence,' makes the following statement: "In all these cases the principal points of attention are, whether the circumstances and declarations offered in proof were so connected with the main fact under consideration as to illustrate its character, to further its object, or to form, in conjunction with it, one continuous transaction. It was at one time thought necessary that they should be contemporaneous with it ; but this doctrine has of late years been rejected, and it seems now to be decided that, although concurrence of time must always be considered as material evidence to show the connection, it is by no means essential." Although Mr. Tay- lor has not escaped criticism because of this expression, it must be confessed that its fault is inadequacy rather than in- accuracy. There is a class of cases, as we shall see in subse- quent sections, where mental state* or intent is involved, in which causal relation, and not time, is the criterion, but par- ticularly in actions involving injuries to the person it will be found that the res gestse is so clearly tied down to the principal act that the element of time may be said to control in a large measure.^ lAraer. ed., 1891, 588. 2 In the year 1879 the case of Reg. v. Bedingfield, 14 Cox's C. L. Cas. 341, was decided by Chief Justice Cock- burn. In that case the facts were that the deceased received a fatal wound in the throat. As she met the witness, she exclaimed: "Oh, dear, aunt! See what Bedingfield has done to me." It was held that the admission of this evi- dence was error. Mr. Taylor criticised tlie ruling in a pamphlet, and the Chief Justice sought to vindicate his ruling in a pamphlet which he pub- lished in reply. The following is an extract from it: "Whatever act or series of acts constitute, or in point of time immediately accompany and terminate in the principal act charged as an offense against the accused, from its inception to its consummation or final completion, or its prevention or abandonment, whether on the part of the agent or wrong-doer in order to its performance, or on that of the patient or party wronged in order to its prevention, and whatever may be said by either of the parties during the continuance of the transaction, with reference to it, including herein what may be said by the suffering party, though in the absence of the accused, during the continuance of the action of the latter, actual or construe- § 247 • RES GEST^. 301 § 247. Commonwealth v. McPike — Luud v. Tyngsborough. — The case of Commonwealth v. McPike^ is a case which has been the subject of much criticism. As the facts were shown in evidence, it appeared that a witness heard a cry of murder upstairs. He started up, but was met by another person (who was also a witness upon the trial), who warned him that he would be killed if he went up. The witness then went for a watchman, and, coming back, went immediately to the room where deceased was, and there found her on the floor bleeding profusely. She stated to him that John [the defendant] had stabbed her. It was held that this was res gestse. It has been suggested that this case might be supported on the ground that it was a statement made with a view to the identification or pursuit of the wrong-doer,* but nothing of this kind is suggested in the reported case, and it must be confessed that upon every possible analysis the declaration of the deceased appears to have been a mere narrative statement. But whatever may be said of this case, its discordant effect is more than neutralized by the later case of Lund v. Tyngsborough,* which, by reason of fullness of discussion, clearness of statement and the fre- quent reference made to it, is easily the leading case in this country upon res gestse declarations in cases involving injuries to the person.* The importance of this case justifies a state- tive, e. g.y in the case of flight or ap- seems to him that the truth lay in the plications for assistance, form part of middle ground. Mr. Taylor probably the principal transaction, and may be has rather latitudinal views concern- given in evidence, as part of the res ing the competency of such evidence, gestcB or particulars of it ; while on the while the chief justice seems to leave other hand, statements made by the out of view the fact that after the act complaining party, after all action on is completed it may still speak, the part of the wrong-doer, actual or ^Com. v. McPike, 3 Cush. 181, 50 constructive, had ceased, through the Am. Dec. 727. completion of the principal actor *State v. Deuble, 74 Iowa 509, 38 N. other determination of it, by its pre- W. Rep. 383. vention or its abandonment by the *Lund v. Inhabitants of Tyngsbor- wrong-doer, such as, e. g., statements ough, 9 Cush. 36. made with a view to the apprehension * Referring to this case, Mr. Justice of the offender, do not form part of Clifford, in his dissenting opinion in the res j/esfoE and should be excluded." the case of Insurance Co. u. Mosley, As respects the merits of this contro- 8 Wall. 397, says : " Search is made in versy the writer has to remark that it vain for any decided case, where the 302 INDIRECT AND COLLATERAL EVIDENCE. § 247 ment of the conclusions reached by the court in that case even at the risk of possible repetition elsewhere. They are as fol- lows : " 1. That the admission of such evidence is not left to the discretion of the trial judge, as had sometimes been supposed ; that its admission is governed by principles of law, which may be applied to particular cases as other principles are applied, in the exercise of a judicial judgment, and that errors of judg- ment in the case, as in other cases, may be examined and cor- rected. ''2. That a declaration, if it has its force by itself, as an ab- stract statement, detached from any particular fact in ques- tion, is not admissible in evidence, because it depends for its effect on the credit of the person making it and, therefore, is hearsay. "3. That mere narrative is never admissible, because such statements are detached from any material act which is perti- nent to the issue. *'4. That whenever the act of the party may be given in evidence, his declarations, made at the time, are also admissi- ble, if they were calculated to elucidate and explain the char- acter and quality of the act, and were so connected with it as to derive credit from the act itself, and to constitute one trans- action. " 5. That there must be a main or principal fact or transac- tion, and that such declarations only are admissible as grow out of the principal transaction, serve to illustrate its charac- ter, are contemporary with it, and derive some degree of credit from it. ''6. That the main act or transaction is not, in every case, necessarily confined to a particular point of time, but whether it is so or not depends solely upon the nature and character of the act or transaction." principles and tests which regulate with so much fullness and clearness and control the admission of such evi- as in that case." dence are so satisfactorily stated, and § ^-^8 . RES GEST/E. 303 § 248. Iiisurauce Company v. Mosley/— This was a suit on an accident policy. Tlie widow was permitted to testify tliat her husband got up in the night and went down stairs ; that when he came back he said he had fallen down the back stairs and almost killed himself ; that he had hit and hurt the back of his head in falling, and that he complained of his head, and appeared faint, and vomited. This evidence was held competent. The case holds a prominent place in the discus- sion upon this subject, though for much the same reason that an unlovely character in a story is called a hero, — using the word in a secondary sense, — because the action of the story revolves about him . So far as the ruling upon the admissibility of the expression of pain was concerned, it was unquestionably correct, but the holding can not be justified that the narrative statement of the deceased, that he had fallen and hurt the back of his head in falling, was competent. The case is but meagerly and unsatisfactorily reasoned, and but two state cases are cited in support of it. One is the case of Commonwealth v. Mc- Pike,' which, by reason of the review of the Massachusetts cases in Mr. Justice Clifford's dissenting opinion, it appears the court must have known was overruled, and the other is the case of Hanover Railroad Company v. Coyle,^ which, as will hereafter be shown; rests on other grounds. A United States Supreme Court decision is cited, but it relates to the res gestse of a business transaction. The other cases referred to are En- glish cases. The limitations upon the writer's space will not permit a review of these cases, but it may be said that they are either so imperfectly reported that it can not be definitely de- termined whether they are out of line with principle, or else they are not in point for the reason that they involve cases where, since intent is involved, the res gestse has the widest sweep. Although a dissent ought not ordinarily to break the force of a decision, for its presence shows that the court ma- turely considered the question, yet the clear and incisive opin- 1 Insurance Co. v. Mosley, 8 Wall. s Hanover R. Co. v. Coyle, 55 Pa. 397. St. 396. 2 Commonwealth v. McPike, 3 Cash. 181, 50 Am. Dec. 727. 304 INDIRECT AND COLLATERAL EVIDENCE. § 249 ion of Mr. Justice Clifford, concurred in by Mr. Justice Nel- son, clearly convicts the court of error. The fact that the dec- laration was made but a short time after the accident, and was therefore instinctive, is the predominant theory in the case, and in that view the case does not seem in accord with the case of Packet Co. v. Clough,^ in which the court said that a declar- ation "is not to be deemed res gestae simply because of the brief period intervening between the accident and the making of the declaration." § 249. People v. Vernon.* — This is a case which is frequently referred to in connection with Commonwealth -y.McPike, supra.^ The facts were, according to the testimony of a witness, that he heard a shot, and about a half minute later he met the deceased, who immediately said that he had been shot treacherously by the defendant, and proceeded to relate the particular circum- stances. It was held, on appeal by the state, that this evi- dence was admissible. This case declares an extreme doctrine, but it is no longer the law of California.* § 250. Expressions from the courts. — A forceful, and at least for the most part accurate, statement of the law on this subject will be found in the following quotation from the case of Louisville, etc., R. Co. v. Pearson :^ "The real inquiry is : Did the main act, proprio vigore, further assert itself and demonstrate its character or intent by impelling the contempo- ■ raneous or subsequent declaration or act offered in evidence, and without which the main act is left incomplete, and only partially proven ; or did the declaration or circumstance of- fered as res gestae originate from some other cause extraneous of the main act ? If traceable solely to the main act as the pro- 1 Packet Co. v. Cloiigh, 20 Wall. 528. 34 Pac. Rep. 856. In the Wong Ark ^People «. Vernon, 35 Cal. 49, 95 case, Garoutte.J.jinaconcurringopin- Am. Dec. 49. ion, states that the case of People v. sCommonwealthu. McPike, 3 Cush. Vernon, 35 Cal. 49, ought to be ex- 381, 50 Am. Dec. 727. pressly overruled. * People tJ. Ah Lee, 60 Cal. 85; Peo- » Louisville, etc., R. Co. v. Pearson, pie V. Wong Ark, 96 Cal. 125, 30 Pac. 97 Ala. 211, 12 So. Rep. 176. Rep. 1115 ; People v. Lane, 100 Cal. 379, § 251 RES GEST^. 305 ducing cause, and the declaration or circumstances is illustra- tive of the main act, it is res gestm, otherwise it is mere hear- say." The New York case most frequently quoted on this.sub- ject is Tilson v. Terwilliger.^ Folger, J., in that K^ase, said: "To be a part of the res gestx, they [the declarations] must be made at the time of the act done, which they are supposed to characterize. They must be calculated to unfold the nature and quality of the acts which they are intended to explain. They must so harmonize with these facts as to form one trans- action. There must be a transaction of which they are consid- ered a part. They mast be concomitant with the principal act, and so connected with it as to be regarded as the result and consequence of co-existing motives." The following state- ment is made by the Tennessee Supreme Court:' "The dec- larations are evidence because they are part of the thing doing ; if, therefore, the thing shall have been done and concluded, declarations then made are not evidence." § 251. Some vigorous western expressions. — In an Oregon case," Thayer, J., in speaking of the case of Commonwealth v. McPike,* says : "This mode of disposing of important ques- tions of proof in such cases is becoming quite unsatisfactory. Its tendency has been to overthrow one of the fixed principles of the law, that the best evidence which the nature of the case is susceptible of shall be produced, and it leads to uncertainty and doubt. It is very easy to say that the statements and. declarations of a party who has received an injury, made after its occurrence, as to how it was occasioned, are a part of the res gestae, but extremely difficult to explain it, and many times almost wholly impossible to point out any rule under which the determination has been arrived at. An act may sometimes be explained or its nature and quality ascertained, by an accompanying declaration, which may be properly regarded as > Tilson V. Terwilliger, 56 N. Y. 273. Ore. 392, 7 Pac. Rep. 508,53 Am. Rep. ^Williams v. Bowdon, 1 Swan 364. (Tenn.) 282. « Commonwealth v. McPike, 3 Cush. ^ Sullivan v. Oregon R. & N. Co., 12 181, 50 Am. Dec. 727. 20— Ev. 306 INDIRECT AND COLLATERAL EVIDENCE. § 251 a part of the transaction in which it occurred, but it is never the act itself, nor the mere evidence of it. * * * None of the class of cases referred to furnish any certain test as to when such declarations may be given in evidence as a part of the res gestae. It is said in some of them that they must have been made at the time the act transpired ; but in others that a consider- able time may elapse, and they still be such part; that each case must depend upon its own peculiar circumstances, and be de- termined by the exercise of a sound judicial discretion. I do not fully understand what is meant by the latter expression. If it is intended by 'a sound judicial discretion,' that the court before whom the trial is had must judge as to whether the transaction was continuing when the declaration was made, or had ended prior thereto, then the question would not differ from other questions regarding the admissibility of testimony; the court would consider the facts and circumstances surround- ing the affair and determine therefrom as to its competency; but if, on the other hand, it is to be understood that the court is to decide the question, in accordance with the judge's no- tions as to justice of the particular case, then it is afloat with- out any chart to direct it. Precedents, under that view, would be of little value, as the peculiar circumstances attending each transaction would be likely to vary from those surrounding others of a like character which had been adjudged upon suffi- ciently to authorize a different holding. Such theory necessa- rily abrogates any law upon the subject ; as law is, as a rule, applicable to a class of cases which are alike in principle." Much the same line of thought, although not quite so argu- mentative in form, is found in the opinion of the Idaho Su- preme Court in the case of People v. Dewey.* The court in that case said: ''The learned justice in the case of Insur- ance Co. V. Mosley, supra,^ says: 'The tendency of recent ad- judications is to extend, rather than narrow, the scope of the doctrine of res gestse.'^ We have failed to discover such tend- » People V. Dewey, 2 Idaho 79, 6 Pac. ^ This proposition is denied in Com- Rep. 103. monwealth v. Hackett, 2 Allen 136. * Insurance Co. v. Mosley, 8 Wall. 397. § 252 RES GEST^. 307 eiicy, after an examination of all the cases within our reach which discuss the principle. If it does exist, it indicates a tendency in the courts to leave the field properly occupied by the judiciary and enter that of the law-making power. This is always a dangerous experiment. If evidence of this char- acter is proper and necessary, it is the duty of the legislature to direct that it be admitted. The rules of evidence have been crystallized from the experience and the best thought of cent- uries. These rules become clearer, their boundaries better de- fined, as civilization advances, and as the courts improve in the administration of justice. It is unsafe for the courts to extend or violate them." § 252. Contemporaneousness not always necessary. — In an English case,' Lord Denman said : '' The principle of admis- sion is, that the declarations are pars res gestae, and therefore it has been contended that they must be contemporaneous with it, but this has been decided not to be necessary on good grounds, for the nature and strength of the connection with the act are the material things to be looked to, and although concurrence in time can not but always be material evidence to show the connection, yet it is by no means essential."' ^Rouchr. Great Western R. Co., 1 tiite but one entire transaction, and Q- ^- ^1- to receive support and credit from the ^The following expression of the principal act sought to be thus eUici- law upon the subject is taken from dated and explained. The evidence the case of Alabama, etc., R. Co. v. offered must not have the ear-marks Hawk, 72 Ala. 112, 117, 47 Am. Rep. of a device or after-thought, nor be 403: "What lapse of time is em- merely narrative of a transaction braced in the word ' contemporane- which is really and substantially ous' is often a question of difficulty, past. To the same effect, State v. Perfect coincidence of time between Garrand, 5 Ore. 216. The Supreme the declaration and the main fact is Court of Nebraska, in Missouri Pac. not, of course, required. It is enough R. Co. v. Baier, 37 Neb. 235, 55 that the two were substantially con- N. W. Rep. 913, said: "The con- temporaneous, they need not be liter- sensus of the authorities seems to be ally so. The declarations must, how- that a declaration, to be a part of the ever, be so proximate in point of time res gestae, need not be coincident in as to grow out of, elucidate, and ex- point of time with the main ' fact plain the character and quality of the proved. It is enough that the two main fact, and must be so closely con- are so nearly connected that the nected with it as virtually to consti- declaration can, in the ordinary 308 INDIRECT AND COLLATERAL EVIDENCE. §253 § 253. The res gestae broader in some cases than iu others. — ^The statement of Lord Denman, which is set forth in the last section, is the test to which every case must be submitted in which tlie competency of this class of evidence is involved, and it will be the endeavor in some of the subsequent sections of this chapter to still further develop and illustrate his propo- sition that it is not time necessarily, but the connection with the act in controversy, that makes evidence of this character admissible. As said by Best, C. J., in an English case,* where the question involved was whether a debtor had de- parted from the realm with indent to defraud or delay his creditors, and thereby committed an act of bankruptcy : "It is impossible to tie down to time the rule as to the declara- tions. We must judge from all the circumstances of the case. We need not go to the length of saying that a declaration made a month after the fact would, of itself, be admissible, but if, as in the present case, there are connecting circum- stances, it may, even at that time, form part of the whole res gestse."^ The fact is that when we leave questions of injury course of affairs, be said to be a spon- taneous explanation of the real cause. The declarationisthen averbal act, and may well be said to be a proof of the main fact or transaction." See Collins V. State, 46 Neb. 37, 64 N.W. Eep. 432. ^ ^ Rawson v. Haigh, 2 Bing. 99. 2 See State v. Daugherty, 17 Nev. 376. Mr. Wharton, in his work on evidence, § 258, offers two apt historical illustra- tions of a broad res gestce in certain cases. He says: "When again, there is a social feud, in which two religious factions, as in the case of the Lord George Gordon disturbances, or of the Philadelphia riots of 1844, are arrayed against each other for weeks, and so much absorbed in the collision as to be conscious of little else, then all that such parties do and say under such circumstances is as much part of the res gestce as the blows given in the homicides for which particular prose- cutions may be brought." In the case of Ward v. White, 86 Va. 212, 9 S. E. Rep. 1021, 19 Am. St. Rep. 883, which was an assault and batteiy case, it was held that the defendant was entitled to show, as within the res gestce of the act complained of, a very aggravating newspaper article, published by the plaintiff the day before, concerning the defendant. In Mayes v. State, 64 Miss. 329, 1 So. Rep. 733, 60 Am. Rep. 58, the court, in holding a narrative statement incompetent in a murder case, said: "An examination of the approved text-writers, and of the decisions to which they refer, dis- closes, especially in the decisions of American courts, a somewhat loose regard for well recognized rules gov- erning the admissibility of evidence. That hearsay testimony can not be §254 RES GEST^. 309 to the person and their comparatively narrow environment and enter the broader field where mental state, motive and intent are factors of prominence, it will be found that the authorities are reasonably harmonious. § 254. A test proposed. — Early in the preliminary investiga- tion of the cases for this work the writer jotted the words upon his note tablet : "Is the event speaking through the person, or is the person speaking of the event ?" The similarity of Mr. Wharton's language^ and that of some of the cases, all of which were subsequently examined, suggests that this was a case of unconscious assimilation.' Be that as it may, it is believed that the test is a fundamental one, and that to a large extent it reconciles many seemingly discordant cases. The same idea is better expressed in a California case,' where it is said : "As soon as we pass the line which distinguishes between the trans- action talking of itself, and talking as modifying the transac- tion — in other words, as soon as we pass the line between the given is universally admitted by the courts which have from time to time been called upon to determine whether statements of this character are com- petent, and they have without excep- tion declared that when the statement assumes the character of a narrative of a past transaction, it is incompe- tent. But in many cases what were manifestly completed and finished acts have been, by a sort of construc- tion, treated as incomplete and un- finished, and the statement thus held to be a verbal act incorporated with and a part of the thing done. * * * It is not enough that the statement will throw light upon the transaction under investigation, nor that it was made so soon after the occurrence as to exclude tiie presumption that it has been fabricated, nor that it was made under such circumstances as to com- pel the conviction of its truth. The true inquiry, according (o all the authorities, is whether the declara- tion is a verbal act, illustrating, ex- plaining, or interpreting other parts of the transaction of which it is itself a part, or is merely a history, or a part of a history, of a completed past affair. In the one case it is cordpetent; in the other, it is not. We are not to be understood as attempting ^o lay down any rule for the decision of what, under all circumstances, is the limit of the existence of the principal fact which may be explained by contempo- raneous declarations. In some cases the res gestce may extend over weeks or months ; in others, they are limited to hours or to minutes or to seconds of time." ^ Section 239, supra. 2 In Bradberry v. State, 22 Tex. App. 273, 2 S. W. Rep. 592, it is said that the test is, " Were the facts talking through the party, or the party talk- ing about the facts." 3 People r. Lane, 100 Cal. 379, 34 Pac. Rep. 856. 310 INDIRECT AND COLLATERAL EVIDENCE. § 255 time of the transaction and the time that follows it, — we have no limits that can be imposed." § 255. Excitement extending the res gestae. — Where an act of personal violence, voluntary or involuntary, is committed, it is possible to conceive of cases where such act generates in the victim a height of excitement so great as to wholly subor- dinate his own personality for the time, and to render him the unconscious instrumentality through which the act is still forcing itself, much as the reverberation of the blast is heard in the adjoining mountain. This is fairly illustrated by a Penn- sylvania case.^ In the case referred to, the plaintiff sued for the death of her husband, caused by the explosion of a lamp. The defendant was sought to be held responsible, on the ground that he had negligently sold the husband a dangerous grade of oil, thereby causing the explosion. The court held that what the husband said as to the cause of the accident, when found en- veloped in the flames, or within a few minutes afterwards, was clearly competent as part of the res gestse. In an Arkansas case,^ it is said that "such declarations need not be strictly co- incident as to time, if they are generated by an excited feeling which extends without break or let-down from the moment of the event they illustrate.'" § 256. Declarations made at place of occurrence. — This is an important, though not necessarily a controlling, circumstance. In a Wisconsin case* it is said : " The res gestse of this accident did not go with the team to the livery stable, but remained in the locus in quo with the injured woman ; and the declarations ^ Elkins V. McKean, 79 Pa. St. 493. was assaulted, and, upon a person re- 2 Carr v. State, 43 Ark. 99. sponding, who asked what was the ^ For other cases within the princi- matter, the former answered, " Char- pie of the above doctrine, see McMur- lie Crookham has stabbed me. For rin V. Rigby, 80 Iowa 322, 45 N. W. God's sake, run for the doctor!" Held Rep. 877; Smith v. Dawley, 92 Iowa competent. Crookham v. State, 5 W. 312, 60 N. W. Rep. 625; Com. v. Va. 510. Hackett, 2 Allen 136 ; City of Galves- * Prideaux v. City of Mineral Point, ton V. Barbour, 62 Tex. 172, 50 Am. 43 Wis. 513, 28 Am. Rep. 558, and see Rep. 519. In a West Virginia case, Mutcha v. Pierce, 49 Wis. 231, 5 N. the deceased gave the alarm when he W. Rep. 486. ^ 256 RES GEST^. 311 of the driver to the liveryman were a subsequent narrative of the res gestae.'' It is not a pure sentimentality to attach im- portance to the fact that the declaration was made by the de- clarant in the presence of the machinery that did him harm' — not that the machinery stands as a mute voucher for the truth of the statement, but because the mere passive presence of the machinery has a tendency to maintain that pitch of excitement which subordinates the individual to the event.' It is upon this principle that the case of Hanover, etc., R. Co. v. Coyle* rests. That case was an action brought by a peddler, who was run over by a locomotive of the defendant, to recover damages for injuries to himself, his wagon and his goods. The court said : "We can not say that the declarations of the engineer was no part of the res gestse. It was made at the time of the accident, in view of the goods strewn along the road, by the breaking up of the boxes, and seems to have grown directly out of and immediately after the happening of the fact. The negligence complained of being that of the engineer himself, we can not say that his declarations made upon the spot at the time, and in view of the effects of his conduct, are not evidence against the company as a part of the transaction. ' ' A case some- what similar to this in its character is that of McLeodv. Ginther's Admr's.* The facts in that case were that a collision of trains occurred, resulting in the death of plaintiff's intestate, one of the engineers. It was held that the remark of the conductor of one train to the engineer of the other, within a few seconds after the casualty, '' I had until 10:10 to make Beards," was competent as res gestse. The court deemed the time too short in view of the circumstances, for the declarant to contrive a ' falsehood, and attached importance to the fact that the state- ment was made in the presence of the wrecked trains and amidst the search for persons whose fate was then unknown. 1 See Louisville, etc., R. Co. v. Buck, » Hanover R. Co. v. Coyle, 55 Pa. St. 116 Ind. 566, 19 N. E. Rep. 453, 9 Am. 396. St. Rep. 883. *McLeod v. Ginther's Admr's, 80 2 See Durkee v. Central Pac, etc., Ky. 399. R. Co., 69 Cal. 533, 11 Pac. Rep. 130, 58 Am. Rep. 562. 312 INDIRECT AND COLLATERAL EVIDENCE. § 257 § 257. Same subject — Actor absent. — As the preceding sec- tion has to some extent illustrated, the res gestse rarely leaves the place where the principal event was enacted. Thus, where C. was sued on a note executed to W., and it was claimed that the note had for its consideration the surrender of a note held by W. against C's son, it was held that declarations of C. to his son at the time he delivered to him his note were not com- petent.^ In a Michigan case^ where the plaintiff's intestate narrated the circumstances of his injury, after he was removed to a house twenty or thirty rods away from the place of the ac- cident, Cooley, J., said : "The affair was all over when Mer- kle was taken to Mrs. Cook's ; he had been removed from the scene of the injury ; the surroundings were all changed ; the time for exclamation or outcry was past, and nothing for the present remained to be done but to care for the wounded man, leaving investigation into the cause of injury to some more fa- vorable time in the future. The statements made by Merkle to his physician were proper enough as between man and man, but they had no legal value and were therefore improperly ad- mitted." Although the admissibility of declarations as res gestse depends upon no such principle as implied admissions, where statements are made in the presence of a person sought to be bound, yet it is evident, since the res gestse ordinarily ends with the event, that declarations made after one of the principal actors goes from the place where the occurrence took place are not usually to be treated as res gestse^ * Gushing v. Willard, 11 Gray 247; fallen out of an elevator into a base- Rhutasel v. Stephens, 68 Iowa 627, 27 ment, the elevator boy continued his N. W. Rep. 786; Goff v. Stoughton ascent; at the third floor he was State Bank, 78 Wis. 106, 47 N. W. asked what was the matter, and he Eep. 190. replied that he did not know, that he ^ Merkle, Admr. v. Township of supposed somebody was hurt. It was Bennington, 58 Mich. 156, 24 N. W. held that his statement was incompe- Eep. 776, 55 Am. Rep. 666. tent, as he had abandoned the child 3 Ohio, etc., R. Co. v. Stein, 133 Ind. to her fate. T. & H. Pueblo Building 243, 31 N. E. Rep. 180; Com. v. Har- Co. v. Klein, 5 Colo. App. 348,38 Pac. wood,4Gray 41,64 Am. Dec. 49; Peo- Rep. 608. See Whitaker «. Eighth pie V. Lane.'lOO Cal. 379, 34 Pac. Rep. Ave. R. Co., 51 N. Y. 295. 856. In a case where a child had § 258 RES GEST^. 313 § 258. Period of imconsciousiiess. — Where, as the result of the principal act, one of the actors becomes unconscious, his mind, upon a restoration to consciousness, naturally takes up the thread of events at the point where it left off, and this fact in such cases may serve to bridge the hiatus of time.^ § 259. Declarations before person extricated from place of injury. — This is necessarily a potent fact. Where a street car, after running over a person, had stopped, and, while the person was still under it, the motorman said that "the reason he did not stop the car was because he could not reverse it," the declaration was held res gestae.'' So in an Iowa case,' where the evidence of the plaintiff was that he uttered certain words while his **hand was fast and mashed," it was held competent to prove his words, the court saying: "It would seem impossible to make declarations more strictly a part of the res gestse than the words of the plaintiff in this case, uttered while his hand was still fast under the upturned coach which had produced the wound." In a Massachusetts case* a witness was asked "what the servant said to the plaint- iff at the time of the accident, and while the plaintiff was being extricated from the carriage, and while the crowd was about?" Justice Bigelow reversed the case because the witness was per- mitted to answer that the servant said the plaintiff was not to blame. This case can be distinguished from those preceding, for the reason that the event was not speaking, but the servant was merely expressing his opinion upon what, to him, at least, and possibly to the master, was a past occurrence. The sug- gestion in the question that the crowd was about indicates that some time must have elapsed between the injury and the declaration. In an Alabama case,^ the deceased, a brakeman, 1 Brownell v. Pacific R. Co., 47 Mo. ^Frink v. Coe, 4 G. Greene 555, 61 239; Collins v. State, 46 Neb. 37,64 Am. Dec. 141. See Durkee ■«. Cent. N. W. Rep. 432 ; Irby v. State, 25 Tex. Pac. Ry. Co., 69 Cal. 533, 11 Pac. Rep. App. 203, 7 S. W. Rep. 705. 130, 58 Am. Rep. 562. ^Springfield Consolidated Ry. Co. * Lane w. Bryant, 9 Gray 245, 69 Am. V. Welsch, 155 111. 511, 40 N. E. Rep. Dec. 282. 1034. To the same effect, Casey v. ^Louisville, etc., R. Co. w. Pearson, New York, etc., R. Co., 78 N. Y. 518. 97 Ala. 211, 12 So. Rep. 176. 314 INDIRECT AND COLLATERAL EVIDENCE. § 260 was run over by a car. A wheel stopped on his body. About five minutes after, while the wheel was still on his body, a person, whom deceased had called from eighty-five to a hun- dred yards away, came up, and exclaimed, "What in the world!" The deceased answered: "The hand-hold let me down. ' ' Held incompetent. Although this case, in its reason- ing is a valuable one, the conclusion reached is of doubtful correctness. It is true that the statement was of a narrative character, so far as its form was concerned, but, with what was perhaps the very car-wheel which caused his death resting upon his body, it can not be said that the declaration of the injured person was not strictly contemporaneous, and no other case involving an injury to the person is now recalled m which such a declaration was excluded.' §260. Constructively continuing act. — A good illustration of a case in which the subsequent declaration is competent, notwithstanding the intervention of time between the wrong- ful act and the declaration, is afforded by a California case,^ in which it was held that statements by the deceased, while he was fleeing, under the apprehension of danger, and calling for assistance and protection, were competent, on the ground that such flight and appeal were the constructively continuing act of the wrong-doer. There are a number of cases in this coun- try in which it has been held that declarations made within a brief interval after a crime, which have for their end the ap- prehension of the wrong-doer, are competent.' Within close ^In Ohio, etc., R. Co. v. Stein, 133 character of the statement which was Ind. 243, 31 N. E. Rep. 180, Elliott, J., held competent. Compare Parker v. says: "We are strongly inclined to State, 136 Ind. 284, 35 N. E. Rep. 1105, the opinion that, where an employe is and Martin v. New York, etc., R. Co., injured in a collision, all that is done 103 N. Y. 626, 9 N. E. Rep. 505. towards stopping the train andreliev- ^ People v. Ah Lee, 60 Cal. 85. ing the injure^^. employe from a dan- ^ State v. Driscoll, 72 Iowa 583, 34 N. gerous position forms part of one oc- W. Rep. 428; Jordan v. Common- currence." The earlier case of Louis- wealth, 25 Grat. 943 ; Lambert v. Peo- ville, etc., R. Co. v. Buck, 116 Ind. pie, 29 Mich 71; People ?;. Simpson, 566, 19 N. E. Rep. 453, 9 Am. St. Rep. 48 Mich. 474, 12 N. W. Rep. 662 ; State 883, is an extreme case in this direc- v. Moore, 117 Mo. 395, 22 S. W. Rep. tion, because of the circumstantial 1086; State v. Martin, 124 Mo. 514, 28 § 261 RES GEST^. 115 limits these declarations may be admitted witiiout a violation of principle, but it must be confessed that for the most part the decided cases on this subject exhibit a dangerous tendency. § 261. Death protracting the res gestae. — This element may possibly be a factor in determining upon the admissibility of declarations. The receiving of an injury of so grave a char- acter as to cause death is often accompanied with a shock which to a certain extent sinks the individuality ; the shat- tered nerves and the pain, although present conditions, have a strong tendency to cause the mind, by a reflex act, to live over again the horrors of that moment so big with fate to the individual, and thus, although the act of violence has actually ceased, it constructively continues. Nevertheless, since the law is a practical science, trial judges should not admit subse- quent declarations in such cases unless the surrounding cir- cumstances reasonably manifest the fact that the event still speaks. There is no warrant for admitting such declarations on a theory analagous to that which permits dying declarations to go in evidence. Upon this proposition the case of Waldele v. New York Cent., etc., R. Co.' is the leading case. It was there said : "This evidence can not be received upon the theory that there is a very strong probability that the declarations made by the intestate were true. The probability would have been equal- ly strong if they had been made several hours later, when he was removed to the hospital. The probability is that as he neared his death, he would have told the truth, if he had said anything about it. The same may be said of many statements not under oath. They are frequently made under such circum- stances as entitle them to very great, and frequently to im- plicit, confidence ; and yet they do not answer the require- ments of the law. * * * Even dying declarations are not received in civil actions, unless part of the res gestse. * * * There is no middle ground for receiving declarations of this S. W. Rep. 12. Where a complaint that it was not res gres^o;. Shoecraftw. was made by the prosecuting witness, State, 137 Tnd 433, 36 N. E. Rep. 1113. several blocks away from the robbery, ^ Waldele v. New York Central, etc., that he had been robbed, it was held R. Co., 95 N. Y. 274, 47 Am. Rep. 41. 816 INDIRECT AND COLLATERAL EVIDENCE. § 262 character — that is, they must be received either as dying dec- larations or as declarations forming part of the res gestae." § 262. Statements against interest. — While, as we have seen, instinctiveness is not the test in determining what dec- larations are res gestse, yet since, as Wharton points out, the causal relation between the act and the declaration is broken by individual wariness, seeking to manufacture evidence for itself, it results that in doubtful cases the fact that a declara- tion is against interest may serve to turn the scale in favor of the admission of the declaration. § 263. Narrative excluded. — This proposition is an obvious one, but it is stated in order that further cases may find a place in the notes. ^ § 264. Exclamations of pain, etc. — When it becomes im- portant to illustrate the physicial condition of a person, either at the time of an 'injury, or at any subsequent time, it is competent to illustrate such condition, with reference to its severity, effect and nature, by showing the complaints or ex- clamations of present existing pain or malady.^ Pain and ^People V. Davis, 56 N. Y. 95; 513; Merchants' Bank v. Berthold, Osborn v. Robbins, 37 Barb. 481; 45 Mo. 527; People v. O'Brien, 92 Cronnse v. Fitch, 14 Abb. Pr. 346; Mich. 17, 52 N. W. Rep. 84; Tennis Chapin v. Marlborough, 9 Gray 244, v. Interstate C. R. T. R. Co., 45 Kan. 69 Am. Dec. 281; Estell v. State, 51 503, 25Pac. Rep.876; Alabama,etc., R. N. J. L. 182, 17 Atl. Rep. 118; Illinois Co. v. Hawk, 72 Ala. 112; Richmond, Cent. R. Co. v. Sutton, 42 111. 438, 92 etc., R. Co. v. Hammond, 93 Ala. 181, Am. Dec. 81; Lander v. People, 104 9So. Rep. 577; Innis v. Steamer Sen- Ill. 248; Chicago, etc., R. Co. v. ator, 1 Cal. 459; 54 Am. Dec. 305; Becker, 128 111. 545, 21 N. E. Rep. 524, Durkee v. Central Pac. R. Co., 69 Cal. 15 Am. St. Rep. 144 ; People v. Aikin, 533, 11 Pac. Rep. 130, 58 Am. Rep. 562 ; 66 Mich. 460, 33 N. W. Rep. 821, 11 T.& H.Pueblo B.Co. v. Klein, 5 Colo. Am. St. Rep. 512; Binns v. State, 57 App. 348, 38 Pac. Rep.608; Territory ^7. Ind. 46. 26 Am. Rep. 48; Cleveland, Clayton, 8 Mont. 1, 19 Pac. Rep. 293. etc., R. Co. V. Newell, 104 Ind. 264, 3 Many of these cases strongly enforce N. E. Rep. 836, 54 Am. Rep. 312; the limitations of the text concerning Parker V. State, 136 Ind. 284, 35 N. E. the admissibility of declarations as Rep. 1105 ; Hall v. State, 132 Ind. 317, res gestce. 31 N. E. Rep. 536 ; Rogers v. McCune, ^ Qq^ ^ Leach, 156 Mass. 99, 30 N. 19 Mo. 557; Ladd v. Couzins, 35 Mo. E. Rep. 163; Kennard v. Burton, 25 §264 RES GESTiE. 317 suffering are, to a large extent at least, suDJective, and the expressions under consideration are their ''natural evi- dence."' Redfield, C. J., in a Vermont case,' said : ''The declarations of the party are received to show the extent of latent injuries upon the person, upon the general ground that such injuries are incapable of being shown in any other mode, except by such declarations as to their effect, but they are not admitted as part of the res gestse. ' ' That this is not an authorita- tive statement of the law will be appreciated when it is stated that the question in the case related to the admissibility of the subsequent complaints of a prosecuting witness that he had been robbed. The learned chief justice probably had in mind the proposition that mere statements of pain or suffering or of physical condition, are not res gestse, but are admitted Me. 39, 43 Am. Dec. 249; Earl v. Tapper, 45 Vt. 275; Howe v. Plain- field. 41 N. H. 135; Towle v. Blake, 48 N. H. 92; Werely v. Persons, 28 N. Y. 344, 84 Am. Dec. 346 ; Brown v. N. Y. Cent. Co., 32 N. Y. 597, 88 Am. Dec. 353; Matteson v. N. Y. Central R. Co., 35 N. Y. 487, 91 Am. Dec. 67; Roche v. Brooklyn City, etc., R. Co., 105 N. Y. 294, 11 N. E. Rep. 630, 59 Am. Rep. 506 ; Hyatt v. Adams, 16 Mich. 180; Cleveland, etc., R. Co. V. Newell, 104 Ind. 264, 3 N. E. Rep. 836; 54 Am. Rep. 312; Ben- nett V. Northern Pac. R. Co., 2 N. D. 112, 49 N. W. Rep. 408; Yostt>. Ditch, 5 Blackf . 184 ; Puett v. Beard, 86 Ind. 104 ; Board of Comrs. of Wabash Co. v. Pearson, 120 Ind. 426, 22 N. E. Rep. 134, 16 Am. St. Rep. 325; Holly v. Bennett, 46 Minn. 386, 49 N. W. Rep. 189; Caldwell v. Murphy, 11 N. Y. 416;Marrv. Hill, 10 Mo. 320; Wad- low V. Perryman, 27 Mo. 279; Texas, etc., R. Co. V. Barron, 78 Tex. 421, 14 S. W. Rep. 698. The declarations of a slave as to her ailments were held admissible in an action on a warranty accompanying her sale. Allen v. Vancleve, 15 B. Mon. (Ky.) 236. 61 Am. Dec. 184. Where an injured child said, " Pa, don't hold my neck, it is pretty near broke," it was held com- petent to prove the speaking of the words, as a complaint of an existing physical condition. Sturgeon v. Sturgeon, 4 Ind. App. 232, 30 N. E. Rep. 805. The declaration, " Go for the doctor quick ! I have taken an- other cup of that coffee and it is about to kill me," was held admissible. Johnson v. State, 30 Tex. App. 419, 17 S. W. Rep. 1070, 28 Am. St. Rep. 930. See Field v. State, 57 Miss. 474, 34 Am. Rep. 476. The plaintiff's statement as to his condition may be received in evidence (at least under certain circumstances, as mentioned hereafter) if free from suspicion that it was spoken with reference to future litigation. Illinois Cent. R. v. Sutton, 42 111. 438, 92 Am. Dec. 81 ; Birming- ham Union R. Co. v. Hale, 90 Ala. 8, 8 So. Rep. 142, 24 Am. St. Rep. 748. 1 Holly V. Bennett, 46 Minn. 386, 49 N. W. Rep. 189. 2 State V. Davidson, 30 Vt. 377, 73 Am. Dec. 312. 318 INDIRECT AND COLLATERAL EVIDENCE. § 265 from necessity/ We do not understand that the admissibility of exclamations, and other like emanations of pain and suffer- ing, rests on the latter ground. In actions for injuries to the person there is often grave danger that these declarations may be simulated, instead of being the outward expressions of real suffering, but this is a question for the jury.^ In so far as this is res gestse evidence, it only goes to its weight that it was made in the presence of a person who was not a physician.' The competency of that class of declarations which are ad- mitted on the ground of necessity, that is, statements of bodily ailments, will be considered hereafter. § 265. Declarations of past pain. — As the doctrines of res gestffs practicall}'- rule this class of declarations, it follows that, with the exception of declarations to physicians, all declara- tions of past suffering or pain, or past conditions, are to be rigidly excluded.* Statements as to how the injury was re- ceived, whether made to a professional man or otherwise, are self-serving in their character and can never be shown in evi- dence in support of the claim of the party making them.® Such declarations at the best are hearsay. 1 See Goodwin v. Harrison, 1 Root 80 ; v. Leggett, 115 Ind. 544, 18 N. E. Rep. Reed v. New York, etc., R. Co., 45 N. 53; Cleveland, etc., R. Co. v. Newell, Y. 574 ; Sanders v.Reister, 1 Dak. 151, 104 Ind. 264, 3 N. E. Rep. 836, 54 Am. 46 N. W. Rep. 680; Cleveland, etc., Rep. 312; Rogers c. Crain, 30 Tex. 284; R. Co. V. Newell, 104 Ind. 264, 3 N. Field v. State, 57 Miss. 474, 34 Am. E. Rep. 836, 54 Am. Rep. 312. Rep. 476. In Kelley «. Detroit, etc., 2 Cleveland, etc., R. Co. v. Newell, R. Co., 80 Mich. 237, 45 N. W. Rep. 104 Ind. 264, 3 N.'e. Rep. 836, 54 Am. 90, 20 Am. St. Rep. 514, it was held Rep. 312; Farrand v. Aldrich, 85 improper to permit evidence, on be- Mich. 593, 48 N. W. Rep. 628. half of the plaintiff, of her declara- ^1 Phil, on Ev. (1849 ed.) 190; tions each morning that she had not North Pac. R. Co. v. Urlin, 158 U. S. slept well the night before. 271, 15 Sup. Ct. Rep. 840; Thomas w. n Phil, on Ev. (1849 ed.) 192; Herrall, 18 0re. 546, 23 Pac. Rep. 497; Merkle v. Township of Bennington, Rogers v. Crain, 30 Tex. 284; Stur- 58 Mich. 156, 24 N. W. Rep. 776, 55 geon V. Sturgeon, 4 Ind. App. 232, Am. Rep. 666; Board of Comrs. of 30 N. E. Rep. 805, and see cases Hancock County v. Leggett, 115 Ind. cited in first note to this section. 544, 18 N. E. Rep. 53; Ft. Worth, etc., «1 Phil, on Ev. (1849 ed.) 191; R. Co. v. Stone (Tex. Civ. App.), 25 Board of Comrs. of Hancock County S. W. Rep. 808. § 266 RES GESTAE. ol9 § 266. Declarations of past pain to doctor. — The authorities are hy no means in accord on this question. In reason it would seem that such declarations, if made with a view of treat- ment, should be held competent, in cases where the physician is put upon the stand as an expert. The plaintiff should be entitled to something besides a conclusion based on a hypothetical case, from the one who has treated him, and who has, from an observation of the patient and a history of the case, reached a definitive conclusion as to plaintiff's ailment; while the fact that the declaration was made with a view to treatment, and to a person well qualified to judge whether a statement of a past symptom was true, reduces the liability of the physician's being imposed upon to the minimum.' There are cases^ in which it is held that declarations as to past conditions, symp- toms, sensations and feelings are competent, where they are expressed during the course of an examination made by a physician to enable him to give his opinion as an expert wit- ness. But this is obviously carrying a rule, which had its origin in necessity, too far, at least in states where parties in interest are competent witnesses,^ for the statement would not 'In Barber V. Merriman, 11 Allen v. Everts, 76 Wis. 35, 44 N. W. Rep. 322, Bigelow, C.J. , said: "Theopin- 1092, 20 Am. St. Rep. 17; Chapin ion of a physician or surgeon is neces- v. Marlborough, 9 Gray 244, 69 Am. sarily formed in part on the state- Dec. 281 ; Lush v. McDaniel, 13 Ired. ments of his patient, describing his L. 485, 57 Am. Dec. 566. In a case conditions and symptoms, and the where a physician testified that there causes which have led to the injury or were no external evidences of in- disease under which he appears to be jury upon the person of the patient, suffering. This opinion is clearly it was held that he might express an competent, as coming from an expert, opinion as to the existence of the in- But it is obvious that it would be un- jury charged, based on indications of reasonable, if not absurd, to receive suffering and on what the patient said the opinion in evidence, and at the as to her condition. Quaife v. Chi- same time to shut out the reasons and cago, etc., R. Co., 48 Wis. 513, 33 Am. grounds on which it was founded." Rep. 821. As supporting the proposition of the ^ Cleveland, etc., R. Co, v. Newell, text as to the admissibility of such 104 Ind. 264, 3 N. E. Rep. 836, 54 Am. testimony, see Hewitt v. Eisenbart, Rep. 312, and cases cited. 36 Neb. 794,55 N. W. Rep. 252, and ^Darriganv. New York, etc., R. Co., Cleveland, etc., R. Co. v. Newell, 104 52 Conn. 285, 52 Am. Rep. 590; Row- Ind. 264, 3 N. E. Rep. 836, 54 Am. Rep. land v. Philadelphia, etc., R. Co., 63 312, and cases there cited; Stewart Conn. 415, 28 Atl. Rep. 102. 320 INDIRECT AND COLLATERAL EVIDENCE. § 267 only be made post litem motam, but under the strongest tempta- tion to resort to deception. By excluding such declarations courts would escape a grave danger of imposition, while the plaintiff would not materially suffer from the exclusion of the evidence, if, after testifying under oath to such past condi- tion, he could obtain the opinion of the expert, based on his own examination and upon such a hypothetical state of facts as the plaintiff's testimony would w^arrant, § 267. Exclamations of pain after suit brought. — Although there is much reason to view with suspicion exclamations in- dicative of physical suffering (as distinguished from mere statements of physical condition), made after the institution of suit, yet as there is no other way to efficiently manifest pain and suffering, it is believed that the competency of this class of evidence does not yield to the fact that litigation is pend- ing.^ In fact, it is doubtful whether, upon a close analysis of the authorities, any cases will be found to combat this proposi- tion. § 268. Declarations to physician after suit brought. — The doctrine upon this subject, according to the weight of author- ity, is that such declarations as are made in the presence of a physician called for the purpose of treatment may be testified to by him, notwithstanding the fact that they were made after the suit was brought.^ On the other hand, while there is not unanimity among the authorities, it may be affirmed upon the preponderance of the cases — and with good reason — that where a physician visits a person for the sole purpose of qualifying himself to testify upon the trial, he can not testify to statements made by the party, ^ although it is » Davidson v. Cornell, 132 N. Y. 228, s Davidson v. Cornell, 132 N. Y. 228, 30 N. E. Rep. 573; Matteson v. New 30 N. E. Rep. 573; Roche v. Brooklyn York Central R. Co., 35 N. Y. 487, 91 City, etc., R. Co., 105 N. Y. 294, 11 Am. Dec. 67; Kent v. Town of Lin- n! E. Rep. 630, 69 Am. Rep. 506; coin, 32 Vt. 591. Barber v. Merriman, 11 Allen 322; 2 Barber v. Merriman, 11 Allen 322; Fay v. Harlan, 128 Mass. 244, 35 Am. Fleming v. City of Springfield, 154 Rep. 372. Contra, Cleveland, etc., Mass. 520, 28 N. E. Rep. 910; Norris R. Co. v. Newell, 104 Ind. 264, 3 N. V. Town of Haverhill, 65 N. H. 89, 18 E. Rep. 836, 54 Am. Rep. 312. Atl. Rep. 85. §268 RES GEST/E. 321 believed that he might testify to an exclamation of pain, that being res gestse} ^ In Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537, Campbell,.!., speaking for the court, said : "It is dif- ficult to lay down any very clear line of admission or exclusion when the ex- clamation refers to the feeling of a wound. The unstudied expressions of daily life, or the statements on which a medical adviser is expected to act, and which, if feigned, he should have skill enough to subject to some test of truth, stand on a footing which removes them in general from suspicion. But we can not think it safe to receive such statements which are made for the very purpose of get- ting up testimony, and not under other circumstances. The physicians here were not called in to aid or give medical treatment. They were sent for merely to enable the plaintiff to prove her case. The whole course of plaintiff was taken to no other end. She had in her mind just what ex- pressions her cause required. They were therefore made under a strong temptation to feign suffering, if dis- honest, and a hardly less strong ten- dency, if honest, to imagine or exag- gerate it. The purpose of the exam- ination removed the ordinary safe- guards which furnish the only reason for receiving declarations which bear in a party's own favor. The general rule in regard to other classes of hear- say evidence and statements admitted upon the same principle is that they must have been made ante litem motam, which is interpreted to mean not merely before suit brought, but before the controversy exists upon the facts. * * * It is not necessary to con- sider whether there may not be prop- erly received in some cases the natural and usual expressions of pain, made 21— Ev. under circumstances free from sus- picion, even x>ost litem motam. The case must at least be a very plain one which will permit this. The present controversy presents no such diffi- culty. The physicians were called, not to give medical aid, but to make up testimony ; and the declarations were made to them while engaged in that work. It would be diflicult to find a case more plainly within the mischief of the excluding rule." This extract from the above opinion has been set out for the reason that it carefully exhibits the infirmities of evidence of statements of condition made by the plaintiff to his expert witnesses. It is respectfully sug- gested, however, that the learned judge fell into error in holding the doctrine tliat he did as to mere ex- clamations of suffering, which are clearly res gestce. No well considered personal injury case is now recalled in which a strictly contemporaneous declaration of a res gestce character has been rejected because of the dan- ger that it might have been simulated. If the doctrine is to be carried to this extreme, it might be contended that the witness could not testify that the alleged wounded portion of plaintiff's anatomy was tender to the touch, be- cause that could only be determined by reason of the fact that the plaintiff flinched, and that might have been simulated. The text is borne out by Matteson v. New York Central R. Co., 35 N. Y. 487, 91 Am. Dec. 67; David- son V. Cornell, 132 N. Y. 228, 30 N. E. Rep. 573 ; Kent v. Town of Lincoln, 32 Vt. 591 . As to the admissibility of complaints made by plaintiff to ex- perts where his person is examined by them under an order of court, see 322 INDIRECT AND COLLATERAL EVIDENCE. § 209 § 269. Statements of physician. — Cases can be imagined where the statement of the physician to the patient might be competent.^ Since both the physician and the patient may be actors, the involuntary exclamation of either may throw light upon the patient's then condition. But inasmuch as it would be the patient's condition at the time of the examination which would be the primary question with the examining physician, rather than the manner in which that condition was brought about, it has been held improper to permit a witness to testify that when a physician examined the plaintiff, he said : " This is from a blow."^ § 270. Statements of pliysical condition — Statute permitting parties to testify. — It is to be borne in mind, as the head line of the section indicates, that we are now treating of decla- rations of physical condition as contradistinguished from exclamations of pain or suffering. As heretofore stated, the latter class of evidence is strictly res gestse; the present subjec- tive condition is the fact in question and the accompanying exclamation of pain is a natural concomitant which illustrates it. As the res gestse is always primary evidence, the question we are about to raise can not apply to this class of evidence. The question now to be considered is : What is the effect of statutes which enable parties to testify, as applied to statements Louisville, etc., R. Co. v. Falvey, 104 been stopped. It was held, and prop- Ind. 409, 3 N. E. Rep. 389; Quaife v. erly it would seem, that it was compe- Chicago, etc., R. Co., 48 Wis. 413, 33 tent to prove that the physician said, Am. Rep. 821. as he had his finger upon the pulse of ^ Such a case oceui-red in the writ- the patient, " My dear woman, you er's professional experience. A suit are dying." was brought against a surgeon, charg- 2]\igii^it2 v. Manhattan R. Co., ing him with negligence in omitting 62 Hun 622, 17 N. Y. Supp. 112; to make a sufficient ligation upon Village of Ponca v. Crawford, 23 Neb. the pedicel of an abdominal tumor, 662, 37 N. W. Rep. 609, 8 Am. St. Rep. and in negligently leaving the case 144. In McFadden v. Santa Ana, without medical attendance. At tv/o etc., R, Co., 87 Cal. 464, 25 Pac. Rep. o'clock of the morning after the oper- 681, a personal injury case, it was ation a physician was called in, and it held competent to prove a physician's became material upon the trial to advice as to the treatment of a pa- know whether at that time the hemor- tient. rhage, which had set in, could have R 271 RES GEST^. ^23 of physical condition made by such parties out of court to persons other than physicians called on for treatment? This is a serious question. It has been argued that the statute adds to the litigant's rights and subtracts none of them, but • if it be true that the admissibility of declarations of physical condition rests on necessity, does it not follow that the abro- gation of the necessity for the rule takesraway the right to the evidence? The maxim reads : '' Since reason is the soul of law, when the reason for the law ceases, the law ceases." The proposition presented, as already intimated, does not, it is conceived, militate against the competency of the evidence of attending physicians as to statements made to them, because of the importance to the plaintiff of having laid before the jury the physician's opinion of plaintiff's ailment, which the physician, of course, bases on his personal observation and the history of the case. But as to mere statements of physi- cal condition not made for the purpose of treatment, it would seem that the statute, by substituting a higher class of evi- dence—namely, evidence under oath, instead of an irresponsi- ble declaration— had, if so facto, rendered this class of declara- tions incompetent. More than one hundred and fifty years ago, Lord Hardwick said :^ "The judges and sages of the law have laid it down that there is but one general^rule of evidence, 'the best the nature of' the case will admit.' " §271. Same subject— The cases considered.— In a New York case,^ Peckham, J., said: "Evidence of exclamations, groans and screams is now permitted more upon the general ground that it is a better and clearer and more vigorous de- scription of the then existing physical condition of the party by an eye-witness than could be given in any other way. It characterizes and explains such condition. * * * But evi- dence of simple declarations of a party, made some time after the injury, and not to a physician for the purpose of being at- lOmychand v. Barker, 1 Atk. 21. ^ Roche v. Brooklyn etc., R. Co Campbell's Lives of the Chancellors. 105 N. Y. 294, 11 N. E. Rep. 630, 59 Hardwick Ch. 131, Vol. 6, p. 201, 5 Am. Rep. 506. Eng. ed. 324 INDIRECT AND COLLATERAL EVIDENCE. § 271 tended to professionally, and simply making the statement that he or she is then suffering pain, is evidence of a totally different nature, is easily stated, liable to gross exaggeration, and of a most dangerous tendency, while the former necessity for its admission has wholly ceased. As is said by Judge Allen, in Reed i;. Railroad, .supra,^ " the necessity for giving such declarations in evidence, when the party is living and can be sworn, no longer existing, and that being the reason for its admission, the reason of the rule ceasing, the rule itself, adopted with reluctance and fol- lowed cautiously, should also cease. With the rule as herein announced there can be no fear of a dearth of evidence as to the extent of the injury, and the suffering caused thereby. The party can himself be a witness, if living, and, if dead, the suffering is of no moment, as it can not be compensated for in an action by the personal representative under the statute, and the exclamations of pain, the groans, the sighs, the screams, can still be admitted."^ In a Massachusetts case,^ the supreme court of that state said : " Since parties have been permitted to testify, there is, perhaps, an additional reason why great strictness should be used in admitting as evidence the declarations of a party in his own favor when made in the absence of the other party." It seems plain in the light of these authorities that the old doctrine must be abandoned to the extent indicated in this and the preceding section. As the New York case inti- mates, the old rule, adopted from necessity, was subject to gross abuses. In these days when "Railroad Spine" is made the subject of treatment in technical articles in the medical journals, the court should guard against affording too abundant 1 Reed V. New York, etc., R. Co., 45 Rep. 1092, 20 Am. St. Rep 17. The N. Y. 574. cases of Board of Comrs. of Hancock ^The doctrine of this case was fol- County v. Leggett, 115 Ind. 544, 18 lowed in Kennedy v. Rochester City, N. E. Rep. 53, and Sanders ??. Reister, etc., R. Co., 130 N. Y. 654, 29 N. E. 1 Dak. 151, 46 N. W. Rep. 680, are Rep. 141. To the same effect. Com.??, not in conflict with the case quoted Leach, 156 Mass. 99, 30 N. E. Rep. from, as they are cases involving mere 163. As bearing out the text, in inti- complaints of pain, mation at least, see Brown u. "Weight- ^ Pickering v. City of Cambridge, man, 62 Mich. 557, 29 N. W. Rep. 98; 144 Mass. 244, 10 N. E. Rep. 827. Stewart v. Everts, 76 Wis. 35, 44 N.W. ^ 272 RES GEST.E. 325 opportunity to manufacture evidence in support of fraudulent claims. The necessity for receiving this class of evidence no longer exists, and the enactment of a statute which gives to an injured party the right to describe his ailments in detail calls upon the court to emancipate itself from the operation of a non-necessary and objectionable rule. As said by Justice Story:' ''It is obvious that as the rules of evidence are founded upon general interest and convenience, they must, from time to time, admit of modifications, to adapt them to the actual condition and business of men, or they would work manifest abuse." § 272. Prior statements by person whose life is insured. — If a life insurance policy is made payable to a third party — as to the wife .or child or a creditor of the deceased — the state- ments made by him, prior to the taking out of the policy, are inadmissible as against the holder of the insurance,^ unless the statements are such complaints or exclamations as are the usual concomitants or emanations of ill-health, and are, prac- tically speaking, a res gestas expression of it,' or are introduced for the sole purpose of proving that at the time of the taking out of the insurance its subject knew that he was making a false representation.* Declarations concerning past conditions are never res gestse, and so the prior statements of the deceased as to his former state of health, as to a former severe illness, » Nicholls V. Webb, 8 Wheat. 326. v. Booker, 9 Heisk. 606, 24 Am. Rep. ^Hermany v. Fidelity Mat. Life 344 ; Supreme Lodge Knights of Pyth- Assc, 151 Pa. St. 17, 24 Atl. Rep. ias tJ. Schmidt, 98 Ind. 374; Pennsyl- 1064; Rawls v. Am. Mut. Ins. Co., 27 vania, etc., Ins. Co. v. Wiler, 100 Ind. N. Y. 282, 84 Am. Dec. 280; Swift v. 92, 50 Am. Rep. 769. Mass. Mut. Life Ins. Co., 63 N.Y. 186, ^ See authorities in preceding sec- 20 Am. Rep. 522 ; Mobile Life Ins. Co. tion. V. Morris, 3 Lea (Tenn.) 101, 31 Am. * Dilleber v. Home Life Ins. Co., 69 Rep. 631; Edington v. Mut. Life Ins. N. Y. 256, 25 Am. Rep. 182; Swift v. Co., 67 N. Y. 185; Union Cent. L. Mass. Mut. Life Ins. Co., 63 N.Y. 186, Ins. Co. V. Cheever, 36 Ohio St. 201, 20 Am. Rep. 522; Edington v. Mut. 38 Am. Rep. 573 ; Fraternal Mut. Ins. Life Ins. Co., 67 N.Y. 185; Penn. Co. V. Applegate, 7 Ohio St. 292; Mut. Life Ins. Co. ^). Wiler, 100 Ind. Washington Life Ins. Co. v. Haney, 92, 50 Am. Rep. 769. 10 Kan. 525; Southern Life Ins. Co. 326 INDIRECT AND COLLATERAL EVIDENCE. § 273 or as to the fact of his having had brothers or sisters, have been held incompetent.' Statements on his part as to his hab- its are not within the rule admitting declarations as to health.' To render a statement made by the deceased admissible, it should appear de hors the declaration, either directly or by legitimate inference : 1, that at the time the declaration was made, the declarant was suffering from some bodily ailment or infirmity;" 2, that the same continued down to the time of the taking out of insurance, so as to make the inquiry rele- vant;* and, 3, that the complaint, exclamation or expression related to his health at the time the declaration was made. In a Maine case,^ where the person upon whose life the policy was written had been for some time suffering with pulmonary dis- ease, and had made statements in her letters to a friend, some three months preceding the execution of the polioy, concern- ing her then state of health, the court said: ''Anything in the way of narration or statement is to be carefully excluded, and the testimony is to be confined strictly to such complaints, exclamations and expressions as usually and naturally accom- pany and furnish evidence of a present existing pain or mal- ady." § 273. Subsequent statements by person whose life is in- sured. — As a general rule, the subsequent declarations of a person upon whose life an insurance is effected for the benefit of another are inadmissible against the latter, for the reason that after the contract has been entered into the subject of the insurance has no such relation to the holder of the policy as 1 Schwarzbach v. Ohio Valley Pro. * It is probably with a view to this Union, 25 W. Va. 622, 52 Am. Rep. principle that the case of Swift v. 227. Where the issue was as to Mass. Mut. Life Ins. Co., 63 N.Y. 186, whether a person was diseased at the 20 Am. Rep. 522, suggests that decla- time he enlisted in the army, it was rations long anterior to the taking out held that his declarations shortly be- of the policy should be excluded. The fore as to what a physician had told second element mentioned in the text him as to his health was incompetent, would be non-necessary where there Ashland v. Marlborough, 99 Mass. 47. was an express warranty against the 2Rawls V. Am. Mut. Life Ins. Co., past existence of the ailment or in- 36 Barb. 357. flrmity. » See White v. Rayburn, 11 Ore. 450, ^ Asbury Life Ins. Co. v. Warren, 66 5 Pac. Rep. 345. IMe. 523, 22 Am. Rep. 590. §274 RES GESTiE. i27 gives him power to destroy or affect it by unsworn statements.* No reason exists, however, why a subsequent exclamation in- dicative of pain or suffering should not be admitted, as show- ing the then condition of the person, if that is material to the inquiry. In an English case^ it was held, where an in- surance had been taken out by the plaintiff upon the life of his wife, that her declarations as to her health made a few days after the insurance was effected, and while she was con- fined to her bed, were admissible. § 274*. Declarations preceding act. — Upon principle there is no reason why a declaration may not be competent which precedes a litigated act, if the two are connected.* ^Mulliner v. Guardian Mut. Life Ins. Co., 1 T. & C. 448 ; Rawls v. Mut. Life Ins. Co., 27 N. Y. 282, 84 Am. Dec. 280; The Fraternal Mut. Life Ins. Co. V. Applegate, 7 Ohio St. 292; Washington Life Ins. Co. v. Ilaney, 10 Kan. 525 ; Supreme Lodge Knights of Pythias v. Schmidt, 98 Ind. 374. 2 Aveson v. Kinnaird, 6 East 188, ^ In Ehrlinger v. Douglas, 81 Wis. 59, 50 N. W. Rep. 1011, 29 Am. St. Rep. 863, the action was to recover the value of a dog shot by the defend- ant. It became material to determine whether the dog had snapped at de- fendant's wife. The defendant sought to show that his wife had called him from his work, saying that the dog had snapped at her, whereupon he shot the dog. It was held that he was not entitled to introduce in evi- dence his wife's declarations, the court saying: "We are aware of no rule which stamps the character of res gestce upon a statement made by a third person to the defendant of an antecedent fact or circumstance, so that proof that the statement was made becomes competent evidence to prove the truth of the statement." * * * " Most assuredly the decla- ration of defendant's wife did not grow out of such fact or transaction ; neither does it derive any degree of credit therefrom, because the act of shooting had not been committed or contemplated when the declaration was made." The court does not se^m to have considered the admissibility of the declaration to rebut any infer- ence of malice, and thereby prevent the assessment of punitive damages. The early case of Ross v. Bank of Bur- lington, 1 Aikens (Vt.) 43, 15 Am. Dec. 664, was an action to recover $800,which the plaintiff contended he ought to recover from the defendant bank, on the ground that he was the holder and owner of that amount in bills of said bank, which were burned and destroyed with and on board the steam-boat Lake Champlain, Sep- tember 5, 1819. The plaintiff testified to the obtaining of the bills from the bank, the entrusting of them in a package to the captain of the boat, and that at the time of such delivery to the captain he spoke of the pack- age as containing $800. This decla- ration was held competent, the court attaching importance to the fact that the plaintiff could not have appre- 328 INDIRECT AND COLLATERAL EVIDENCE. §275 §275. Declarations showing state of miutl. — Where the mental condition of a person at a particular time is in issue, his appearance, conduct, acts and declarations, after as well as before the time in question, have been held admissible in evi- dence, if sufficiently near in point of time, and if they appear to have any tendency to show what that mental condition was.^ It will be noticed that this statement of the law allows more latitude respecting the time of making declarations calculated to evince the state of mind of the declarant, than in cases where overt acts are sought to be illustrated by declarations. Many of the cases involve the mental status of testators, but the principle is the same wherever applied.^ In a Vermont case" it was held that the plaintiff in a slander case might tes- tify that he was overcome and cried, that he could not sleep nights and could not work, and did not feel like seeing any one. The court said : ''The natural tendency of the alleged slander was to produce 'pain and anguish of mind,' the effect averred in the declaration. Being a proper allegation, it was proper to prove by the plaintiff that the slander m fact had the effect alleged, and the extent of it."* State v. Cook* is a case where the defendant in a prosecution for rape proved that sub- sequently, and on the day of the alleged rape, the prosecutrix said that she had had sexual intercourse with the defendant. hended the burning of the boat at 'Rea v. Harrington, 58 Vt. 181, 2 the time of the declaration. In strict- Atl. Rep. 475, 56 Am. Rep. 561. ness the case cited was a declaration *In Farrand v. Aldrich, 85 Mich, contemporaneous with the litigated 593, 48 N. W. Rep. 628, which was a act, namely, the delivery of the libel case, it was held competent to money to the captain, but the case show in evidence the conduct, excla- serves as an illustration of how a dec- mations and acts of the plaintiff when laration may be especially forceful she read the article, and also the because made before the consequences further fact that others heard her cry which gave rise to the action could and sob in the night. To the same have been apprehended. effect, see Western Union Tel. Co. v. ^Lanev. Moore, 151 Mass. 87, 23 N. Adams, 75 Tex. 531, 12 S. W. Rep. E. Rep. 828, 21 Am. St. Rep. 430; 857, 16 Am. St. Rep. 920. The case of Com. V. Trefethen, 157 Mass. 180, 31 Stowe v. Heywood, 7 Allen 118, is a N. E. Rep. 961, and cases cited. case to the contrary. 2 Com. V. Trefethen, 157 Mass. 180, sg^ate v. Cook, 65 Iowa 560, 22 N. 31 N. E. Rep. 961, and cases cited. W. Rep. 675. § 276 RES GEST.E. 329 and would have it again, and that she did not care what other people might say. This was held competent as tending to show that her feelings were of a very amatory character. Jones V. State^ serves to illustrate the doctrine under consider- ation. In that case the defendant was charged with murder. The claim of the defense was that the shooting was accidental. It was held proper to prove that while traveling on a train, some hours before, the gun, with which the shooting was done, had fallen over, and that the defendant then remarked that it was not loaded. § 276. Declarations showing state of mind— Subject con- tinued.— In a United States case,' the plaintiff sued for per- sonal injuries caused by the derailment of defendant's train. It appeared that a tie upon the track had caused the derail- ment, and it was held that the company was entitled to prove that it had had trouble with some of its employes less than two days before ; that four persons were seen on the track in that neighborhood the night of the wreck ; that they seemed to try to avoid the track-walker ; that thirty-six hours before, and during the trouble v/ith its employes, one of them said that the company would ''catch h— 1" and that another said that unless he was paid at once "he would ditch the train." Un- less the declaration is so closely associated with the act which is in question that the declaration may be accepted as an index of the frame of mind of the declarant at the time the act was committed, it should be rejected as of no evidentiary force. Confessions of crime and other hearsay statements of persons, whether living or deceased, should not be allowed to go in evidence, but this subject has already been discussed.^ § 277. Declarations by deceased persons as to intent. — It is due, no doubt, to the absence of other testimony that so many cases relating to declarations of intent are cases in which the declarants were dead. It is not to be understood, however, that it is the element of death which permits these declarations to be Uones V. state, 103 Ala. 1, 15 So. MVorth v. Chicago, etc., R. Co., 51 Rep. 891. Fed. Rep. 171. s Ante, § 227, et seq. 330 INDIRECT AND COLLATERAL EVIDENCE. §277 introduced, for hearsay evidence is not admissible merely be- cause in the particular case none better can be had.' The ad- judications in the class of cases mentioned now claim our attention. Where it became material to show that the deceased was not a wrong-doer when injured, it was held competent to prove his declaration, made a few minutes before, that he in- tended to go to Washington.^ In a Tennessee case,' it was adjudged proper to show a declaration of the deceased, made the evening before he was missed, to the effect that he was going to Pine Mountain, in search of a saltpeter cave, as explaining his presence there.* Com. v. Trefethan,* is an able and in- structive opinion, vindicating the right of a defendant, who was charged with the murder of a pregnant, unmarried woman, found dead, under circumstances indicating that she had been drowned, to introduce in evidence a letter written by the deceased to her mother, the day before her death, stating her condition, and her purpose to drown herself. Like decisions , 1 State V. Dart, 29 Conn. 153, 76 Am. Dec. 596; Siebert v. People, 143 111. 571, 32 N. E. Rep. 431 ; Ante, § 225. 2 Baltimore, etc., R. Co. v. State, to use of Chambers, 81 Md. 371, 32 All. Rep. 201. To the same effect. Lake Shore, etc., R. Co. v. Herrick, 49 Ohio St. 25, 29 N. E. Rep. 1052. So in Douglas V. Chapin, 26 Conn. 76, which was an action on a contract by which plaintiff's decedent contracted to act as captain of defendant's steam- boat, that was then at Sacramento, the court held that evidence was proper of the declaration of decedent, on leaving San Francisco, of his pur- pose to go to the boat. To same effect, Reg. V. Buckley, 13 Cox C. C. 293. 3 Kirby v. State, 7 Yerg. 258. * Contra, Reg. v. Wainwright, 13 Cox C. C. 171. In State v. Jones, 64 Iowa 349, 20 N. W. R. 470, 17 N. W. Rep. 91], which was a prosecution for murder, the court sanctioned the ad- mission of evidence that on the night before he was killed, the deceased de- clared his purpose to go the next morning to buy steers at the place where he afterwards met his death, as that evidence tended to show that he w'ent there on legitimate business. To the same effect, Farrarr. State, 29 Tex. App. 250, 15 S. W. Rep. 719. In State V. Howard, 32 Vt. 380, the defendant was charged with producing a miscar- riage on one Olive Ashe, which re- sulted in her death. Her twin sister was permitted to testify that it was understood between her and the de- ceased, when they left Sutton, that the latter should have an abortion pro- duced. State V. Dickinson, 41 Wis. 299, in which the declarations were held competent, was in its facts sub- stantially similar to the last case, ex- cept that the declarations preceded the act of going three days. 5 Com. V. Trefethen, 157 Mass. 180, 31 N. E. Rep. 961. § 278 RES GEST^. 331 upon quite similar facts are found elsewhere.^ In an Illinois case,^ the opposite conclusion was reached, but that case can be distinguished from the others on the ground that the pur- pose to commit suicide was expressed at a time remote from the death. § 278. Same subject — Mutual Life Insurance Co. v. Hill- mon. — One of the most important adjudications in recent years on the law of evidence is that of Mutual Life Insurance Co. v. Hillmon.' In that case suit was brought against the defend- ant insurance company on a policy issued to the plaintiff in- suring the life of her husband, John W. Hillmon. The plaint- iff introduced evidence tending to show that her husband was killed, while in camp in a remote part of Kansas, by the acci- dental discharge of a gun. The defense introduced evidence tending to show that the body found was that of his associate, Frederick Adolph Walters. The court held on appeal that let- ters were admissible in evidence, written by Walters to friends, in which he in substance announced his intention of starting* in a few days upon the journey with Hillmon. In holding these letters competent the court said: "A man's state of mind or feeling can only be manifested to others by counte- nance, attitude or gesture, or by sounds or words, spoken or written. The nature of the fact to be proved is the same, and evidence of its proper tokens is equally competent to prove it, whether expressed by aspect or conduct, by voice or pen. When the intention to be proved is important only as qualifying an act, its connection with that act must be shown, in order to war- rant the admission of declarations of intention. But whenever the intention is of itself a distinct and material fact in a chain of cir- cumstances, it may be proved by contemporaneous , oral or written declarations. The letters in question were competent, not as narratives of facts communicated to the writer by others, nor ^ Boyd V. State, 14 Lea 161 ; Black- ' Mut. Life Ins. Co. v. Hillmon, 145 burn V. State, 23 Ohio St. 146. U. S. 285, 12 Sup. Ct. Rep. 909. 2 Siebert v. People, 143 111. 571, 32 N. E. Rep. 431. 332 INDIRECT AND COLLATERAL EVIDENCE. § 279 yet as proof that he actually went away from Wichita, but as evidence that, shortly before the time when other evidence tended to show that he went away, he had the intention of go- ing, and of going with Hillmon, which made it the more probable both that he did go and that he went with Hillmon, than if there had been no proof of such intention." § 279. Declarations by deceased persons of other facts. — As we have already seen, the fact that a person is deceased, and therefore can not testify, does not, of itself, warrant the introduction of hearsay evidence. For this reason, many important disclosures of substantive facts made by deceased persons, their mental state not being in issue and the dec- larations not being connected with any litigated fact, are neces- sarily excluded. An Indiana case^ well illustrates this proposi- tion. In the case referred to, the following statement of the de- ceased, made a few minutes before he was killed, was held in- competent: "Doc, I am glad you have come; there are two ruffians going up the road, and they have threatened to take my life. I want you to go back with me."* In a New Jersey case,^ the court ruled that it was admissible to introduce in ev- idence a note written by the deceased to his wife, a few hours before leaving home, and on the night that the murder occur- red, in which he stated that he was going to a certain city, and that the defendant would accompany him.* The court put its ruling largely on the ground that the communication was a natural act to which there could attach no suspicion of an ulte- rior purpose. On the other hand, upon a subsequent appeal of a case already mentioned, in which the defendant stated he was going to Pine Mountain,^ the case was reversed, because, 1 Cheek v. State, 35 Ind. 492. ^ Hunter v. State, 40 N. J. L. 495. 2 To the same effect, see Montag v. * The cases of State v. Dula, Phillips People, 141 111. 75, 30 N. E. Eep. 337. (N. C.) Law, 211, and Territory v. In Schoolcraft v. People, 117 111. 271, 7 Couk, 2 Dak. 188, 47 N. W. Rep. 395, N. E. Rep. 649, and People v. Irwin, hold similar statements admissible. 77 Cal. 494, 20 Pac. Rep. 56, it was held ^ Kirby v. State, 9 Yerg. 383, 30 Am. that a statement by a deceased person Dec. 420. as to his fears was incompetent. § 280 ' RES GESTAE. 333 on the second trial, evidence was introduced of the statement of the deceased that the defendant was to be his companion. In reversing the case the court said: ''Wliether Kirby was to accompany him or not could not affect his intentions in going to the mountain, nor could his statement of that fact tend to explain his purpose in going there. His declaration of his own purpose is evidence because it explains his intentions, and his intentions constitute a part of the thing he was doing. * * * But it is impossible that Kirby's going with him could constitute any part of the thing which he was doing, which was his own journey." To comment upon this case, it may be said that it is difficult to discriminate between a decla- ration of a purpose to go to a certain place and a declaration of an intent to accompany another to that place. Doubtless, as suggested in Mutual Life Insurance Co. v. Hillmon,^ the dec- laration could only be treated as suppletory to other evidence, for the principal act must always be established by direct proof ,^ but it would seem reasonably clear, in the light of other au- thorities, that the evidence ought to serve the function of res gestae. The court in the case under consideration drops into the rather common error of overlooking the fact that the con- dition of the mind, where material to be considered, is itself a principal fact, which may be explained by declarations. Peo- ple V. Williams^ is a case in which a like statement was held inadmissible by Denio, J., the reason assigned being that the evidence was offered " to induce the jury to infer another act not otherwise shown to exist, that of his being in company with the deceased." § 280. Declarations showing fraud. — In this class of cases mental condition is the most important element, and as fraud is not only a subjective matter but seeks to hide itself, it is evident that the courts must give a range to the investigation which is only limited to reasonable inferences on the one side 1 Mutual Life Ins. Co. v. Hillmon, ' People v. Williams, 3 Abb. N, Y. 145 U. S. 285, 12 Sup. Ct. Rep. 909. Ct. of App. Dec. 596. 2 White?;. Rayburn, 11 Ore. 450, 5 Pac. Rep. 345. 334 INDIRECT AND COLLATERAL EVIDENCE. § 280 and a consideration of the rights of the beneficiary of the act, if lie be an innocent person, on the otlier. There is a line of English cases in which declarations disconnected with any act, made by persons leaving the realm, are held competent as tending to prove that the act of leaving was an act of bank- ruptc}^' It is upon this line of cases that Mr. Taylor, in his work on evidence, bases his proposition already quoted that declarations need not be concurrent in point of time. The first of these cases, Bateman v. Bailey,^ has been charged, by a writer in the American Law Review,' with the parentage of Com. V. McPike,* Insurance Company v. Mosely,' and the rest of that brood of ill-considered cases in which hearsay statements have been admitted in evidence under the guise of res gestse. But it is suggested that the learned critic has over- looked the fact that the English cases he criticises involve questions as to the state of the mind at a given time, and are to be broadly distinguished from cases where the res gestae is admitted merely as illustrative of an overt act into which intent does not enter. In a comparatively recent case^ the Supreme Court of the United States has recognized this line of English cases as correct adjudications, and has put the admissibility of that class of declarations upon the right ground.' The admissibility of declarations by alleged fraudu- ^ Bateman v. Bailey, 5 T. R. 512; poses of a mind, and where that Rawson v. Haigh, 9 Moore 217, 2 mind has made careful effort to Bing. 99; Smith v. Cramer, 1 Scott conceal the evidence of its pur- 541, 1 Bing. N. C. 585. poses. The case mentioned was a suit 2 Bateman ■(;. Bailey, 5 T. R. 512. on a life insurance policy insuring 3 Article on Bedingfield's Case, 14 the life of one Tyler in favor of Am. L. Rev. 817, 15 Am. Law Rev. 1, the plaintiff, who was his creditor. 71. The insurance was procured by *Com. V. McPike, 3 Cush. 181. Tyler. The company defended on ^Ins. Co. •?;. Mosely, 8 Wall. 397. the theory that the deceased had ^Mutual Life Ins. Co. v. Hillmon, taken out the insurance with the 145 U. S. 285, 12 Sup. Ct. Rep. 909. fraudulent purpose to commit suicide 'The case of Smith v. National and that he had consummated such Benefit Asso., 123 N. Y. 85, 25 N. E. purpose. In discussing the admissi- Rep. 197, is a case which is strongly bility of the acts and declarations of illustrative of the lengths courts must Tyler prior to the taking out of the go in the pursuit of evidence in cases insurance the court said: "The evi- where the inquiry relates to the pur- dence serves to indicate the origin V2S1 RES GESTiE. 335 lent grantors will be considered in a subsequent portion of this chapter.^ § 281. Declarations of testator. — In cases where the courts are called on to gauge the mental capacity of a testator, not only are his contemporaneous declarations evidence, but his prior and subsequent declarations are also admissible.^ There and motive of the alleged suicidal intent, which grew to be the effective agency of the fraud. In the same connection the witness was permitted to detail inquiries which Tyler made of Sutkin as to the easiest mode of producing death. These inquiries were rather acts than declarations, and show the assured in the process of acquiring information to effect easily and swiftly the destruction of his own life. Similar testimony of an intent to commit suicide, rather than endure poverty or hard labor, was given by the witness, Trested, but in connection with inquiries about insurance, and with an en- deavor to get into a benefit society connected with the hat trade. The witness added Tyler's declaration that he intended to put a large in- surance upon his life, and make the boys happy. These acts and declara- tions all occurred before the plaintiff took his policy as collateral, and when they affected no one but Tyler himself. They tended to show the oi'igin and progress of the fraudulent intent, the manner of its growth, and the motive from which it sprang. They indicate a sane and deliberate purpose, moving steadily to its re- sult, and constitute a part of the his- tory of the fraud. They were con- temporaneous with the fraud in its formative stages ; they accompanied Tyler's efforts to raise money, which failed, and to procure an insurance upon his life which he knew he could not continuously maintain. They show the motive of the fraud, and mark its progress, and harmonize so completely with all which afterwards occurred as to constitute, with that element of the single transaction, the fraudulent conduct which raised the issue presented by the defense. And so I think the proof came fairly with- in the rule relating to the res gestce, and did not transcend its limits. Some of this evidence was resisted upon the ground that death by suicide was no defense under the terms of the policy. That is true, but the de- fense was fraud, and suicide the ulti- mate agency by which the fraud was accomplished. It was necessary, therefore, to prove it, and in such manner as to indicate that it was not an insane or sudden impulse, but the culmination and effective working out of a deliberately conceived pur- pose of fraud. "We think no error was committed in the admission of the evidence upon which the jury acted." Some discussion of the ad- missibility of proof of collateral fraud will be found in the chapter on Col- lateral Evidence. ^ Post, § 288. 2 In Waterman v. Whitney, 11 N. Y. 157, 62 Am. Dec. 71, Selden, J., offers the following criticism upon Professor Greenleaf's statement of the law upon this subject: " Mr. Greenleaf, in his work on evidence, in treating of the invalidity of wills, in consequence of the insanity or mental imbecility of 336 INDIRECT AND COLLATERAL EVIDENCE. §281 is a special reason why prior declarations are competent in such cases : this results from the fact that where chronic in- sanity is once shown to exist, its continuance is presumed. If a declaration throws any light upon the question as to a testa- tor's mental condition, it is not to be rejected merely because in form the statement may be incompetent, for it can be disre- garded as substantive evidence of the fact stated, and only re- garded for the purpose which makes it admissible.' The inves- tigation of an issue of fraud or undue influence often requires an inquiry into the strength of the mind of the testator, and for that purpose evidence may be introduced in such cases of his declarations,^ but such statements, unless comprehended within the res gestas of the execution of the will, are incompetent, as state- ments of substantive facts, to prove fraud or undue influence.' the testator, says : * In the proof of insanity, though the evidence must relate to the time of the act in ques- tion, yet evidence of insanity imme- diately before or after the time is ad- missible. Suicide, committed by the testator soon after making his will, is admissible as evidence of insanity, but is not conclusive,' and in the same section he adds : ' The declarations of the testator himself are admissible only when they were made so near the time of the execution of the will as to become a part of the res gestcz,' and he refers for the last proposition to Smith V. Fenner, supra, 2 Greenleaf on Ev., § 690. Nothing could be more incongruous than the different branch- es of this section To say that the insanity of the testator subsequent to the making of the will may be proved, but that the declarations of the testa- tor are inadmissible for the purpose of proving it, is not a little extraordi- nary. It admits the fact, but ex- cludes the most common and appro- priate evidence to establish it." ^ Shailer v. Bumstead, 99 Mass. 112; Rambler v. Tryon, 7 Serg. & R. 90, 10 Am. Dec. 444, McTaggart v. Thomp- son, 14 Pa St. 149 ; Dennis v. Weekes, 51 Ga. 24. * 1 Jarman on Wills, 36 ; AVaterman V. Whitney, 11 N. Y. 157, 62 Am. Dec. 71. 'Jackson v. Kniffen, 2 Johns. 31, 3 Am. Dec. 390; Bates v. Bates, 27 Iowa 110, 1 Am. Rep. 260; Comstock v. Hadlyme, etc., Society, 8 Conn. 254, 20 Am. Dec. 100; Moritz v. Brough, 16 S. &R. 403; Gibson v. Gibson, 24 Mo. 227; Hayes v. West, 37 Ind. 21 ; Con- way V. Vizzard, 122 Ind. 266, 23 N. E. Rep. 771. In Waterman v. Whitney, 11 N.Y. 157, 62 Am. Dec. 71, tlie court said: "The difference is certainly very obvious between receiving the declarations of a testator to prove a distinct external fact, such as duress or fraud, for instance, and as evidence merely of the mental condition of the testator. In the former case it is mere hearsay, and liable to all the objections to which the mere decla- rations of third persons are subject; while in the latter, it is the most di- rect and appropriate species of evi- dence." §281 RES GEST^, 337 The imperfectly reported case of Nelson v. Oldfield' would seem to be an authority in opposition to the last proposition, but the cases in this country are practically a unit in holding to the doc- trine laid down above. A testator can not, of course, abrogate the statute and revoke his will by mere declarations,' but such evi- dence is competent if it is a part of the res gestse of the overt act of revocation/ Statements by testators are often sought to be introduced as admissions, upon the theory that while yet in life their declarations affect no vested interests but their own. It is entirely settled, however, as the testator is not a party to a contest concerning his will, that no statement of his can be in- troduced on the ground that it is an admission.* Such state- ments are not in the nature of declarations in disparagement of title, but they are to be likened to the declarations of a grantor, after grant, in limitation of his grant, and are strictly hearsay.^ Moreover, public policy demands that the exercise of the important privilege of directing the transmission of property after death, hedged about, as it is, by rigorous statu- tory provisions designed to prevent imposition, should not, when the testator can no longer speak, be rendered nugatory by means of parol evidence. Even declarations which are strictly contemporaneous with the execution of the instrument are discarded where the purpose of their introduction is to con- tradict the instrument, because '' a will must be understood to contain the testator's whole mind and intention on the subject- matters of the devise."' '' This exclusion," says Mr. Redfield ^ Nelson v. Oldfield, 2 Vern. 76. 620 ; Stevens v. Vancleve, 4 Wash C Jackson V. Kniffen, 2 Johns. 31, C. 262; Hayes ^. West, 37 Ind. 21 • 3 Am. Dec. 390; Waterman «. Whit- Moonev v. Olsen, 22 Kan. 69- In re ney, 11 N. Y, 157, 62 Am. Dec. 71; Pemberton, 40 N. J. Eq 520 4 Atl Randalls Beatty, 31 N.J. Eq. 643; Rep. 770, affirmed, Pemberton .." Lewis V. Lewis, 2 Watts & S. 455; Pemberton, 41 N.J. Eq 349 7 Atl Hargroves .. Redd, 43 Ga. 142; Rodg- Rep. 642; Dan v. Brown, 4 Cow 483' ers V. Rodgers, 6 Heisk. 489; Gay v. 15 Am. Dec. 395 ' ' Gay, 60 Iowa 415, 14 N. W. Rep. 238, « See cases in preceding note. t ^^ .'^;P'^^°^*^ "■ ^^^"' ^^^- '1 K^^^fi^Jd on Wills, star p. 538. H. 475, 3 Atl. Rep. 604; Caeman v. ^Mooney v. Olsen, 22 Kan 69 Tan Harke, 33 Kan. 333, 6 Pac. Rep. 63 Phil, on Ev. (1849 ed ) 350 ' 22 — Ev. 338 INDIRECT AND COLLATERAL EVIDENCE. § 282 in his work on wills/ "rests upon the general principle de- clared in all the reports, from Cheney's Case to the present day, that no parol evidence can be received to contradict, ex- plain, supply, enlarge or qualify the words of a will, nor to explain the intention of a testator, except in the instance of a latent ambiguity, arising de hors the instrument, either as to the subject or the object of a bequest, and to rebut a resulting trust. "^ Many instances are afforded by the cases of declara- tions by testators which have been held competent, but, aside from statements accompanying equivocal acts, the character of which is drawn in question, it will be found that in each in- stance the declaration owes its competency to the fact that it sheds light on the testator's mental condition,' or aids in the designation of the subject or object of the devise, or is supple- tory of the will, or rebuts an equity, or tends to countervail the effect of evidence of the latter character.* § 282. The res gestae in questions of domicile.— Questions of domicile often require a minute inquiry into the particulars of private life. Habits, character, business, social and domes- tic relations, are often comprehended within the res gestse.^ Declarations upon this subject, to be competent, must be ex- planatory of acts,® and should ordinarily accompany, or be ^ Star p. 539. made before, at the time of, or so soon * A discussion of the question as to after the act, as to be within the res how far courts will go in their efforts gestce. Harness v. Harness, 49 Ind. to effectuate the true intent of the tes- 384 ; Thistlewaite v. Thistlewaite, 132 tator as shown upon the face of the Ind. 355, 31 N. E. Rep. 946. In Zeig- will, would carry us too far afield. A ler v. Eckert, 6 Pa. St. 13, 47 Am. valuable note on this subject follows Dec. 428, it was held that the declara- the case of Goode v. Goode, 22 Mo. tions of a testator both before and 518, as reported in 66 Am. Dec. 630. after the execution of a will were * Moore v. McDonald, 68 Md. 321, 12 competent to fortify the presumption Atl. Rep. 117; 1 Redfield on Wills, of the ademption of a legacy. star p. 568 ; 2 Whart. on Ev., § 1012. 5 Fulham v. Howe, 62 Vt. 386, 20 *2 Taylor on Ev., § 1203, et seq.; 1 Atl. Rep. 101; Hallet ^j. Bassett, 100 Redfield on Wills, star p. 593, ef seg.; Mass. 167; Thayer v. Boston, 124 2 Whart. on Ev., § 992, et seq. Dec- Mass. 132, 26 Am. Rep. 650. larations of an ancestor to show an ^Gourlay v. Gourlay, 15 R. I. 572, advancement must be limited to those 10 Atl. Rep. 592. § 283 RES GEST^. 339 closely associated with, a more or less ambiguous act, which it is material to inquire into.^ § 283. Evidence of affection — Proof of marriage. — Where it is material to prove the feelings of an individual towards an- other at a certain time, it is proper to receive in evidence the expressions used by the individual, so far as the same are in- dicative of such feelings. And so in actions for criminal con- versation, the declarations of the wife showing the terms upon which she lived with her husband are regarded as original ev- idence,' but to avoid the danger of collusion, such declarations as are made by the wife subsequent to her misconduct are ex- cluded.* The fact that a man and woman appear and are received in society as man and wife, their cohabitation, the recognition of their offspring as legitimate, and their conduct towards each other generally, constitute competent evidence of the marriage relation.* The admission of such evidence may rest on different grounds in different cases, as, for instance, as against one of the parties, his own conduct may be looked upon as an admission ; or conduct indicative of marriage may ^Wrightu. City of Boston, 126 Mass. Trelawney v. Coleman, 1 B. & Aid. 161; Pickering v. City of Cambridge, 90; Hoaliston v. Smyth, 2 C. & P. 22. 144 Mass. 244, 10 N. E. Rep. 827; Viles It was held, in State v. Punshon, 124 V. City of Waltham, 157 Mass. 542, 32 Mo. 448, 27 S.W. Rep. 1111, and State N. E. Rep. 901, 34 Am. St. Rep. 311; v. Swift, 57 Conn. 496, 18 Atl. Rep. Fulham v. Howe, 62 Vt. 386, 20 Atl. 664, where the defendant was charged Rep. 101. See Mutual Life Ins. Co. with the murder of his wife, that he V. Hillmon, 145 U. S. 285, 12 Sup. Ct. could not prove his declaration, made Rep. 909 ; Bateman v. Bailey, 5 T. R. prior to the homicide, that he was 612; Rawson v. Haigh, 9 Moore 217, greatly attached to his wife. 2Bing. 99; Smith ?;. Cramer, 1 Scott * Gaines v. Relf, 12 How. 472; 541, 1 Bing. N. C. 585. Thorndell v. Morrison, 25 Pa. St. 326; 2 Trelawney v. Coleman, 1 B. & Al. Bissell v. Bissell, 55 Barb. 325 ; Owens 90; Winter v. Wroot, 1 M. & Rob. v. State, 94 Ala. 97, 10 So. Rep. 669; 404; Elsam v. Faucett, 2 Esp. 562; Harman v. Harman, 16 111. 85, 2 Thompson v. Trevanion, Skin. 402; Greenleaf onEv., §462. Such evidence Gilchrist v. Bale, 8 Watts 355, 34 Am. is not competent, except possibly by Dec. 469; Mutual Life Ins. Co. v. way of suppletory proof, in criminal Hillmon, 145 U. S. 285, 12 Sup. Ct. actions like bigamy, where proof of an Rep. 909. actual marriage is regarded as a part 3 Wilton V. Webster, 7 Car. & P. of the corpus delicti. 198; EdM^ards v. Crock, 4 Esp. 39; 3-10 INDIRECT AND COLLATERAL EVIDENCE. § 284 amount to proof of that fact under the maxim omnia praesum- untur rite esse acta; or, in case secondary evidence is admissi- ble, the conduct of the parties may amount to declarations of pedigree, but in nearly every case the claim for the admissi- bility of the evidence may also be placed on the ground that it is a part of the 7^es gestse. § 284. Certain analagous res gestae topics suggested but con- sidered elsewhere. — The subject of the competency of proof of declarations and acts to show mental state or intent has now been considered at some length, but the subject is not ex- hausted ; in fact it opens up a vista of topics, such as motive, threats, collateral circumstances and other topics, which might be treated as res gestse. It is deemed that the arrangement of this volume will be more practical, if not more logical, if many of these topics are considered in other connections. The prime purpose of a number of preceding sections, and of the suggestion of the res gestse topics mentioned in this section, has been to enforce upon the professional mind the fact that in inquiries involving mental state or intent "it is impossible," in the language of Best, C. J., already quoted, "to tie down to time the rule as to the declarations." In none of the classes of cases mentioned is the doctrine discarded that the act or declaration sought to be shown must be connected with the principal act, but when a court must perforce ascertain the mental state of a person at a particular time, it must do so much as an individual would trace the course of a subterranean stream, by its surface manifestations. Such a stream sinks into the ground, and a short distance further a stream of about the same volume, and seemingly flowing in the same direction as the first, appears, and the inference is drawn that it is the same stream; and so with declarations separated from the main act in questions of mental state — the two must be con- nected, if the declaration is admitted, but the connection be- tween the two, because of the subjective character of the investigation, is necessarily one of inference. § 285 RES GESTAE. 341 § 285. A limitation upon declarations where mental state is involved. — The doctrine of declarations as indicative of mental state narrows considerably where the declarant is a party to the suit and seeks to introduce such declarations in his own favor. If the ''mind stands in an even position, without any temptation to exceed or fall short of the truth" some latitude may be given to the admission of declarations, but it is, no doubt, a good practical rule, subject to few exceptions, to ex- clude all declarations by a party not made ante litem motam, except where so closely associated with a material, equivocal act as to make it reasonably certain that the two are connected. As laid down by the Supreme Court of Massachusetts:^ ''The danger that declarations may have been made for a purpose, when they are sought to be introduced in evidence in favor of the person making them, has led to the exclusion of them, even on the issue of what was the intention or state of mind of the declarant, unless they are made under such circumstances as to give them some corroboration. In general such corrobo- ration is found in the fact that they accompany and explain acts which of themselves would be competent evidence on the issue involved. They are then admissible as a part of the res gestic." n; 286. The res gestae in business transactions. — The rule concerning the admissibility of the res gestse is frequently in- voked where courts have occasion to inquire into business transactions. In this class of cases, however, the rule meets with a considerable limitation because of the counter rule that in the absence of fraud or mistake a written contract, as between the parties, merges all prior oral negotiations leading up to its execution. In case, however, of a lost instrument, where it is material to ascertain its contents, the declarations of the parties at the time of its execution have been held ad- missible.^ In questions of fraud or bona fides it is proper to 'Viles V. City of Waltham, 157 ^Kent v. Harcourt, 33 Barb. 491. Mass. 542, 32 N. E. Rep. 901, 34 Am. St. Rep. 311. 342 INDIRECT AND COLLATERAL EVIDENCE. § 286 admit the conversation which attended the negotiation, in order to obtain a view of the whole transaction.^ In one case, where the defendant was charged with fraudulently rep- resenting in the sale of a mortgage that it was a first mortgage, it was held proper for him to prove that when the mortgage was made out (presumably as tending to show his supposition that he was obtaining a first lien), he stated to the mortgagor that he did not want a covenant in the instrument against in- cumbrances, as that might prejudice its sale.^ Whenever there is a material fact of a business nature, the character of which is in question, it is proper to show the accompanying declarations by the parties to the transaction. Where a person went upon a piece of land and surveyed it, it was held competent to prove that he then declared his intent to take possession, the question of intent being material.* So in another case it was held proper to introduce the accompanying declarations to elucidate the character of a delivery of property.* An interesting case on the subject of business declarations is Monroe v. Snow.^ In that case the controversy was as to whether the defendants had authorized plaintiffs to sell their property at the reduced price of $90,000. One of the plaintiffs had testified to such authority, and it was held competent for him to further testify, and introduce his sales book in corroboration of his statement, that at the time such authority was given, and in the presence of the defendant, he opened the book at the place where the property was already listed and entered the date, October 31, 1885, and a cipher mark indicating to witness ^Tenney v. Evans, 14 N. H. 343, 40 land should be conveyed to her by Am. Dec. 194; Bank tJ. Kennedy, 17 her husband which was done on the Wall. 19; Sanger v.Colbert,84 Tex. 668, same day. Mitchell v. Colglazier, 19S.W. Rep. 863. In a suit to set aside 106 Ind. 464, 7 N. E. Rep. 199. a conveyance as fraudulent, evidence ^Cronkhite v. Dickerson, 51 Mich, was held admissible on behalf of the 177, 16 N. W. Rep. 371. Cooley, J., grantee, who was the wife of the dissented. grantor, that when she learned that ^Stephen v. McCloy, 36 Iowa 659. a prior conveyance of the property *Fellman t\ Smith, 20 Tex. 99. had been taken in her husband's ^ Monroe v. Snow, 131 111. 126, 23 N. name, she declared that her money E. Rep. 401. paid for it, and demanded that the § 287 KES GEST^. 343 and his partner that the property might be sold for $90,000.^ This case should be distinguished from a line of cases else- where mentioned/ holding a mere memorandum to be inadmissible, for the reason that in the above case the placing of the mark upon the book was a part of the transac- tion itself.' Even what third parties say to a person, pro- vided the evidence shows that their statements were acted on, may be admissible, where the admission of such declarations tends to prove good faith. Thus, in a Massachusetts case, evidence was permitted, in order to prove good faith, that a certain statement was made, on the margin of a note, by the instruction and advice of the comptroller.^ § 287. The res gestae in criminal cases. — Where an act is one of alleged criminality, and the accompanying declaration tends to elucidate and explain the act and show it to be inno- cent, the declaration is admissible in evidence.* A person who is charged with larceny may explain the circumstances of his possession, by showing the negotiation under which he ob- tained the property.* And he may also show his declarations when found in such possession. The act of coming into the ^ See also Reviere v. Powell, 61 Ga. defendant to prove that at the time 30, 34 Am. Rep. 94. In North Bank v. he attacked the prosecuting witness Abbot, 13 Pick. 465, the question was he declared that three years before he whether notice of non-payment had had been assaulted by the latter, and been given to the indorsee of a that he was then having hia revenge note. The bank messenger had ab- for it. sconded. An entry in his book ^ State v. Jordan, 70 Iowa 760, 29 showed the name of such indorsee, N. W. Rep. 430. In Com. v. O'Con- followed by a cipher mark which in- nor, 11 Gray 94, the evidence showed dicated, according to the custom of that a drainer — an implement used in the bank, that the indorsee had been the liquor traffic— was found in the notified. Held proper. defendant's possession, and that cir- ^Ante, § 186. cumstance was relied on, among oth- ^ Corcoran v. Batchelder, 147 Mass. ers, as proof of the fact that he was a 641, 18 N. E. Rep. 420. common seller. The court held that *Mack V. State, 48 Wis. 271, 4 N.W. it was proper for the defendant to show Rep. 449 ; Hamilton v. State, 36 Ind. the direction he gave to the maker as 280, 10 Am. Rep. 22. In the latter to the form in which he desired it, and case the defendant was prosecuted for his accompanying declaration as to the robbery. It was held proper for the purpose he intended it for. 344 INDIRECT AND COLLATERAL EVIDENCE. § 287 possession of stolen property, and being found in such posses- sion (from either of which a presumption may arise that such possessor is the thief), are acts of an equivocal character, which the defendant is entitled to explain by his contempora- neous declarations, but the weight of authority excludes his declarations in the meantime, for the reason that the defend- ant is not especially called on to explain his possession in the interim, and, since such an explanation is as likely to be born out of a calculating policy on the part of the defendant as otherwise, it is deemed best to exclude the declaration/ Where the evidence on behalf of the defendant tended to show that at the time of the larceny of a valise and contents he was in an- other state, it was held that he was entitled to prove that upon his return home, and as soon as he discovered the valise, he asked his wife the question, "Whose valise is that?"^ So, in a Michigan larceny case, where the state proved that the defend- ant drove the stolen horse and buggy to a certain livery stable, the court held that the defendant might show the explanation made at the time, on the ground that the state had proved a material equivocal act, and the defendant was entitled to the accompanying explanation.^ It is not the intention at this time to discuss the law concerning proof of collateral crime,* but it may be here said that where immediately after the mak- ing of an assault upon one person the defendant assaults an- other, the latter act is a part of the res gestae of the former, at least if it tends to explain the former act or is necessary to a full understanding of it.® ^ Hampton v. State, 5 Tex. Ct. App. * Arite, § 57. 463; Henderson v. State, 70 Ala. 23, ^ people v. Pallister, 138 N. Y. 601, 45 Am. Rep. 72; 2 Bishop's Cr. Pro. 33 N. E. Rep. 741; State v. Gainor, 84 746. See State v. Young, 41 La. Ann. Iowa 219, 50 N. W. Rep. 947 ; Smith 94, 6 So. Rep. 468; Stockman V. State, v. State, 88 Ala. 73, 7 So. Rep. 52. 24 Tex. App. 387, 6 S. W. Rep. 298; See People v. Cunningham, 66 Cal. Goens v. State (Tex. Cr. App.), 31 668, 4 Pac. Rep. 1144, 6 Pac. R. 700 S. W. Rep. 656. and 846; State v. Craemer, 12 Wash. 2 Henderson v. State, 70 Ala. 23. 217. 40 Pac. Rep. 944. 'People V. Shepard, 70 Mich. 132, 37 N. W. Rep. 925. § 288 RES GEST.E. 345 § 288. Declarations of grantor where fraud is charged. — It is to be recollected that a person who seeks to set aside a con- veyance as fraudulent takes upon himself the affirmative of a dual issue, namely, the fraud of the grantor, and the purchase by the grantee under circumstances that vitiated the convey- ance. As respects the first issue, it is apprehended that any act or declaration of the grantor may be shown which would be reasonably comprehended within the res gestse of any in- quiry where intent was involved.^ There is a want of har- mony in the cases as to the extent of the right to prove the prior acts and declarations of the grantor, in the absence of the grantee, and while it is clear that the remote acts and declara- tions of the former are to be excluded as 7'es inter alios acta, yet a perusal of the preceding pages of this chapter, and a study of the cases cited in support of the text, will show that the res gestse of the inquiry in fraudulent conveyance cases is much broader than the circumstances immediately connected with the actual transfer. In this connection the rule, heretofore dwelt upon,^ is to be recollected, that wherever a material, equivocal act is shown, it is proper to show the accompanying declarations of the parties to it. There are a few authorities which sanction the introduction of the mere admissions of the grantor to establish the issue of fraud as to him.^ This does not seem like the correct view. While it is true, as already stated, that the issue is a dual one, yet that does not mean that it is proper to prove the fraud of the grantor by any evi- dence which would be competent as to him alone, and that then, if evidence can be found sufficient to infect the grantee with such alleged intent on the part of the grantor, the issue of fraud is sufficiently proved. It is of the last importance to 1 Klein y. Hoffheimer, 132 U.S. 367, §280. Other transfers of property 10 Sup. Ct. Eep. 130; Pease -y. Batten, by the debtor at or about the same 56 Hun 643, 9 N. Y. Supp.621 ; Taylor time are competent to show his in- V. Robinson, 2 Allen 562; Lowe v. tent. Ante, ^ 80. Dalrymple, 117 Pa. St. 564; O'Hare '^Ante, §242. V. Duckworth, 4 Wash. 470, .30 Pac. ^Uogan v. Robinson, 94 Ind. 138; Rep. 724; Grimes v. Hill, 15 Colo. Hunsinger v. Hofer, 110 Ind. 390, 11 359, 25 Pac. Rep. 698; Bump on N. E. Rep. 463; Sloan v. Coburn, 26 Fraudulent Conveyances, 582, ante Neb. 607, 42 N. W. Rep. 726. 346 INDIRECT AND COLLATERAL EVIDENCE. § 288 the rights of the grantee that the grantor's fraud, if any, shall only be established by evidence which will bind him, the grantee. He has traversed the allegation that the grantor made the conveyance with a fraudulent intent, and of a surety the grantee is entitled to insist that his denial shall only be over- come by competent proof as to him.^ When the conveyance is a completed transaction, there is another reason why the grant- or's declarations (that is, such declarations as are not res gestae) ought not to be received, and that is that the grantor can not be permitted to impeach his own conveyance.^ Two exceptions exist as to this rule : First, where it is shown by the evidence that there is a subsisting conspiracy^ and according to the bet- ter doctrine the declarations must be made pursuant to, and in the execution of, the common design;* second, where the grantor is permitted to remain in possession of the property. This is put on the ground that the grantor's continued man- agement shows those acts which naturally and usually flow ^ Gates V. Mowry, 15 Gray 564; Burnham v. Brennan, 74 N. Y. 597; Lewis V. Eice, 61 Mich. 97, 27 N. W. Rep. 867 ; Thompson v. Mawhinny, 17 Ala. 362; McLemore v. Powell, 32 So. Car. 582, 10 S. E. Rep. 827; Gill v. Stozier, 32 Ga. 688 ; Welcome v. Mitch- ell, 81 Wis. 566, 51 N. W. Rep. 1080, 29 Am. St. Rep. 913; Taylor v. Lusk, 9 Iowa 444 ; Benson v. Lundy, 52 Iowa 265 ; Dunaway v. School Directors, 40 111. 247. 2 Farmers' Loan and Trust Co. v. Montgomery, 30 Neb. 33, 46 N. W. Rep. 214; Koch v. Lyon, 82 Mich. 513, 46 X. W. Rep. 779; Adler v. Apt, 30 Minn. 45, 14 N. W. Rep. 63; Josephi V. Furnish, 27 Ore. 260, 41 Pac. Rep. 424; Chase, Admr., v. Horton, 143 Mass. 118, 9 N. E. Rep. 31; Crust v. Evans, 37 Kan. 263, 15 Pac. Rep. 214; Ganong v. Green, 71 Mich. 1, 38 N. W. Rep. 661 ; Benson v. Lundy, 52 Iowa 265, 3 N. W. Rep. 149; Allen v. Kirk, 81 Iowa 658, 47 N. W. Rep. 906; Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 638; Bump on Fraudu- lent Convej'^ances, 587, and cases cited. See, ante, § 31. In McDowell V. Goldsmith, 6 Md. 319, 61 x\m. Dec. 305, subsequent declarations were ad- mitted as against the grantee in a case where they were made so soon after the transfer as to be approximately within the res gestce. And see, to same effect, Klein v. Hoffheimer, 132 U. S. 367, 10 Sup. Ct. Rep. 130. ' Bump on Fraudulent Conveyances, 585; Hunsinger v. Hofer, 110 Ind. 390, 11 N. E. Rep. 463; Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 638; Josephi v. Furnish, 27 Ore. 260, 41 Pac. Rep. 424; Souder r. Schech- terly, 91 Pa. St. 83; De France v. Howard, 4 Iowa 524. 4 Allen V. Kirk, 81 Iowa 658, 47 N. W. Rep. 906 ; Rogers v. Thurston, 24 Neb. 326, 38 N. W. Rep. 834. See, ante, § 28. § 289 KES GEST^. 347 4 from, accompany and tend to evince ownership, and therefore his declarations are competent in explanation of his posses- sion.^ In a Vermont case^ where it was claimed that a judg- ment was collusive, and the proof showed that the execution plaintiff had for a long time permitted his execution to lie dor- mant, it was held that the trial court properly received evi- dence that the execution defendant had repeatedly stated that he was as much the owner of the land as he was before the levy. In disposing of the question the court said : "We see no reason why one who, -upon taking the title to real estate, leaves the former owner in the complete control and enjoyment which ordinarily accompany ownership, should not be required to meet in evidence, when the validity of the transaction is questioned, the declarations made in connection with, and in characterization of, the possession thus permitted.'" § 289. Declarations of person in possession in favor of liim- self or another. — This subject is one which the cases have to a considerable extent tended to confuse, although, upon a care- ful consideration, the principle upon which the doctrine rests will be apparent. It is this: Whenever it becomes material to examine into an equivocal act, the declarations of the actors which accompany that act are res gestse. This rule finds fre- quent application in cases involving the character of the possession of real or personal property. In an ejectment or iSee next section. Eedfleld v. ^gpaiding v. Albin, 63 Vt. 148, 21 Buck, 35 Conn. 328, 95 Am. Dec. 241 ; Atl. Rep. 530. IMerriam v. Swensen, 42 Minn. 383, 45 ^ Where an action was brought to ISI. W. Rep. 960; Spalding ??. Albin, 63 condemn certain diamonds as forfeit- Vt. 148, 21 Atl. Rep. 530; Pomeroy v. ed under the customs revenue law, Bailey, 43 N. H. 118; Hardy y. Moore, and it appeared that if the claimant 62 Iowa 65, 17 N. W. Rep. 200; Fried- was the owner, he must have put the enstein v. United States, 125 U. S. diamonds into the custody of one S., 224, 8 Sup. Ct. Rep. 838; Bump on it was held that her declarations at Fraudulent Conveyances, 589, and the time of the investigation and seiz- cases cited ; Tedrowe v. Esher, 56 Ind. ure by the officers were competent evi- 443 ; Daniels v. McGinnis, 97 Ind. 549 ; dence. Friedenstein v. United States, Loos V. Wilkinson, 110 N. Y. 195, 18 125 U. S. 224, 8 Sup. Ct. Rep. 838. N. E. Rep. 99; McDonalds. Bowman, 40 Neb. 269, 58 N. W. Rep. 704. 348 INDIRECT AND COLLATERAL EVIDENCE. §289 replevin case the question would ordinarily be one of title, in which the element of the character of the possession would be immaterial. In such a case the admission of evidence of declarations relating to the possession or ownership would be clearly improper, but if the question arose, under a plea of the statute of limitations, as to whether defendant's possession was adverse, or whether he held in his own right, his contempo- raneous declarations would afford the best manifestation thereof, and would therefore be competent.^ In a case where the evidence discloses that some third person is in possession of the property, his possession unexplained would afford some evidence of title in himself, and, therefore, the quality of his possession coming in issue, it is proper to show the declara- tion of the possessor that one of the claimants, or some third person, is the owner of the property.^ Where the character of the possession is not in issue, such evidence is incompetent.* To be admissible, the declaration must be made at the time of ^Jackson v. McVey, 15 Johns. 234; Brown v. Kohout, 61 Minn. 113, 63 N. W. Rep. 248; Lamoreux v. Huntley, 68 Wis. 24, 31 N. W. Rep. 331 ; Lochau- sen V. Laughter, 4 Tex. Civ. App. 291, 23 S. W. Rep. 513. See Sparrow v. Hovey, 44 Mich. 63. The payment of taxes has been characterized as "pow- erful evidence" of a claim of right. Wren v. Parker, 57 Conn. 529, 18 Atl. Rep. 790, 14 Am. St. Rep. 127, and see Ewing V. Burnet, 11 Pet. 41 ; Farrar v. Fessenden, 39 N. H. 268; Paine v. Hutchins, 49 Vt. 314. ^ Avery v. Clemons, 18 Conn. 306, 46 Am. Dec. 323; Bradley v. Spofford, 23 N. H. 444, 55 Am. Dec. 205 ; Doe v. Pettett, 5 B. & Aid. 223; Doe v. Rick- arby, 5 Esp. 4; Abney v. Kings- land, 10 Ala. 355, 44 Am. Dec. 491 ; Kirkland v. Trott, 66 Ala. 417 ; Ten- ney v. Evans, 14 N. H. 343, 40 Am. Dec. 194, and see the many cases cited in People v. Vernon, 35 Cal. 49, 95 Am. Dec. 49, 70, 71. See preceding sec- tion as to declarations of possessor in his own favor. In Cobbej'^ on Reple- vin, § 987, it is said : "Declarations of a party in possession, or explanatory of the title he is claiming, may be given in evidence by himself or those holding under him, where either of these matters is properly in issue. But they are proof only that such was the character of the possession or such was the title claimed. They are no evidence of the title actually held; and where the issue is not what was the nature of the possession, nor what was the title claimed, but which party, plaintiff or defendant, was the actual owner, such declarations are inadmis- sible." ^Robbins v. Spencer, 140 Ind. 483, 40 N. E. Rep. 263, 38 N. E. Rep. 522; Abney v. Kingsland, 10 Ala. 355, 44 Am. Dec. 491 ; Charter v. Lane, 62 Conn. 121, 25 Atl. Rep. 464. §290 RES GESTAE. 349 the possession/ and be simply explanatory of it ; a statement as to the circumstances of the acquisition would be merely narrative and not res gestw/ § 290. Declarations of by-standers. — Declarations connected with a litigated act are admitted for the purpose of testing the particular quality of the act. This being the purpose of the evidence, it is evident that, at least in most cases, the act must speak through the participants.^ The rule is inflexible that to admit a declaration the person uttering it must be so related to the transaction under inquiry as to make his declaration a part of it.* The comments and criticisms of mere observers can not be proved.^ If the question can be said to be an open one upon the authorities, it might be suggested that where an ^ Charter v. Lane, 62 Conn. 121, 25 Atl. Rep. 464. 2 Hoover v. Cary, 86 Iowa 494, 53 N. W. Rep. 415 ; Abney v. Kingsland, 10 Ala. 355, 44 Am. Dec. 491 ; Martin V. Hardesty, 27 Ala. 458, 62 Am. Dec. 773 ; Ray v. Jackson, 90 Ala. 513, 7 So. Rep. 747. 3 Griffith V. State, 90 Ala. 583, 8 So. Rep. 812. * Wilkinsv. Ferrell (Tex. Civ. App.), 30 S. W. Rep. 450. 5 State V. Oliver, 39 La. Ann. 470, 2 So. Rep. 194 ; State v. Riley, 42 La. Ann. 995, 8 So. Rep. 469; Senn v. So. Pac. R. Co., 108 Mo. 142, 18 S. W. Rep. 1007. The exclamations of by-stan- ders that defendant ought to be hung are not res gestce. Kaelin v. Com., 84 Ky. 354, 1 S. W. Rep. 594. Where a boy was run over by a street-car, and it was charged that the conductor had kicked him off, it was held that it could not be shown that, at the moment the boy fell, a lady on the sidewalk shouted, " Murder ! " Leahey v. Cass Ave., etc., R. Co., 97 Mo. 165, 10 S. W. Rep. 58, 10 Am. St. Rep. 300. In Kirkpatrick v. Briggs, 78 Hun 518, 29 N. Y. Supp. 532, a case where the plaintiff sued for injuries received by falling through a trap-door in the side- walk, the court held that it was not competent to prove that at the time of the accident a person passing said to the employe, whose act in leaving the trap-door open was complained of as causing the accident : ' ' That is a very careless way to leave that, young f el- fellow." In Bradshaw v. Com., 10 Bush (Ky.) 576, the prosecution claimed that the defendant had shot deceased while on the platform of a moving railway coach and had thrown his body therefrom. The cause was reversed because the trial court per- mitted witnesses to testify to the fol- lowing exclamations made by persons standing on the platform and in the immediate presence of the actors: " Bradshaw has shot him ! " " Brad- shaw has pushed him off! " " Brad- shaw has killed him ! " It can not be shown that a by-stander pointed out a person other than the defendant as the person who did the shooting. Felder v. State, 23 Tex. App. 477, 5 S. W. Rep. 145, 59 Am. Rep. 777; Davis V. State (Tex. Cr. App.), 23 S. W. Rep. 796. 350 INDI'RECT AND COLLATERAL EVIDENCE. § 290 act is of such an absorbing character as to draw every specta- tor within the maelstrom of the event, the instinctive contem- poraneous utterances of the eye-witnesses ought to be compe- tent.^ It sometimes happens that the event makes a by-stander an actor. ^ Instances are not infrequent where a by-stander makes a declaration which puts him in the line of causation with the principal event. His declaration in such a case would be competent. Thus, where a defendant was charged with an assault and battery with intent to kill, and his claim was that he had done the act in self-defense, it was held proper for him to prove that just before, persons in the crowd yelled : '' Kill him ! Kill him ! Don't let that nigger get back to the bottom! "^ Where the plaintiff was injured in jumping from a street-car to avoid, as she thought, the danger of being run over by a locomotive, and the question was whether from her standpoint she was justified in adopting the dangerous alterna- tive of jumping off, it was held competent to show the cries of other passengers, such as, " Look out ! " '' Drive on quick ! " " Stop! locomotive is coming ! " These exclamations tended to illustrate the confusion, excitement and terror of the passen- gers.* In another case it was held that the declarations of per- » See Whart. on Ev., § 260. 63 Am. Dec. 323. In Mitchell v. South 2 In a prosecution for murder it was Pac. R. Co., 87 Cal. 62, 25 Pac. Eep. held competent to prove that a third 245, the plaintiff was injured by the person, who was present at the kill- derailment of a car. He was on the ing, said: "Hurry up. They have platform at the time, and in order to about killed this man," as the declara- excuse his presence there, he testified tion amounted to an effort to aid the that he went out on the platform as a stricken person, and made the by- place of greater safety, as the train stander an actor. State v. Kaiser, 124 was running very fast around a curve Mo. 651, 28 S. ^Y. Rep. 182. and over an imperfect roadbed. It 3 Morton v. State, 91 Tenn. 437, 19 was held proper for the defendant to S.W. Rep. 225. See Baker u. Gausin, show that the other passengers kept 76 Ind. 317. their seats. The court said : "They *Kleiber V. People's R* Co., 107 Mo. all had an equal interest in protect- 240, 17 S. W. Rep. 946 ; St. Louis, ing themselves, and will be presumed etc., R. Co. V. Murray, 55 Ark. 248, 18 to have done what appeared to in- S. "VV. Rep. 60, 29 Am. St. Rep. 32; volve the least hazard." Galena, etc., R. Co. v. Fay, 16 111. 558, § 291 RES GEST^. 351 sons attending upon a sale were competent, as tending to show that the plaintiff's professions had affected the bidding.^ § 291. Matter of opinion. — The res gestse may consist of mat- ter of opinion. Such declarations are usually objectionable, because the idea of an opinion upon an event would ordinarily suggest that the mind of the declarant had come out from un- der the domination of the event and was sitting in judgment upon it. Still, illustrations may be conceived where al- though the declaration is, or takes the form of, an opinion, yet the event is still speaking through the declarant. In one case the defendant street-car company was charged with negli- gence because of the conductor giving a signal to start too soon, and thus causing plaintiff's injury. The injury rendered the latter unconscious for a moment ; upon recovering conscious- ness, the conductor said to her : ''I am very sorry, madam ; that was my fault " The court excluded the declaration on the ground that it was " in form and substance narrative, and expressed an opinion upon a past transaction."^ On the other hand, where the decedent was scalded under an engine, and exclaimed, after being assisted to a chair twenty-five or thirty steps away, and while laboring under great pain and excite- ment : *' I am a dead man, but nobody is to blame but myself. I turned the plug the wrong way and it came out," the dec- larations were held competent.^ § 292. Principal fact must be established by direct proof .^ — In the preceding pages of this chapter we have been at some pains to show that the res gestae does not rest upon the low plane of hearsay evidence, because of its connection with, and consequent credit from, the principal fact. Reasoning from this postulate, it would seem to be an incontrovertible propo- sition that the fact under inquiry must always be established by direct proof,* except possibly in that class of subjective in- MValter v. Gernant, 13 Pa. St. 515, Ind. App. 427, 28 N. E. Rep. 714, 9 63 Am. Dec. 491. Ind. App. 63, 35 N. E. Rep. 565. 2 Williamson v. Cambridge R. Co., * White v. Rayburn, 11 Ore. 450, 5 144 ^lass. 148, 10 N. E. Rep. 790. Pac. Rep. 345. ^Louisville, etc., R. Co. v. Berry, 2 352 INDIRECT AND COLLATERAL EVIDENCE. §293 quiries where the ascertainment of mental condition is the end sought/ § 293. Res gestae is primary. — The theory upon which res gestse evidence of declarations is admitted is that such declara- tions are connected with and a part of the principal act. For this reason they are primary evidence, and may be introduced without calling as a witness the person from whose lips the statement fell.^ It is obvious that if the law infallibly required that the facts should be ascertained from witnesses upon the trial, the courts would be deprived of the opportunity to see transactions in the vivid light of real life, and would be com- ^ This view finds illustration in § 586 of Taylor on Evidence. The learned author says: "Declarations, though admissible as evidence of the declar- ant's knowledge or belief of the facts to which they relate, and of his in- tentions respecting them, are no proof of the facts themselves; and there- fore, if it be necessary to show the existence of such facts, proof aliunde must be laid before the jury ; and it seems that, in strict practice, this proof should be given in the first in- stance, before the court be called upon to receive evidence of the declara- tions. For example, the fact of in- solvency must be established, before statements of the insolvent will be admitted to show that he was aware of his embarrassed circumstances. Sometimes, under the law relating to bankrupts, the truth of the facts need not be proved, but it will not suffice to show the bankrupt's belief. Thus, if the act of bankruptcy relied upon be an absenting with intent to delay creditors, a declaration by the bank- rupt that he left home to avoid a writ will be admissible, though no evi- dence be given that any writ was act- ually out against him, because, in or- der to constitute this act of bankrupt- cy, neither writ nor pressure is neces- sary. Still, even in this case, the de- parture from home is a substantive act, which must be proved by evi- dence independent of the declaration ; and being in itself an act equivocal, the statement of the bankrupt, made during its continuance, is admissible to show the intention with which it was done." 2 Gilbert v. Gilbert, 22 Ala. 529, 68 Am. Dec. 268. This doctrine is so elementary that there is a paucity of authority upon it. In § 267 of Whar- ton on Evidence it is said: "Nor, ordinarily, is it admissible to prove the narration of a witness as part of the res gestce, if the witness himself is obtainable on trial." It is a matter of surprise that so inaccurate a state- ment should slip from the pen of a writer whose works on legal subjects are so justly esteemed. Narrative is never admissible as res gestce, and un- der no circumstances are res gestae declarations other than primary evi- dence. In § 175 of the work men- tioned, Mr. Wharton contradicts the above statement by excepting res gestce statements from the ordinary rule that the extra-judicial statements of third persons can not be proved. §294 RES GESTAE. 353 pelled to seek the truth in many instances from untruthful or unwilling witnesses, instead of through the natural emanations of their minds when the event under inquiry had absorbed all calculating policy. Within the principle of the doctrine stated in this section is the proposition that it is not a material fact, so far as the competency of the evidence is concerned, that the declarant happens to be an incompetent witness.' § 294. Duty of state to prove the whole of res gest*.— In criminal cases the expectation is that the state will produce and use all witnesses in reach of its process, of whatever character, whose testimony will throw light upon and char- acterize the transaction under inquiry, whether it tends to convict or acquit the defendant. The English cases lay down the doctrine that the government must produce every wit- ness,^ and this seems to be the rule in Michigan,' and some countenance is given to the doctrine in other states.^ But it IS to be recollected that this ruling had its origin under a system of practice which denied to the defendant the right to counsel. There is now no occasion to press the doctrine to its extreme length, and the better opinion is that when the prose- cution has developed the whole res gestae, and introduced a number of witnesses, it ought not to be compelled to call a hostile witness, or one of such disreputable character that he could be impeached.^ c. 'w t '• tT' /I '^^'"- ^^^- ^^^' ^ ^^^' 1^ S- ^- ^^P- 448 ; Ter. v. Hanna, b. VV. Kep. 749; Johnson v. Sherwin, 5 Mont. 248, 5 Pac. Eep 252 3 Gray 374 ; Walton v. Green, 1 Car. s State v. Eoberts, 63 Vt. 139 21 Atl tJ' of \ ^'^"5,"'^ ^- 2^^^' 8 Watts Eep. 424; Com. v. Haskell, 140 Mass.' 355, 34 Am Dec. 469; Aveson v. 128, 2 N. E. Eep. 773; State w. Martin Ivmnair, 6 East 188; Thompson v. 2 Ired.L. 101; States. Cain, 20 W Va Trevanion, 1 Skin. 402. 679; State v. Smallwood, 75 N. Car! Eeg. r, Holden, 8 Car. & P. 606; 104; State v. Eaton, 75 Mo. 586; State Eeg. V. Chapman, 8 Car. & P. 559; v. Middleham, 62 Iowa 150 17 N W st';^""'«^ ^^'- * ^- ^^' ^^P- 446; State .. McGahey. 3 N. D.' "Maher.. People, 10 Mich. 212, 225, 293, 55 N. W. Eep. 753. Some of the M^r'li^^'.'ol? 'J^-^^^^ "■ ^'^*'' ^^ ^^^thorities cited in this note repudiate M ch 419, 49 N. W. Eep. 296. the English doctrine entirely, ihompson v. State, 30 Tex. App. 23— Ev. 354 INWEECT AND COLLATERAL EVIDENCE. § 295 5 295. Certain res gesto topics treated '^^-^^^^^^^ subiects ot declarations of agents, declarations o paitners d c I Itions of principals against sureties and declarations o CO onsp^ators might all be properly treated under the head o r/X, but srnce it has been the policy rn the prepar - tin of this work not to split topics, it is deemed that those rntt*d can be best treated under the head of admissions. CHAPTER X. RUMOR AND GENERAL REPUTATION. § 296. Rumor and common report. 297. Character. § 298. Same subject continued. 299. Practice in proving character. § 296. Rumor and common report.— Evidence of rumor or of common report, of a matter not of public interest is not evi- dence of a substantive or objective fact.^ Thus, such evidence IS rejected in proof of facts like residence,^ or partnership » or as to whether a person was careful or negligent on a particular occasion. The rule may sometimes yield to convenience, ^ Hinds. Keith 57 Fed. Rep. 10; McDougall, 20 Wend. 81; Grafton Collins V. Jones, 83 Ala. 365, 3 So. Bank v. Moore, 13 N H 99 38 Am So Rep. 760; Walker v. State, 102 Conn. 93; Wallis v Wood CTex ^ 7 i'ted-Tri-'^^^-r'^"'^^^^^ S.W.Re;.852. See M^Llf fofflc;rI cited, 1 Green, on Ev., §138. A 2 Fed. Rep. 640, where question wa^ mere rumor that a person is living or as to a dormant partner dead, not shown to have been known « Baltimore, etc., R. Co. .. Colvin to, or accepted by, the family, is not 118 Pa. St. 230, 12 Atl Rep 337- competent. Blaisdell .. Bickum, 139 Boick .. Bissell, 80 Mich 260 45 n' Mass^250,lNE Rep. 281; Johnson W.Rep.55; Mcionald .. Inhaiitnt .^Johnson, 114 II 611,3 N.E. Rep. of Savoy, 110 Mass. 49; Morris .. ^3., 5o Am. Rep. 883. General reputa- Town of East Haven, 41 Conn. 252- tion as to particular facts is inadmissi- Scott v. Hale, 16 Me. 326; Chase v ble except where the existence of the Maine, etc., R. Co., 77 Me. 62 52 Am" facts have been proved aliunde, and Rep. 744; Chicago, etc., R Co v the evidence of reputation is offered Clark, 108 111. 113; Adams v. Chicago* to qualify or explain the facts. Shutte etc., R. Co., 93 Iowa — , 61 N. W. Rep. 1059. But there are cases which admit this kind of evidence where there was no witness to the facts. Chicago, etc., R. Co. v, Clark, 108 111. 113; Cassidy v. Angell, 12 R. I. 447; Cohen v. Stein, 61 Wis. 508, 21 N. W. Rep. 514. See ante, § 68. V. Thompson, 15 Wall. 151; 1 Greenl on Ev., § 138. 2 Ferguson V.Wright, 113 N. Car. 537, 18 S. E. Rep. 691 ; Pfister v. Dascey, 68 Cal. 572, 10 Pac. Rep. 117. 'Adams v. Morrison, 113 N. Y. 152 20 N. E. Rep. 829; Smith v. Griffith,"3 Hill 333, 38 Am. Dec. 639 ; Halliday v. (355) 856 INDIRECT AND COLLATERAL EVIDENCE. §296 where the true facts can be readily shown, if not in accord with the common repute. For instance, official character may- be shown, by proving that a person is generally reputed to have acted as such officer, without producing his commission.* Where it is an ultimate fact to be proved that a person had knowledge of a certain fact, then evidence that it was a matter of general reputation is competent, as tending to trace notice home to the party to be charged,^ provided that the person sought to be affected by notice was so situated as to render it probable that he was apprised of what was generally known.* In a prosecution for keeping a house of ill fame, evidence of general reputation as to the character of the house is compe- tent, on the theory that it is a substantive offense to keep a house that bears that kind of a reputation,* but it has been 1 McCoy V. Curtice, 9 Wend. 17, 24 Am. Dec. 113. In Hart v. New Or- leans, etc., E. Co., 1 Rob. (La.) 178, 36 Am. Dec. 689, which was a suit for an injury sustained by being run over b}' an omnibus, it was held that gen- eral reputation of the defendant's ownership of the omnibus was com- petent, as defendant could readily have shown the contrary, if that was in accord with the fact. In Staser v. Hogan, 120 Ind. 207, 21 N. E. Rep. 911, it was held incompetent to show by a witness that he had never heard any one question the sanity of the person whose sanity was in issue, while such person was yet in life. In Hackett v. Amsden, 59 Vt. 553, 8 Atl. Rep. 737, it was held that it was not admissible to prove, on an issue as to whether a man or his wife owned cer- tain personal property, that the wit- ness had lived near them, and had never heard that the property was claimed to be the wife's. ^ Wormsdorf u. Detroit City Ry. Co., 75 Mich. 472, 42 N. W. Rep. 1000, 13 Am. St. Rep. 453 ; Hilts v. Chicago, etc., R. Co., 55 Mich. 437, 21 N. W. Rep. 878 ; Monahan v. City of Worces- ter, 150 Mass. 439, 23 N. E. Rep. 228, 15 Am. St. Rep. 226; Gordons. Riten- our, 87 Mo. 54; Ferbrache v. Martin (Idaho), 32 Pac. Rep. 252; Louis- ville, etc., R. Co. V. Hall, 87 Ala. 708, 6 So. Rep. 277, 13 Am. St. Rep. 84; Norfolk, etc., R. Co. v. Hoover, 79 Md, 253, 29 Atl. Rep. 994, 47 Am. St. Rep. 392 ; Conover v. Berdine, 69 Mo. 125, 33 Am. Rep. 496. See Driscoll v. City of Fall River, 163 Mass. 105, 39 N. E. Rep. 1003. See Hedges v. Wallace, 2 Bush 442, 92 Am. Dec. 497. As to general reputation of a dissolution of partnership, see Lovejoy v. Spafford, 93 U. S. 430. Contra, Central Nat. Bank v. Frye, 148 Mass. 498, 20 N. E. Rep. 325. ^ Cleveland Woolen Mills v. Sibert, 81 Ala. 140, 1 So. Rep. 773. See as to declarations to prove noto- riety, Hinckley v. Inhabitants of Som- erset, 145 Mass. 326, 14 N. E. Rep. 166; Chase v. City of Lowell, 151 Mass. 422, 24 N. E. Rep. 212. * State V. West, 46 La. Ann. 1009, 15 So. Rep. 418; Stone i'. State, 22 Tex. App. 185, 2 S. W. Rep. 585; Ter. v. Chartrand, 1 Dak. 379; Ter. v. Stone, 2 Dak. 155, 4 N. W. Rep. 697; State § 297 RUMOR AND GENERAL REPUTATION. 357 held, where the character of a house, as a house of ill fame, arose in a collateral proceeding, that the general reputation of the house could not be proved.' A seeming exception to the general rule declared in the first part of this section exists in the case of marriage. General reputation of the existence of the relation is received, when coupled with evidence of co- habitation.' The reason for this, although not clearly ex- pressed in the books, is, no doubt, the consideration that as marriage is a relation to society, it is therefore competent to inquire how society received a man and woman who were co- habiting as man and wife. In such a case the cohabitation would be the principal fact and the reputation but a concomi- tant fact. However, at the best, this class of evidence is of but a suppletory character. It is competent where title is sought to be established by the statute of limitations to show the claims of ownership made by the party in possession, as such evidence bears upon the question as to the character of his holding,^ but the question of ownership, as a substantive fact, can not be tried by evidence of reputation.* §297. Cliaracter.— ''Character," said Lord Erskine,' *' is the slow spreading influence of opinion arising from the de- portment of a man in society ; as a man's deportment, good or bad, necessarily produces one circle without another, and so extends itself till it unites in one general opinion. That general opinion is allowed to be given in evidence. " In a New York decision,' it was held that in a civil case, where the V. Hendricks, 15 Mont. 194, 39 Pac. Mich. 63, 6N. W. Rep. 93; Sanscrainte Rep. 93, 48 Am. St. Rep. 666; Simmer- v. Torongo, 87 Mich. 69, 49 N. W. main v. State, 14 Neb. 558, 17 N. W. Rep. 497. ^^P- 1^5- * Canfield v. Hard, 58 Vt. 217, 2 Atl. 1 Kenyon v. People, 26 N. Y. 203, 84 Rep. 136 ; Hackett v. Amsden, 59 Vt. Am. Dec. 177. 553, g Atl. Rep. 737 ; Reiley v. Haynes, ^Northrop v. Knowles, 52 Conn. 38 Kan. 259, 16 Pac. Rep. 440, 5 Am. 522, 52 Am. Rep. 613; Marble v. Mar- St. Rep. 737; Berniaud v. Beecher, 76 ble, 36 Mich. 386; Clement v. Kim- Cal. 394, 18 Pac. Rep. 598. See, atite, ball, 98 Mass. 535; United States v. §296, n. Tenney (Ariz.), 8 Pac. Rep. 295. ^R. v. Hardy, 24 St. Tr. 199, 1079. ''Ante, §289; Sparrow v. Hovey, 44 ^ jjuan v. Perry, 3 Cai. 120. 358 INDIRECT AND COLLATERAL EVIDENCE. §297 charge was fraud, and it was sought to be proved by circum- stantial evidence, that the party against whom the charge was made might offer evidence of his good character. Tliis case has not only been overruled in the state of its origin,' but it has been sharply criticised elsewhere.^ There are a number of states in which it is held that evidence of character is ad- missible in civil cases to rebut a direct imputation of crime which gives rise to the action,^ but in most jurisdictions it is held that to admit evidence of character it must be directly drawn in issue, as in libel, slander or seduction.* It is held in Wis- ^ Gough V. St. John, 16 Wend. 646. See Simpson v. Westenberger, 28 Kan. 576, 42 Am. Rep. 195. 2 Simpson v. Westenberger, 28 Kan. 576 ; Porter v. Seiler, 23 Pa. St. 424, 62 Am. Dec. 341; Barton v. Thompson, 66 Iowa 571, 41 Am. Rep. 119 ; Leink- auf V. Brinker, 62 Miss. 255, 52 Am. Rep. 183. See Lamagdelaine v. Trem- blay, 162 Mass. 339, 39 N. E. Rep. 38. 8 Warner v. Com., 2 Va. Cas. 95. See Houghtaling v. Kilderhouse, 1 N. Y. 530, 2 Barb. 149, and cases cited ; Howland v. George F. Blake Mnfg. Co., 156 Mass. 543, 31 N. E. Rep. 656. * American Fire Ins. Co. v. Hazen, 110 Pa. St. 630, 1 Atl. Rep. 605 ; Por- ter V. Seiler, 23 Pa. St. 424, 62 Am. Dec. 341 ; Zitzer v. Merkel, 24 Pa. St. 408; Continental Ins. Co. v. Jach- nichen, 110 Ind. 59, 10 N. E. Rep. 636, 69 Am. Rep. 194; Gebhart v. Burkett, 57 Ind. 378; 26 Am. Rep. 61 ; Humphrey v. Humphrey, 7 Conn. 116; Mead v. Husted, 52 Conn. 53, 52 Am. Rep. 554; Gutzwiller v. Lack- man, 23 Mo. 168; Norris v. Stewart's Heirs, 105 N. Car. 455, 10 S. E. Rep. 912,18 Am. St. Rep. 917; Barton v. Thompson, 56 Iowa 571, 9 N. W. Rep. 899, 41 Am. Rep. 119; Stoppert v. Nierle, 45 Neb. 105, 63 Neb. 382 ; Side- linger V. Bucklin, 64 Me. 371. In Wright V. McKee, 37 Vt. 161, it is said: "Many considerations concur in rejecting such evidence in civil cases. Evidence of this character has but a remote bearing as proof to show that M'rongful acts have or have not been committed, and the mind resorts to it for aid only when the other evidence is doubtful and nicely balanced. It may then, perhaps, serve to turn the wavering scales. Very rarely can it be of substantial use in getting at the truth. It is un- certain in its nature, both because the true character of a large portion of mankind is ascertained with diffi- culty, and because those who are called to testify are reluctant to dis- parage their neighbors, especially if they are wealthy, influential, popular, or even only pleasant and obliging. It is mere matter of opinion, and in matters of opinion men are apt to be greatly influenced by prejudice, par- tisanship, or other bias of which they are unconscious, and in cases which are not quite clear, they are apt to agree with the one who first speaks to them on the subject, or to form their opinions from the opinions of others. The introduction of such evidence in civil cases, whenever character is assailed, would make trials intolerably long and tedious and greatly increase the expense and delay of litigation. It is a kind of evidence that might easily be manu- § 297 RUMOR AND GENERAL REPUTATION. 359 consin/ Virginia ' and Indiana,* and Massachusetts/ that the plaintiff may give evidence of his good character, where other- wise warranted, as a part of his opening proofs, but there is authority the other way/ If the evidence as to the defend- ant's opportunity to be apprised of the plaintiff's good reputa- tion is such as to justify a presumption that he did know of it in point of fact, there would seem to be a warrant for the in- troduction of such evidence upon the plaintiff's case in chief, in order to make out the element of malice, and also, as here- after stated, of want of probable cause in malicious prosecu- tion cases. In a breach of promise case, where the cross- examination of the plaintiff tended to show that illicit relations had existed between her and the defendant, it was held proper for her to introduce evidence as to her general reputation for chastity, virtue and morality.® Evidence of character has been held competent in suits for malicious prosecution where the prosecution complained of was for an offense implying moral turpitude, either on behalf of the defendant to strengthen his evidence of probable cause, or on behalf of the plaintiff to overthrow such claim of defense.' In actions for defamation and seduction, the authorities are almost entirely agreed that evidence of the plaintiff's bad character is admis- sible in mitigation of damages.* factured, is liable to abuse, and if in v. Hughes, 50 Ohio St. 490, 34 N. E. common use in the courts, as likely Eep. 793; Cochran v. Toher, 14 Minn, to mislead as to guide aright." 385; Fire Association v. Fleming, 78 'Woodworth v. Mills, 61 Wis. 44, Ga. 733, 3 S. E. Rep. 420. 20 N. W. Rep. 728, 50 Am. Eep. 135. « Hughes v. Nolte, 7 Ind. App. 526, 2 Adams v. Lawson, 17 Grat. 250, 94 34 N. E. Rep. 745. Am. Dec. 455. 7 Mclntire v. Levering, 148 Mass. ' Blizzard ^?. Hays, 46 Ind. 166, 15 546, 20 N. E. Rep. 191, 12 Am. St. Am. Rep. 291. Rep. 594, and cases there cited; Bliz- * Mclntire v. Levering, 148 Mass. zard v. Hays, 46 Ind. 166, 15 Am. 546, 20 N. E. Rep. 191, 12 Am. St. Rep. 291 ; Israel v. Brooks, 23 111. Rep. 594. 526; Miller v. Brown, 3 Mo. 127, 23 5 Hitchcock V. Moore, 70 Mich. 112, Am. Dec. 693. 37N. W. Rep. 914, 14 Am. St. Rep. » Bodwell v. Swan, 3 Pick. 377; 474 and cases there cited ; Diers v. Stone v. Varney, 7 Mete. 86 ; 39 Am. Mallon, 46 Neb. 121, 64 N. W. Rep. Dec. 762; Clark v. Brown, 116 Mass. 722, 50 Am. St. Rep. 598; Blakeslee 504; Paddock v. Salisbury, 2 Cow. 811; 360 INDIRECT AND COLLATERAL EVIDENCE. § 298 § 298. Same subject contiuued. — In prosecutions for rape, where it is claimed that the woman consented, evidence may be introduced as to her general reputation as a prostitute at the time of the alleged rape, in order to render it more probable that she consented, but she cannot be expected to meet specific charges as to her relations with other men.^ But previous acts of incontinence with the defendant, or of lewd and indecent behavior toward him, are within the res gestse of the inquiry.^ There seems to be some disagreement among the authorities as to the right to interrogate the female, on cross-examination, as to her prior acts of sexual intercourse with other men where no question of paternity is involved,^ but tlie right to this evi- dence is clear in statutory suits by females for their own seduc- tion, where the statute contemplates that the aggrieved party shall have possessed actual personal chastity.* It has been held that the defendant who by his act has caused the plaintiff to have a bad reputation can not introduce evidence of her sub- sequent bad reputation.^ But it would seem to be impractica- ble to apply this doctrine in jurisdictions where the practice permits an impeachment of witnesses on the ground that they are persons of general bad moral character, if the female testifies as a witness. In actions where a man is charged with adul- tery, the bad reputation of the woman for chastity may be shown, as substantive evidence tending to increase the proba- bility of illicit intercourse.^ In criminal cases the defendant is entitled to put in evidence his good general reputation for the particular trait involved at the time the evidence tends to Bowen v. Hall, 20 Vt. 232; Lowe v. Ind. 467, 4 N. E. Eep. 63. See State Herald Co., 6 Utah 175, 21 Pac. Rep. v. Reed, 39 Vt. 417. 991; Lames v. Snell, 6 N. H. 413, 25 ^Ante, §58; Rice v. State, 35 Fla. Am. Dec. 468. 236, 17 So. Rep. 286, 48 Am. St. Rep. 1 State V. Ward. 73 Iowa 532, 35 N. 245. W. Rep. 617; Strang v. People, 24 ^2 Greenl. on Ev., §577: Whart. on Mich. 1 ; McDermott v. State, 13 Ohio Ev., § 51. See ante, § 91. St. 332, 82 Am. Dec. 444; State v. * Lyons v. State, 52 Ind. 426; State Campbell, 20 Nev. 122, 17 Pac. Rep. v. Painter, 50 Iowa 317. 620; Pefferling V. State, 40 Tex. 486; sg^ewalter v. Bergman, 123 Ind. Rice V. State, 35 Fla. 236, 17 So. Rep. 155, 23 N. E. Rep. 686. 286, 48 Am. St. Rep. 245, and cases ^Com. v. Gray, 129 Mass. 474, 37 there cited; Anderson v. State, 104 Am. Rep. 378. §298 RUMOR AND GENERAL REPUTATION. 361 show the offense was committed.^ Evidence of good character is now recognized as competent in criminal cases irrespective of the question as to whether the offense charged is great or small, ^ and it is no longer the rule of law that such evidence is competent only in doubtful cases. Where good character is a fact in a case, it should be weighed in connection with the other evidence, and it may alone suffice to create a reasonable doubt in the minds of the jury.^ In a homicide case, where the question is as to whether the defendant was exercising the right of self-defense, evidence is competent of the violent and quarrelsome disposition of the deceased,* but the state can not offer evidence of the good character of the deceased in the first instance.® The defendant can not raise an issue as to the char- 1 State V. Emery, 59 Vt. 84, 7 Atl. Eep. 129; Com. v. Nagle, 157 Mass. 554, 32 N. E. Rep. 861 ; Kahlenbeck V. State, 119 Ind. 118, 21 N. E. Eep. 460; Walker v. State, 102 Ind. 502, 1 N.E.Rep. 856; Chung Sing •;;. Unit- ed States, (Ariz.) 36 Pac. Rep. 205. Where the charge is murder, com- mitted by poison, the defendant may give in evidence his general good rep- utation for peace and quietude. Hall V. State, 132 Ind. 317, 31 N. E. Rep. 536 ; Carr v. State, 135 Ind. 1, 34 N. E. Rep. 533, 41 Am. St. Rep. 408. Ac- cording to the weight of authority, if a defendant offers evidence of his good character, his witnesses on that question may be cross-examined as to their hearing of specific matters af- fecting the defendant's reputation as to the particular trait involved. State V. Jerome, 33 Conn. 265 ; Goodwin v. State, 102 Ala. 87, 15 So. Rep. 571 ; 1 Taylor on Ev., § 352. See Com. v. O'Brien, 119 Mass. 342, 20 Am. Rep. 325 ; People v. White, 14 Wend. Ill ; Knight V. State, 70 Ind. 375; State v. Hull, 18 R. I. 207, 26 Atl. Rep. 191. 2Cancemi v. People, 16 N. Y. 501; Com. V. Leonard, 140 Mass. 473, 4 N. E. Rep. 96, 54 Am. Rep. 485, disap- proving Com. V. Webster, 5 Cush. 295, 52 Am. Dec. 711. In Com. v. Nagle, 157 Mass. 554, 32 N. E. Rep. 861, a doubt was intimated as to the compe- tency of evidence of character in cases where the acts charged have no moral quality, but are merely mala prohibita. 3 Com. V. Leonard, 140 Mass. 473, 4 N. E. Rep. 96, 54 Am. Rep. 485; Peo- ple V. Hancock, 7 Utah 170, 25 Pac. Rep. 1093; Murphy v. State, 108 Ala. 10, 18 So. Rep. 557; Heine v. Com., 91 Pa. St. 145; Hanney v. Com., 116 Pa. St. 322, 9 Atl. Rep. 339; Stewart V. State, 22 Ohio St. 477; State v. Lindley, 51 Iowa 343, 353, 1 N. W. Rep. 484, 33 Am. Rep. 139; State v. Daley, 53 Vt. 442, 38 Am. Rep. 694; Remsen v. People, 43 N. Y. 6 ; Cole- man V. State, 59 Miss. 484; Harring- ton V. State, 19 Ohio St. 264 ; People V. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; People v. Lee, (Cal.) 8 Pac. Rep. 685. See State v. Slingerland, 19 Nev. 135, 7 Pac. Rep. 280. « Keep V. Quallman, 68 Wis. 451, 32 N. W. Rep. 233; People v. Druse, 103 N. Y. 655, 8 N. E. Rep. 733. 5 State V. Potter, 13 Kan. 414; Ben V. State, 37 Ala. 103; State v. Eddon, 82 Wash. 292, 36 Pac. Rep. 139 ; Pound 362 INDIRECT AND COLLATERAL EVIDENCE. §299 acter of the deceased, in the absence of some hostile demonstra- tion on the part of the latter.^ In actions for defamation of character, while the defendant may not show in evidence that a gossip already existed concerning the matter of his defama- tory statement, yet, according to the better considered author- ities, he may show in mitigation the existence of a general ru- mor in the neighborhood to the same effect as his statement.^ § 299. Practice in proving character. — If a witness testifies that he is acquainted with the person whose reputation is in question, and that he is generally acquainted in the vicinity of such person's residence, he may express an opinion as to such person's general reputation, although he has not an- swered categorically that he is acquainted therewith.' In fact some of the authorities permit the witness to go the length of expressing an opinion directly upon the question of character.* V. State, 43 Ga. 88; Dock v. Com., 21 Gratt. 909; People v. Anderson, 39 Cal. 703; State v. McCarthy, 43 La. Ann. 541, 9 So. Rep. 493. As to the competency of evidence of particular acts of the deceased comi-ng to the knowledge of the defendant, see Peo- ple V. Harris, 95 Mich. 87, 54 N. W. Rep. 648; Bowlus v. State, 130 Ind. 227, 28 N. E. Rep. 1115. In the case last cited it is held that the introduc- tion of evidence of particular traits of the deceased's character constituting him a dangerous antagonist is admis- sible, if known to the defendant, and that the introduction of this class of evidence will authorize the state to seek to rebut it by evidence of the gen- eral character of the deceased for peace and quietude. 1 Bowlus V. State, 130 Ind. 227, 28 N. E. Rep. 1115; Rauck v. State, 110 Ind. 384, 11 N. E. Rep. 450; State v. Mitch- ell, 41 La. Ann. 1073, 6 So. Rep. 785. Nor is such evidence competent where the defendant denies the killing. Manning v. State, 79 Wis. 178, 48 N. W. Rep. 209 ; People v. Lamb, 2 Keyes (N.Y.) 360; Pfomer v. People, 4 Park Cr. R. 558. 2 Case V. Marks, 20 Conn. 248; Wetherbee v. Marsh, 20 N. H. 561 ; Galloway v. Courtney, 10 Rich. (So. Car.) 414; Calloway v. Middleton, 2 A. K. Marsh. 372, 12 Am. Dec. 409; Sanders v. Johnson, 6 Blackf. 50, 36 Am. Dec. 564; Fuller v. Dean, 31 Ala. 654. Contra, Wolcott v. Hall, 6 Mass. 514, 4 Am. Dec. 173; Matson v. Buck, 5 Cow. 499 ; Mapes v. Weeks, 4 Wend. 659; Pease v. Shippen, 80 Pa. St. 513, 21 Am. Rep. 116; Sheahan v. Colhns. 20 111. 325; Anthony v. Stephens, 1 Mo. 254, 13 Am. Dec. 497. 3 State V. Deitrick, 51 Iowa 467, 1 N. W. Rep. 732. 4 Dufreshne v. Weise, 46 Wis. 290, 1 N. W. Rep. 59 ; Senter v. Carr, 15 N. H. 351 ; Douglass v. Tousey, 2 Wend. 352, 20 Am. Dec. 616. § 299 RUMOR AND GENERAL REPUTATION. 363 It is a well established doctrine that a witness qualified as above stated may testify that he never heard the person's rep- utation discussed, as tending to show that it is good.' The sub- ject of this section is discussed somewhat further in another connection.^ ' State V. Lee, 22 Minn. 407, 21 Am. Rep. 769; Gandolfo v. State, 11 Ohio St. 114; Davis r. Foster, 68 Ind. 238; Davis V. Franke, 33 Grat. 413 ; Hussey V. State, 87 Ala. 121, 6 So. Rep. 420; State V. Nelson, 58 Iowa 208, 12 N. W. Rep. 253; Cole v. State, 59 Ark. 50, 26 S. W. Rep. 377; Reg. v. Eowton, 10 Cox Cr. Cases, 25. ^Ante, §§ 95, 96. INDEX. IBeferences are to Sections.} A ABORTION, right to show subsequent condition of woman, 71. dying declarations in prosecutions for, 192. ABSENCE FROM THE STATE, excusing suppletory evidence, 20, 183. ABSENT WITNESS, use of former testimony, 188. calling attesting witness, 20. See Absence prom the State. ATTORNEY, admissions in pleadings, 3. admissions of, 38. ACCOMPLICE, cross-examination of, 90. convicting on his own confession, 122. ACCOUNT BOOKS, as evidence against person having control over, 14. right to read other entries in explanation of admission, 22. leading case upon, 173. in United States, 174. character of transactions, 175, 176. must be within scope of ordinary business, 177. relation of entry, 178, 179. character of entry, 180. question of necessity as affecting right to use, 181. pai'ty's own entries may be shown, 182. suppletory oath, 183. secondary evidence of, 184. of deceased persons, 185. See Memoranda. (365) 366 INDEX. [Beferences are to Sections.'} ACQUIESCENCE, may amount to admission, 5, 7. silence where there is no right to speak, 8, 9. in court proceedings, 9. presumption from unanswered letter, 10. in acts of others, as admissions, 11. See Admissions. ACTS, self-serving, 231. See Res Gest^. ADMINISTRATOR, admissions of, 30. admission before clothed with trust, 46, 47. ADMISSIONS, meaning of term, 1. of third parties ordinarily incompetent, 1, before interest attached, 2. in pleadings, 3. paying money into court, 4. silence as implied admission, 5. language must be ueard or conduct be understood, 5. sometimes implied from silence, 5. requisite elements to admission by silence, 6. inculpatory statement presence person accused of crime, 5, 7. silence when claim or fact asserted, 6. silence by insurance company concerning statements in proof of loss, 6. silence while under criminal charge, 7. silence, where there is no right to speak, 8. silence during court proceedings, 8. by conduct in court proceedings, 9. by failure to produce evidence, 9. by failure to deny evidence, 9. statements of party's witnesses not charged against him as admissions, 9. when unanswered letter an admission, 10. by acquiescence, 11. collateral, 12. of officer that he acts by authority, 12. by conduct, 12, 13. by prior failure to assert defense, 13. silence when criminal charge made, 13. by flight, suppression of evidence, etc., 13. by possession of books, documents, and implements of crime, 14. partnership books, 14. corporation books, 14. made under compulsion, 15. INDEX. 367 [Beferences are to Sections."] ADMISSIONS— Coniuwed. of matter of law, 16. of mixed matter of law and fact, 16. of marriage, 16. ■ of negligence, 16. as to contents of writing, 17, 18, 114. are primary evidence, 17, 18. possesses certain elements of an estoppel, 18. recitals in deeds, 19. doctrine as to attested documents, 20. of genuineness, by notice to produce writing, 20. incomplete and canceled admissions, 21. party charged with, entitled to context, 22. each part not entitled to equal weight, 23. weight of, 24. divorce not granted on, 24. weight of, vv^hen made by deceased person, 24, n. practice as to receiving evidence of, 25. by makers of written instrument, 26. of principal against surety where they are joint obligors, 26, n. mere community of interest will not make competent against others, 27. of tenants in common, 27. of co-executors and co-administrators, 27. of heirs and legatees, 27. of indorsers, 27. of stockholders, 27. of directors, 27. of officers, 27. of parishioners, 27. of co-conspirators, 28. of predecessors in title, 30, 31. of privies in estate, 30. of executor and administrator, 30. of child, in suit for death of, 30. not competent after purchaser's rights have attached, 31. agent's statements in making contract, 32. made where agent is authorized to speak, 33. of third person to whom another is referred, 33. of general agent, 33. of agents and servants, 33-38. proof of agency, 36. of agents of corporations, 37. of attorneys, 38. upon trial of cause, 38. by public officers, 39. by partners, 40-42. by principals against sureties, 43. 368 i^'D''-^- IBeferences are to Sections. "^ ADMISSIONS - Continued. of others as to fact of performance, 44. of trustees, 45. of guiinlians, 45. of trustees before clothed with trust, 46. by party in different capacity, 47. of person interested who is not a party, 48. of strangers, when receivable, 49. of grantor of indebtedness to grantee, in fraudulent conveyance case, 49, n. (See Fraudulent Conveyances.) of husband in suit for wife's separate property, 50, n. of co-plaintiffs and co-defendants, 50. of co-devisees and co-legatees, 50. evidence of subsequent precautions, 72. distinction between, and confessions, 99. conduct as admission of legitimacy, 144. of guilt by third persons, 227. of injured party in criminal case, 229, 230. See Confessions; Hearsay; Res Gest^. ADULTERY, admission of marriage, 16. admission of, in divorce case, 24. bad reputation of woman may be shown, 298. AFFECTION, opinion evidence as to, 213. res gestce evidence of, 283. AFFIRMATIVE EVIDENCE, ordinarily more valuable than negative, 88. AGENCY, of joint maker of instrument to make admission, 26. proof of, where agent's statements offered, 36. AGENT, statements in making contract, 32. admissions where he is authorized to speak, 33. admission of person to whom another is referred, 33. res gestre statements of, 34. mere admissions not competent, 35. admissions of implied agent, 33. contractual powers of, 36, n. of corporations, 37. AGGRAVATION, evidence in, 83. INDEX. 369 [^Beferences are to Sections.1 ANCIENT DOCUMENTS, due execution presumed, 149. as acts of dominion, 152, et seq. ANCIENT RIGHTS, evidence as to, 130, et seq. verdicts, judgments, etc., as evidence of, 137. histoi'ical facts, 138. private boundaries, 139. pedigree, 140, et seq. acts of dominion as evidence of title, 152, et seq. ANGER, opinion evidence as to, 213. ANIMAL, habits of, 65. ANSWERS IN CHANCERY, admissions in, 3. ANTE LITEM MOTAM, meaning of, 133. declarations concerning public rights, 133. declarations concerning pedigree, 146. business declarations must be, 167. ARSON, collateral evidence to show motive, 67 59. overvaluation, 59, n. ARTIFICE, confession obtained by, 106. ASSAULT AND BATTERY, evidence in mitigation, 84, 253, n. "S* IgO^^^'"^''''* ''^ show declaration of others immediately preced- ASSIGNOR, ^'' Self-Defense. of chose in action, admissions by, 30, 31, 45, 50. See Admissions. B BAD REPUTATION, See General Reputation ; Character; Witness 24— Ev. 370 INDEX. [^Beferences are to Sections.'] BAILMENTS, right to show custom of others, 128. BASTARDY, as to relatrix keeping company with other men, 54, n. resemblance, 81. BILLS IN CHANCERY, admissions in, 3. BLOOD-STAIN, opinion evidence as to, 213. BOOKS, See Account Books ; Business Declarations ; Memoranda; Private Memo- randa. BOOKS, HISTORICAL, as evidence, 138. BOOKS, SCIENTIFIC, as evidence, 85. BOUNDARIES, evidence of public, 130, et seq. evidence of private, 139. declarations of deceased surveyors, 170. declarations as to private, I'/i. BREACH OF PROMISE, evidence in mitigation, 84. declarations of plaintiff, 242, n. BRIBERY, of witnesses or jurors, adverse presumption from, 13. right to prove other acts of, 57, n. BUSINESS DECLARATIONS, admissibility of, 159, et seq. See Account Books. BUSINESS TRANSACTIONS, the res gestce in, 286. BY-STANDERS, declarations of, 290. INDEX. 271 [References are to Sections.'} CASH, ^ book items of, 177, CANCELED ADMISSIONS, are evidence, 21. CESTUI QUE TRUST, admissions of trustee as against, 45. CHANGE, in stolen property, presumption from, 13. CHARACTER, residence in house of ill fame, 54, n. impeachment of, 95. only in issue in exceptional cases, 297. of defendant charged with crime, 298. of deceased person in homicide case, 298. practice in introducing evidence of, 299. See General Reputation. CHASTITY, evidence of bad reputation for, 95. of woman in prosecutions for rape, etc., 297. CHILD, admission of, against parent, in suit for former's death 30 dying declaration of, 204, n. ' CHOSE IN ACTION, admission of predecessor in title, 31. CHURCH REGISTERS, as evidence, 144, 170. CIRCUMSTANTIAL EVIDENCE, essentials to conclusiveness of, 53, facts creating bare susjiicion, 54. mere accumulation of circnm=?t.in^oo ^^ • ^ . cient, 53, n. circumstances consistent with guilt insufB- negligence may be proved by, 53, n. See Collateral Evidence. CLERK, entries in employer's books as evidence against, 14. See Account Books. 372 INDEX. IBeferences are to Sectio7is.'] CO-CONSPIRATORS, admissions of, 28. proof of conspiracjs 29. See Conspiracy. CO-DEFENDANT, ' admission of one as against another, 50. CO-DEVISEES, admission of one as against another, 60. COLLATERAL ADMISSIONS, what amount to, 12. COLLATERAL BENEFIT, confession induced by hope of, 107. COLLATERAL CRIME, when such evidence admissible, 57. prior associations of women in cases involving sexual relations, 54, n., 58. proof similar crimes inadmissible to show criminal tendencj^ 55, n. proof competent to show criminal capacity, 55, n. proof of, on cross-examination of defendant, to discredit him, 91. when one crime within the res gestce of another, 287. See Collateral Evidence. COLLATERAL EVIDENCE, when relevant, 51 et seq., 57. remoteness, 51. generating bare suspicion not competent, 54. incompetent, if purely collateral, 55. proper to show that person had knowledge which would render com- mission of crime possible, 55, n. similar but unconnected facts, 56. business habit, 56. to show motive, 59. threats, 59. expressions of good will to rebut malice, 59. facts necessary to explain relevant facts, 60. particular instances to rebut evidence, 61. other circumstances illustrative of principal fact, 60, n. other defects in negligence cases, 62. other accidents at same place, 63, 64. evidence of non-happening of other accidents, 64. habits of animals, 65 experiments, 66. INDEX. iBeferences are to Sectioiis.'] COLLATERAL BYIBE^CE—Contimied. isolated facts collateral, 66. other occurrences in fire cases, 67. proof of prior injury at same place, 63. prior habit as proof of subsequent act, 68. prior act to prove notice of negligent character, 70. condition of object or place before and after, 71. subsequent precautions, 72. other writings, 73. evidence where title in question, 74. special circumstances of plaintiff or his family, 75. pecuniary circumstances of defendant, 76. jury entitled to entire facts of case, 77. illustrative of principal fact, 78. where question of fraud involved, 80. where question of values involved, 79. resemblance, 81. maps and photographs, 82. evidence in aggravation, 83. evidence in mitigation, 84. scientific books— life tables, 85. view and inspection, 86. inspection in criminal cases, 87. right to show circumstance by which witness remembers, 88. contradiction and impeachment of witness, 89. cross-examination, 90. affecting standing of witness, 91. proving like statements made out of court, 92. impeachment, y3. impeachment of character of witness, 95, 97. corroboration of witness, 96, 97. See Circumstantial Evidence ; Collateral Crime, COLLATERAL MATTER, right to contradict as to, 91. See Cross-Examination. COMMERCIAL PAPER, admissions of predecessors in title, 30. COMMON REPORT, not evidence of substantive or objective fact, 296. official character, 296. house of ill fame, 296. to prove notice, 296. as evidence of marriage, 296. See Rumor. 373 374 «"'=''• lEeferences are to Sections.'] COMPARISON, as means of evidence, 81. by means of photograph, 82. right of jury to institute, 81. of handwriting, 219, 220. COMPLAINTS. of woman in prosecution for rape, 191. ^ of pain, 264, 267. to physician, 266. to persons other than physician, 270. COMPULSION, admission made under, 15. confession made under, 112. CONDUCT, admissions by, 5-14. as admission of legitimacy, 144. can not be shown where self-serving. 231 as evidence of marriage and legitimacy, 28?. CONFESSIONS, meaning of term, 98. distinction between, and admission, 98, 99. must be voluntary, 100. persons in authority, 101, 102. character of inducement, 103. influence of inducement presumed to continue, 104.. obtained by duress, 109. fear of violence of mob, 110. in reply to questions. 111. under oath, or made under compulsion, 112 statements while insane, drunk or asleep, 113. as to written instrument, 114. spiritual inducement-promise of secrecy, 105. obtained by artifice or deception, 106. obtained by hope of collateral benefit, 10/. witchcraft, 108. subsequently rendered admissible, 11&. weight to be given to, 116. proof of corpus delicti, 117, 118. practice in receiving, 119, 120. involving co-defendant, 121. preliminary question for court, 120. function of jury, 120. confessed accomplice failing to testify, 122. INDEX. 375 \_Beferences are to Sections."} CONFESSIONS— ConiimtecZ. substance of sufficient, 123. of guilt by third persons, 227. See Admissions. CONFUSION, opinion evidence as to, 213. CONSPIRACY, admissions of co-conspirators, 28. proof of, 29. evidence of collateral crimes to prove, 67. to defraud, declarations of grantor, 288. CONSTITUTIONAL RIGHTS, right of accused not to testify, 9. inspection of defendant and his belongings in criminal case, 87. introducing dying declarations, 193. use of testimony given on former trial, 189. CONTEMPORANEOUSNESS, not the test of res gestae, 284. CONTINUANCE, admission made to avoid, 38. CONTRACT, admissions concerning, 17, 18. doctrine as to attested documents, 20. right to prove surrounding circumstances, 54, n. usage as affecting, 126. CONTRADICTION, party may contradict his witness, 89. impeachment by, 93. corroboration of witness, 96. CONTRIBUTORY NEGLIGENCE, right to show practice of other persons, 128. CO-PLAINTIFFS, admissions as between each other, 50. CORPORATE BOOKS, as evidence of acts of corporation, 14. as evidence against stockholder and director, 14. 376 INDEX. {Beferences are to Sections.'^ CORPORATIONS, admissions of stockholders and directors, 27. admissions of agents of, 37. admissions of agents of public corporations, 39. CORPUS DELICTI, defined, 118. necessity of proof of, 117. CORROBORATION, of witness, 96. of impeaching witness, 97. of witness, by like statements out of court, 92. COUNTERFEITING, other acts as evidence of scienter, 57, n. CRIME, when one is a part of the res gestm of another, 287. See Collateral Crime. CRIMINAL CASE, right of accused not to testify, 9. inspection of defendant and his belongings, 87. use of testimony on former trial, 189. duty of state to prove the whole res gesta;, 294. introducing dying declarations, 193. See Confessions. CROSS-EXAMINATION, right to context of admission on, 22. use of medical books on, 85. practice on, 90, 91. collateral matters affecting the standing of witness, 91. right of, before confession offered, 120. of expert, 210. of witness to handwriting, 221. necessity of opportunity for, to render evidence competent, 224. CUSTOM, habit, as proof in particular instance, 56, n., 68. particular instances to rebut evidence of, 61. defined, 124. law of the road, 124. as affecting the question of negligence, 128. See Usage. INDEX. 377 [_Beferences are to Sections.'} D DAMAGES, collateral facta relative to, 79. evidence in aggravation, 83. evidence in mitigation, 84. right to show circumstances of plaintiff, 75. right to show circumstances of defendant, 76. proof of had reputation to mitigate, 297. jury entitled to all relevant facts, 77. mitigating, in defamation case, 298. DARKNESS, opinion evidence as to, 213. DEAD WITNESS, use of testimony of on former trial, 188, 189. suppletory oath, 183. See Deceased Persons. DEATH, protracting the res gestce, 261. of witness excusing suppletory proof, 183. See Deceased Persons; Dying Declarations. DE BENE ESSE, depositions, 187. DEEDS, recitals in, 19. recitals in, as evidence of pedigree, 144, n. DEEDS, ANCIENT, presumption in favor of due execution, 149. as acts of dominion, where very ancient, 152, et seq. DECEASED OFFICIALS, declarations by, 170. DECEASED PERSONS, prior threats and character of, 54. testimony of admissions by, 24, n. account books of, 185. declarations as to ancient public rights, 130, et seq. declarations as to private boundaries, 139. declarations of, concerning pedigree, 140, et seq. declarations against interest by, 154, et seq. declarations by, in ordinary course of business, 159, et seq. declarations of, not ordinarily admissible in criminal case, 230. declarations as to intent, 277. declarations aa to other facts, 279. See Dying Declarations. 378 INDEX. [^Beferences are to Sections."] DECEPTION, confession obtained by, 106. DECLARATIONS, matters of public or general interest, 130. ancient rights, 130, et seq. ancient verdicts, judgments, etc., 137. historical facts, 138. as proof of private boundaries, 139, 171. as to pedigree, 140, et seq. concerning legitimacy, 142. against interest by deceased persons, 154, et seq. against interest by insane persons, 154, n. by deceased persons in ordinarj^ course of business, 159, et seq. by deceased officials, 170. indorsements of payment, 172. of pain, 264, et seq. to physician, 266, 268. testimony of witness on former trial, 188-190. complaints of woman in prosecution for rape, 191. to prove notoriety, 296. to prove claim of title, 296. See Admissions ; Confessions ; Dying Declarations ; Hearsay ; Res Gest^ DEFAMATION, evidence of charafcter. 297. right to show general rumor in mitigation, 298. DEFENDANT, pecuniary circumstances of, 76. good character of where charged with crime, 298. inspection of, in criminal case, 87. evidence procured by unreasonable searches and seizures, 87. as a witness in criminal case, 91. examining under oath in criminal case, 112. See Co-Defendant. DEFENSE, presumption from prior failure to assert, 13. DEMEANOR, of person arrested, 5-13. can not be shown if self-serving, 232. DEPOSITION, filing of, not adoption of statements in, 9. in perpetiiam memoriam, 187. de bene esse, 187. impeaching witness who testifies by, 93. INDEX. 379 [^Beferences are to Sections.^ DESPONDENCY, opinion evidence as to, 213. DESTRUCTION OF EVIDENCE, contemporaneous declarations to explain, 242. DEVISEE, admission of one as against another, 50. DIRECTOR, corporate books as evidence against, 14. admission of, against corporation, 27. DISCREDITING WITNESS, right to examine for that purpose, 91. DISTANCE, opinion evidence as to, 213. DIVORCE, not granted on admissions, 24. DOCTOR, patient's statements to, 266, 268. statements of, 269. DOCUMENTS, ancient, 149, et seq. DOMICILE, declarations as to intent, 282. DRUNK, statements made while, 113. DRUNKENNESS, right to prove prior habits, 54, n. evidence of, where person charged with negligence, 51. DURESS, admission made under, 15. will exclude confession, 109. DYING DECLARATIONS, admitted only in prosecutions for homicide, 192. corpus delicti must be shown, 192. introducing, does not violate constitutional right, 193. ground of introduction, 194. circumstances under which declaration made, 195. 380 INDEX. \_Beferences are to Sections."] DYING DECLARATIONS— Co?i«m?