THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 CASES 
 
 ON 
 
 THE LAW OF EVIDENCE 
 
 SELECTED AND AEEANGED 
 
 BY 
 
 THOMAS WELBURN HUGHES 
 
 PROFESSOR OF LAW. WASHBURJ^ COLLEGE 
 TOPE K A. KAN. 
 
 CALLAGHAN & COMPANY 
 CHICAGO 
 
 1921
 
 T 
 
 COPYRIGHT 1921 
 
 BY 
 CALLAGHAN & COMPANY
 
 PREFACE. 
 
 By the case method of instruction the student acquires a knowledge 
 not only of the rules and principles of the law, but also of their ap- 
 plication to particular facts; and the latter is quite as important as 
 the former. 
 
 The chief criticism of this method of instruction is that too much 
 ground has to be covered for the amount of knowledge acquired. 
 This criticism applies with greater force to long cases. In the present 
 volume the cases are short and confined to the points of Evidence 
 involved. All matter contained in the reported cases not pertaining 
 to Evidence has been eliminated. 
 
 Nearly all of the cases in this volume are American cases ; and 
 most of them have been recently decided. These features, it is be- 
 lieved, will be appreciated both by teachers and students. 
 
 Many of the cases contained herein contain brief discussions of 
 English cases which enable the student to acquire a knowledge of 
 the origin and historical development of the various rules and prin- 
 ciples of Evidence and their exceptions. 
 
 Some topics in the law of Evidence require more extended dis- 
 cussion than others. Thus, the Rule against Hearsay and its excep- 
 tions, the Best Evidence Rule and the Parol Evidence Rule require 
 extended discussion. Owing to this fact many cases herein pertain 
 to these topics. 
 
 To the trial lawyer Evidence is the most important subject in the 
 law curriculum. It is the one subject that he must have at the tip 
 of his tongue. It comprises many rules and exceptions and should 
 be taught in law schools for at least five hours a week for one semester. 
 
 T. W. HUGHES.
 
 TABLE OF CONTENTS 
 
 PART I 
 
 PAGE 
 
 Province of the Court and the Jury I 
 
 PART II 
 
 WITNESSES 
 
 Competency 16 
 
 Privileged Communications 42 
 
 Examination of Witnesses 77 
 
 PART III 
 
 PRINCIPLES AND RULES OF EXCLUSION 
 
 Relevancy and Materiality 144 
 
 Character 156 
 
 Admissions and Confessions 175 
 
 The Rule Against Hearsay 190 
 
 Former Evidence 193 
 
 Dying Declarations 210 
 
 Declarations Relating To Pedigree 237 
 
 Declarations Against Interest By Persons Since Deceased .... 277 
 
 Declarations Relating To Public and General Interests 301 
 
 Public and Ancient Documents 311 
 
 Account Book Entries 321 
 
 Declarations In Regular Course of Business 365 
 
 Declarations Forming Part of, Or Relating To, The Res Gestae. 373 
 
 Opinion Evidence 453 
 
 Res Inter Alios 490 
 
 Telegrams and Conversations By Telephone 503 
 
 Joint Crime and One Acquitted 515
 
 vi CASES ON EVIDENCE 
 
 PART IV 
 
 PAGE 
 
 Real Evidence 519 
 
 PART V 
 
 DOCUMENTARY EVIDENCE 
 
 Alterations 550 
 
 The Best Evidence Rule 587 
 
 The Parol Evidence Rule 673 
 
 PART VI 
 Weight and Sufficiency 826 
 
 PART VII 
 
 TOPICS NOT PECULIAR TO EVIDENCE 
 
 Judicial Notice 854 
 
 Presumptions 880 
 
 Burden of Proof 893
 
 Cases On Evidence 
 
 PART I. 
 PROVINCE OF THE COURT AND OF THE JURY. 1 
 
 ALFRED FATRBANK v. B. HUGHSON. 
 58 Col. 314. (1881) 
 
 A 
 
 Appeal from a judgment for the defendant and from an order 
 denying a new trial in the Superior Court of San Joaquin County. 
 
 McKEE, J. The principal issue in this case involved the genuine- 
 ness of the signature of the defendant to the instrument in writing 
 upon which the plaintiff sought to recover in the action. 
 
 On the trial of the issue the plaintiff put in evidence eight receipts 
 which were admitted to have been signed by the defendant, and called 
 a number of witnesses to testify as to the genuineness of the paper 
 sued on, by comparison with the signatures of the receipts. In reply 
 to which the defendant called one W. H. Taylor as an expert in hand- 
 writing, who, being examined as to his qualifications, testified that he 
 had been a book-keeper for eight years in two banks in the city of 
 Stockton. In that capacity he had examined signatures and writings 
 more or less, although his business did not require him especially to 
 examine them, and, as he was only a book-keeper, and had not been 
 called upon to examine signatures, he did not consider himself to be 
 an expert. Counsel for plaintiff thereupon objected to his testimony 
 on the ground that he was not an expert. 
 
 The Court. "I shall hold it is for the jury to say how much he 
 knows about it. I will admit the testimony." 
 
 i Hughes on Evidence, p. 26. 
 
 (I)
 
 2 CASES ON EVIDENCE 
 
 This was error. Whether one offered as an expert is qualified to 
 speak as such, is a fact preliminary ta his testifying as such, to be 
 determined by the court at the trial. It cannot be referred to the 
 jury. (Jones v. Tucker, 41 N. H. 546.) 
 
 Judgment and order reversed and cause remanded for a new trial. 
 
 Ross, J. and McKiNSTRY, J., concurred. 
 
 HIGGINBOTHAM, executor, v. CAMPBELL. 
 85 Ga. 639. (1890) 
 
 New trial. Charge of court. Fraud. Practice. Before Judge 
 Maddox. Floyd Superior Court. Sept. term, 1889. 
 
 BLECKLEY, Chief Justice. In this case, a deed of conveyance, made 
 by a mother to her son, was attacked as having been procured by the 
 son through fraud committed upon his mother. The object of the 
 attack was to set aside and cancel the deed. The jury found in favor 
 of the plaintiff. The court, on motion of the defendant, granted a 
 new trial, and the plaintiff excepted. 
 
 In the trial of civil cases, the responsibility for the law of the case 
 rests wholly upon the judge. The jury must take it from him, and as 
 he expounds it, with no concern on their part for the correctness or 
 incorrectness of his exposition. Instead of so instructing the jury, 
 the judge charged them that they were the judges of the law and 
 the facts which had been submitted to them. Whilst in one sense 
 this was not absolutely incorrect, for, in civil as well as criminal cases, 
 the jury apply the law to the facts, and exercise that degree of judg- 
 ment upon it which is necessarily involved in doing so; still, such 
 instructions, unattended with a caution to accept the law as announced 
 by the court, might be misleading. The jury could understand them 
 as implying the same functions on their part with reference to the 
 facts, and knowing that it was upon them to ascertain and settle 
 what the facts really were, they might think they had the same office 
 to perform touching the law. They might conclude that they were 
 to recognize as law that which they thought it was rather than that 
 which the judge said it was. It is true that the danger of such mis- 
 take was not imminent, but that it existed at all, by reason of an 
 inaccurate expression from the bench, might very properly render the 
 judge desirous of an opportunity to correct it on a future trial,
 
 PROVINCE OF THE COURT AND OF THE JURY 3 
 
 especially if he had any doubt of the correctness of the verdict, in so 
 far as it involved elements of law as distinguished from matters of 
 fact. 
 
 Judgment affirmed. 
 
 AGNES CAIRNS, executrix, v. JOHN MOONEY. 
 62 yt. 172. (1890) 
 
 Action, assumpsit. Plea, the general issue. Trial by jury, at the 
 September Term, 1889. Powers, J., presiding. Verdict and judg- 
 ment for the plaintiff. Exceptions by the defendant. 
 
 The plaintiff sued for the price of certain apples sold by her testator 
 to the defendant. The defendant claimed that the quality of the 
 apples was not according to the contract, and offered to so testify 
 himself. To his testimony the plaintiff objected, for that the other 
 party to the contract was dead. Thereupon the defendant insisted, 
 and his evidence tended to show, that the contract was not made with 
 the testator but with his son, acting as his agent. The court excluded 
 the evidence. 
 
 TAFT, J. The defendant was not a competent witness, "unless the 
 contract in issue was originally made with a person who is (was) 
 living and competent to testify." The defendant claimed that the 
 contract for the apples was made with Harvey Cairns, acting as 
 agent for the testate, and who was present at the trial and testified. 
 Conceding that the testimony of the defendant's witness tended to 
 establish the fact of agency, the question was one for the court. The 
 defendant insists that he should have been permitted to testify, and 
 the question of agency submitted to the jury, and if they found it 
 established, they should then consider the testimony of the defendant 
 upon the various points upon which he gave testimony, and if they 
 did not find the fact of agency proved, reject the testimony. It was a 
 question of competency or incompetency'of the defendant as a wit- 
 ness, and that question is always for the court, and should never be 
 submitted to the jury, i Green. Ev. (i4th Ed.) s. 49 and note a; 
 i Tay. Ev. s. 21; Bartlett v. Smith, 11 M. & W. 483; Reg. v. Hill, 
 5 Eng. L. & Eq. 547; Cook v. Mix, n Conn. 432; Holcomb v. Hoi- 
 comb. 28 Conn. 177; Harris v. Wilson, 7 Wend. 57; Reynolds v. 
 Lounsbury, 6 Hill 534; Dole v. Winslow, 12 Met. 157; McManagil
 
 4 CASES ON EVIDENCE 
 
 v. Ross, 20 Pick, 99. In some jurisdictions it has been held that, 
 in doubtful cases, it is not improper to refer the existence of the facts 
 upon which the competency depends to the jury; and, in some in- 
 stances, it is intimated that it should be done. Hartford F t Ins. v. 
 Reynolds, $5 Mich. 502; Johnson v. Kendall, 20 N. H. 304; Bartlett 
 v. Hoyt, 33 N. H. 151; Dart v. Heilner, 3 Rawle, 407; Gordon v. 
 Boivens, 16 Penn. St. 226; Haynes v. Hemsicker, 26 Penn. St. 58. 
 
 Questions of fact affecting the admissibility of testimony often 
 arise, and it would be very inconvenient, if not impracticable, to sub- 
 mit them to the decision of a jury. The testimony as to the com- 
 petency of a witness, and that of the witness as to the issues upon 
 trial, would all go to the jury with directions that if they found the 
 witness incompetent, it would be their duty to disregard his evidence 
 upon the main issues, which in many instances it might be impossible 
 to do. Having heard the illegal testimony discussed by counsel, the 
 confusion which would probably arise in separating the legal from 
 illegitimate testimony would no doubt lead to the rendition of erro- 
 neous verdicts, with no relief for the unfortunate party; and cer- 
 tainly this should not be the rule in a jurisdiction where the admission 
 of illegal evidence is not cured by a direction from the court to 
 disregard it. State v. Hopkins, 50 Vt. 316; State v. Meader, 54 Vt. 
 126; Hall v. Jones, 55 Vt. 297; Rob. Dig. 700, pi. 55. 
 
 In Cook v. Mix, supra, the question was whether the witness had 
 an interest in the event of the suit and the court said it "was a ques- 
 tion of fact to be determined on the evidence before the court. It is 
 claimed in the first place, that the judge mistook the law in not sub- 
 mitting this question to the jury, and this claim has been gravely 
 urged before this court. It is sufficient to observe that the claim is 
 unfounded as it is novel, that it has no support either in principle or 
 authority, and is utterly incapable of being reduced to practice." 
 
 It is not by any means true that all questions of fact in a jury 
 trial must be left to the jury; numerous instances where the court 
 passes upon such questions can be readily called to mind, e. g., whether 
 a witness is an expert; or a dying declarant entertained hopes of 
 recovery; or a writing to be used as a test in comparison of hand- 
 writing is proved ; or a witness has sufficient mental capacity to tes- 
 tify, or is the husband or wife of the party; or declarations are so 
 far a part of the res gestae as to be admissible; or a confession was 
 induced by threats; or a document has been duly or sufficiently 
 stamped; or sufficient search has been made for a lost document to 
 warrant the introduction of secondary evidence. Many other instances
 
 PROVINCE OF THE COURT AND OF THE JURY 5 
 
 might be given. In the beginning of a jury trial, suppose a woman 
 is offered as a witness for the plaintiff and the defendant objects 
 for that she is the wife of the plaintiff. The question is purely one 
 of fact. Will anyone claim that her testimony should be given upon 
 the main issues, and the question of whether wife or not be- left to 
 jury, and then if they find her to be the wife, discard her testimony, 
 but if not, consider it? Conceive that in a suit in favor of several 
 plaintiffs the question should arise in respect to each one. Well might 
 the Connecticut court characterize the claim of the defendant as un- 
 founded as it was novel. The c'ourt below not being satisfied from 
 the evidence that the contract in issue was made with the agent of the 
 testate, properly held the defendant incompetent. 
 
 Judgment affirmed. 
 
 COMMONWEALTH v. GEORGE A. CULVER et al. 
 126 Mass. 464. (1879) 
 
 Indictment on the Gen. Sts. c. 161, 12, charging the defendants 
 with breaking and entering, on March 27, 1876, the shop of George 
 M. Crawford, at Ayer, with intent to steal. 
 
 At the trial in the Superior Court, before Allen, J., the govern- 
 ment offered to prove confessions made by the defendant. The de- 
 fendants objected to their admission, on the ground that they were 
 made in consequence of offers of favor made to the defendants by the 
 officer who arrested the defendants and had them in custody ; that 
 these offers were carried to the defendants by request of the officer, 
 before the confessions were made ; and that the confessions were in- 
 duced by the offer. 
 
 At the suggestion of the judge, the government called as a wit- 
 ness the officer who made the arrest; and he denied that he made 
 any offers of favor to the defendants, or had caused any offers of 
 favor to be carried to the defendants by others. The defendants 
 then offered to call five different witnesses to prove the truth of their 
 claim, and asked the judge to hear them, and first to determine 
 whether the confesssions ought to be received. The judge declined 
 to admit the evidence at that stage of the case but admitted the con- 
 fessions. 
 
 The jury returned a verdict of guilty; and the defendants alleged 
 exceptions.
 
 6 CASES ON EVIDENCE 
 
 LORD, J. The only question which this case presents is whether 
 it was error in the presiding judge to refuse to hear the evidence 
 offered by the defendants, at the time it was tendered, relating to 
 the inducements held out to the defendants for the purpose of ob- 
 taining the confessions offered in evidence by the government; and 
 we think it was. There is undoubtedly a large discretion vested in the 
 presiding justice at a trial, in reference to its conduct and to the 
 order of proofs. In this case, when the evidence was offered by the 
 government, it was objected to as incompetent. Its competency was 
 a question of law, and was to be decided by the court. Prime, -facie, 
 it was competent; but the defendants contended that it was incom- 
 petent by reason of certain extrinsic facts. It was for the defendants 
 to establish those facts, and it was the duty of the presiding judge 
 to ascertain whether they existed, before admitting the evidence. It 
 appears by the bill of exceptions, that, when the confessions of the 
 defendants were offered in evidence, they objected to such confes- 
 sions, upon the ground "that they were made in consequence of offers 
 of favor made to the defendants by the officer who arrested the 
 defendants and had them in custody." If this were true, and the 
 defendants could establish the fact, the confessions were incompetent 
 evidence. It was the duty of the presiding judge to determine that 
 fact, upon hearing all competent evidence upon it which was tendered 
 by either party. In the absence of all evidence, the presumption is 
 that a confession is voluntary; and when the party confessing objects 
 that confessions are not voluntary, he is called upon to show, at least 
 enough to rebut such presumption. Instead, however, of calling upon 
 the defendants thus to repel the presumption, the presiding judge 
 suggested that the officer be called by the district attorney; and he 
 was called and denied having made offers of favor to the defendants 
 to induce the confessions. The defendants then offered to call five 
 different witnesses to prove the truth of their claim. The court de- 
 clined to admit the testimony, "at that stage of the case, but ad- 
 mitted the confessions." That however, was the only stage of the 
 case at which the evidence could be admitted for the purpose for 
 which it was offered, to wit, to show that the proposed confessions 
 were incompetent. 
 
 We are aware that it is not an uncommon practice in the trial of 
 criminal causes, when confessions of a defendant are offered in evi- 
 dence, and objected to upon the ground that they were improperly 
 obtained, for the presiding judge to allow the confessions, and all 
 the evidence bearing upon the manner in which they were obtained,
 
 PROVINCE OF THE COURT AND OP THE JURY 7 
 
 to be submitted to the jury, either to be rejected by the jury wholly, 
 or to be allowed such weight as under the circumstances the jury 
 deem it proper to give them. This, however, as we understand it, is 
 rather by consent than otherwise, neither party desiring to take the 
 decision of the presiding judge upon the question of competency. 
 There may be, however, and commonly are, two questions : first, the 
 competency of the evidence, and, secondly, the weight of the evi- 
 dence. The former is always a question of law, the latter is always a 
 question of fact. The prisoner has always the right to require of 
 the judge a decision of the competency of the evidence; and even 
 after the judge has decided the evidence to be competent, the pris- 
 oner has the right to ask of the jury to disregard it, and to give no 
 weight to it, because of the circumstances under which the confes- 
 sions were obtained. In the case at bar, however, the counsel for 
 the prisoners insisted upon their right to have the judge decide upon 
 the competency of the evidence, and tendered evidence of its incom- 
 petency; this evidence it was the duty of the presiding judge to hear. 
 The evidence having been tendered at a stage of the case in which 
 it was the duty of the defendants to offer it, and the presiding judge 
 .having refused to hear it at that time, the exception to his refusal to 
 hear it must be 
 
 Sustained. 
 
 EDWIN F. CONELY v. HENRIETTA McDONALD. 
 40 Mich. 750. 
 
 Appeal from an order of the Probate Court admitting to probate 
 an instrument purporting to be the last will of Firth A. McDonald. 
 The plaintiff in error was named as executor in this instrument, and 
 was designated by the Probate Court as the representative on the 
 appeal, of all the parties interested. The Circuit Court directed the 
 framing of an issue, and the plaintiff in error appeared as proponent 
 of the instrument, and alleged that it was the last will and testament 
 of Firth A. McDonald, and that at the time of its execution he pos- 
 sessed the necessary lawful qualifications to its due execution by him. 
 The appellant and contestant, who was the widow of McDonald, 
 pleaded the general issue with notice that she would show that the 
 instrument relied on was not her husband's last will; that its execu-
 
 8 CASES ON EVIDENCE 
 
 tion was obtained by fraud and undue influence of Joel McDonald 
 and others; that Firth A. McDonald was of unsound mind and mem- 
 ory when he signed and executed it, and that its provisions were 
 contrary to the just and legal rights of the appellant. The jury found 
 that the instrument propounded was not the last will and testament 
 of Firth A. McDonald, and it was so adjudged. The proponent 
 Conely brought error. 
 
 MARSTON, J. Under the issues as framed in this case, evidence 
 tending to show undue influence was competent and admissible in 
 evidence. The court in charging the jury, being of opinion that upon 
 this branch the testimony did not tend to show undue influence, with- 
 drew that question from their consideration. 
 
 After the evidence was all in, counsel for proponent requested the 
 court to instruct the jury, ist, "There is no evidence in the case tend- 
 ing to show that the testator when he executed the will in controversy 
 was in any respect of unsound mind, and the jury are therefore 
 bound to assume that he was fully competent to make such a will;" 
 2nd, "Upon the whole case the verdict must be for the proponent." 
 These requests were refused and to the charge as given no exceptions 
 were taken. 
 
 It was not seriously disputed on the argument but that there was 
 testimony in the case tending to show that the testator did not have 
 sufficient capacity to make the will in question. It was, however, 
 urged very strenuously that there was not sufficient evidence, all of 
 which is returned, to sustain the verdict in this case, and conse- 
 quently that the second above request to charge should have been 
 given. 
 
 We' had supposed that the law was well settled in this State as 
 to the duty of the court under such circumstances. It is true the 
 question may not have been discussed at length, and the authorities 
 bearing thereon cited in any one particular case, but the question has 
 frequently been referred to and acted upon in cases where perhaps, at 
 least in some of them it was of minor importance. As the question 
 is one of importance in this case, and has been ably argued and au- 
 thorities cited, more especially the decisions of the English courts and 
 of the Supreme Court of the United States, it may be well to con- 
 sider the matter at some length and see what the true rule is or 
 should be in all such cases, and in the light thereof determine the 
 controversy in this case. In England the rule is laid down that a scin- 
 tilla of evidence clearly would not justify the judge in leaving the 
 case to the jury; that there must be evidence on which they might
 
 PROVINCE OF THE COURT AND OF THE JURY 9 
 
 reasonably and properly conclude that the issue was proven. See 
 Ryder v. Wombell, Law Rep., 4 Exch., 38, where many of the cases 
 are collected and citations therefrom given. 
 
 In Hickman v. Jones, 9 Wall., 201, the court instructed the jury 
 to acquit the defendants. Swayne, J., said: "There was some evi- 
 dence against both of them. Whether it was sufficient to warrant 
 a verdict of guilty was a question for the jury under the instructions 
 of the court. The learned judge mingled the duty of the court and 
 jury, leaving the jury no discretion but to obey the direction of the 
 court. Where there is no evidence, or such a defect in it that the 
 law will not permit a verdict for the plaintiff to be given, such an 
 instruction may be properly demanded, and it is the duty of the court 
 to give it. To refuse is error. In this case the evidence was received 
 without objection, and was before the jury. It tended to maintain, 
 on the part of the plaintiff, the issue which they were to try. Whether 
 weak or strong, it was their right to pass upon it. It was not proper 
 for the court to wrest this part of the case, more than any other, 
 from the exercise of their judgment. The instruction given over- 
 looked the line which separates two separate spheres of duty. Though 
 correlative, they are distinct, and it is important to the right adminis- 
 tration of justice that they should be kept so. It is as much within 
 the province of the jury to decide questions of fact as of the court to 
 decide questions of law. The jury should take the law as laid down 
 by the court and give it full effect. But its application to the facts 
 and the facts themselves are for them to determine. These are the 
 checks and balances which give to the trial by jury its value. Ex- 
 perience has approved their importance. They are indispensable to 
 the harmony and proper efficacy of the system. Such is the law." 
 
 Assuming that the English rule as already stated, which was fol- 
 lowed and approved in Commissioner v. Clark, 94 U. S. 284, means 
 just what is said, that a scintilla of evidence would not justify the 
 judge in leaving the case to the jury, I can fully concur therein. Such 
 a rule would be no more than what has repeatedly been followed in 
 this state. In Kelly v. Hendrie, 26 Mich. 256, it was said: "If, 
 upon any point essential to a recovery, the evidence bearing on it is 
 open to but one meaning, and that meaning is plainly and neces- 
 sarily adverse to the plaintiff, then he has no ground of complaint" 
 if the court takes the case from the jury. There may be a "scintilla" 
 in other words a "spark" or "the least particle" of evidence in a case, 
 and yet fall far short of what is essential. It frequently happens on 
 the trial of a cause that proof of one fact has of itself a tendency to
 
 io CASES ON EVIDENCE 
 
 prove others which are material and necessary to establish the cause 
 of action, while in other cases each fact is so separate and distinct 
 that proof of one raises no presumption whatever in support of an- 
 other. 
 
 As was said in Perrot v. Shearer, 17 Mich. 54, whether evidence 
 bearing upon a certain point tends to establish it or not, may depend 
 not alone upon that particular item of evidence, but upon that con- 
 sidered in its relation to other evidence which may so far qualify and 
 explain it that it shall have no tendency whatever to prove the posi- 
 tion for which it was offered, and which if it were the sole evidence 
 in the case it might appear to establish. The duty to examine, weigh 
 and compare in these cases is not entrusted to the judge; these are 
 matters lying within the peculiar province of the jury. 
 
 In Berry v. Lowe, io Mich., 15, where the question came up on writ 
 of error, it was said : "If the alleged error is a total want of evidence 
 to prove some fact necessary to sustain the judgment, the court will 
 look into the testimony to see whether there was such evidence or 
 not. If there was, it will not weigh it, or inquire into its sufficiency, 
 but affirm the judgment. If the return shows no such evidence, and 
 it appears all the testimony before the justice has been returned, the 
 judgment will be reversed on the ground that the justice erred, in 
 law, in rendering the judgment he did without such evidence." Or 
 as was said in Hyde v. Nelson, n Michigan, 357, where the question 
 came up on certiorari, "It is only when there is an entire absence of 
 proof upon some material fact found, that such finding becomes erro- 
 neous as a matter of law." 
 
 The doctrine laid down in these cases has always been strictly 
 adhered to in this State. In addition to the cases already cited, see 
 Blackwood v. Brown, 32 Mich., 107, and authorities there referred 
 to; Maas v. White, 37 Mich., 130, and Elliott v. Van Buren, 33 Mich., 
 52, where it was said to be "not in the province of an appellate court 
 to consider the amount of the verdict or the weight of the evidence, 
 the court of trial may set aside a verdict which violates justice, and 
 it is to that tribunal that parties must apply for relief against exces- 
 sive damages or any other of the wrongs for which it may be right 
 to grant a new trial. We are bound in all cases to assume that the 
 jury have done no legal wrong when acting within their province." 
 
 It seems to me that this is the only safe rule. Under our system 
 of jurisprudence, the jury is called to pass upon the facts. 
 
 It is not only their privilege but their right to judge of the suffi- 
 ciency of the evidence introduced to establish any one or more facts
 
 PROVINCE OF THE COURT AND OF THE JURY n 
 
 in the case on trial. The credibility of witnesses, the strength of 
 their testimony, its tendency and the proper weight to be given it, 
 are matters peculiarly within their province. The law has constituted 
 them the proper tribunal for the determination of such questions. 
 To take from them this right is but usurping a power not given. 
 The jury should be left entirely free to act according to their own 
 judgment. Where there is a total defect of evidence as to any essen- 
 tial fact, or a spark, the least particle, a scintilla as it is termed, the 
 case should be withdrawn from the consideration of the jury. Where, 
 however, the evidence introduced has a legal tendency to make out 
 a proper case in all its parts, then, although it may in the opinion 
 of the trial court or the Appellate Court be slight, inconclusive, and 
 far from satisfactory, yet it should be submitted to the jury, whose 
 proper province it is to consider and determine its tendency and 
 weight 
 
 When there is a total want of evidence upon some essential fact, 
 but the jury nevertheless find such fact, the finding is erroneous as 
 matter of law, but when there is slight evidence in support thereof 
 a finding thereon would be one of fact, upon which men might differ 
 in opinion, but for a court to attempt the correction thereof upon 
 writ of error would be a correction of errors in fact and not in law, 
 a power which this court does not possess. 
 
 We are of opinion that there was evidence in this case which tended 
 to prove the issue made. The weight and effect thereof was rightly 
 left to the jury under proper instructions, and their finding we have no 
 power to review. 
 
 The proceedings must be affirmed. The cause, however, was prop- 
 erly brought into this court, and the costs should be paid out of the 
 estate in all the courts. It must be certified accordingly to the circuit 
 and probate courts. 
 
 The other Justices concurred. 
 
 GRACE MICHAEL, Appellee, v. O. E. MATSON, Appellant. 
 81 Kan. 360. 
 
 Appeal from Harvey District Court; Peter J. Galle, Judge. Opin- 
 ion filed Dec. n, 1909. Reversed. 
 
 MASON, J. O. E. Matson while mayor of Burrton, verified a com-
 
 12 CASES ON EVIDENCE 
 
 plant charging M. M. Michael and Grace Michael, his wife with 
 violating the prohibitory law, and caused their arrest. The county 
 attorney refused to prosecute and the case was dismissed. Grace 
 Michael brought action against Matson for malicious prosecution and 
 recovered a judgment for $600, from which he appeals. 
 
 We think the verdict must be set aside for the reason that the 
 instructions were so worded as naturally to lead the jury to under- 
 stand that they were the judges of what constituted probable cause, 
 and their findings show that they probably acted upon that under- 
 standing. There is some conflict on the subject, but the great pre- 
 ponderance of authority favors the view that the question of what 
 facts are sufficient to constitute probable cause is one of unmixed 
 law. (26 Cyc. 107; 19 A. & E. Encycl. of L. 669.) Courts which 
 acquiesce in the general statement of the rule sometimes refuse an 
 unqualified application of it. For illustration, it was approved in 
 Fagnan v. Knox, 66 N. Y. 525, Erb v. German American Ins. Co., 
 112 Iowa, 357, and. Hamilton v. Smith, 39 Mich, 222, 227, but denied 
 application in Heyne v. Blair, 62 N. Y. 19, Donnelly v. Burkett, 75 
 Iowa, 612, and Davis v. McMillan, 142 Mich. 391. This court, how- 
 ever, has consistently adhered to it and given it practical effect. 
 (Drumm v. Cessnum, 58 Kan. 331 ; Railway Co. v. Allen, 70 Kan. 
 743.) In the Drumm-Cessnum case it was said-: 
 
 "Where the facts are disputed, it must be left to the jury to de- 
 termine what the facts are, but the court should instruct what facts 
 amount to probable cause for an arrest and what do not. The court 
 should summarize the claims of the parties, and state to the jury what 
 basis of fact must exist to show probable cause, and what will sus- 
 tain the claim of a want of probable cause." (Page 333) 
 
 In the present case the court gave this instruction: 
 
 "You are instructed that to constitute probable cause for criminal 
 prosecution there must be such reasonable grounds of suspicion, sup- 
 ported by circumstances sufficiently strong in themselves, to warrant 
 an ordinarily cautious man in the belief that the person arrested is 
 guilty of the offense charged, and in this connection you are further 
 instructed that a mere belief that an innocent person is guilty of a 
 crime is not alone sufficient to justify causing his or her arrest. The 
 facts must be such as would justify an ordinary, intelligent and rea- 
 sonably prudent person in entertaining such belief. Whether in this 
 case such facts had come to the knowledge of the defendant at the 
 time he entered the complaint against the plaintiff is a question of
 
 PROVINCE OF THE COURT AND OF THE JURY 13 
 
 fact for the jury to determine, from a preponderance of the evi- 
 dence." 
 
 This definition of what constitutes probable cause is doubtless suf- 
 ficiently accurate, although the use of "cautious" in place of "prudent" 
 has been criticised. (McClafferty v. Philip, Appellant, 151 Pa. St. 
 86.) As it is not the province of the jury to determine what circum- 
 stances would induce a reasonably prudent man to believe another 
 guilty of a crime, there seems to be no purpose in the giving of an 
 abstract instruction on the subject. 
 
 "Inasmuch as the question of probable cause is always to be de- 
 termined by the court from the facts in each particular case, it would 
 seem unnecessary to give to the jury any definition of the term or 
 any instruction upon abstract propositions relating to this subject. 
 These abstract rules will guide the court in determining the question, 
 but are apt to lead the jury away from their function of passing upon 
 the effect of the evidence in support of the probative facts which the 
 court may direct them to find in order to determine in which way 
 their general verdict shall be rendered." (Ball v. Rawles, 93 Cal. 
 222, 233.) 
 
 Nevertheless such an instruction is ordinarily not prejudicial, where 
 the charge includes a statement of what facts would amount to prob- 
 able cause in the case on trial. (Jonasen v. Kennedy, 39 Neb. 313, 
 319, 320.) The difficulty here -is that the last sentence of the in- 
 struction quoted, although open to a different construction, naturally 
 tended to lead the jury to understand that they were to decide for 
 themselves whether the facts known to the defendant when he caused 
 the plaintiff's arrest were such as would justify an ordinarily prudent 
 person in believing her guilty. This misleading tendency, if not cor- 
 rected by a clear and accurate statement of what concrete facts would 
 justify a reasonable belief of guilty, is a ground for reversal, unless 
 it can be said from the record that the jury were not in fact misled. 
 The inference from the findings, however, is to the contrary. 
 
 Belief that probable cause exists for the arrest of a person is 
 obviously a different thing from a belief that he is guilty. The latter 
 is often said to be an essential ingredient of probable cause, although 
 many of the definitions omit it. (26 Cyc. 29; 19 A. & E. Encycl. of 
 L. 663; 6 Words and Ph. Jud. Def. p. 5620 et seq.; note Am. St. 
 Rep. 140.) The former has no materiality in this kind of an action 
 unless as bearing upon the question of malice. A man may cause an 
 arrest under a reasonable belief, founded on abundant evidence that 
 the accused person is guilty. Yet he may suppose, through ignorance
 
 14 CASES ON EVIDENCE 
 
 of the law, that "probable cause" does not exist, and that if he fails 
 to procure a conviction he is answerable in damages. Plainly he 
 would not be liable under such circumstances. Probable cause would 
 exist in fact and would afford him a perfect defense, whatever might 
 be the result of the prosecution. The instruction given in this respect 
 was clearly erroneous and under the circumstances of the case must 
 be deemed to have been prejudicial. 
 
 The judgment is reversed and a new trial ordered. 
 
 Notes. Very generally, issues of law must be decided by the court. In a 
 few states, however, including Connecticut, Maryland, Indiana, Illinois and 
 Louisiana, issues of law, as well as issues of fact, are, in criminal cases, de- 
 cided by the Jury. This is owing to provisions in the state constitutions or 
 statutes. 
 
 Mixed Issues of law and fact are for the jury to decide under proper in- 
 structions by the court. The following are examples of this class of issues: 
 whether a certain article constitutes baggage; whether certain real estate 
 constitutes a homestead; whether a certain instrument is a deadly weapon; 
 whether certain goods are necessaries; whether a certain homicide was com- 
 mitted in self-defense; whether a husband has abandoned his wife; whether 
 a certain act performed on Sunday was a work of charity or necessity. 
 
 The distinction between an issue of fact and a mixed issue of law and fact 
 5s this: The subject-matter of the former has its natural meaning, and is 
 not governed by rules of law. Hence no occasion arises for instructions by 
 the court. Whereas the subject-matter of the latter is within the definition 
 of some rule of law, and for this reason possesses certain attributes other 
 than those possessed by it naturally. Hence the court is required to instruct 
 the jury as to the legal definition of the term. 
 
 Upon principle, the question of want of probable cause, in an action for 
 malicious prosecution, is a fact for the jury to decide. But, on the ground of 
 public policy, the court decides it. This anomaly is to encourage persons to 
 make complaints against criminals and to protect them when sued for 
 malicious prosecution. In England the reason for the anomaly is much 
 greater than in this country, but our courts follow the English decisions. 
 
 Cases arise where courts are bound, owing to insufficiency of the evidence, 
 to withdraw them from the jury. Others arise where courts may, in their 
 discretion, withdraw them from the jury. But, as stated in Hughes on 
 Evidence, pages 27, 28, "This function is one which should be exercised only 
 in very clear cases. It should never be exercised when the evidence, if 
 material, is conflicting; nor when impartial minds might honestly and 
 reasonably draw different conclusions therefrom. If the facts are undisputed 
 or admitted, whether such facts constitute a legal cause of action, or a legal 
 defense, is a question for the court to decide. To justify a withdrawal of 
 the case from the jury, on the request of one of the parties, the evidence of 
 the opposite party must be assumed to be true and all legitimate inferences 
 therefrom must be in his favor. A mere scintilla of evidence in support of 
 any theory of the case is not of itself sufficient to prevent a withdrawal. If 
 at the close of the plaintiff's case there is no evidence at all to prove a mate-
 
 PROVINCE of THE' COURT AND OF THE JURY 15 
 
 rial fact essential to recovery, the court, on the request of the defendant, is 
 bound to instruct the jury to find a verdict for the defendant. If, however, 
 such request is not made until after the defendant has introduced evidence 
 which tends to prove such material fact, the court may refuse to so instruct 
 the jury. Where there is any material evidence tending to prove all the 
 material requisites to a recovery the trial judge is bound to submit the case 
 to the jury without regard to wh'at, at the time, he may think he would do 
 on a motion for a new trial." 
 
 The usual mode of raising the question of withdrawal of the case from the 
 jury is by motion for a nonsuit, or by a request that the court instruct the 
 jury to return a verdict in favor of a certain party. In a few states it may 
 be done by demurring to the evidence.
 
 PART H. 
 WITNESSES. 
 
 COMPETENCY.i 
 
 JEREMIAH ARNOLD v. ESTATE OF SAMUEL ARNOLD. 
 13 Vt. 362. (1841) 
 
 This was an appeal from the decision of commissioners, appointed 
 by the Probate Court to receive, examine and adjust all claims and 
 demands against the estate of Samuel Arnold, deceased, of which 
 estate David Arnold and Nancy Arnold were administrators. 
 
 The plaintiff declared in an action of book account against said 
 estate. Judgment to account was rendered in the County Court and 
 auditors were appointed, who reported that the parties appeared before 
 them, and the plaintiff exhibited his account against said estate, and 
 offered to prove the same by his own oath; but, it appearing that 
 the plaintiff did not believe in the existence of a Supreme Being, 
 the auditors decided that his testimony was inadmissible, and he was 
 not permitted to testify. The counsel for the plaintiff then insisted 
 that the plaintiff was a competent witness to testify to said account 
 under the statute laws of this state, and requested the auditors to ad- 
 minister an oath or affirmation to the plaintiff, agreeably to the second 
 section of chapter 109 of the Revised Statutes. But the auditors de- 
 cided that such oath or affirmation ought not to be administered. 
 
 The opinion of the court was delivered by 
 
 REDFIEXD, J. The question which we are now for the first time 
 called to decide, is one of some little delicacy, and of very great im- 
 portance. It is one of delicacy, because those, who may think them- 
 selves affected by it, are liable to feel aggrieved by a determination 
 which excludes them from giving testimony, even in their own cases, 
 and by misapprehending, to some extent, the grounds of the ex- 
 clusion, might possibly consider it rather a matter of punishment 
 than misfortune, and thus feel disposed to resist the rule rather than 
 reform either their habits or belief. On the other hand, some very 
 
 i Hughes on Evidence, p. 265. 
 
 16
 
 COMPETENCY i/ 
 
 conscientious persons would feel, no doubt, that where the rule was 
 so narrowed down, as to admit Pagans, Jews, Mahometans, Deists, 
 Universalists, and especially members of the Greek and Roman com- 
 munions, that all religion was desecrated and trodden under foot. 
 Under these circumstances, we feel solicitous that the reasons of 
 this decision should be understood, in order that the question here 
 decided may be put at rest, until the law-making power shall see 
 fit to change the rule, which, judging from the past, is not likely 
 soon to occur. 
 
 It is hardly necessary here to repeat, for the hundredth time, the 
 very obvious remark, that in deciding questions upon these seats, we 
 have not to inquire what, upon principles of expediency or propriety, 
 the rule of law should be, but what is it? 
 
 Almost all sober, and especially religious men, have for many years, 
 in ruminating upon reforms in our system of jurisprudence, sincerely 
 regretted the very unnecessary frequency of oaths ; and not a few 
 men of that same class have even questioned the necessity of resorting 
 to the sanction of an oath, in any department of the civil administra- 
 tion. It is doubtless true, that there exist very grave reasons in favor 
 of adopting even the latter opinion; but such an important step 
 in simplifying the system of municipal law and government, and one 
 so untried, could hardly be taken, except upon the most mature con- 
 sideration, and the most thorough conviction of its necessity. 
 
 In regard to paths, I think it will be conceded on all hands that 
 some kind of religious belief has always been considered indispens- 
 able, in order to their binding obligation upon the conscience of 
 the one sworn. At times it has been deemed an essential pre-requisite 
 that the person sworn should believe in all the articles of the Chris- 
 tian faith. Such were some of the early English decisions. And 
 Mr. Starkie, in the last edition of his work on evidence, says, "All 
 persons may be sworn, who believe in the existence of God, in future 
 state of rewards and punishments, and in the obligation of an oath ;" 
 thus clearly indicating that all this is necessary. But as Lord Mans- 
 field, in delivering the opinion of the court in the case of Atcheson 
 v. Everitt, Cowper, 389, well says, "Since the case of Omichund v. 
 Barker, i Wilson, 84 (i Atk. 21. Willes, 550.) and another case of 
 great authority determined since, the nature of an appeal to Heaven, 
 which ought to be received as a full sanction to evidence, has been 
 more fully understood." The case of Omichund v. Barker was that 
 of the depositions of certain Gentoos, sworn according to the cere- 
 monies of their religion, by stooping down and touching the shoes
 
 1 8 CASES ON EVIDENCE 
 
 of their priests. The other case referred to by the learned judge 
 above, was that of a Turk, sworn upon the Koran, Strange, 1104. A 
 Jew, too, may be sworn upon the Pentateuch, Vernon, 263, which 
 was the case of an answer in chancery. It is said in the report of 
 the case of Omichund v. Barker, "that, at this day, it seems to be 
 settled, that infidelity of any kind doth not go to the competency of 
 a witness." This must mean infidelity, as contradistinguished from 
 - Christianity; for it is well settled that an atheist cannot be sworn. 
 
 In support of the proposition that an atheist cannot be sworn, we 
 need only refer to the history of oaths, and the nature of an oath. 
 An oath is well defined to be "a solemn invocation of the vengeance 
 of the Deity, if the person sworn do not regard the requisitions of 
 the oath. 
 
 The earliest statute, which I have been able to find upon the sub- 
 ject of blasphemy, was passed February, 1779. The phraseology 
 of the statute, and the extreme penalty affixed, indicate the severity 
 and sincerity of the age. One now almost shudders to reflect how 
 short a period of time intervenes between us and them. That sec- 
 tion is in these words, "That if any person shall blaspheme the name 
 of God, the Father, Son, or Holy Glost, with direct, express presump- 
 tion, and high handed blasphemy, or shall curse in the like manner, 
 such person shall be put to death." The next statute passed upon 
 this subject is much in the same terms, except the penalty is whipping 
 and sitting in the pillory. This bears date 1787. The next statute 
 punishing blasphemy is found in the revision of 1797, and is in these 
 words : "If any person shall publicly deny the being and existence 
 of a God, or of the Supreme Being, or shall contumeliously reproach 
 his providence and government, he shall be deemed a disturber of 
 the public peace and tranquility, and a corruptor of public morals and 
 good manners/' &c. The punishment was by fine and security for 
 good behavior. This statute, so far as regards the definition of the 
 offense and the penalty, is literally re-enacted in the late revision. 
 Hence it is not true, as has been sometimes said, that to require of 
 a witness a belief in the existence of a Supreme Being, was at vari- 
 ance with the whole spirit and tenor of our constitution and laws. 
 I trust, indeed, that the recognition of the existence and providence 
 of the Supreme Being is a principle deep laid in the very founda- 
 tion of our institutions. "And if there be," in the language of 
 Chief Justice Willes, "any such infidels, who either do not believe 
 in a God, or who do not think he will reward or punish them, either 
 in this world or the next, they cannot be witnesses, for this plain reason,
 
 COMPETENCY 19 
 
 that an oath cannot possibly be any tie or obligation upon them." 
 
 I shall not stop to inquire how far, in this case, the witness being 
 a party and admitted to testify by statute, a different rule should 
 apply from the ordinary case of witnesses who have no interest in the 
 case. It is obvious that the statute was only intended to remove the 
 objection of interest. Hence it is plain, that a party who is made a 
 witness by statute is to become such under the same requisitions and 
 restrictions as any other witness. He must be of sane mind, of sound 
 memory, of suitable age, willing to be sworn, and capable of taking 
 an oath. It would not be pretended, I presume, that a person con- 
 victed of any infamous crime would, nevertheless, be a competent wit- 
 ness, in his own action of account and book account. 
 
 Judgment affirmed. 
 
 WHEELER v. UNITED STATES. 
 1 59 V. S. 523. (1895) 
 
 BREWER, J. On January 2, 1895, George L. Wheeler was by the 
 Circuit Court of the United States for the Eastern District of Texas 
 adjudged guilty of the crime of murder and sentenced to be hanged. 
 Whereupon he sued out this writ of error. Three errors are alleged: 
 First, that the indictment is fatally defective in failing to allege that 
 the defendant and the deceased were not citizens of any Indian tribe 
 or nation. It charges that they were not Indians nor citizens of the 
 Indian Territory. The precise question was presented in West- 
 moreland v. United States, 155 U. S. 545, and under the authority 
 of that case this indictment must be held sufficient. 
 
 Another contention is that the court erred in overruling the motion 
 for a new trial, but such action, as has been repeatedly held, is not 
 assignable as error. Moore v. United States, 150 U. S. 57; Holder v. 
 United States, 150 U. S. 91 ; Blitz v. United States, 153 U. S. 308. 
 
 *--^_. 
 
 The remaining objection is to the action of the court in permitting 
 the son of the deceased to testify. The homicide took place on June 
 12, 1894, and this boy was five years old on the 5th of July following. 
 The case was tried on December 21, at which time he was nearly 
 five and a half years of age. The boy, in reply to questions put to
 
 2O CASES ON EVIDENCE 
 
 him on his vovr dire, said among other things that he knew the dif- 
 ference between the truth and a lie; that if he told a lie the bad man 
 would get him, and that he was going to tell the truth. When further 
 asked what they would do with him in court if he told a lie, he 
 replied that they would put him in jail. He also said that his mother 
 had told him that morning to "tell no lie," and in response to a ques- 
 tion as to what the clerk said to him, when he held up his hand, he 
 answered, "don't you tell no story." Other questions were asked 
 as to his residence, his relationship to the deceased, as to whether 
 he had ever been to school, to which latter inquiry he responded in 
 the negative. As the testimony is not all preserved in the record 
 we have before us no inquiry as to the sufficiency of the testimony 
 to uphold the verdict, and are limited to the question of the compe- 
 tency of this witness. 
 
 That the boy was not by reason of his youth, as a matter of law. 
 absoluely disqualified as a witness, is clear. While no one would 
 think of calling as a witness an infant only two or three years old, 
 there is no precise age which determines the question of competency. 
 This depends on the capacity and intelligence of the child, his appre- 
 ciation of the difference between truth and falsehood, as well as of 
 his duty to tell the former. The decision of this question rests pri- 
 marily with the trial judge, who sees the proposed witness, notices 
 his manner, his apparent possession or lack of intelligence, and may 
 resort to any examination which will tend to disclose his capacity and 
 intelligence as well as his understanding of the obligations of an 
 oath. As many of the matters cannot be photographed into the 
 record one decision of the trial judge will not be disturbed on review 
 unless from that which is preserved it is clear that it was erroneous. 
 These rules have been settled by many decisions, and there seems to 
 be no dissent among the recent authorities. In Brasier's case (i 
 Leach, Gr. L. 199,) it is stated that the question was submitted to the 
 twelve judges, and that they were unanimously of the opinion "that 
 an infant, though under the age of seven years, may be sworn in a 
 criminal prosecution, provided such infant appears, on strict exam- 
 ination by the court, to possess a sufficient knowledge of the nature 
 and consequences of an oath, for there is no precise or fixed rule as 
 to the time within which infants are excluded from giving evidence; 
 but their admissibility depends upon the sense and reason they enter- 
 tain of the danger and impiety of falsehood, which is to be collected 
 from their answers to questions propounded to them by the court." 
 See also, i Greenleaf's Evidence, Paragraph 367; i Wharton's Evi-
 
 COMPETENCY 21 
 
 dence, Paragraphs 398, 399, 400; I Best on Evidence, Paragraphs 155, 
 156; State v. Juneau, 88 Wis. 180; Ridehour v. Kansas City Cable 
 Company, 102 Mo. 270; McGuff v. State, 88 Ala., 147; State v. Levy, 
 23 Minn., 104; Davidson v. State, 39 Texas 129; Commonwealth v. 
 Mullins, 2 Allen, 295; Peterson v. State, 47 Ga., 523; State v. Ed- 
 wards, 79 N. C. 648 ; State v. Jackson, 9 Ore., 457 ; Blackwell v. State, 
 II Ind. 196. 
 
 These principles and authorities are decisive in this case. So far 
 as can be judged from the not very extended examination which is 
 found in the record, the boy was intelligent, understood the differ- 
 ence between truth and falsehood, and the consequences of telling the 
 latter, and also what was required by the oath which he had taken. 
 At any rate, the contrary does not appear. Of course, care must be 
 taken by the trial judge, especially where, as in this case, the question 
 is one of life or death. On the other hand, to exclude from the wit- 
 ness stand one who shows himself capable of understanding the 
 difference between truth and falsehood, and who does not appear to 
 have been simply taught to tell a story, would sometimes result in 
 staying the hand of justice. 
 
 We think that under the circumstances of this case the disclosures 
 on the voir dire were sufficient to authorize the decision that the wit- 
 ness was competent, and, therefore, there was no error in admitting 
 his testimony. These being the only questions in the record, the judg- 
 ment must be 
 
 Affirmed. 
 
 STATE v. JOHN EDWARDS. 
 79 N. C. 648. (1878) 
 
 Indictment for Murder tried at Spring Term, 1878, of Johnston Su- 
 perior Court, before Seymour, J. 
 
 The prisoner was charged with killing of Kader J. Ballard. 
 
 The first witness for the State was Ella Ballard, a daughter of the 
 deceased, aged at the time of the trial six and a half years. The pre- 
 siding judge examined this witness on the- question of .competency on 
 the second day of the term and being then of opinion that she had not 
 sufficient religious instruction, advised the solicitor not to send her be-
 
 22 CASES ON EVIDENCE 
 
 fore the grand jury. A true bill was however found upon the evidence 
 of another witness. Upon the trial which took place a few days after- 
 wards, the judge examined her, and she then gave the ordinary answers 
 to the ordinary questions put in such cases, such as that God made her, 
 that He would punish her if she told a falsehood ; that she was sworn 
 to tell the truth and would be punished if she did not do so. She was 
 further examined in regard to general intelligence, and the Court was 
 of the opinion that she was a child of more than usual intelligence for 
 one of her age, and that she fully understood what was said to her, 
 and the nature of her answers. It appeared that she had received re- 
 ligious instruction from her mother during the week the court was in 
 session. The prisoner objected to admission of her testimony, objec- 
 tion overruled, and the prisoner excepted. The witness then testified, 
 that she was six years old, named Ella, her father was dead, John Ed- 
 wards killed him, her father was pulling fodder in the field when she 
 first saw prisoner getting over the fence, he went where her father was 
 and stopped, her father said to him, "how are your folks ?" he said her 
 father had cheated him, he had a gun and shot her father with it (de- 
 scribing the manner in which the gun was held) and then went off 
 through the field to the woods. Witness pointed out the prisoner after 
 looking around the court room, and said she knew him, had seen him 
 often. One Joyner testified that she told him the same story on the 
 day of the homicide, as the one related by her on the trial, and that 
 deceased was found lying in said field and that tracks led to the v/oods. 
 Another witness testified that she heard the report of the gun. that 
 witness, Ella, came running to deceased's house, and upon being asked 
 what was the matter said that John Edwards had killed her father.. 
 This was also corroborated by another witness. 
 
 After the testimony was closed, the court adjourned for supper ; the 
 jury were kept together, but were not instructed that they should not 
 converse with any one or among themselves about the case; nor was 
 the court requested to give such instruction, nor was it suggested that 
 any one had communicated with the jury or that they had discussed the 
 case; and for failure to instruct as aforesaid, the prisoner moved for 
 a new trial, which motion was overruled. There was a verdict of guilty. 
 Judgment. Appeal by prisoner. 
 
 READE, J. Formerly the age at which infants might be examined as 
 witnesses was almost arbitrary. They were not regularly admissible 
 under fourteen, subject to exceptions. At one time it was a general 
 rule that none could be admitted under nine years, very few under ten. 
 Gilb. Ev. 44; i Hale P. C. 302; 2ib 278; i Phil. Ev. But of late
 
 COMPETENCY 23 
 
 years since the means and opportunities for ttie early cultivation of the 
 intellect have multiplied, a more reasonable rule has been adopted, and 
 age is not the test, but the degree of understanding which they possess, 
 including their moral and religious culture. I Phil. Ev., I East P. C. 
 448; i Leach 190; Roscoe Cr. Ev. io6n. So formerly, deaf and dumb 
 persons were classed with idiots, and were incapable of crime, and in- 
 competent as witnesses ; but since the facilities for educating them, the 
 rule is abrogated. 
 
 In the case of infants where there was sufficient capacity to under- 
 stand the transaction and to communicate it, but not sufficient moral 
 and religious impression to comprehend the obligation of an oath, time 
 has been allowed to make the impression and to cultivate the conscience. 
 I Leach, 199, 430. 
 
 There being now no arbitrary rule as to age, and it being a question 
 of capacity, and of moral and religious sensibility in any given case 
 whether the witness is competent, it must of necessity be left mainly if 
 not entirely to the discretion of the presiding judge. State v. Manuel, 
 64 N. C. 601. It may be stated however that a child of tender years 
 ought to be admitted with great caution; and where there is doubt it 
 ought to be excluded. The formal answers to the usual questions, 
 who made you? what will become of you if you swear to a lie? and 
 the like are so easily taught, that much more ought to be required. The 
 capacity of the child may be ascertained not only by examining it, but 
 other persons who have had the care of it. 
 
 Although the capacity of the child in this case is not for our consid- 
 eration, yet it is gratifying to find upon our examination of the testi- 
 mony, that it was sensible and clear, and that it was corroborated where 
 corrobora; ion could be expected by other evidence. We cannot say that 
 there was error in admitting it. 
 
 Judgment affirmed. 
 
 REGINA v. SAMUEL HILL. 
 5 Cox C. C. 259. (1851) 
 
 Statement of Case: COLERIDGE, J. This prisoner was tried before 
 me, assisted by my brother Cresswell, at the last February Sittings of 
 the Central Criminal Court, for the manslaughter of Mose James 
 Barnes. He was convicted, but a question was reserved for the opinion
 
 24 CASES ON EVIDENCE 
 
 of the Court of Appeal as to the propriety of having admitted a witness 
 of the name of Richard Donelly on the part of the prosecution. 
 
 The deceased and the witness were both lunatic patients in Mr. Arm- 
 strong's Asylum, at Camberwell, at the time of the supposed injury, and 
 they were at that time placed in a ward called the infirmary. It ap- 
 peared that a single sane attendant (the prisoner) had charge of this 
 ward, in which as many as nine patients slept, and that he was assisted 
 by three of the patients, of whom the witness Donelly was one. 
 
 LORD CAMPBELL, C. J. I am glad this case has been reserved, for the 
 matter is of great importance, and ought to be decided. However, after 
 a very learned argument, which I have heard with a great deal of 
 pleasure, I entertain no doubt that the rule is as laid down by Parke, B., 
 in the unreported case that has been referred to, that wherever a delu- 
 sion of an insane character exists in any person who is called as a wit- 
 ness, it is for the judge to determine whether the person so called has 
 a sufficient sense of religion in his mind, and sufficient understanding 
 of the nature of an oath, for the jury to decide what amount of credit 
 they will give to his testimony. Various authorities have been referred 
 to, which lay down the law, that a person non compos mentis is not an 
 admissible witness. But in what sense is the expression non compos 
 mentis employed? If a person be so to such an extent as not to under- 
 stand the nature of an oath, he is not admissible. But a person subject 
 to a considerable amount of insane delusion may yet be under the sanc- 
 tion of an oath, and capable of giving very material evidence upon the 
 subject-matter under consideration. The just investigation of the truth 
 requires such a course as has been pointed out to be pursued, and in 
 the peculiar circumstances of this case, I should have adopted the course 
 which was taken at the trial. Nothing could be stronger than the lan- 
 guage of the medical witnesses in this case, to show that the lunatic 
 might be safely admitted as a witness. It has been contended, that the 
 evidence of every monomaniac must be rejected. But that rule would 
 be found at times very inconvenient for the innocent as well as for the 
 guilty. The proper test must always be, does the lunatic understand 
 what he is saying, and does he understand the obligation of an oath? 
 The lunatic may be examined himself, that his state of mind may be 
 discovered, and witnesses may be adduced to show in what state of 
 sanity or insanity he actually is ; still, if he can stand the test proposed, 
 the jury must determine all the rest. In a lunatic asylum, the patients 
 are often the only witnesses to outrages upon themselves and others, 
 and there would be immunity for offenses committed in such places, if 
 the only persons who can give information were not to be heard,
 
 COMPETENCY 25 
 
 / ANDERSON, B. I quite agree that it is for the judge to say whether 
 the person called as a witness understands the sanction of an oath, and 
 for the jury to say whether they believe his evidence. Here the account 
 of the lunatic himself, and the evidence of the medical witnesses show 
 that he was properly received as a witness. 
 
 COLERIDGE, j. This is an important case. We have been furnished, 
 during the argument, with rules drawn from the older authorities 
 against the admissibility of a lunatic witness, which are stated without 
 any qualification. It was not necessary for the decision of those cases 
 that the rule should be qualified, and in former times the question of 
 competency was considered upon much narrower grounds than it is at 
 present. The evidence in this case left the matter thus; there was a 
 disease upon the mind of the witness, operating upon particular subjects, 
 of which the transaction of which he came to speak was not one. He 
 was perfectly sane upon all other things than the particular subject of his 
 delusion. As far as memory was concerned, he was in the position of 
 ordinary persons, and upon religious matters he was remarkably well 
 instructed, so as to understand perfectly the nature and obligation of 
 an oath. If it had appeared, upon his evidence, that his impressions of 
 external objects were so tainted by his delusion that they could not be 
 acted upon, that would have been a ground for the jury to reject 
 or give little effect to his evidence. But this was a matter for them to 
 determine. 
 
 PL ATT, B., concurred. 
 
 TALFOURD, J. If the proposition, that a person suffering under an 
 insane delusion cannot be a witness, were maintained to the fullest, ex- 
 tent, every man subject to the most innocent unreal fancy would be 
 excluded. Martin Luther believed that he had had a personal conflict 
 with the devil ; Dr. Johnson was persuaded that he had heard his mother 
 speak to him after death. In every case the judge must determine, ac- 
 cording to the circumstances and extent of the delusion. Unless judg- 
 ment and discrimination be applied to each particular case, there may 
 be the most disastrous consequences. 
 
 Conviction affirmed.
 
 26 CASES ON EVIDENCE 
 
 HARTFORD v. PALMER. 
 
 16 Johns. (N. Y.) 143. (1819) 
 
 In ERROR, on certiorari to a Justice's Court. 
 
 In this case a verdict and judgment were rendered for the defendant 
 below, on which the plaintiff below brought a certiorari; and the only 
 question arising on the return was, whether the justice ought to have 
 refused to swear a witness, who was, when offered to testify, in a state 
 of intoxication. 
 
 PER CURIAM. We are of opinion, that the justice decided correctly 
 in refusing to swear the witness. Peake lays down this general prop- 
 osition, which cannot fail to command the assent of all mankind, "that 
 all persons who are examined as witnesses, must be fully possessed of 
 their understanding, that is, such an understanding as enables them to 
 retain in memory the events of which they have been witnesses, and 
 gives them a knowledge of right and wrong; that, therefore, idiots and 
 lunatics, while under the influence of their malady, not possessing this 
 share of understanding, are excluded." This principle, necessarily, ex- 
 cludes persons from testifying, who are besotted with intoxication, at 
 the time they are offered as witnesses; for it is a temporary derange- 
 ment of the mind; and it is impossible for such men to have such a 
 memory of events, of which they may have had a knowledge, as to be 
 able to present them, fairly and faithfully, to those who are to decide 
 upon contested facts. A present and existing intoxication, to a con- 
 siderable degree, utterly disqualifies the person so affected, to narrate 
 facts and events in a way at all to be relied on. It would, we think, be 
 profaning the sanctity of an oath, to tender it to a man who had no 
 present sense of the obligations it imposed. Indeed, it would be a 
 scandal to the administration of justice, to allow, for a moment, the 
 rights of individuals to be jeopardized by the testimony of any man la- 
 boring under the beastly sin of drunkenness. The return does not 
 state the degree of intoxication which the justice considered sufficient to 
 exclude the witness but we are to presume, that it was evident and pal- 
 pable ; and every court must necessarily have the power to decide, from 
 their own view of the situation of the witness offered, whether he be 
 intoxicated to such a degree, as that he ought not to be heard ; nor can 
 this lead to any improper consequences ; for if the witness was not so 
 intoxicated, the justice would be responsible in an action for a false re- 
 turn. We cannot withhold our approbation of the firmness which the
 
 COMPETENCY 27 
 
 magistrate has evinced on this occasion, in refusing to administer an 
 oath to a witness thus circumstanced. 
 
 Judgment affirmed. 
 
 STATE v. DE WOLF. 
 8 Conn. pj. (1830) 
 
 This was an indictment against the prisoner, Thaddeus K. De Wolf, 
 for an attempt to commit a rape on the body of Celestia Bull, on the 
 1 5th of June, 1828. 
 
 The cause was tried at Litchfield, February term, 1830, before 
 Peters, J. 
 
 On the trial, Celestia Bull, a person deaf and dumb from her infancy, 
 was sworn as a witness, and testified to the principal facts in the case, 
 by signs, which were interpreted to the court and jury, by William W. 
 Turner, a teacher in the American Asylum for the education of the 
 deaf and dumb, who was duly sworn for that purpose, and was also 
 sworn as a witness. Mr. Turner testified, that Celestia had resided in 
 the Asylum about- five years, and was well acquainted with the language 
 of signs, and capable of relating facts correctly in that manmer ; that 
 she could also read and write, and communicate her ideas imperfectly 
 by writing. The prisoner objected to her testifying in this manner, and 
 claimed that she ought to give her testimony in her own words in writ- 
 ing. The judge overruled the objection, and admitted her to testify in 
 the manner stated. 
 
 After the prisoner had cross-examined Celestia, and asked her many 
 questions relative to the principal fact charged in the indictment some 
 of which tended to discredit her evidence, but before any attempt on 
 his part to discredit her testimony otherwise than by such cross-exam- 
 ination, the state's attorney offered Polly Rowley, as a witness, to prove 
 that Celestia had previously told to her the same story, which she had 
 now testified in court. To this the prisoner objected, but the judge ad- 
 mitted her testimony ; which proved the fact for which it was offered. 
 
 The jury having found the prisoner guilty, he moved for a new trial. 
 
 DAGGETT, J. Several objections were made at the trial, against testi- 
 mony offered by the public prosecutor, which appear on the motion, 
 and are now urged as reasons for granting a new trial. They will be 
 considered in the order presented by the counsel for the prisoner.
 
 28 CASES ON EVIDENCE 
 
 i. The supposed victim of the outrage of the prisoner, was deaf 
 and dumb. She was sworn, and testified by a sworn interpreter, an in- 
 structor in the Asylum for the deaf and dumb, through certain signs 
 adopted as a medium of communication, by that class of persons. It 
 was objected, by the prisoner, that as it appeared by the testimony of 
 the interpreter, that "she could read and write and communicate her 
 ideas imperfectly by writing ;" and it further appeared that "she under- 
 stood the language of signs, and was capable of relating facts correctly, 
 in that manner;" she ought to testify in her own words in writing. 
 The judge very properly overruled the objection. The bare statement 
 of the objection, overthrows it. She was capable of relating facts cor- 
 rectly by signs; she could read and write, and communicate her ideas 
 imperfectly, by writing. The objection thus viewed, presents this ab- 
 surdity, that the court erred in resorting to the most perfect mode of 
 ascertaining the truth. The mode of examination adopted by the court, 
 was the next best mode to an oral examination, which for many obvious 
 reasons, is preferable to an examination in writing, but which could not 
 be had in this case, on account of an infirmity in the witness. I see no 
 ground for this objection. 
 
 New trial granted on other grounds. 
 
 WILSON v. SHEPPARD. 
 28 Ala. 623. (1856) 
 
 This action was brought in August, 1853, by Mrs. Harriet E. Wilson, 
 the appellant, who is the wife of Samuel W. Wilson, to recover dam- 
 ages for the defendant's conversion of several buggies and other articles 
 of personal property, which the plaintiff claimed as part of her separate 
 estate. 
 
 WALKER, J. The incompetency of husband and wife to testify for or 
 against each other, unless in a few excepted instances, has its founda- 
 tion not merely in the identity of their legal rights, but in a wise public 
 policy. No abandonment, or intention to abandon that policy, is indi- 
 cated by the statutes securing to married women their property sepa- 
 rately from their husbands. There is nothing in those statutes from 
 which we can infer a legislative purpose to mar the sacred confidence of 
 married life, and to open the door for broils and dissension, by permit- 
 ting husband and wife to testify for or against each other. That the
 
 COMPETENCY 29 
 
 rule which renders the husband and wife incompetent witnesses for or 
 against each other is abolished, cannot result from the severing of their 
 pecuniary interests to a certain extent, because the rule was not founded 
 upon the identity of those interests. 
 
 In some cases, an agent is a competent witness, notwithstanding his 
 interest in the event of the suit, from the necessity of the case Bean v. 
 Pearsall, 12 Ala. 592. But this exception to the general rule "should 
 never be allowed in a cause which involves the fraud, negligence or 
 tortious act of the agent." Griggs v. Woodruff, 14 Ala. 13. In this 
 case the question whether the husband has made a fraudulent transfer 
 to his wife, is involved ; and therefore, conceding that there is an 
 analogy between the objection to competency for interest, and for the 
 marriage relation existing between the witness and the party, the hus- 
 band would not be a competent witness in this case. We prefer, how- 
 ever, to place our decision upon the ground that the husband and wife 
 are incompetent to testify for or against each other upon principles of 
 public policy; and that incompetency applies, where the husband is 
 called upon to testify as to his acts in the capacity of trustee for his 
 wife. The law has never made any exception to the general incompe- 
 tency of the husband to testify for the wife, because the subject of the 
 testimony was his acts as trustee ; and we do not think there is anything 
 in our laws which demands the creation of a new rule. We decide, in 
 this case, that the husband was incompetent to testify as a witness. 
 
 THE PEOPLE v. HENRY G. GREEN. 
 i Denio (N. Y.) 614. (1845) 
 
 The prisoner was tried at the Rensselaer oyer and terminer, in July, 
 1845, before Parker, C., Judge, and others, for the murder of his wife 
 by poisoning with arsenic. On the trial the district attorney, after lay- 
 ing a proper foundation, offered to give in evidence the dying declara- 
 tions of the deceased as to the cause of death. The counsel for the 
 prisoner objected, that the dying declarations could not be received 
 where they came from the wife against the husband; but the court over- 
 ruled the objection, and admitted the evidence. The prisoner having 
 been convicted, the case was reported to the governor, who on the sec- 
 ond day of September, during the last vacation, consulted his legal ad- 
 visers in such cases. (See 2 R. S. 658, Paragraphs 13, 14.) The Chan-
 
 30 CASES ON EVIDENCE 
 
 cellor, the Chief Justice, and Mr. Justice Beardsley (Jewett, J., being 
 absent,), were of opinion that the evidence was properly admitted; that 
 the dying declarations of the wife may be received against the husband, 
 on the same principle that she is allowed to testify against him where 
 the complaint is violence against her person. 
 
 Mr. Justice Jewett, being afterwards consulted by his brethren, de- 
 clared himself of the same opinion. 
 
 YOUNG, Admr. v. OILMAN. 
 i 
 
 46 N. H. 84. (1866) 
 
 This action was commenced by Augustus Burpee as administrator of 
 Joshua F. Burpee, deceased. Augustus Burpee resigned his trust as 
 administrator, and Young was appointed as administrator of the estate 
 of said Joshua F. in March, 1866, and, at the commencement of the 
 present term, notice was given upon the docket of the resignation of 
 said Burpee, and said Young appeared as administrator as the plaintiff 
 of record. Upon the trial, Augustus Burpee testified that the .only 
 object of the change of administrators was to enable him and his wife 
 to testify in the cause and to exclude the defendant. 
 
 It did not appear that there were any claims against said estate, and 
 it appeared that said Augustus Burpee and a sister of his who also tes- 
 tified without objection, were uncle and aunt to the deceased and heirs 
 to his estate. It also appeared that said Burpee had furnished the means 
 for carrying on this suit both before and after the appointment of 
 Young, the estate having no assets except the claim in suit against this 
 defendant. Said Burpee sat within the bar with the plaintiff's counsel a 
 portion of the time during the trial. 
 
 After these facts had appeared the plaintiff offered the wife of the 
 said Augustus Burpee as a witness to whom the defendant objected, but 
 the court admitted her to testify and defendant excepted. 
 
 BELLOWS, J. The suit was in favor of an administrator of an estate 
 in which the husband of the witness was interested as heir, it appearing 
 also that there were no creditors. In case of a recovery, then, the hus- 
 band would be entitled to a portion of the fruits of the judgment; he 
 was, therefore, directly interested, for by that judgment he would be 
 concluded. 
 
 Waiving, then, the question whether he should be regarded as a party,
 
 COMPETENCY 31 
 
 one inquiry is whether the wife is a competent witness for or against the 
 husband, where his interest is directly involved in the suit, and would 
 be concluded by the judgment, but where he is not a party. 
 
 It must now be considered as well settled in New Hampshire, that 
 the exclusion of the husband and wife as witnesses for or against each 
 other, is founded as well upon reasons of public policy to preserve the 
 sacredness of the marriage relation, as upon the identity of interests; 
 and therefore that the removal by statute of the disqualification arising 
 from interest, does not render competent the husband and wife. Kelly 
 v. Proctor, 41 N. H. 139; Breed v. Gove, 41 N. H. 452; Smity v. Bos- 
 ton & Maine Railroad, 44 N. H. 325. 
 
 In all these cases, the husband was party to the suit. In Breed v. 
 Gove, the wife living apart from the husband, was offered as a witness 
 against him, to prove the delivery of necessaries to her while so living 
 apart. In the others she was offered as a witness in his favor. In 
 Smith v. The Boston & Maine Railroad, the suit was by the husband 
 and wife for the loss of goods of the wife's before the marriage, and 
 she was called to prove the loss. In all the cases she was held to be 
 incompetent. 
 
 It is clear, therefore, that where the husband or wife is party to the 
 suit, the other is not a competent witness, on grounds of public policy. 
 Is the principle any the less applicable where the husband is not strictly 
 a party to the suit, although his interest will be determined by it? 
 
 Mr. Greenleaf, in his work on Evidence, sec. 335, lays it down that 
 the principle of the rule requires its application to all cases in which the 
 interests of the other party are involved, and would be concluded by any 
 verdict therein, though the husband or wife be not a party. 
 
 The same doctrine is laid down by Mr. Starkie in his work on Evi- 
 dence, part 4, p. 708, and cases cited, although it is said that the in- 
 terest must be vested and certain; but it is held that if the husband 
 would be disqualified by reason of interest, the wife would be also ; 
 citing Tiley v. Cowling, i Ld. Raym. 744, which is in point. 
 
 So in i Phillips Evi. 64 ; and the same principle is recognized in Leg- 
 gett & al. v. Boyd, 3 Wend. 376, where it was decided that the wife 
 of the special bail was an incompetent witness for the defendant in the 
 original suit. 
 
 These principles so laid down in the elementary books are well sus- 
 tained by the authorities ; and it is equally clear that they are not based 
 upon the identity of interest alone, but upon reasons of public policy as 
 well. In addition to the cases cited from our own reports to this point, 
 are the authorities which show that the competency of the wife is not
 
 32 CASES ON EVIDENCE 
 
 restored by the termination of her interest ; as, for instance the termina- 
 tion of the marriage relation by death of the husband, or by divorce, 
 leaving the wife no interest in the estate. I Greenl. Evi. sec. 337. where 
 it is said that the great object of the rule is to secure domestic happiness 
 by placing the protecting seal of the law upon all confidential commu- 
 nications between husband and wife. 
 
 In Steing v. Bowman, 13 Peters, U. S. Rep. 209, it was held that a 
 wife, after her husband's death, could not be allowed to prove that her 
 husband had confessed to her that he had committed perjury in a dep- 
 osition read in the cause, although the husband was not a party or 
 interested in the cause. A similar doctrine was applied where the wife 
 had been divorced by act of Parliament. Monroe v. Twisleton, Evi. All. 
 87; recognized in Aveson v. Ld. Kinniard, 6 East. 192, 193. So, in 
 Doker v. Hasler, Ryan & Moody 198, it was held that a widow cannot be 
 asked to disclose conversations between her and her husband because of 
 the violation of conjugal confidence. So in Starkie's Evi. part 4, p. 711, 
 and cases cited. In O'Connor v. Marjoribanks, 4 M. & G. 435, it was 
 held, that, in trover by the personal representatives of the deceased, his 
 widow is not admissible to prove that she pledged the goods sued for 
 to the defendant with her husband's authority ; and this is put upon the 
 ground of public policy, and it fully recognizes the doctrine of Monroe 
 v. Twisleton, and the court holds that the disqualification is general, and 
 not limited to confidential communications. See, also, 2 Kent's Com. 
 179, and notes and cases cited. So it is held, that, in a suit by the 
 trustees touching her separate property, the husband could not be a 
 witness for the trustees, although he had no interest in the subject. 
 Burrel v. Bell, 2 Sandf. Ch. Rep. 15; Hasbrouck v. Vandervoost, 4 
 Sandf. 596, and 5 Seld. 153. 
 
 In N. H., it has been held, that, after the husband's death, if the wife 
 have no interest in the suit, and the facts to which she is called to tes- 
 tify, did not come to her through any confidential communications of 
 the husband, she may be a witness. Jackson & al. v. Barron, 37 N. H. 
 494. So in Pike v. Hayes, 14 N. H. 22, it is suggested by Gilchrist, 
 J., that there is no reason why the wife, after the death of her hus- 
 band, should not state facts which came to her knowledge from other 
 sources, and not by reason of her situation as wife. 
 
 From those cases, it is fairly to be implied, even after the marriage 
 relation is terminated, that the wife cannot disclose information which 
 as a wife she had obtained during the marriage. 
 
 This review of the authorities shows that at common law the dis- 
 ability of the husband and wife to testify against each other still re-
 
 COMPETENCY 33 
 
 mains, although the disqualification arising from interest be removed, 
 as by a divorce, or by death; and it, therefore, would seem to follow 
 logically that the removal of this disqualification by statute, as has been 
 done here, would not make them competent witnesses. 
 
 Upon these views, we think the wife was not a competent witness, and 
 there must be 
 
 A new trial. 
 
 COMMONWEALTH v. SAPP. 
 po Ky. 580. (1890) 
 
 CHIEF JUSTICE HOLT. Upon the trial of William Sapp upon the 
 charge of attempting to poison his wife, the state offered her as a witness 
 against him, avowing by its attorney that it would prove by her she had 
 seen the accused sprinkle a substance upon a piece of watermelon in- 
 tended for her, and that the portion of it produced at the examining 
 trial, and then shown to contain arsenic, was part of the piece prepared 
 for her, and was when so produced, in the same condition as when she 
 got it from him. It is claimed the attempt was made in August, 1888. 
 Afterward, and before his trial, they were absolutely divorced. The 
 court refused to permit her to testify, holding that she could not be a 
 witness for any purpose; and whether this is so is the main question 
 now presented. 
 
 It is a general rule of the common law, based both upon public policy 
 and because of identity of interest, that neither a husband or wife can 
 testify for or against the other; and some authorities hold that where 
 this relation has once existed, the one is inadmissible for or against the 
 other, even after the relation has ceased, as to any and all matters that 
 occurred during its existence. 
 
 If the proposed testimony violates marital confidence in the slightest 
 degree, or tends, however slightly, to impair the rule for its protection, 
 the highest considerations forbid its introduction. The word "commu- 
 nication," therefore, as used in our statute, should be given a liberal 
 construction. It should not be confined to a mere statement by the 
 husband to the wife or vice versa, but should be construed to embrace 
 all knowledge upon the part of the one or other obtained by reason of 
 the marriage relation, and which, but for the confidence growing out of 
 it, would not have been known to the party. The reason of this rule
 
 34 CASES ON EVIDENCE 
 
 does not apply, however, to facts known to a surviving or divorced 
 husband or wife, independent of the existence of the former marriage, 
 although the knowledge was derived during its existence, and relates to 
 the transactions of the one or the other ; therefore, the rule should not 
 be applied in such a case. What the State proposed to prove by the 
 divorced wife in this case was not any communication or knowledge 
 which can fairly be considered as having come to her by reason of her 
 being then the wife of the accused. If she had not been then his wife, 
 ordinary observation would have enabled her to know all that it was 
 proposed to prove by her. But we think it was competent upon another 
 ground. It was evidence relating to an alleged attempt at felony upon 
 the wife. The rule that husband and wife cannot testify for or against 
 each other is subject necessarily to some exceptions, one of which is, 
 where the husband commits or attempts to commit a crime against the 
 person of the wife. (Stein v. Bowman, &c., 13 Peters, 221.) It was 
 never doubted but what she could exhibit articles of the peace against 
 him. Roscoe says : "It is quite clear that a wife is a competent witness 
 against her husband in respect of any charge which affects her liberty 
 or person." (Roscoe's Criminal Evidence, page 150.) 
 
 In an English case, where the husband attempted to poison the wife 
 with a cake into which arsenic had been introduced, and the wife was 
 admitted to prove that her husband gave her the cake, it was held by the 
 twelve judges that the evidence was rightly admitted. (Rex v. Jagger, 
 Russ. Crimes, 632.) 
 
 The policy upon which the rule that the husband and wife cannot 
 testify for or against each other is based is so far overcome as to create 
 the exception by that superior policy which dictates the punishment of 
 crime, and which, without the exception to the rule, would very likely 
 go unpunished. It is of necessity. If it be said that our statute forbids 
 the introduction of the husband or wife as a witness against the other, 
 we reply, and so did the common law ; and yet the exception named ex- 
 isted, and so it should, in our opinion, under our statute. The necessity 
 of the case requires such a construction, and, as already said, the statute 
 forbidding husband or wife to testify against each other is but de- 
 claratory of the common law. 
 
 This opinion is ordered to be certified to the lower court as the law 
 of the case.
 
 COMPETENCY 35 
 
 LISMAN, Adrar. v. EARLY et al. 
 12 Calif. 282. (1859) 
 
 This was a bill to foreclose a mortgage upon a mining claim given to 
 secure the payment of a promissory note. The action was on the note 
 and mortgage. 
 
 The note and mortgage were given to one Michael Lisman, who since 
 died, and the suit was brought by his administrator. On the trial, the 
 plaintiff introduced as a witness one Hertch, who testified on his voir 
 dire, that his wife was a sister and one of the heirs of the deceased. 
 Defendants objected to this witness on the ground of interest. The 
 court overruled the objection, and the witness was allowed to testify. 
 The cause was tried by a jury, who returned a verdict for the plaintiff, 
 and judgment was entered thereon. Defendants appealed to this court. 
 
 TERRY, C. J., delivered the opinion of the court; BALDWIN, J., con- 
 curring. 
 
 There is no doubt that the witness, Hertch, was incompetent on the 
 ground of interest, and his testimony was improperly admitted. 
 
 It is urged by respondent, that this being an equity case, the court 
 will not reverse because of the admission of improper evidence, but 
 will proceed to examine and decide the case upon the legal evidence in 
 the record. This is the ordinary and proper course in such cases, when 
 the evidence in the record, excluding that improperly admitted is satis- 
 factory, which is not the case here, as it is by no means clear that the 
 judgment can be sustained by the record without the evidence of Hertch. 
 
 The judgment is reversed, and a new trial ordered. 
 
 SCHREFFLER v. CHASE. 
 245 III 395. (1910) 
 
 MR. JUSTICE COOK delivered the opinion of the court : 
 Etta Schreffler and Ulysses Schreffler, her husband, the appellees, 
 filed their bill of complaint in the Circuit Court of Kankakee county to 
 contest the validity of the will of Rosella C. Paine, deceased, on the 
 ground of mental incapacity. An issue at law was made up whether the 
 writing produced was the will of the deceased or not. The first jury 
 to whom this issue was submitted failed to agree and the issue was sub-
 
 36 CASES ON EVIDENCE 
 
 mitted to another jury, resulting in a verdict finding that the writing 
 produced was not the \\ ill of Rosella C. Paine, and that she was not of 
 sound mind and memory at the time of executing said writing. The 
 court overruled appellants' motion for a new trial and entered a decree 
 setting aside the probate of the will and declaring the purported will 
 null and void. The defendants to the bill have prosecuted an appeal to 
 this court. 
 
 The evidence offered by appellants, if considered alone would estab- 
 lish beyond question the validity of the will and the mental capacity of 
 the testatrix. 
 
 Appellees called as a witness in their behalf Dickinson, the divorced 
 husband of the testatrix, who, over the objection of appellants to his 
 competency, was permitted to testify as to the conduct of his wife as 
 observed by him from the time of his marriage to her up to the time 
 of the separation. 
 
 It is obvious that the testimony of this witness must have been a 
 material factor in the finding of the jury that the testatrix was not of 
 sound mind and memory at the time of executing the will, and if such 
 testimony was improperly admitted the decree based on such verdict 
 cannot be permitted to stand. At common law a husband could not be 
 a witness for or against his wife as to any matter, nor could he, either 
 during the marriage or after its termination by death or divorce, be 
 called as a witness to testify to communications between them, or to 
 any fact or transaction the knowledge of which was obtained by means 
 of the marriage relation. 
 
 In Griffeth v. Griffeth, 162 111. 368, a bill was filed by the wife for a 
 divorce on the ground of the impotency of the husband. In holding that 
 the evidence of the divorced wife was incompetent we said : "Whether 
 the divorced wife's knowledge of her husband's conduct in the respect 
 here referred to came to her as the result of his admissions to her or of 
 her conversations with him, or as the result merely of her own observa- 
 tion, it was acquired in the confidence of the marriage relation, and 
 therefore, her evidence in regard to it should have been excluded upon 
 principles of public policy. The protecting seal of the law is placed 
 upon all confidential communications between the husband and the wife, 
 except so far as our statute has changed the rule. It makes no dif- 
 ference that the marriage relation no longer exists between them. 
 'Whatever has come to the knowledge of either by means of the hal- 
 lowed confidence which that relation inspires cannot be afterwards di- 
 vulged in testimony, even though the other party be no longer living.' 
 (i Greenleaf on Evidence, sec. 337.) Accordingly in Crose v. Rutledge,
 
 COMPETENCY 37 
 
 81 111. 266, we said (p. 268) : 'The defense offered the divorced wife 
 of the plaintiff as a witness to prove a fact which must have come to 
 her knowledge, from the very nature of the fact, during the existence 
 of the marital relation. This testimony was properly excluded. Wad- 
 dams v. Humphrey, 22 111. 66i." ! 
 
 Dickinson necessarily obtained his knowledge of the facts about which 
 he testified by reason of the marriage relation which existed between 
 him and the testatrix, and he cannot be permitted to divulge these facts 
 as evidence of the insanity or mental incapacity of his former wife. 
 
 The decree is reversed and the cause will be remanded to the Circuit 
 Court for a new trial upon the issue at law whether the writing pro- 
 duced be the will of the testatrix or not. 
 
 Reversed and remanded. 
 
 CAMPBELL et al. v. CAMPBELL et al. 
 150 III. 466. (1889) 
 
 MR. CHIEF JUSTICE SHOPE delivered the opinion of the court: 
 
 This was a bill in chancery, by Ruth Campbell and others, heirs-at-law 
 of Joshua Neely, deceased, to set aside his will, upon two grounds, 
 want of testamentary capacity of the deceased, and that undue influence 
 had been practiced by Charles W. Enos and others, to induce the testator 
 to execute the supposed will. 
 
 It is next assigned for error, that the court refused to allow con- 
 testants to examine, as witnesses, Rachel C. Williamson, Mary Sweeney 
 and Genevieve Smith, who were all defendants to the bill, and had suf- 
 fered the same to be taken as confessed as to them. It is said they 
 were nieces of the testator and sisters of some of the complainants. 
 
 In Stewart Rapalje on Law of Witnesses, (page 293, sec. 171) it is 
 said : "It is a well settled rule that the competency of one offered as a 
 witness to testify in the case will be presumed, and the party objecting 
 to his competency must state the grounds of his objections." And on 
 page 299, (sec. 177) it is said: "The presumption being in favor of 
 competency, the burden is upon the objector to prove that one offered 
 as a witness is incompetent to testify, by reason of interest or otherwise. 
 Thus to exclude a witness on the ground that his testimony, if admitted, 
 will tend to protect him from claims against him, it must first be shown 
 that there is at least a prime facie case of liability against him, and that
 
 38 CASES ON EVIDENCE 
 
 he is exposed to certain danger from such claims. The objector must 
 point out to the court the ground of incompetency. The witness will 
 not be excluded on the ground of interest if the question of his interest 
 is in doubt." In section 174 of the same work it is said : "Objection to 
 the competency of a witness having been made, the question of com- 
 petency must be decided, no matter how difficult it may be to determine 
 as to his interest or want of interest. To reject him in such a case, 
 without deciding the question, is error, and to admit him is equally 
 erroneous." 
 
 The law affords two modes of determining the interest of a witness 
 in the result of a suit : First, by examining him on his voir dire; and 
 second, by extrinsic evidence. The true test of the competency of these 
 three witnesses is to be determined by ascertaining whether they would 
 gain or lose by a decree setting aside the will. Being defendants, they 
 were prima facie competent to testify on behalf of the contestants, and 
 before excluding them, the court should have ascertained their real 
 interest. It devolved upon the party objecting to show the court that 
 their interest was with the party offering them as witnesses, if that fad- 
 did not otherwise appear. If they would not gain by having the will 
 set aside, they were competent, otherwise they were not. The will, 
 which was before the court, showed that they were devisees thereunder, 
 and without further evidence on the subject, their evidence at least 
 would appear to be adverse to the contestants and in favor of the pro- 
 ponents of the will. The fact, if conceded, that they were heirs-at-law 
 of the testator, would not, of itself, establish their incompetency, or 
 show that they would take a greater share as heirs than as devisees. 
 
 We think there was error in holding these witnesses incompetent to 
 testify, without proof that their interest was with the contestants. In 
 other words, the court should have ascertained their interest, and if 
 they were called to testify against such interest, they should have been 
 permitted to testify. 
 
 Decree reversed.
 
 COMPETENCY 39 
 
 THE STATE v. CLARK. 
 60 Kan. 450. (1899) 
 
 JOHNSTON, J. E. C. Clark was charged with counseling, aiding and 
 abetting in the murder of W. C. Boyd, and was found guilty of man- 
 slaughter in the second degree. The sentence imposed was imprison- 
 ment at hard labor for a term of five years, and the defendant appeals, 
 alleging that several rulings of the court were erroneous and prejudicial. 
 
 It is strongly urged that error was committed in the admission of tes- 
 timony of Harry Postlewaite. When he was offered as a witness in 
 behalf of the state, an objection to his competency was made, and the 
 preliminary inquiry disclosed that about two years before that time he 
 had been convicted of grand larceny in Sedgwick county, and being then 
 only about seventeen years of age he was sentenced to be taken to the 
 state industrial reformatory and there confined until the managers or 
 trustees thereof should declare that he was fully reformed. It was not 
 shown that a pardon had been granted nor that the sentence had in any 
 way been abrogated. No claim of that kind was made, but on the other 
 hand the contention is that the conviction and sentence did not affect his 
 civil rights, and that therefore no pardon was necessary. If the con- 
 viction and sentence rendered Postlewaite incompetent to testify, it 
 would seem that a prima facie showing of incompetency was made when 
 proof of the conviction and sentence was offered. While all witnesses 
 tendered in court are presumed to be competent and credible, proof of 
 a conviction and sentence for an infamous crime creates a presumption 
 of incompetency, and it then devolves on the party offering the witness 
 to overcome the presumption by showing that the conviction and sen- 
 tence are without force. The question remains, however, whether a 
 person between sixteen and twenty-five years of age who has been con- 
 victed of grand larceny and is adjudged to be taken to and confined at 
 the reformatory loses his civil rights and is incompetent to testify. 
 
 At common law a person found and adjudged guilty of an infamous 
 crime is deemed incompetent to testify as a witness in any court of jus- 
 tice unless the judgment of conviction has been reversed or a pardon 
 granted. Our statute has modified the common law to the extent that 
 in civil cases the conviction for a crime affects the credibility but not 
 the competency of witnesses. It is provided that "no person shall be 
 disqualified as a witness in any civil action or proceeding by reason of 
 his interest in the event of the same as a party or otherwise, or by 
 reason of his conviction of a crime, but such interest or conviction may
 
 4O CASES ON EVIDENCE 
 
 be shown for the purpose of affecting his credibility." (Gen. Stat. 
 1897, ch. 95, paragraph 330; Gen. Stat. 1889 4414.) See, also. Winter 
 v. Sass, 19 Kan. 556. No like provision is to be found in criminal 
 procedure, and the one with reference to the competency of witnesses 
 does not except convicts from the common-law rule of disqualification. 
 (Gen. Stat. 1897, cn - IO2 > p g- 2I 7'> Gen. Stat. 1889, 5280.) It has, 
 therefore, been held that "a person convicted of grand larceny and 
 sentenced to imprisonment in the penitentiary is not a competent wit- 
 ness in a criminal case while the sentence remains unrevoked and such 
 person not pardoned." (The State v. Howard, 19 Kan. 508.) As the 
 witness Postlewaite was not sentenced to imprisonment in the peniten- 
 tiary, the question remains whether he is disqualified as a witness. 
 
 It is conceded that if the convict has been rendered infamous he is 
 incompetent to testify in a criminal proceeding. But what is it that 
 renders him infamous? Is it the nature of the crime of which he is 
 convicted or the character of the punishment inflicted? "Infamy" has 
 been defined as a state of incompetency "implying such a dereliction of 
 moral principle as carries with it a conclusion of a total disregard of 
 the obligation of an oath." (i Greenl. Ev., sec. 373.) At common law 
 treason, felony, and such crimes as involve falsehood and were 
 deemed to affect the administration of justice work the disqualification 
 of a witness ; and prior to the adoption of the federal constitution it was 
 held that the infamy which disqualified a convict to be a witness de- 
 pended upon the character of the crime and not upon the nature of the 
 punishment. (Pendock v. McKinder, Willes, 665; Gilbert's Ev. 143; 
 2 Hawk., ch. 46, sec. 102.) The fifth amendment to the federal con- 
 stitution, which provides that no person shall be held to answer for a 
 capital or otherwise infamous crime unless on a presentment or indict- 
 ment of a grand jury, etc., has given rise to frequent definitions of the 
 term "infamous crime." 
 
 In some of the earlier decisions there was a tendency on the part of 
 the courts to hold that the question of infamy was to be determined by 
 the nature of the crime and not at all by the character of the punish- 
 ment, but the supreme court of the United States settled that the test 
 to be applied in determining whether an offense is an infamous crime is 
 the character of the punishment which may be inflicted. (Ex parte 
 Wilson, 114 U. S. 426; 5 Sup. Ct. 935; Mackin v. The United States, 
 117 id. 352, 6 Sup. Ct. 777; In re Claasen, 140 id. 200, n Sup. Ct. 73 ; 
 Ex parte McClusky, 40 Fed. 71 ; 10 A. & E. Encycl. of L. 603 ; r Bouv. 
 Law Diet. 1026.) In Ex parte Wilson, supra, however, it was held that 
 the real criterion to be applied in such cases is whether the crime is one
 
 COMPETENCY 41 
 
 for which the statute authorizes the court to award an infamous punish- 
 ment, not whether the punishment ultimately awarded is an infamous 
 one. If the accused be in danger of being subjected to an infamous pun- 
 ishment the crime is deemed to be infamous, although infamous punish- 
 ment may not be actually inflicted. If this rule be applied to the case 
 under consideration, it results in the conclusion that Postlewaite was 
 infamous and incompetent to testify. Grand larceny being a felony, is 
 ordinarily punishable by confinement and hard labor in the penitentiary. 
 All agree that punishment of this character renders the convict infamous 
 and disqualifies him as a witness. The punishment in the present case 
 was, as we have seen, confinement in the industrial reformatory, and the 
 character of the punishment and discipline there is reformatory rather 
 than ignominious or infamous ; however, the convict was subject to the 
 infliction of the severer punishment. 
 
 In People v. Park, 41 N. Y. 21, it was held that a person under six- 
 teen years of age who was convicted of burglary in the third degree 
 was incompetent to testify as a witness, although he was sentenced to 
 the house of refuge established for the reformation of juvenile de- 
 linquents. 
 
 The view of this court is that the conviction and judgment rendered 
 Postlewaite incompetent as a witness, and that, as it does not appear 
 that the disability has since been removed by a pardon or a reversal, the 
 testimony should not have been received. His was the most important 
 testimony that was offered in the case, and not being competent, a ma- 
 jority of the court hold that substantial error was committed in ad- 
 mitting it. 
 
 In England, and in most of the states, statutes have been enacted, in 
 one form or another, removing the disqualification of infamy, so that 
 convicts may testify, but the conviction may usually be shown to affect 
 the credibility of the witness. 
 
 The authorities cited consistently hold that whether a crime is in- 
 famous is determinable by the punishment to which a convict is subject, 
 rather than the nature of the crime committed. 
 
 Under the general rule and apart from the statute, the test of infamy 
 is the punishment which might be inflicted, but our statute modifies that 
 and makes the punishment actually inflicted the criterion. 
 
 Imprisonment at hard labor has always been deemed infamous pun- 
 ishment, and under the statutes the civil rights of a convict are not lost 
 except by a sentence actually imposing such punishment. 
 
 Judgment reversed and cause remanded for a new trial.
 
 42 CASES ON EVIDENCE 
 
 PRIVILEGED COMMUNICATIONS.! 
 
 HATTON v. ROBINSON. 
 31 Mass. 416. (1833) 
 
 Trespass for taking two mares, a chaise and chaise harness. The de- 
 fendant pleaded the general issue, and filed a brief statement alleging 
 that he attached them as the property of David Winch. 
 
 At the trial, before Wilde, J., it appeared that the plaintiff claimed the 
 property under a bill of sale from Winch. The defendant, to prove the 
 bill of sale fraudulent, offered in evidence the deposition of Samuel 
 Ames Esq., a counsellor of law at Providence. The plaintiff objected 
 to the admission of the deposition, on the ground that Mr. Ames was 
 employed in the transaction testified to by him, as the attorney of 
 Winch and the plaintiff, and that all he knew in relation to it was com- 
 municated to him in that capacity. The only evidence that Mr. Ames 
 was so employed, was the deposition in question. 
 
 SHAW, C. J. The only question for the court in the present case, is, 
 whether the deposition of Mr. Ames was properly admitted in evidence ; 
 and this depends upon the further question, whether the matters testi- 
 fied to by him, were to be considered as within the rule of privileged 
 communications. 
 
 The rule upon which the plaintiff's counsel in the present case relied, 
 to exclude all that part of the testimony of Mr. Ames, which consisted 
 of statements made to him by Winch, as to his views and motives in 
 making the sale, upon which the plaintiff founds his title, is that well 
 known rule of evidence, founded on the confidence which a client re- 
 poses in his counsel, attorney or solicitor. By this rule it is well estab- 
 lished, that all confidential communications between attorney and client, 
 are not to be revealed at any period of time, nor in any action or pro- 
 ceeding between other persons; nor after the relation of attorney and 
 client has ceased. This privilege is that of the client and not of the 
 attorney, and never ceases, unless voluntarily waived by the client. 
 
 We had occasion lately to consider this subject in the case of Foster 
 v. Hall, 12 Pick. 89, which was not published at the time this cause 
 came before the court, in which it was decided, that the privilege was 
 not confined to the case of communications made to an attorney, with 
 a view to the prosecution or defence of a suit or legal process ; but that 
 it extends to all communications made to an attorney or counsellor, duly 
 
 i Hughes on Evidence, p. 286,
 
 PRIVILEGED COMMUNICATIONS 43 
 
 qualified and authorized as such, and applied to by the party in that 
 capacity, with a view to obtain his advice and opinion in matters of 
 law, in relation to his legal rights, duties and obligations, whether with 
 a view to the prosecution or defense of a suit or other lawful object. 
 This extent and modification of the rule, we thought, was well sup- 
 ported by the weight of authority, and consistent with the principle 
 upon which the rule is founded. This principle we take to be this : that 
 so numerous and complex are the laws by which the rights and duties 
 of citizens are governed, so important is it, that they should be permit- 
 ted to avail themselves of the superior skill and learning of those who 
 are sanctioned by the law as its ministers and expounders, both in ascer- 
 taining their rights in the country, and maintaining them most safely in 
 courts, without publishing those facts, which they have a right to keep 
 secret, but which must be disclosed to a legal adviser and advocate, to 
 enable him successfully to perform the duties of his office, that the law 
 has considered it the wisest policy to encourage and sanction this con- 
 fidence by requiring that on such facts the mouth of the attorney shall 
 be forever sealed. To the rule as thus stated we are still inclined to 
 adhere. 
 
 But the privilege of exemption from testifying to facts actually 
 known to the witness, is in contravention to the general rules of law; 
 it is therefore to be watched with some strictness, and is not to be ex- 
 tended beyond the limits of that principle of policy, upon which it is 
 allowed. It is extended to no other person than an advocate or legal 
 adviser, and those persons whose intervention is strictly necessary to 
 enable the client and attorney to communicate with each other, as an 
 interpreter, agent or attorney's clerk. And this privilege is confined to 
 counsel, solicitors and attorneys, when applied to as such, and when act- 
 ing in that capacity. Wilson v. Rastall, 4 T. R. 753. 
 
 But there are many cases, in which an attorney is employed in trans- 
 acting business, not properly professional, and where the same might 
 have been transacted by another agent. In such case the fact that the 
 agent sustains the character of an attorney, does not render the com- 
 munications attending it privileged ; and they may be testified to by him, 
 as by any other agent. In Wilson v. Rastall, already cited, Buller, J. 
 says, that the privilege is confined to the case of counsel, solicitor and 
 attorney, and it must be proved, that the information was communicated 
 to the witness, in one of those characters ; for if he be merely employed 
 as steward, he may be examined. 
 
 So where the matter is communicated by the client to his attorney for 
 purposes in no way connected with the object of the retainer and em-
 
 44 CASES ON EVIDENCE 
 
 ployment of the attorney as such. Cobden v. Kendrick, 4 T. R. 432. 
 The court say, the difference is, whether the communications were made 
 by the client to his attorney in confidence, as instructions for conducting 
 his cause, or a mere gratis dictum. 
 
 And so strictly is the rule held, that the privilege extends only to 
 communications made by the client to his attorney for the purpose of 
 obtaining legal advice, that in a late case it was held, that a communica- 
 tion made by a client to his attorney, not for the purpose of asking his 
 legal advice, but to obtain information as to a matter of fact, is not 
 privileged, and may be disclosed by the attorney, if called as a witness in 
 a cause. Bramwell v. Lucas, 2 Barn. & Cressw. 745. 
 
 Looking at the deposition of Mr. Ames, with these views in respect to 
 the legal privilege of communications between attorney and client, it 
 appears quite manifest, that the rule of exemption does not apply to 
 any communication made by Hatton, the plaintiff, inasmuch as it does 
 not appear that the witness was applied to by him, or that the relation of 
 attorney and client, in any respect, subsisted between them. In regard 
 to those communications, therefore, it appears to the court, that the wit- 
 ness cannot be exempted from testifying. 
 
 But upon examining the other part of Mr. Ames' deposition, we can- 
 not perceive that the communications were made to him by Winch with 
 the purpose of instructing him in any cause, or engaging him in the con- 
 duct of any professional business, or of obtaining any legal advice or 
 opinion. If the disclosure of his views and purposes, in the convey- 
 ance of property proposed to be drawn, was not, as stated in some of 
 the books, a mere gratis dictum, the only purpose seems to have been to 
 satisfy Mr. Ames' mind, and remove any scruple that he might enter- 
 tain, as to the character of the transaction, and to convince him. that 
 whatever might be the legal character of the act, it was not attended 
 with moral turpitude. It did satisfy him. that he was not engaged in 
 a conspiracy to cheat, and induced him to consent to draw the deed. 
 Here was no legal advice asked, no opinion requested as to the effect 
 and operation of such a conveyance in point of law, and none was 
 given. We are therefore necessarily brought to the conclusion, that 
 either these disclosures were made without any particular motive, or if 
 there was purpose, connected with the proposed draft, it was to satisfy 
 Mr. Ames' mind, upon a point of fact, not for the information of his 
 own in point of law, and in either event they are not to be deemed 
 privileged communications, which the witness was prohibited from dis- 
 closing. The whole deposition therefore was rightly admitted, and con- 
 formably to the case agreed, the nonsuit must stand.
 
 PRIVILEGED COMMUNICATIONS 45 
 
 GREENLAW v. KING. 
 / Beav. 157. (1838) 
 
 LANGDALE, M. R. This is a bill, filed by the plaintiff against the de- 
 fendant, to have it declared, that a security is void or satisfied. A mo- 
 tion is now made for the production of certain papers which by the 
 answer, are admitted to be in the possession of the defendant. 
 
 As to some of the papers there is no dispute, viz., the documents in 
 the first schedule, which, it is admitted, ought to be produced ; and there 
 is no doubt that certain documents in the second schedule, viz., the cor- 
 respondence of the defendant and his agent with his counsel or solicitor 
 ought to be protected ; the dispute arises on other papers. 
 
 The production is resisted on the ground that the communications 
 were confidential and ought to be protected. I am surprised at the ex- 
 tent of the protection from discovery which is sometimes claimed. The 
 general rule of the Court is, no doubt, that what the Defendant knows 
 relating to the matters in question, the Plaintiff has a right to know 
 also, and for this very purpose, to prevent the Defendant from sup- 
 pressing within his own breast the matters material to the determina- 
 tion o'f the question between the parties. A defendant may resist a 
 just demand, knowing, from circumstances solely within his own knowl- 
 edge, such resistance on his part to be unjust; this would be a fraud, 
 and could only be prevented by a discovery. The Defendant, on the 
 other hand, by filing a cross bill has a right to know all that the Plain- 
 tiff knows, and may be material for his defence; this is one of the 
 great distinctions between courts of equity and the other courts in this 
 country ; here you can appeal to the conscience of the party, and obtain 
 information; to extend the protection from discovery, further than is 
 absolutely necessary, would be to cripple the jurisdiction of courts of 
 equity in the most important particular. But there are exceptions to 
 the general rule, and one is where knowledge of the fact has been com- 
 municated between the party and his solicitor; and it has been argued, 
 that in every case in which a solicitor is bound to conceal his knowledge, 
 the client himself ought to be protected from making such discovery. 
 I do not accede to that proposition. There are many cases in which 
 it would be contrary to the duty of a solicitor to disclose facts, of which, 
 upon a bill being filed in this Court, the client would be bound to make 
 a discovery; this shows that the two propositions are not co-extensive; 
 the solicitor may not be bound, or not permitted to disclose matters 
 which come to his knowledge as a solicitor, and yet the client may be
 
 46 CASES ON EVIDENCE 
 
 bound to disclose them. It is decided, that if the knowledge of the 
 client be obtained through his solicitor, there may be a protection ; but in 
 this case it is apparent that the knowledge of the Defendant has not 
 come to him through his solicitor. The argument is singular ; it is said 
 the information required to be disclosed was obtained from the late 
 bishop, by Leigh in his character of solicitor ; and that it was therefore 
 his duty not to communicate it ; that it must have been from Leigh that 
 the Defendant acquired the information; and that the Defendant was 
 entitled to the same privilege as Leigh and was not, therefore, bound to 
 state the information, because Leigh would not have been at liberty to 
 disclose it as against the late bishop. It is very difficult to follow this. 
 The bishop's executors, it is true, are not here ; but, for any thing that 
 appears to the contrary, the Defendant has obtained the information 
 from the bishop himself. If Leigh performed his duty, which I must 
 assume he did, he would not have delivered up the papers without the 
 consent of the bishop or his executor ; and as these papers do not appear 
 to have passed between the Defendant and his solicitor, and are, there- 
 fore, not within the exception, they must be produced. 
 
 I take it to be clear, that the other documents which are the subject of 
 discussion, consisting of the correspondence which has taken place since 
 the dispute arose, between the Defendant and the solicitor to the late 
 bishop, but who is not the solicitor of the Defendant, being merely his 
 agent and confidential friend, are not protected. If these letters had 
 been written to Leigh for the purpose of being communicated, by that 
 channel, to counsel, another question might have arisen; I might have 
 thought it subject to a different rule, but it is not so; they are com- 
 munications which have taken place between the Defendant and Leigh, 
 not in his character of solicitor ; and it cannot be said, that a mere friend 
 is a person so confidential that a communication with him is privileged ; 
 the cases of privilege are confined to solicitors and their clients; and 
 stewards, parents, medical attendants, clergymen and persons in the 
 most closely confidential relation are bound to disclose communications 
 made to them. How can it be said that a mere friend is not equally 
 bound? There must be a production of the papers and the correspond- 
 ence which passed between bishop and Leigh in the lifetime of the 
 bishop; and of those papers between the Defendant and Leigh, acting 
 as his agent and not as his solicitor. 
 
 The production of the opinion of counsel was not required, and all 
 the other papers, except the correspondence between the Defendant and 
 his solicitor, were ordered to be produced.
 
 PRIVILEGED COMMUNICATIONS 47 
 
 PHILLIPS v. CHASE. 
 201 Mass. 444. (1900) 
 
 Petition filed in the Probate Court for the county of Essex on Octo- 
 ber 14, 1905, by Leonard H. Phillips and others, as the heirs and next 
 of kin of Jeannie P. Chase, late of Swampscott, who died on Septem- 
 ber 13, 1905, praying .that a decree of that court entered on April 23, 
 1889, whereby DeForest Woodruff Chase was made the child by adop- 
 tion of Jeannie P. Chase, be revoked on the ground that it was pro- 
 cured by the undue influence, threats and duress of Horace Chase, the 
 husband of Jeannie P. Chase, and was a fraud upon the court. 
 
 In the Probate Court, Harmon, J. made a decree revoking the former 
 decree of adoption on the ground of undue influence. Horace Chase, 
 as the sole heir at law of DeForest Woodruff Chase, who had died after 
 the filing of the petition, appealed. He also appealed as the administra- 
 tor of the estate of DeForest Woodruff Chase. On appeal the case 
 was tried before Braley, J., who submitted to a jury the following 
 issues : , 
 
 "Did Jeannie P. Chase of her own free will adopt DeForest Wood- 
 ruff Chase on April 23, 1889?" 
 
 "Was she unduly influenced in the making of said adoption by Horace 
 Chase or any other person ?" 
 
 Upon the first issue the jury answered "No," and upon the second 
 issue answered "Yes." Horace Chase, the respondent and appellant, 
 alleged exceptions relating to the admission of evidence against his ob- 
 jection, raising the questions which are discussed and disposed of in 
 the opinion. 
 
 KNOWLTON, C. J. This is a petition for a revocation of a decree of 
 the Probate Court for the adoption of DeForest Woodruff Chase by 
 Jeannie P. Chase, then the wife of Dr. Horace Chase. 
 
 An interesting question is raised by the respondent on the admission 
 of the testimony of Mr. Chick, at one time an attorney of Mrs. Chase, 
 in regard to an affidavit and will made by him for her, and certain com- 
 munications, relative to the adoption, to be made by him to her brothers 
 on her behalf after her death. He testified, among other things, that 
 she told him to "tell her brothers that this adoption was not her own 
 free act and deed, that it was brought about by ill treatment and coer- 
 cion, duress on the part of her husband, and that she did not want it to 
 stand." He prepared an affidavit for her which she signed and swore to 
 before a notary, and a will in which she said, "I now declare that said
 
 48 CASES ON EVIDENCE 
 
 adoption was not made by me of my free will and choice but was forced 
 upon me by my husband by threats of abandonment and I believe it was 
 so forced upon me in order that said DeForest W. Chase might claim as 
 my heir the residue under a certain trust settlement," etc. The state- 
 ment in the affidavit was in the same substance as that in the will. It 
 is the contention of the respondent that this evidence should have been 
 excluded as a private communication from a client to an attorney. 
 
 It has been repeatedly held that this rule of privilege should be con- 
 strued strictly. Foster v. Hall, 12 Pick. 89, 98. Hatton v. Robinson, 
 14 Pick. 416, 422. It is for the protection and benefit of the client, so 
 that his disclosures may not be used against him in controversy after 
 his death between his estate and those claiming adversely to it, the priv- 
 ilege may be waived by his executor or administrator, (Brooks v. 
 Holden, 175 Mass. 137) or by his heirs (Fossler v. Schriber, 38 111. 
 172) ; but where the controversy is not between an estate and persons 
 claiming against it, but is to determine who shall take by succession the 
 property of a deceased person, and both parties claim under him, the 
 reason for the privilege does not exist, and neither can set up a claim 
 of privilege against the other. Doherty v. O'Callaghan, 157 Mass. 90; 
 Russell v. Jackson, 9*Hare, 387; Blackburn v. Crawfords, 3 Wall. 175, 
 192, 194; Glover v. Patten, 165 U. S. 394, 406. See, also, as tending to 
 establish the same proposition, Layman's Will, 40 Minn. 371 ; Coates 
 v. Semper, 82 Minn. 460; Kern v. Kern, 154 Ind. 29; O'Brien v. Spald- 
 ing, 102 Ga. 490; Scott v. Harris, 113 111. 447, 454; Thompson v. Ish, 
 99 Mo. 160, 175. 
 
 There was also a special reason for the admission of this evidence, 
 because there was an implied waiver of a privilege of Mrs. Chase in her 
 request that the fact should be communicated to her brothers after her 
 death. Scott v. Harris, 113 111. 447; Bruce v. Osgood, 113 Ind. 360; 
 Ferguson v. McBean, 91 Cal. 63, 73 ; Blackburn v. Crawfords, 3 Wall. 
 175, 194; Winters v. Winters, 102 Iowa, 53, 57, 59. This evidence was 
 rightly admitted. 
 
 Exceptions overruled.
 
 PRIVILEGED COMMUNICATIONS 49 
 
 MATTER OF KING v. ASHLEY. 
 /7p N. Y. 281. (1904) 
 
 PER CURIAM. This was a proceeding instituted under sections 2707 
 and 2709 of the Code of Civil Procedure for the examination of the 
 appellant to obtain a discovery of his information concerning property 
 belonging to the estate of William Moore, deceased. The appellant at- 
 tended in answer to a citation, but declined to answer certain questions 
 put to him on the ground that by section 835 of the Code of Civil Pro- 
 cedure, he was forbidden to disclose the information sought, having 
 been the attorney and counsel of the deceased. The sole object for 
 which the proceeding was instituted was to obtain the disclosure of in- 
 formation. We think that the order punishing the witness for failure 
 to answer is the final order in the proceeding, and, therefore, appealable 
 to this court. (People ex rel. Grant v. Warner, 51 Hun, 53; affirmed 
 on opinion below, 125 N. Y. 746; Matter of Strong v. Randall, 177 
 N. Y. 400.) 
 
 On the merits we think the order should be affirmed. It is not neces- 
 sary to consider whether, by the execution and publication of a will dis- 
 posing of his interest in the estate of William Van Rensselaer, the testa- 
 tor withdrew any communications he may have made to the witness, as 
 to the identity and location of that estate, from the seal of confidence 
 and the protection of section 857 of the Code, specifically set forth in 
 the order adjudging the appellant guilty of contempt. These questions 
 do not call for communications from the deceased to the appellant, but 
 for information which he had obtained from other sources as appears 
 by his own testimony. It was settled in the cases which arose before 
 the enactment of the Code provisions on the subject that the privilege 
 of the attorney (or rather that of the client, for it is such) does not ex- 
 tend to everything which comes to his knowledge while acting as at- 
 torney or counsel, and does not include information derived from other 
 persons or other sources. ( Crisby v. Berger, 1 1 Paige, 377 ; Bogert v. 
 Bogert, 2 Edw. Ch. 399 ; Coveney v. Tannahill, i Hill, 33.) The section 
 of the Code is a mere re-enactment of the common law rule (Hurlburt 
 v. Hurlburt, 128 N. Y. 420). The appellant was, therefore, properly 
 required to give all his knowledge or information on the subject that 
 did not involve communications with the deceased. 
 
 The order appealed from should be affirmed with costs. 
 
 CULLEN, Ch. J., O'BRIEN, MARTIN, VANN, and WERNEK, J., concur ; 
 GRAY and HAIGHT, JJ., absent. 
 
 Order affirmed.
 
 5O CASES ON EVIDENCE 
 
 STATE v. WHITE. 
 19 Kan. 445. (1877) 
 
 HORTON, C. J. The defendant White was charged on information 
 with the offense of bigamy. The first jury impanelled to try the 
 cause could not agree, and were discharged without finding a verdict; 
 and another jury, before which the cause was tried at the same term, 
 rendered a verdict of guilty. Thereupon the defendant was sentenced 
 to the penitentiary for the term of three years, and he now appeals 
 to this court. 
 
 The serious error alleged is, the action of the court in compel- 
 ling the defendant to disclose communications between himself and 
 his attorney. Evidence having been admitted concerning a divorce 
 having been granted between the prisoner and his first wife, in the 
 State of New York, prior to the second marriage, the defendant, 
 testifying in his own behalf was required by the court to answer, on 
 cross-examination, "if he had not been consulted, or advised by his 
 counsel in regard to obtaining a copy of such decree." Objection was 
 duly made to the question on the ground that the communications 
 between counsel and client were privileged; that the court overruled 
 the objection, and in so doing committed material error. The de- 
 fendant in fully answering the question gave the advice of one of 
 his lawyers to him. The statute provides that an attorney shall be 
 incompetent to testify concerning communications made to him by his 
 client in that relation, or his advice thereon, without the client's con- 
 sent. This statute would be of no utility or benefit, if the client could 
 be compelled against his consent, to make such disclosures. It would 
 be absurd to protect by legislative enactment professional communi- 
 cations, and to leave them unprotected at the examination of the 
 client. In such an event, in all civil actions, the confidential state- 
 ments of client and counsel would be exposed, and likewise the same 
 would occur in all criminal actions where the defendant should tes- 
 tify. The authorities are otherwise. The true views seem to be, 
 that communications which the lawyer is precluded from disclosing, 
 the client cannot be compelled to disclose. This privilege is essen- 
 tial to public justice, for did it not exist no man would dare to consult 
 a professional adviser, with a view to his defense, or to the enforce- 
 ment of his rights. Whar. on Ev. sec. 583; Hemenway v. Smith, 28 
 Vt. 701 Carnes v. Platt, 15 Abb. Pr. (N. S.) 337; Merritt v. Morgan, 
 21 Wend. 467; Williams v. Fitch, 18 N. Y. 546-550; Britton v.
 
 PRIVILEGED COMMUNICATIONS 51 
 
 Lorenz, 45 N. Y. 51-59; Bigler v. Regher, 43 Ind. 112; i Greenl. on 
 Ev. sees. 236-240. It is urged against a reversal of the judgment, 
 that the question might have been answered by "yes" or "no", and 
 that the advice or conversation testified to was not very material, and 
 could not have been prejudicial to the rights of the defendant. We 
 answer that the District Court violated a very important rule of 
 evidence, and forced the disclosure of privileged communications in 
 a criminal case where the liberty of the defendant was at stake; and 
 we will not stop to weigh the effect of the answer, or determine how 
 far the rights of the prisoner were sacrificed. It is very important 
 to public interests that the purpose of the statute as to such com- 
 munications should be maintained in all its rigor. It is the best rule. 
 Obsta principiis. If a client sees fit to be a witness, he makes him- 
 self liable to a full cross-examination. But in this case the defend- 
 ant did not, in his direct examination, refer to his counsel, or any 
 conversation with, or advice from them; and the question was inex- 
 cusable. 
 
 For the error committed in the action of the court in compelling 
 the disclosure of the communications between the defendant and his 
 attorney, the judgment is reversed, and the action remanded for a 
 new trial. 
 
 All the Justices concurring. 
 
 NAVE v. BAIRD. 
 NAVE v. LANE et al. 
 12 Ind. 318. 
 
 PERKINS, J. Baird sued Nave upon a promissory note for 200 
 dollars. 
 
 Answer by way of counter-claim, alleging that the note was given in 
 consideration that said Baird, an attorney at law, should attend to 
 a certain cause then pending against said Nave in the Fountain Cir- 
 cuit Court; that Baird did not, in a skillful manner, conduct the 
 defense of the cause and refused to obey the instructions of his client 
 in these particulars, viz.: that he refused to apply for a change of 
 venue therein, and refused to put in the testimony of certain witnesses. 
 It is further alleged that judgment went against Nave, whereby he
 
 52 CASES ON EVIDENCE 
 
 was damaged 3,000 dollars, which amount, he claims, should be ad- 
 judged in his favor against Baird. 
 
 A jury was called to try the issue made. Verdict for the plaintiff, 
 upon which the court rendered judgment. 
 
 There is another point in the case. Associated with Mr. Baird, in 
 the defense, were Messrs Lane and Willson of Crawfordsville. They 
 were present at the consultations between Mr. Nave and Mr. Baird, 
 and on the trial of this cause, to rebut testimony introduced by Mr. 
 Nave, as to what transpired in those consultations, offered Mr. Will- 
 son as a witness. Mr. Nave objected to his testifying, on the ground 
 that he was not competent to disclose confidential communications. 
 
 As a general proposition, an attorney cannot, as a witness against 
 his client, disclose such communications. But the rule does not apply 
 where the client sues the attorney for disobeying instructions alleged 
 to have been given in such consultations, and for unskill fully man- 
 aging a cause upon information given to him by his client in them. 
 
 Upon the whole we see no error in the case. 
 
 Per Curiam. The judgment is affirmed with 5% damages and 
 costs. 
 
 LANE v. BOICOURT. 
 128 Ind. 420. (1891) 
 
 Appellee sued appellant, a physician, for malpractice in the per- 
 formance of an operation upon appellee's wife. Judgment for plain- 
 tiff. Motion for new trial overruled. Defendant appeals. 
 
 ELLIOTT, J. * * * We come now to a question presented by 
 the ruling denying a new trial. The appellee, his wife, and his wife's 
 mother, testified as to all that was done by the appellant at the time 
 the surgical operation which caused the injury to the appellee's wife 
 was performed. The appellant also testified, without objection, to 
 what occurred at that time. He then called Dr. Williamson, who was 
 in attendance as a consulting surgeon, but the trial court refused to 
 permit him to testify to any matter that occurred at the time the 
 operation was performed by the appellant. In our judgment this was 
 error. 
 
 The testimony given by the witnesses of the appellee broke the 
 seal of privacy and gave publicity to the whole matter. The patient
 
 PRIVILEGED COMMUNICATIONS 53 
 
 waived the statutory rule. The course pursued laid the occurrence 
 open to investigation. Nothing was privileged, since all was pub- 
 lished. The statute was not meant to apply to such a case as this, 
 nor is it within the letter or the spirit of the law. If a patient makes 
 public in a court of justice the occurrences of the sick room for the 
 purpose of obtaining a judgment for damages against his physician, 
 he can not shut out the physician himself, nor any other who was 
 present at the time covered by the testimony. When the patient vol- 
 untarily publishes the occurrence, he can not be heard to assert that 
 the confidence which the statute was intended to maintain inviolate 
 continues to exist. By his voluntary act he breaks down the bar- 
 riers, and the professional duty of secrecy ceases. It would be mon- 
 strous if the patient himself might detail all that occurred, and 
 yet compel the physician to remain silent. The principle is the same 
 whether the physician called is a consulting physician, or is the de- 
 fendant. The opening of the matter to investigation removed the 
 obligation of secrecy as to all, not merely as to one. When the obli- 
 gation to silence is broken, it is broken for the defendant as well as 
 for the plaintiff. As to all witnesses of the transaction it is fully 
 opened to investigation, if opened at all, by the party having a right 
 to keep it closed. A patient can not elect what witnesses shall be 
 heard and what shall not ; for if once investigation legitimately begins, 
 it continues to the end. A patient may enforce secrecy if he chooses, 
 but where he himself removes the obligation he can not avail himself 
 of the secrets of the sick room, or of the consultation, we may say 
 in conclusion, that the physician is forbidden to reveal, and what is 
 made public by pleadings and by evidence in a court of justice can 
 by no possibility be privileged to benefit the party who has given it 
 such wide publicity. 
 
 Judgment reversed. 
 
 In re REVOCATION OF PROBATE of the WILL of 
 MARY A. MYER, Deceased. 
 
 184 N. Y. 54. (1906) 
 
 Appeal from an order of the Appellate Division of the Supreme 
 Court in the fourth judicial department, entered January n, 1905, 
 which affirmed a decree of the Seneca County Surrogate's Court re-
 
 54 CASES ON EVIDENCE 
 
 yoking probate of the will of Mary A. Myer, deceased. 
 
 This proceeding was instituted in the Surrogate's Court of Seneca 
 county to procure the revocation of the* probate of the will of Mary 
 A. Myer, deceased, upon allegations that at the time of the execu- 
 tion thereof she was not mentally capable of making a will and that 
 its execution was procured by the undue influence of her son, William 
 H. Myer. The petitioners are Mary L. C. King, the only daughter 
 of testatrix, and John V. Myer, her youngest son. 
 
 WERNER, J. The unanimous affirmance by the court below pre- 
 cludes the examination in this court of any of the questions raised 
 by the appellants, save those arising upon exceptions taken to the 
 rulings of the surrogate upon the admission or rejection of evidence. 
 Some of the exceptions thus taken present errors which require a 
 reversal of the order appealed from, because it appears that the 
 exceptions were clearly prejudiced by such rulings. (Code Civ. Pro. 
 
 2545.) 
 
 The petitioners introduced testimony tending to show that, at the 
 time of the execution of the will, the testatrix was afflicted with 
 paresis, which it was claimed deprived her of testamentary capacity. 
 In order to supplement and support this evidence, the petitioners 
 called two physicians, Drs. Carlton and Townsend. The former had 
 been the medical adviser of the testatrix's brother, and the latter of 
 her mother. These witnesses testified that both the mother and brother 
 of the testatrix had been afflicted with what they termed "general 
 paresis ;" that their knowledge of this condition was obtained while 
 attending such persons in their professional capacity, and that such 
 knowledge was necessary in order to treat them. The testimony was 
 objected to as incompetent and privileged under section 834 of the 
 Code of Civil Procedure, and the ruling admitting it was properly 
 excepted to because it was inadmissible on two grounds. I. It is 
 clearly within the provisions of section 834, which prohibits a physi- 
 cian from disclosing "any information which he acquired in attending 
 a patient, in a professional capacity, and which was necessary to 
 enable him to act in that capacity." (Renihan v. Dennin, 103 N. Y. 
 573; Feeney v. Long Island R. R. Co., 116 id. 375; Fisher v. Fisher, 
 129 id. 654; Nelson v. Village of Oneida, 156 id. 219; Meyer v. 
 Knights of Pythias, 178 id. 63.) 
 
 By the express terms of section 836 the provisions of section 834 
 are made to apply to the "examination of any person as a witness." 
 The fact that the testimony of these physicians related to patients, 
 who were not parties to the proceedings nr inter^ctfH therein, and
 
 PRIVILEGED COMMUNICATIONS 55 
 
 who were in fact dead at that time, does not annul the prohibition of 
 the statute. In Davis v. Supreme Lodge (165 N. Y. 159) the defense 
 sought to prove the cause of death of two aunts of the deceased by 
 the testimony of their attending physicians. The evidence was ex- 
 cluded, and this court upheld the ruling. Judge O'Brien, in writing 
 for the court, said (p. 163) : "This court has held that the state- 
 ments of the attending physician, for the purpose of establishing the 
 cause of death either of the insured himself or of his ancestors or 
 their descendants, although not parties to nor beneficiaries under the 
 contract, were not admissible. They are excluded not only for the 
 purpose of protecting parties from the disclosure of information 
 imparted in the confidence that must necessarily exist between the 
 physician and patient, but on grounds of public policy as well. The 
 disclosure by a physician, whether voluntary or involuntary, of the 
 secrets acquired by him while attending upon a patient in his pro- 
 fessional capacity, naturally shocks our sense of decency and pro- 
 priety, and this is one reason why the law forbids it." (Grattan v. 
 Met. Life Ins. Co., 80 N. Y. 281 ; Westover v. ^Etna Life Ins. Co., 
 99 id. 56; Nelson v. Village of Oneida, 156 id. 219. The general 
 rule of exclusion provided for in section 834 is not obviated in this 
 case by the exceptions thereto contained in section 846, because the 
 testimony objected to does not fall within either of these exceptions. 
 The decree of the surrogate and the order of the Appellate Division 
 should be reversed and a new trial ordered before a jury in the Su- 
 preme Court, costs to abide the event. 
 
 ROSE v. ORDER OF PATRICIANS. 
 
 126 Mich. 577. (1901) 
 
 i 
 
 Assumpsit, by Thomas Rose against the Supreme Court of the 
 Order of Patricians on a benefit certificate. From a judgment for 
 plaintiff, defendant brings error. Affirmed. 
 
 The defendant is a fraternal beneficiary order, incorporated under 
 the laws of Michigan. Plaintiff's wife became a member of the 
 order August 18, 1898, and passed the usual medical examination. 
 She died November i8th following. Plaintiff was her beneficiary. 
 Her certificate was for $1,000. In her application she stated that 
 she was 45 years of age; was in good health; had never consulted a
 
 56 CASES ON EVIDENCE 
 
 physician; never had a serious illness; no disease of heart, stomach, 
 or bowels; no irregularity of the heart's action; no loss of conscious- 
 ness; no palpitation of the heart. This application further stated 
 that the answers and statements are correct, and shall form the basis 
 for the issuance of a benefit certificate, and that the certificate issued 
 thereon and the answers and statements shall be considered together, 
 and construed as one complete contract. 
 
 GRANT, J. A physician who had been employed by the deceased 
 was called as a witness by the defendant, had testified to his attend- 
 ance upon her, and he was then asked: 
 
 "Excluding any knowledge or information you obtained while treat- 
 ing the insured, and judging from her appearance at the time of the 
 treatment, what is your opinion whether she was a woman in good 
 health and sound body, and a woman who usually enjoyed good 
 health?" 
 
 The refusal of the court to permit an answer to this question is 
 alleged as error. It was excluded under section 10181, 3 Comp. Laws 
 1897. Counsel rely upon Edington v. Ins. Co., 77 N. Y. 564, where 
 the question was asked : 
 
 "Excluding any knowledge or information that you obtained while 
 treating the deceased, and judging from his appearance from that 
 time until 1867, what is your opinion as to whether he was a man 
 in good health?" 
 
 The difference between the two cases is apparent. In the New 
 York case, any information or knowledge of his appearance while 
 the physician treated him was not asked for. The physician had 
 seen him many times after his employment had ceased, and his ap- 
 pearance upon which his opinion was based was expressly limited to 
 that period. In the present case the witness was asked to give an 
 opinion based upon her appearance at the time of the treatment. This 
 was excluded by the statute. 
 
 Judgment affirmed. 
 
 The other Justices concurred.
 
 PRIVILEGED COMMUNICATIONS 57 
 
 ALFORD v. JOHNSON. 
 Joj Ark. 2$6. (1912) 
 
 FRAUENTHAL, J. This is an appeal from a judgment declaring 
 invalid the alleged last will and testament of one W. S. Stroope. The 
 contestants are the heirs at law of the testator, and the proponent of 
 the will and chief beneficiary therein is Lorinda Alford, who claims 
 to have been his housekeeper, but who, the contestants claim was 
 his mistress. The contestants sought to invalidate the will upon the 
 grounds (i) that the testator did not possess sufficient mental ca- 
 pacity at the time of its execution, and (2) because it was obtained 
 by the fraud and undue influence of said Lorinda Alfor. The trial 
 resulted in a verdict against the will. The proponent now seeks a 
 reversal of the judgment upon the gfound that the court erred in 
 admitting certain testimony, and because the evidence adduced upon 
 the trial of the case is insufficient to warrant the verdict which was 
 returned. 
 
 During the progress of the trial, the contestants introduced as a 
 witness one D. D. Warlick, who is a minister of the gospel of the 
 Methodist Church. This witness testified that during 1907 he had 
 conversations with the testator in which he spoke of his past life 
 and of his adulterations with said Lorinda Alford, and of her great 
 influence over him. He also testified that Stroope was not a member 
 of his church or of any church; that on one of these occasions he 
 spoke penitently of his conduct and of a desire to join his church. 
 The witness told him, however, that he could not do this as long 
 as he lived in these wrongful relations with a woman not his wife. 
 He testified to other statements made by Stroope to him of his rela- 
 tions with and the influence exercised by Lorinda Alford over him. 
 The appellant objected to the introduction of this testimony, upon 
 the ground that these communications were privileged. Her objec- 
 tion was overruled, and exception was properly saved to the ruling 
 of the court. 
 
 It is contended that this testimony was inadmissible by reason 
 of section 3097 of Kirby's Digest, which provides : "No minister of 
 the gospel or priest of any denomination shall be compelled to testify 
 in relation to any confession made to him in his professional char- 
 acter in the course of discipline enjoined by the rules or practice of 
 such denomination." The communications that are made privileged 
 by this statute are those which are made in the course of discipline
 
 58 CASES ON EVIDENCE 
 
 by reason of the rules of the religious denomination. If the com- 
 munications are made to one who happens to be a clergyman, but 
 who does not sustain to the communicant that professional character 
 or relation, they are not privileged. Before the statements or con- 
 fessions made to a minister of the gospel or priest of any denomina- 
 tion can be held to be inadmissible, it must appear from the evidence 
 that they were made to such minister or priest in his professional 
 character, and because enjoined by the rules or discipline or practice 
 of such religious denomination. As is said in Wharton on the Law 
 of Evidence, sec. 597: "Under these statutes, however, a communi- 
 cation to be privileged must be made by a penitent as an enjoined 
 religious discipline, to a priest, and does not cover a confession made 
 to a clerygman not in the course of such discipline." See also Wig- 
 more on Evidence, sec. 2693 ; Knight v. Lee, 80 Ind. 201 ; State v. 
 Morgan (Mo.) 95 S. W. 402. 
 
 It does not appear from the testimony adduced in this case that 
 the statements made by Stroope to Warlick were made to him in 
 any professional relation to Stroope as a clergyman, nor was there 
 any testimony that such statements were made in the course of dis- 
 cipline enjoined by any rules or practice of the religious denomina- 
 tion of which Warlick was a member. These communications were 
 made to Warlick in like manner as to any individual; and while it 
 is true that Stroope also spoke to him relative to his desire to become 
 a member of his church, the communications were not made to War- 
 lick in his professional character or by reason of any rule or practice 
 of that church. It follows that the testimony given by this witness 
 was not inadmissible by reason of the above statute; and appellant 
 did not object to the admissibility of this testimony upon any other 
 ground. 
 
 Judgment affirmed. 
 
 REUTKEMIER v. NOLTE. 
 Iowa 342. (1917) 
 
 Action for damages, actual and exemplary, by the plaintiff against 
 the defendant for the alleged debauching of his minor daughter. 
 Actual damages for expenses and loss of service are claimed under 
 the provisions of Code Section 3471. The defense was a general
 
 PRIVILEGED COMMUNICATIONS 59 
 
 denial. There was a verdict for the plaintiff for $6,500, and the 
 defendant appeals. 
 
 Affirmed. 
 
 EVANS, J. The facts as contended by plaintiff, briefly stated, are 
 that in September, 1912, the defendant, a man then 21 years of age 
 had carnal knowledge of the plaintiff's daughter, Mary, then a child 
 only 14 years of age. In June, 1913, she gave birth to a child, alleged 
 to be the result of such intercourse. The plaintiff was, at the time, a 
 farmer living upon his own farm. He was a widower, with three 
 daughters and three sons, all living with him at his home. The evi- 
 dence on behalf of the plaintiff was quite abundant to sustain the 
 verdict. The appeal is presented here on assignments of error assail- 
 ing certain rulings in the admission of testimony and certain instruc- 
 tions of the court. 
 
 i. The most important and doubtful question raised relates to 
 an alleged privileged communication, the claim of privilege being 
 based upon Code Section 4608. Plaintiff's daughter was a member 
 of the Presbyterian church. In the month of March before her 
 child was born, she was asked to appear and did appear before the 
 church session. Such session consisted of the pastor and the three 
 ruling elders. She appears to have confessed her sin, and to have 
 made certain communications to the elders. On the trial of this 
 case, the defendant sought to show what such communication was. 
 It is claimed for the defendant that such communication involved 
 others, as well as himself, and that at least it cast much uncertainty 
 upon the paternity of the child. The plaintiff objected to such line 
 of testimony, both on the ground that it was not binding upon him 
 as substantive testimony, and that, in any event, it was a privileged 
 communication under the provisions of the statute. The first objec- 
 tion was clearly good as far as it went. The defendant, however, 
 sought to lay a foundation in the cross-examination of the daughter 
 Mary as a witness for her impeachment, by calling her attention 
 to such alleged communication. Of course, if the communication was 
 not privileged, it was competent, even as against the plaintiff, to offer 
 the same for the purpose of impeachment. On the other hand, if 
 the communication was privileged, it was" no more available to the 
 defendant for impeachment purposes than for any other purpose. 
 If it was privileged, then, under the view of the trial court, it would 
 be equally improper to lay a pretended foundation for its introduction 
 as impeaching testimony. The question, therefore, was precipitated 
 in the cross-examination of the witness Mary. The trial court exer-
 
 6o CASES ON EVIDENCE 
 
 cised its discretion to stop temporarily the cross-examination, and to 
 permit the parties in the absence of the jury, to introduce evidence 
 of such facts as were material to be considered, to enable the court 
 to determine whether the communication in question was privileged. 
 It is not free from doubt, upon the record before us, whether the 
 cross-examination of the witness at this point was justified by the 
 state of her testimony at the time. In view of the fact, however, 
 that the attention of both court and counsel appears to have been 
 concentrated upon the question of privilege, as decisive of that line 
 of examination, we are disposed to meet that question as the one of 
 larger merit. Code Section 4608 is as follows: 
 
 "No practicing attorney, counselor, physician, surgeon, or the ste- 
 nographer or confidential clerk of any person, who obtains such infor- 
 mation by reason of his employment, minister of the gospel or priest 
 of any denomination shall be allowed in giving testimony, to disclose 
 any confidential communication properly intrusted to him in his pro- 
 fessional capacity, and necessary and proper to enable him to dis- 
 charge the functions of his office according to the usual course of prac- 
 tice or discipline. Such prohibition shall not apply to cases where 
 the party in whose favor the same is made waives the rights con- 
 ferred." 
 
 In applying this section to the case before us, two questions naturally 
 arise : 
 
 1. Was the communication a confidential one? 
 
 2. Were the recipients of such communication ministers of the 
 Gospel within the meaning of the statute? 
 
 As to the first question it is apparent the communication was of 
 such a nature as would usually and naturally be deemed confidential 
 if for no other reason than that it involved a confession of sin to a 
 spiritual adviser. We feel no hesitancy in holding the affirmative on 
 this question. The second question presents greater difficulty. What 
 is a "minister of the Gospel," within the meaning of this statute? 
 The law as such sets up no standard or criterion. That question is 
 left wholly to the recognition of the "denomination." The word 
 "minister," which, in its original sense, meant a mere servant, has 
 grown in many directions, and into much dignity. Few English 
 words have a more varied meaning. In the religious world, it is 
 often, if not generally, used as referring to a pastor of the church and 
 a preacher of the Gospel. This meaning, however, is not applicable 
 to all Christian denominations. Some of them have no pastors and 
 recognize no one as a minister in that sense, and yet all denominations
 
 PRIVILEGED COMMUNICATIONS 61 
 
 recognize the spiritual authority of the church, and provide a source 
 of spiritual advice and discipline. The record herein contains a copy 
 of the "Confession of Faith" of the Presbyterian church, as well as 
 other standard booklets setting forth the doctrine and polity of that 
 denomination. (Excerpts therefrom follow). 
 
 To the foregoing, it may be added that the office of ruling elder 
 is perpetual, and no person can be divested of it except by removal. 
 These ruling elders have nothing to do with the temporal affairs of 
 the church, but deal wholly with its spiritual side and its discipline. 
 It will be noted also, from what we have quoted, that, although it 
 is required that the pastor of the congregation shall always be the 
 moderator of the session, when there is a pastor, yet, if there be no 
 pastor, and it be impracticable to obtain another pastor, the ruling 
 elders are authorized to conduct the session without one. It will be 
 noted also that there is no power of discipline conferred upon the 
 pastor except in conjunction with the ruling elders. 
 
 Turning now to the statute itself, the fact that it lays its inhibition 
 upon stenographers and confidential clerks "of any person who ob- 
 tains such information by reason of his employment," indicates a 
 rather broad scope of the statute, and indicates the legislative intent 
 that the privileged communication should be protected also against 
 divulgence by those persons, whose duty and relation to the chief 
 recipient were such as to enable them to know the communication. 
 The privilege of the statute purports to be applicable to every Christian 
 denomination, of whatever polity. Under the polity of the Presby- 
 terian denomination, this privilege cannot be applicable to it unless 
 it be true that the ruling elders are "ministers of the Gospel," within 
 the meaning of the statute. We find they are such within the con- 
 templation of the Presbyterian Confession of Faith, and therefore 
 they are such within the meaning of the statute. We hold that the 
 trial court ruled correctly at this point.
 
 62 CASES ON EVIDENCE 
 
 COOK et al. v. CASTNER et al. 
 
 JORDAN et al. v. FARREN et al. 
 
 63 Mass. 266. (1852) 
 
 These were two cross-examinations between the same parties, and 
 arising out of the same transaction. 
 
 The first was an action of assumpsit with the money counts to 
 recover back the purchase-money of the barque Averon, sold by the 
 defendants to the plaintiffs. 
 
 At the sale there was no warranty, but the sale was made under 
 representations as to the condition of the timbers and fastenings of 
 the vessel. After the sale, the plaintiffs had the vessel examined, 
 when they found some of the timbers unsound; they attempted to 
 repair these, and, in doing so, made further discoveries as to the con- 
 dition of the timbers and fastenings, and immediately offered to 
 return the vessel to the defendants. 
 
 At the trial, in the court of common pleas, the plaintiffs intro- 
 duced evidence that, with the defendants' knowledge, they bought 
 on the faith of these representations; that the representations were 
 materially false, and were known to be so by the defendants at the 
 time they were made. 
 
 The jury found a verdict for the defendants, and the plaintiffs 
 moved for a new trial, for the following reasons, to wit: 
 
 ist. Because Mr. Ballard, one of the jurors by whom the verdict 
 therein was rendered, had, prior to the time of the trial, examined 
 the barque Averon, the subject of that suit, about the time of her 
 abandonment by the defendants, and had then formed an opinion of 
 the condition of the vessel at the time of her sale to the defendants, 
 and was not an unprejudiced and unbiased juror, and was thereby 
 rendered incompetent as a juror in the cause. 
 
 2nd. Because Ballard, after the cause was committed to the jury, 
 and before the verdict, stated to his fellow-jurors, not in the presence 
 of the judge, and not as a witness under oath that he had "examined 
 the vessel and knew all about her ; that she was more rotten than she 
 was proved to be at the trial, and that she was rotten throughout; 
 that he would bet five hundred dollars that, if she were opened now, 
 it would be found that she was rotten in places where one of the 
 plaintiffs' deponents said he had found her sound when he repaired 
 her; for he, Ballard, saw rot in those places when he looked at her."
 
 PRIVILEGED COMMUNICATIONS 63 
 
 All which matters and things were unknown to the plaintiffs until 
 after the verdict was rendered ; whereby the plaintiffs were prejudiced, 
 and suffered manifest wrong and injury by the improper conduct of 
 the juror. And the plaintiffs prayed that the verdict in the cause 
 might be set aside, and a new trial ordered. 
 
 On the hearing of this motion, the plaintiffs offered to prove, by 
 Ballard and by the foreman of the jury, the truth of the facts stated 
 in the motion for a new trial, in respect of Ballard ; but the presiding 
 judge ruled that the testimony of these witnesses could not be re- 
 ceived; that the jurors were not competent witnesses to prove the 
 facts stated in the plaintiffs' motion for a new trial, it appearing that 
 the plaintiffs proposed proving that these directions were made while 
 the jury were together, deliberating upon the verdict they should 
 render. 
 
 To this ruling the plaintiffs excepted. 
 
 SHAW, C. J. These two cases, as we understand, are cross actions 
 between the same parties, although the names and titles of the causes 
 are different, being controversies arising out of the same transaction, 
 the purchase and sale of a vessel, called the barque Averon, in which 
 Castner and Jordan were the vendors, and Cook and Farren the 
 purchasers. They were both tried together, and went to the same 
 jury, and verdicts in both were rendered at the same time. 
 
 As to the juror, the offer of the plaintiffs was only to show what 
 took place in the jury-room at the time the jury 'were in deliberation 
 on their verdict. It was, that the juror stated that he had examined 
 the vessel before the trial, that he was of opinion that she was very 
 rotten, and so stated to the rest of the jury. 
 
 We think the judge was right in rejecting evidence of the alleged 
 partiality and misconduct of a juror in the jury-room, by the testi- 
 mony of the juror himself, or of the other jurors. It is a rule, founded 
 upon obvious considerations of public policy, and it is important that 
 it should be adhered to and not broken in upon to afford relief in 
 supposed hard cases. 
 
 A verdict, as the name imports (vcredictum} is taken, in theory 
 of law, to be absolute truth, and it is important that it be so regarded. 
 All communications among the jurors are confidential; they are in- 
 tended to be secret, and it is best they should remain so. It is very 
 probable, indeed it is almost inevitable, that many things should be 
 said and views expressed, by individual jurors, which not only have
 
 64 CASES ON EVIDENCE 
 
 no influence on others, but which they themselves do not ultimately 
 adhere to and act upon. 
 
 Judgment in each case on the verdict for the defendants. 
 
 WILKERSON v. STATE, 
 pi Ga. 729; S. . ppo. (1893) 
 
 Wilkerson was indicted for murder, and was found guilty of vol- 
 untary manslaughter. His motion for a new trial was overruled, and 
 he excepted. 
 
 LUMPKIN, Justice. On the trial, the accused offered in evidence, 
 and also offered to read as a part of his statement, a letter which had 
 been written by Stephens to his wife, and which she had voluntarily 
 delivered to Wilkerson some time before the homicide. This letter 
 contained intimations that the writer knew of the relations existing 
 between his wife and Wilkerson, and also a threat against the latter. 
 The court rightly rejected the letter, and refused to allow it to be 
 read to the jury. Section 3797 of the Code declared that communica- 
 tions between husband and wife are, from public policy, excluded as 
 evidence. Mrs. Stephens would not, for this reason, have been per- 
 mitted, as a witness .upon the stand, to testify to communications from 
 her husband to herself; or to read to the jury a letter which he had 
 written to her. We are therefore decidedly of the opinion that the 
 same result cannot be indirectly accomplished by her voluntarily de- 
 livering a letter of this kind to another person. We are aware that 
 there are respectable authorities holding that a privileged oral com- 
 munication may be given in evidence by one who overheard it, though 
 an eavesdropper; or that a privileged written communication, pur- 
 loined from the proper custodian of it, may be received in evidence. 
 In such instances, however, the parties to the privileged communica- 
 tion do not themselves successfully make and keep it private; but 
 where this result is accomplished, the law will not permit either of 
 the parties, directly or indirectly, to violate the confidence of the 
 other. In respect to documents, there is a difference between those 
 which are confidential in their own nature, such as letters between 
 husband and wife and those which become confidential by custody, 
 such as papers deposited by a client with his attorney. The law, for 
 reasons of its own, desires that all communications between husband
 
 PRIVILEGED COMMUNICATIONS 65 
 
 and wife shall be absolutely free and untrammeled, and that each may 
 say or write whatsoever he or she pleases to the other, with the abso- 
 lute assurance that the one receiving the communication will neither 
 be compelled nor permitted to disclose it. We therefore think it the 
 wiser and better course to adhere strictly to the declared policy of our 
 law, and to hold that this letter was properly rejected, however im- 
 portant it may be in the determination of this case. 
 
 Judgment reversed on other grounds. 
 
 COMMONWEALTH v. GRIFFIN. 
 no Mass. 181. (1872) 
 
 INDICTMENT for manslaughter. At the trial, before ROCKWELL, 
 J.. the Commonwealth offered to prove a conversation as to the 
 alleged homicide between the defendant and his wife, while confined 
 in jail, from the testimony of two officers who concealed themselves 
 in the jail for the purpose of listening to the conversation, without 
 the defendant and his wife knowing that the witnesses or any other 
 persons were in hearing of them. The defendant objected to the ad- 
 mission of this testimony, but the judge admitted it. The jury re- 
 turned a verdict of guilty, and the defendant alleged exceptions. 
 
 BY THE COURT. There is no rule of law requiring that third per- 
 sons who hear a private conversation between husband and wife shall 
 be restrained from introducing it in their testimony. 
 
 Exceptions overruled. 
 
 COMMONWEALTH v. CRONIN. 
 185 Mass. 96. (1904) 
 
 INDICTMENT, found on May 12, 1902, for an assault with intent 
 to murder. 
 
 At the trial in the Superior Court before HARRIS, J., the defense 
 relied upon was insanity caused by epilepsy. It appeared that after 
 committing the assault in question the defendant, being pursued by 
 persons who had come up, ran to a pond and threw himself in, and
 
 66 CASES ON EVIDENCE 
 
 was rescued from the pond in an unconscious condition. The de- 
 fendant's wife testified to an illness of the defendant alleged to be 
 epilepsy and was allowed without objection to testify in regard to 
 the condition of the defendant as manifested by his symptoms. The 
 defendant then offered to show by his wife that immediately upon 
 coming out of this attack the defendant declared that he would drown 
 himself. The judge excluded this evidence solely upon the ground 
 that it was a private conversation between husband and wife. The 
 jury returned a verdict of guilty ; and the defendant alleged exceptions. 
 BARKER, J. The defendant's statement that he would drown him- 
 self was made in private to his wife. It was relevant to his condition 
 of mind, but was made incompetent and inadmissible as evidence in 
 his favor by the prohibition of the statute, "Neither husband nor wife 
 shall testify as to private conversations with each other." R. L. c. 
 175, sec. 20, cl. i. Fuller v. Fuller, 177 Mass. 184, and cases cited. 
 It did not come within the reason of the exception which allows abus- 
 ive language addressed by a husband in private to his wife to be given 
 in evidence to show abusive treatment. See French v. French, 14 
 Gray, 186. 
 
 Exceptions overruled. * 
 
 THE STATE v. THOMAS, 
 pp Mo. 235. (1889) 
 
 BRACE, J. At the March term, 1888, of the Criminal Court of 
 Saline county, the defendant was indicted for murder in the first 
 degree. The indictment, in two counts, charges him with having 
 .murdered John Lowry on the eleventh of October, 1884, in said 
 county. He was arraigned, plead not guilty, and the case was con- 
 tinued until the September term, when it .was set down for trial on 
 the second day of January, 1889, at which time he was tried, found 
 guilty of murder in the first degree, and sentenced to be hanged. His 
 motion for new trial, and in arrest of judgment, having been over- 
 ruled, he appeals, the Circuit Court staying the execution until his 
 appeal be heard. 
 
 The admission of the minutes of the purported evidence of the 
 witness, Leta Thomas, before the grand jury, written by one of the 
 grand jurors, and which she signed at the request of the foreman, 
 was error. The ancient rules excluding the evidence of a grand
 
 PRIVILEGED COMMUNICATIONS 67 
 
 juror as to any matter that transpired in the jury room, while the 
 grand jury was in secret session in the discharge of its duties, founded 
 upon considerations of public policy, the nature of the tribunal, and 
 a tender regard for a juror's conscience, has been much relaxed in 
 modern practice in those states in which the limitations upon such 
 disclosures are measured only by the oath of secrecy which the grand 
 juror is required to take, notable illustrations of which will be found 
 in the following cases, as well as cogent reasons therefor: Common- 
 wealth v. Hill, ii Cush. 137; Commonwealth v. Mead, 12 Gray, 167; 
 Gordon v. Commonwealth, 92 Pa. St. 216; State v. Broughton, 7 Ire. 
 96; Burdick v. Hunt, 43 Ind. 381; Bressler v. People, 117 111. 422, 
 to which many others might be added. 
 
 In this state, the matter is regulated by statute, Section 1774, Re- 
 vised Statutes, 1879, prescribes the oath which a grand juror is 
 required to take, which is in the usual and ancient form. 
 
 Section 1793 provides that: "No grand juror shall disclose any 
 evidence given before the grand jury, nor the name of any witness 
 who appeared before them, except when lawfully required to testify 
 as a witness in relation thereto." Section 1791 provides that: "Mem- 
 bers of the grand jury may be required by any court to testify 
 whether the testimony of a witness examined before such jury is con- 
 sistent with, or different from, the evidence given by such witness 
 before such court, and they may also be required to disclose the tes- 
 timony given before them by any person upon a complaint against 
 such person for perjury, upon his trial for such offense." 
 
 The evil sought to be remedied, by this legislation, was the im- 
 munity, which witnesses might enjoy under the old rule, from prose- 
 cution for perjury for swearing falsely before the grand jury, and 
 from the discredit which would follow upon the deliverance, on trial, 
 in open court, of evidence different from that delivered under oath 
 before the grand jury. In other words, to remove, so far as was 
 consistent with public policy, the temptation to false swearing before 
 the grand jury. Under this statute, it was held in Twindle v. Nichols, 
 20 Mo. 326, in an action for slander for a charge of false swearing 
 by plaintiffs wife before the grand jury, that a grand juror could 
 not be permitted to testify what the wife testified to before the grand 
 jury. And in Bean v. Link, 27 Mo. 261, which was an action for 
 malicious prosecution, it was held that a grand juror could not be 
 permitted to testify that defendants went before the grand jury, and 
 testified as witnesses. In that case, Judge Scott, citing the former 
 case, says: "This opinion is founded on the statute, and the statute
 
 68 CASES ON EVIDENCE 
 
 itself has its origin in principles of the common law. Grand juries 
 are now, and have always been, sworn to secrecy. This oath re- 
 strained them from disclosing the evidence given before them. The 
 clerk of the grand jury inquest could not be sworn as to matters 
 that transpired before it. These considerations show that there is 
 no reason in law for relaxing the force of the statute in relation 
 to this subject." And in the former case, it was said: "These 
 provisions of our statute concerning secrecy of grand jurors have 
 their origin in the common law. Any person who may be present 
 on the occasion is bound not to disclose what may transpire, and the 
 jurors, themselves, are, by the terms of their oath, laid under the 
 same obligations." 
 
 The extent, to which these common-law rules of exclusion have 
 been relaxed, is to be measured by the terms of the statute, and 
 extends only so far as, first, to permit a grand juror, who has heard 
 a witness testify before the grand jury, to give evidence of what that 
 witness testified to, upon a complaint against such witness for having 
 committed perjury in such testimony, or upon his trial for such per- 
 jury, and, second, when a witness, who has testified before the grand 
 jury, is being examined in the trial court, in regard to the same mat- 
 ter and has testified thereto, and it is sought to impeach his evidence 
 (after laying a proper foundation therefor) by showing that he tes- 
 tified differently before the grand jury. In order that it may be 
 determined whether the evidence given before such jury is consistent 
 with, or different from, that given by such witness before such court, 
 a grand juror may be required, as a witness on oath, to disclose the 
 testimony given by such witness before the grand jury. The grand 
 juror cannot be made the judge as to whether the testimony of such 
 witness is consistent or inconsistent. He can only testify as to what 
 the evidence of the witness was before the grand jury. It is for the 
 traverse jury to determine the question of consistency or inconsistency, 
 and give credit accordingly. And, when the testimony is thus dis- 
 closed under the solemn sanction of the juror's oath, according to the 
 best of his recollection, that recollection may be tested by cross-exam- 
 ination. The minutes of the evidence kept by one of their number, 
 unsanctioned by the oath of anybody, cannot be made a substitute for 
 this fair, just and orderly way of getting at the evidence that was 
 actually given before the grand jury. 
 
 While the statute permits "every grand jury to appoint one of 
 their number to be clerk thereof, to preserve minutes of their pro- 
 ceedings and of the evidence given before them, which minutes shall
 
 PRIVILEGED COMMUNICATIONS 69 
 
 be given to the prosecuting attorney" (section 1780, supra}, it has 
 nowhere authorized the admission of these minutes as evidence, any- 
 where, or for any purpose. They are not required to be signed, 
 and not sworn to by anybody. They are not the statement, depo- 
 sition or affidavit of the witness, but simply a memorandum, by which 
 perhaps, a grand juror's memory might be refreshed, but upon which 
 could not be shifted the responsibility of the juror's oath as to what 
 the witness did actually testify. The juror, who wrote the minutes 
 in this case, could not swear to what the witness testified to before 
 the grand jury, and does not know whether she was ever asked 
 whether it was her statement, when it was read to her. She signed 
 it because the foreman told her to. He had no authority to require 
 her signature. It was simply the ex parte, unsworn minute of the 
 juror, who wrote it, of what he thought at the time was the sub- 
 stance of her testimony, but which he could not verify by his oath 
 when called upon to testify. 
 
 In Iowa, where, under the statute, a grand juror may be permitted 
 to disclose the evidence of a witness before the grand jury under 
 the same circumstances as with us, it was ruled that the "minutes" of 
 such witness' testimony are inadmissible. State v. Hayden, 45 Iowa, 
 ii. The learned judge, delivering the opinion, remarked: "It is the 
 duty of the clerk of the grand jury to take and preserve these minutes 
 of the proceedings and of the evidence given before it. The witness 
 is in no way connected with the act of taking these minutes of his 
 testimony, they are not required to be read over to him, nor to be 
 signed by him. Unlike a deposition or affidavit, they do not pur- 
 port to give statements of facts, in full, but what the law requires, 
 mere minutes. They are often taken down by persons wholly inex- 
 perienced in reducing the language of others to writing. A long 
 experience upon the district bench has enabled the writer hereof to 
 observe, that the evidence taken before grand juries is often of the 
 most indefinite and uncertain character, and, if used as the means of 
 impeaching witnesses, would lead to the grossest injustice to witnesses 
 and tend to defeat a proper administration of justice." 
 
 For such prejudicial error the judgment ought and must be re- 
 versed, and the cause remanded, for a new trial. It is accordingly so 
 ordered. All concur; Barclay, J., in the result.
 
 7O CASES ON EVIDENCE 
 
 JONES v. REILLY. 
 174 N. Y. 97. (1903) 
 
 , J. The plaintiffs, claiming to be the landlords instituted 
 summary proceedings in a District Court in the city of New York 
 to dispossess one Andrew Henderson from certain premises in sai4 
 city for non-payment of rent. 
 
 On the trial the plaintiffs relied exclusively on the claim that the 
 defendants' ancestor was in possession of the premises under a lease 
 from them and as their tenant. This relation if established was suffi- 
 cient to entitle them to a recovery. "No proof of title is required 
 in this action when it is brought by a landlord, since if a tenant has 
 once recognized the title of the plaintiff and treated him as his land- 
 lord by accepting a lease from him or the like, he is precluded 
 from showing that the plaintiff had no title at the time the lease was 
 granted, and that whether the action be debt, assumpsit, covenant 
 or ejectment." (2 Taylor Landlord & Tenant, sec. 705; see Sedg- 
 wick & Wait Title to Land, sec. 351 ; Ingraham v. Baldwin, 9 N. Y. 
 45.) To show the relation between the parties the plaintiffs called 
 as a witness the counsel for the defendants on whom they had pre- 
 viously served a subpoena duces tecum and asked him if he had in 
 his possession a lease from Annie E. Jones to Andrew Henderson. 
 Over the objection and exception of the appellants, who claimed that 
 the inquiry was an invasion of the privilege of counsel, the witness, 
 in compliance with the direction of the court, answered that he had. 
 Under the further order of the court, made against like objection and 
 exception, the witness was directed to produce the instrument, the 
 signature to which by said Henderson was proved and the instrument 
 put in evidence. It is claimed that this action of the court was erro- 
 neous and that the counsel could not be compelled to produce his 
 client's papers. Such seems to have been the rule before the enact- 
 ment of the statutory provisions by which parties to an action were 
 made competent witnesses and compellable at the instance of an 
 adverse party to testify the same as other witnesses. The privilege 
 was that of the client, not of the counsel, and when by change in 
 the law the client could be compelled by subpoena to produce docu- 
 ments in his possession, the rule that the attorney could not be forced 
 to produce them when in his possession necessarily fell. The subject 
 is elaborately discussed by the late Court of Common Pleas of the 
 county of New York in Mitchell's Case (12 Abb. Pr. 249), and in
 
 PRIVILEGED COMMUNICATIONS 71 
 
 the conclusion there reached, that an attorney or counsel is obliged 
 in answer to a subpoena to produce any instruments of his client 
 which the latter could have been compelled to produce, we entirely con- 
 cur. (See, also, People ex rel. Mitchell v. Sheriff of New York, 29 
 Barb. 622.) 
 
 Judgment reversed on another ground. 
 
 GABRIEL v. McMULLIN. 
 127 Iowa 426. (1915) 
 
 Suit to recover damages for an alleged slander and for a malicious 
 prosecution. There was a trial to a jury, and a verdict and judgment 
 for the plaintiff. The defendant appeals. Reversed. 
 
 SHERWIN, C. J. The plaintiff had been the defendant's house- 
 keeper during her absence from home, and on her return, and after 
 the plaintiff had left, she discovered that certain personal property 
 had been taken from the house, whereupon she laid the matter before 
 the county attorney of Mahaska county, Mr. J. A. Devitt, stated the 
 facts to him and her belief that the property had been taken by the 
 plaintiff, and asked him to have her arrested and prosecuted for the 
 crime. Mr. Devitt, after several consultations with the defendant, had 
 an information filed by a constable, and the plaintiff's arrest followed. 
 The prosecution was thereafter dropped for want of sufficient evidence 
 to warrant further proceedings. 
 
 On the trial of this case, Mr. Devitt was called as a witness for the 
 plaintiff, and, over the defendant's objection that her statements to 
 him were privileged, and in reality against his protest, he was com- 
 pelled to testify to the entire conversation between himself and the 
 defendant relative to the charge against the plaintiff. It was preju- 
 dicial error to receive this testimony. 
 
 But aside from the statute, we think the rule of exclusion should 
 be applied to all matters concerning the administration of justice, on 
 the ground of public policy. A county attorney is an officer whose 
 duty it is to investigate crime and to prosecute therefor, not in the 
 interest of the individual who may have suffered, but for the good 
 of the state ; and it is very clear to us that it is not only the privilege, 
 but the duty, of every citizen who knows of facts tending to show 
 the commission of a crime, to communicate such information to the
 
 72 CASES ON EVIDENCE 
 
 public officer whose duty it is to investigate the matter and to com- 
 mence a criminal prosecution if a crime has been committed. Any 
 other rule would hamper the administration of justice. A party hav- 
 ing knowledge of facts tending to show that a crime has been com- 
 mitted will hesitate to lay such facts before the proper officer if the 
 information thus given may be made the basis of an action for dam- 
 ages against him. 
 
 The judgment is reversed. 
 
 THOMPSON v. GERMAN VALLEY R. CO. 
 22 N. J. Hq. in. (1871) 
 
 In this case, a subpoena duces tecum had been served upon his 
 Excellency the Governor, commanding him by his individual name, 
 to appear and testify before an examiner of this court, and to bring 
 with him an engrossed copy of a private statute which had passed 
 both houses of the legislature on the 3<Dth of March, 1871, and been 
 sent to him, as Governor, for his approval. The Governor declined 
 to obey this subpoena, and sent to this court a letter now on file, 
 stating that he did not decline out of any disrespect to the court or 
 to the law, but because he thought his duty required of him not to 
 appear or to produce the paper required, or to submit his official acts, 
 as Governor, to the scrutiny of any court. An order was granted 
 that the Governor should show cause why he should not appear and 
 testify, and produce the copy of the act. 
 
 The Chancellor. 
 
 The subpoena was directed to the Governor, by his individual name, 
 and not as Governor. Every person, whatever his office or dignity, 
 is bound to appear and testify in courts of justice when required to 
 do so by proper process, unless he has a lawful excuse. The official 
 engagements and duties of the higher officers of government may 
 be, and in many cases, are, a sufficient excuse. The dignity of the 
 office, or the mere fact of official position, is not of itself an excuse, 
 and whether the official engagements are sufficient, must be deter- 
 mined from the circumstances of each case. Whether the highest 
 officer in the government or state will be compelled to produce in 
 court any paper or document in his possession, is a different question. 
 And the rule adopted in such cases is, that he will be allowed to with-
 
 * PRIVILEGED COMMUNICATIONS 73 
 
 hold any paper or document in his possession, or any part of it, if. 
 in his opinion, his official duty requires him to do so. These were the 
 rules adopted by Chief Justice Marshall in the trial of Aaron Burr. 
 He allowed a subpoena duces tecum to President Jefferson and held 
 that he was bound to appear, but that he should be allowed to keep 
 back any document, or part of a document, which he thought ought 
 not to be produced, i Burr's Trial, 182; 2 Ibid. 535-6. 
 
 If the Governor, without sufficient or lawful reasons, refuses to 
 appear and testify, he is, like all other citizens, liable to respond in 
 damages to any party injured by his refusal. 
 
 It is possible that there may be cases where courts, from the con- 
 duct of an Executive, might deem it proper to proceed against him 
 for contempt. But this is not one of them, and the party here must 
 be left to his civil remedy. 
 
 APPEAL of JOHN F. HARTRANFT et al. 
 85 Pa. 433. (1877) ; 
 
 This was the appeal of John F. Hartranft, Governor of the Com- 
 monwealth; M. S. Quay, Secretary of the Commonwealth; James W. 
 Latta, Adjutant-General of the Commonwealth; General R. M. Brin- 
 ton, and Major A. Wilson Norris, from the order of the Court of 
 Quarter Sessions of the Peace of Allegheny county, allowing and 
 directing attachments to issue against them in the matter of the in- 
 vestigation of the grand jury into riots at Pittsburgh, of July 2ist 
 and 22nd, 1877. 
 
 MR. JUSTICE GORDON. For the purposes of this case, however, we 
 may admit the regularity of this subpoena and that, upon an ordinary 
 citizen, it would have been binding and obligatory, for we regard 
 the question of the liability of .the appellants to attachment, in any 
 event, as the prime one of this case. In order to resolve this, we must 
 first understand who the persons are, against whom the court has 
 directed its attachment and for what purpose they have been sub- 
 poenaed. They are the Governor of Pennsylvania, the Secretary of 
 the Commonwealth, the Adjutant-General, chief officers of the Ex- 
 ecutive Department of the state government, and two officers of the 
 National Guard; the latter subordinates acting under the orders of 
 the former. The purpose, for which these officers are subpoenaed, is,
 
 74 CASES ON EVIDENCE 
 
 that the grand jury may be put into possession of any information 
 they may be possessed of, or that may be within the power of their 
 several departments, concerning the military or other means used by 
 them in the suppression of the late riots in the city of Pittsburgh. 
 It will be observed that these persons are subpoenaed for the purpose 
 of compelling a revelation of such things as have come to their 
 knowledge in their official capacities, and which strictly belong to their 
 several departments as officers of the Commonwealth. This is clearly 
 set out in the answer, by the Attorney-General, to the application for 
 the attachment, and there has been no denial thereof upon the argu- 
 ment before us. In order to simplify matters, we may treat this case 
 just as though the process, first and last, were against the Governor 
 alone; for if he is exempt from attachment because of his privilege, 
 his immunity protects his subordinates and agents. The general 
 principle is, that whenever the law vests any person with the power 
 to do an act, at the same time constituting him a judge of the evi- 
 dence on which the act may be done, and contemplating the employ- 
 ment of agents through whom the act is to be accomplished, such 
 person is clothed with discretionary powers, and is quoad hoc a judge. 
 His mandates to his legal agents, on his declaring the event to have 
 happened, will be a protection to those agents; Vanderheyden v. 
 Young, ii Johns. 158, per Spencer, J. 
 
 It follows, if the Governor, as supreme executive, and as com- 
 mander in chief of the army of the Commonwealth, is charged with 
 the duty of suppressing domestic insurrections, he must be the judge 
 of the necessity requiring the exercise of the powers with which he 
 is clothed, and his subordinates, who are employed to render these 
 powers efficient and to produce the legitimate results of their exercise, 
 can be accountable to none but him. In like manner, if he is con- . 
 stituted the judge of what things, knowledge or information, coming 
 into his department through himself personally or from his subordi- 
 nates, may or may not be revealed, then such subordinates, without 
 his permission, cannot be compelled to disclose, in court, any such 
 matters or information.
 
 PRIVILEGED COMMUNICATIONS 75 
 
 WORTHINGTON v. SCRIBNER. 
 
 lop Mass. 487. (1872) 
 
 
 Tort against Charles Scribner, Andrew C. Armstrong, Edward Sey- 
 mour, Arthur J. Peabody, and Charles Welford. 
 
 GRAY, J. It is the duty of every citizen to communicate to his govern- 
 ment any information which he has of the commission of an offense 
 against its laws. To encourage him in performing this duty without 
 fear of consequences, the law holds such information to be among the 
 secrets of state, and leaves the question how far and under what cir- 
 cumstances the names of the informers and the channel of communica- 
 tion shall be suffered to be known, to the absolute discretion of the 
 government, to be exercised according to its views of what the in- 
 terests of the public require. Courts of justice therefore will not 
 compel or allow the discovery of such information, either by the 
 subordinate officer to whom it is given, t>y the informer himself, or 
 by any other person, without the permission of the government. The 
 evidence is excluded, not for the protection of the witness or of the 
 party in the particular case, but upon general grounds of public policy, 
 because of the confidential nature of such communications. 
 
 The question now before us is not one of the law of slander or 
 libel, but of the law of evidence; not whether the communications 
 of the defendants to the officers of the treasury are so privileged 
 from being considered as slanderous, as to affect the right to main- 
 tain an action against the defendants upon or by reason of them; 
 but whether they are privileged in a different sense, so that courts of 
 justice will not compel or permit their disclosure without the assent 
 of the government to whose officers they were addressed. The rea- 
 sons and authorities already stated conclusively show that the com- 
 munications in question are privileged in the latter sense, and cannot 
 be disclosed without the permission of the secretary of the treasury. 
 And it is quite clear that the discovery of documents which are pro- 
 tected from disclosure upon grounds of public policy cannot be com- 
 pelled, either by bill in equity or by interrogatories at law. 
 
 Smith v. East India Co., I Phil. Ch. 50. McElveney v. Connellan, 
 17 Irish C. L. 55. Wilson v. Webber, 2 Gray, 538. The defendants 
 therefore should not be ordered to answer the interrogatories.
 
 76 C^SES ON EVIDENCE 
 
 TOTTEN, Administrator, v.. UNITED STATES. 
 92 S. C. 105. (1875) 
 
 MR. JUSTICE FIELD delivered the opinion of the court. 
 
 This case comes before us on appeal from the Court of Claims. 
 The action was brought to recover compensation for services alleged 
 to have been rendered by the claimant's intestate, William A. Lloyd, 
 under a contract with President Lincoln, made in July, 1861, by which 
 he was to proceed South and ascertain the number of troops stationed 
 at different points in the insurrectionary States, procure plans of 
 forts and fortifications, and gain such other information as might be 
 beneficial to the government of the United States, and report the 
 facts to the President; for which services he was to be paid $200 a 
 month. 
 
 The Court of Claims finds that Lloyd proceeded, under the contract, 
 within the rebel lines, and remained there during the entire period of 
 the war, collecting, and from time to time transmitting information to 
 the President; and that, upon the close of the war, he was only re- 
 imbursed his expenses. But the court, being equally divided in opin- 
 ion as to the authority of the President to bind the United States 
 by the contract in question, decided, for the purposes of an appeal, 
 against the claim, and dismissed the petition. 
 
 We have no difficulty as to the authority of the President in the 
 matter. He was undoubtedly authorized during the war, as com- 
 mander-in-chief of the armies of the United States, to employ secret 
 agents to enter the rebel lines and obtain information respecting the 
 strength, resources, and movements of the enemy; and contracts to 
 compensate such agents are so far binding upon the government as 
 to render it lawful for the President to direct payment of the amount 
 stipulated out of the contingent fund under his control. Our ob- 
 jection is not to the contract, but to the action upon it in the Court 
 of Claims. The service stipulated by the contract was a secret serv- 
 ice; the information sought was to be obtained clandestinely, and 
 was to be communicated privately; the employment and the service 
 were to be equally concealed. Both employer and agent must have 
 understood that the lips of the others were to be forever sealed re- 
 specting the relation of either to the matter. This condition of the 
 engagement was implied from the nature of the employment, and is 
 implied in all secret employments of the government in time of war, 
 or upon matters affecting our foreign relations, where a disclosure of
 
 EXAMINATION OF WITNESSES 77 
 
 service might compromise or embarrass our government in its public 
 duties, or endanger the person or injure the character of the agent. 
 If upon contracts of such a nature an action against the government 
 could be maintained in the Court of Claims, whenever an agent should 
 deem himself entitled to greater or different compensation than that 
 awarded to him, the whole service in any case, and the manner of 
 its discharge, with the details of dealings with individuals and officers, 
 might be exposed, to the serious detriment of the public. A secret 
 service with liability to publicity in this way, would be impossible ; 
 and, as such services are sometimes indispensable to the government, 
 its agents in those services must look for their compensation to the 
 contingent fund of the department employing them, and to such al- 
 lowance from it as those who dispense that fund may award. The 
 secrecy which such contracts impose precludes an action for their 
 enforcement. The publicity produced by an action would itself be 
 a breach of a contract of that kind, and thus defeat a recovery. 
 
 It may be stated as a general principle, that public policy forbids 
 the maintenance of any suit in a court of justice, the trial of which 
 would inevitably lead to the disclosure of matters which the law 
 itself regards as confidential, and respecting which it will not allow 
 the confidence to be violated. On this principle, suits cannot be 
 maintained which would require a disclosure of the confidences of 
 the confessional, or those between husband and wife, or of communi- 
 cations by a client to his counsel for professional advice, or of a 
 patient to his physician for a similar purpose. Much greater reason 
 exists for the application of the principle to cases of contract for 
 secret services with the government, as the existence of a contract 
 of that kind is itself a fact not to be disclosed. 
 
 Judgment affirmed. 
 
 EXAMINATION OF WITNESSES.* 
 
 MANN v. STATE. 
 134 Ala. i, 32 So. 704. (1902) 
 
 The appellant, Charles B. Mann, was indicted and tried for the 
 murder of David Dickson, was convicted of murder in the second 
 degree, and sentenced to fifteen years in the penitentiary. 
 
 iHughes on Evidence, p. 319.
 
 78 CASES ON EVIDENCE 
 
 The bill of exceptions contains the following recitals as to the 
 opening statement of counsel: "During the course of the opening 
 statement of counsel, the defendant's counsel having stated what he 
 expected the evidence would show as to the reasons which actuated 
 the defendant at the time of the homicide, the solicitor in reply 
 stated 'The State expects the evidence to show that when the de- 
 fendant was asked on habeas corpus trial as to what he had reference 
 to when he told the deceased "you must get down on your knees and 
 apologize," he testified that he had reference to the deceased coming 
 to his office and assaulting him with a knife, had reference to his 
 calling him a son of a bitch in the presence of a negro, and had ref- 
 erence to his drawing a pistol on him that evening.' The defendant 
 moved to rule out the statement upon the ground that the defendant 
 has not testified and it is not known that he will testify, because the 
 statement, if made, is not in the nature of a confession. The court 
 denied the motion, and the defendant excepted, the court stating that 
 he would tell the jury that they should pay no attention to the state- 
 ments of counsel." 
 
 McCLELLAN, C. J. It is difficult to conceive upon what ground an 
 objection to the opening statement of the solicitor as to what he 
 expects the evidence will show can be predicated. Issues cannot be 
 taken upon the existence of his expectations in that regard: It can- 
 not be asserted in any way that we know of either that he does not 
 expect this or that testimony to be forthcoming, or that, though he 
 believes this or that testimony to be in existence, he does not expect 
 the court to receive it in evidence. 'At most, these preliminary state- 
 ments, when resorted to in our practice whether resorted to at all 
 or not in any case is within the election of counsel are tentative and 
 intended to give the jury a general grasp of the case that they may 
 be the better able to understand and apply the facts as they are de- 
 veloped in the course of the trial; and they constitute no evidence of 
 the facts nor in any sense take the place of evidence. That part of 
 the statement of the solicitor in this case to which objection -was made, 
 moreover, would be unobjectionable even were it conceded that such 
 statements are open to challenge in this way. The facts which the 
 solicitor stated he expected to prove were in rebuttal of the line of 
 defense set forth in the preliminary statement of defendant's coun- 
 sel, and evidence of them was actually and properly received on the 
 trial. The court committed no error in declining to "rule out" the 
 solicitor's statement, which the judge did in terms, but at the same 
 time said that he would instruct the jury to "pay no attention to the
 
 EXAMINATION otf WITNESSES 79 
 
 statements of counsel." It is proper to remark that this declaration 
 was too favorable to defendant. The presiding judge doubtless in- 
 tended to instruct the jury to pay no attention to the statements as 
 evidence, for of course, it was their duty to be attentive to these state- 
 ments as statements of counsel going to show what they expected the 
 evidence to be. 
 
 Affirmed. 
 
 BARHYTE v. SUMMERS. 
 68 Mich. 341; 36 N. W. 93. (1888) 
 
 MORSE, J. This was an action brought originally in a justice's 
 court by the plaintiff, alleging that the defendant sold to him a horse 
 which he knew to be unsound, fraudulently representing said horse 
 to be sound "as far as he knew." 
 
 The two vital questions upon the trial in the circuit, to which court 
 it was appealed, were: 
 
 1. Was the horse unsound, lame, at the time of the sale? 
 
 2. If so, did the defendant know of such lameness? 
 
 The court in the course of the trial, and while the plaintiff had the 
 case, 'said to plaintiff's counsel: 
 
 "You have called five witnesses as to the condition of this mare 
 before the sale, How many more do you propose to call?" 
 
 The counsel answered that it was a vital point in the issue, and 
 he did not know as there was any limit. 
 
 The Court. "I don't think it ought to be a question of mere num- 
 bers; five witnesses are as good as five hundred. I think I will 
 draw the line there." 
 
 But he finally allowed plaintiff to examine seven witnesses upon 
 this point, saying that he should permit no more to be sworn; and 
 stating : 
 
 "You have already called seven witnesses showing that the horse 
 limped. It must be pretty well established if it ever can be." 
 
 The counsel for plaintiff then offered to swear other witnesses to 
 the fact that they had seen the horse limp before the sale to plaintiff, 
 and this offer being denied, plaintiff's counsel took exception. 
 
 When the defense was proving the issues upon its part, and had 
 examined seven witnesses to disprove the lameness of the horse, and 
 offered the eighth for the same purpose, the court said :
 
 8o CASES ON EVIDENCE 
 
 r / 
 
 "I think you have exhausted your number. You had seven before 
 you called Mr. Kirk (the witness offered)." 
 
 The counsel for the defendant then said that he desired to offer 
 the testimony of 12 additional witnesses to the effect that they had 
 known the mare for weeks and months prior to the sale to plaintiff; 
 had seen her frequently; that they had seen her at the barn, seen her 
 exercised, and that she was sound and all right up to the date of the 
 sale. 
 
 The court excluded the offered testimony, and defendant's counsel 
 excepted. He was permitted afterwards to show by three witnesses, 
 other than the seven, and by the defendant, that they were present at 
 some of the times when the lameness was observed by plaintiff's wit- 
 nesses and noticed nothing of the kind. 
 
 The jury found in favor of the plaintiff. 
 
 The counsel for defendant claims that the remarks of the trial 
 judge made to plaintiff's counsel about the value of the testimony of 
 five witnesses, and the lameness of the animal must be pretty well es- 
 tablished by the seven witnesses if it ever could be, were improper, 
 and tended to prejudice the defendant. The remarks were certainly 
 not proper, but whether they tended more to the injury of one party 
 than another we are not able to determine; nor is it necessary to do 
 so, as the case must be reversed, and a new trial granted, for another 
 reason. 
 
 The court committed substantial error in limiting the number of 
 witnesses to be sworn by either side upon a material and one of the 
 main issues in the suit. The counsel for the plaintiff frankly admit 
 that if the suit had gone against their client, they should have asked 
 for a reversal here upon the same ground that defendant now urges ; 
 but they argue that under the ruling no harm was done to the defend- 
 ant, but that he in fact reaped an advantage by being permitted in 
 the end to swear more witnesses upon the point of lameness of the 
 horse than the plaintiff. 
 
 But the defendant was entitled to offer and produce all the proof 
 he had upon this matter, and it is impossible to say that the denial 
 of such right did not prejudice his case. 
 
 We do not consider it necessary to notice the other assignments 
 of error, as upon another trial the question is not likely to arise. 
 
 The judgment of the court below is reversed, with costs, and a 
 new trial granted. 
 
 The other justices concurred.
 
 EXAMINATION of WITNESSES 81 
 
 BELDEN v. ALLEN. 
 61 Conn. 173. (1^91) 
 
 ANDREWS, C. J. Alice A. Belden of New Britain, a minor about 
 the age of thirteen years, brought an action in the Court of Common 
 Pleas for Hartford County at its January term, 1891, by her father, 
 James M. Belden, as her guardian and next friend, against William H. 
 Allen. The complaint was in two counts one in the nature of 
 trespass for taking and carrying away certain personal property; the 
 other in the nature of trover for the same articles of property. The 
 answer was a general denial. At the trial the plaintiff offered tes- 
 timony tending to prove that the title to the property was in her, 
 proved its value, and rested her case. James M. Belden was in court, 
 but did not offer his own testimony in chief. The defendant did not 
 deny that he took the property, but claimed that he was a constable 
 and attached the property by virtue of a writ against the said James 
 M. Belden, and offered testimony tending to prove that it belonged to 
 the said James in his own right and not to the said Alice. After 
 the defendant had rested his case, James M. Belden was offered as 
 a witness in reply. Certain testimony that he gave was received 
 without objection. "The plaintiff then offered," in the words of the 
 finding, "to show by this witness and by an exemplified copy of the 
 record of the inventory filed by him as the administrator in the court 
 of probate, and accepted by that court, as the inventory of the estate 
 of the mother of the plaintiff, that at the time of the purchase of the 
 property in question he had in his hands funds derived from the 
 estate of the plaintiff's mother which he had expended in the pur- 
 chase of the property for the plaintiff. Upon the objection of the 
 defendant that this was a part of the plaintiff's case in chief, and 
 was not proper evidence in rebuttal, the court excluded it." 
 
 We think this ruling was correct. Under the pleadings it was the 
 duty of the plaintiff to establish her own title to the personal property 
 in dispute. 
 
 "The rule upon the subject is a familiar one. Where by the plead- 
 ings the burden of proving any matter in issue is thrown upon the 
 plaintiff, he must in the first instance introduce all the evidence upon 
 which he relies to establish his claim. He cannot go into half his case 
 and reserve the remainder." Nathaway v. Heminway, 20 Conn. 191. 
 
 The evidence excluded was direct evidence to prove title in Alice, 
 and it was only because it proved such title that it tended to disprove
 
 82 CASES ON EVIDENCE 
 
 title in James M. It was not rebutting testimony, but affirmative 
 testimony to strengthen the claim made by the plaintiff. It is true 
 that the order in which testimony shall be given upon a trial is subject 
 to the discretion of the court, but this discretion should be exercised 
 with great caution. The rule may be departed from when its opera- 
 tion will cause great injustice. It ought not, however, to be so fre- 
 quently disregarded as to render it a rule in name and not in reality. 
 There was nothing in this case calling for this discretionary power. 
 
 There is no error in the judgment appealed from. 
 
 In this opinion the other judges concurred. 
 
 ALQUIST v. EAGLE IRON WORKS. 
 126 Iowa 67; 105 N. W. 805. (1904) 
 
 Suit to recover for personal injuries received while in the service 
 of the defendant. There was a trial to a jury, and a verdict and 
 judgment for the plaintiff. The defendant appeals. Reversed. 
 
 SHERWIN, J. The defendant is a corporation operated through its 
 agents and the plaintiff at the time of his injury was employed to 
 operate a stationary engine which was used for running the machin- 
 ery in its foundry. He was directed by the appellant's manager, to 
 move a certain fan which was run by a belt and in doing so- he re- 
 ceived the injury in question. On the same day, but several hours 
 thereafter, and after the plaintiff had been removed to his own home, 
 his wife went to the manager's office for the purpose of collecting the 
 wages then due to the plaintiff for past services; and while there 
 she was told by said manager, in answer to her question whether it 
 was her husband's "fault that he got hurt," that it was not; "that 
 he couldn't do it any other way. He was told to fix that thing." 
 This conversation the plaintiff's wife was permitted to detail to the 
 jury in her examination in chief, over the objection of the appellant. 
 It is manifest that this statement of the manager had no relation 
 to the payment of the money then due for the husband's services, 
 and that it was incompetent, under the general rule, and under our 
 own holding in McPherrin v. Jennings, 66 Iowa, 622. The latter 
 part of the statement would have been competent in rebuttal of the 
 testimony of the manager that he did not direct the plaintiff to move
 
 EXAMINATION OF WITNESSES 83 
 
 the fan, and were this, in effect, all that the statement amounted to, 
 we would not reverse the case on account of the ruling, because it 
 would then be a question of the order of introducing testimony, and 
 nothing more. But the statement was much broader than this, and 
 involved his conclusion that the plaintiff was not guilty of contribu- 
 tory negligence in obeying his orders and in doing the work. That it 
 was prejudicial to the appellant is clearly apparent. 
 
 For the error in admitting the testimony referred to, the case is 
 
 Reversed. 
 
 ROLLINGS v. THE STATE. 
 160 Ala. 82; 49 So. 329. (1909) 
 
 MAYFIELD, J. Accused was indicted for murder, and was convicted 
 of manslaughter in the first degree, from which judgment of convic- 
 tion he appeals. There was no question or dispute that defendant 
 killed the deceased, intentionally, by shooting him with a gun and a 
 pistol. There was no question as to the identity of the accused nor 
 as to that of the deceased. The sole dispute was whether or not 
 defendant acted in self-defense. If he did not, the only question for 
 the jury was the degree of the crime and of the punishment to be 
 inflicted. 
 
 It was clearly competent to show that defendant had a pistol prior 
 to the killing. It might tend to show preparation for the crime, and 
 was admissible for this purpose, if for no other. It was also proper 
 to allow the state to prove that, several hours prior to the killing, 
 deceased had no pistol. The accused relied upon self-defense, and 
 his evidence was to the effect that deceased was attempting to draw 
 a pistol, with which to shoot accused, at the time the fatal shots were 
 fired. Therefore that deceased, several hours before the encounter, 
 had no pistol, was a circumstance legitimate to disprove the only 
 defense attempted. Its tendency may have been very slight, but, no 
 matter how slight, it was competent for this purpose. The state 
 had a right to show that deceased was unarmed at the time of the 
 killing, and to show that he did not have the saddlebags with him 
 at the time he was killed, as claimed by the accused, and also that 
 he was not in the habit of carrying them, as was claimed and at- 
 tempted to be proven by the accused. All this evidence had a tendency 
 to disprove the only defense attempted to be set up. Wiley's Case,
 
 84 CASES ON EVIDENCE 
 
 99 Ala. 146, 13 South. 424; Naugher v. State, 116 Ala. 466, 23 South. 
 26. 
 
 The character of the wife of the defendant was wholly irrelevant 
 and immaterial on this trial, as a substantive fact. Evidence of im- 
 proper relations between her and deceased might be relevant to show 
 malice or motive on the part of the accused, or have a tendency to 
 show who provoked or brought on her difficulty, and proof of this 
 improper relation would, of course, be evidence of bad character; 
 but the improper relations cannot be proven by evidence of her bad 
 character. The state should not have been allowed, over the objec- 
 tions of the accused to prove the general character of his wife or 
 her character for chastity. She was not a witness, and could not 
 be a witness for or against him. Proof of her bad character could 
 not go to the credibility of the defendant or his other witnesses, nor 
 is he criminally or civilly liable for her character as to chastity. Her 
 chastity of itself would not justify him in killing the deceased, nor 
 would her unchastity make him guilty when, but for it, he would 
 be innocent. The character of the wife cannot be made a direct 
 subject of inquiry, on a trial of the husband for crime, when she 
 is not a witness and not interested in, nor in any manner connected 
 with, the prosecution or defense. It was not a subject of inquiry 
 in this case, except in so far as it involved by showing improper re- 
 lations between her and deceased, and these relations could not be 
 shown by proof of her character. We know of no authority for 
 allowing proof of the good or bad character of a third party or 
 stranger to a suit, when not a witness, i Elliott on Evi. 168. 
 
 The clothing of deceased, as well as that of the accused, tetters 
 found on the body of deceased, the instruments causing the death, 
 photographs of the deceased and accused, maps and plats of the 
 scene of the crime, pieces of cloth, buttons, gun wadding found near 
 the scene of the crime, bullets cut from house and trees near such 
 scene, blood stains, etc., are usually held admissible on trials of homi- 
 cide. There are only a very few cases in which they have been 
 excluded, when offered as evidence for the inspection of the jury, 
 if tending to elucidate the transactions, to identify any of the parties, 
 to connect the accused with the crime, or to show the character of the 
 wound, motive or intent of the killing, or degree of the crime 
 whether the killing was in self-defense or not. If such objects tend 
 to corroborate or disprove, illustrate or elucidate, any other evidence 
 they are admissible though such evidence may have a tendency to 
 bias or prejudice the jury, or to elicit their sympathy for, or an 1 '-
 
 EXAMINATION OF WITNESSES 85 
 
 mosity toward, either the deceased or the accused. 7 Mayfield's Dig., 
 p. 390. But in order for such objects to be admissible in any case, 
 civil or criminal, they must have some tendency to prove or disprove 
 some disputed or material issue, to illustrate or elucidate some other 
 relevant fact or evidence, to corroborate or disprove some other evi- 
 dence offered or to be offered. They must have some tendency to 
 shed light upon some material inquiry. Circumstances or facts, to 
 be admissible in evidence, or relevant on a trial, must tend either to 
 prove or disprove some matter in issue, in order that the attention 
 of the jury may not be distracted from such matters in issue. The 
 test of the relevancy of the evidence in criminal cases is whether 
 it conduces to the proof of a pertinent hypothesis one which, if 
 sustained, would logically influence an issue on trial. Whittaker v. 
 State, 106 Ala. 30, 17 South 456; Curtis v. State, 118 Ala. 125, 24 
 South, in; McCormick v. State, 102 Ala. 161, 15 South. 438; 
 Campbell's Case, 23 Ala. 44; Gassenheimer's Case, 52 Ala. 313. 
 
 The wearing apparel of deceased, showing the location of the bul- 
 lets, the character and nature of the wound, the blood stains, etc., 
 were properly admissible under the rules stated above, and it is no 
 reason to exclude them that these matters might be shown by other 
 evidence, or that these objects might prejudice the jurors. Being 
 admissible, they should not be excluded for these or any other rea- 
 sons. But we are unable to conceive of any relevancy that the 
 saddle of the deceased, which he was riding when killed, could have 
 to any issue of this case. What relevancy could the suspenders he 
 was wearing at the time, or the tobacco, keys, or ring, found on his 
 person, have to any issue on trial? They bore no marks of bullets, 
 no blood stains, and afforded no evidence of any violence. They 
 had no tendency to show how, by whom, or in what manner, deceased 
 was killed, or whether he was killed or not ; and no other facts, singly 
 or collectively, tended to make them relevant for this or any other 
 purpose. The corpus delicti was admitted. There was no issue as 
 to the identity of deceased or that of accused. They did not, singly 
 or collectively, tend to prove or disprove self-defense the only dis- 
 puted issue. The only effect of introducing them in evidence was 
 to unduly prejudice the views of the jury arouse their sympathy 
 for deceased and to prejudice them against the accused. The court 
 should have excluded all such articles, as having no tendency to 
 prove or disprove any issue on trial. As said by this court in Pera- 
 son's Case, 97 Ala. 219; 12 South. 180; "sympathy or indignation 
 once aroused in the average juror readily becomes enlisted to the
 
 86 CASES ON EVIDENCE 
 
 prejudice of the person accused as the author of the injury. Human 
 feelings are easily excited by the exhibition of objects which appeal 
 to the senses." In that case a shoe only, which was worn by deceased 
 when he was killed, was allowed in evidence, and it was a civil ac- 
 tion; and yet it was held reversible error, for that reason. In Robin- 
 son's Case, 108 Ala. 14, 18 South- 732, which was a trial for murder, 
 a letter from the pocket of the deceased was held not to be admissible 
 because it could shed no light on the transaction. In that case the 
 evidence is explained, and the reasons are assigned why it was not 
 admissible, and circumstances given under which it might have been 
 admissible. There are cases where all the articles offered in this 
 case might have been admissible, but this particular case does not 
 fall within such class. 
 
 The court very properly declined to allow counsel for defendant 
 to ask the witness Stephens if his memory then, as to the facts to 
 which he was testifying, was any better than it was, as to matters 
 on the preliminary trial. This was calculated and intended as a mere 
 argument with the witness. It was likewise wholly irrelevant whether 
 Pick Roden was at the funeral. The court very properly declined to 
 allow proof as to this. 
 
 It was proper to allow proof of flight by defendant, soon after 
 the killing, and to do this it was proper to prove the direction of 
 his flight, the mode of his travel, the places to which he went and 
 those he avoided, in fact, to prove his conduct and demeanor soon 
 after the killing and while fleeing; but we are unable to see what 
 relevancy the fact that the captain of the steamboat was related to 
 defendant could have on any issue. It was clearly inadmissible, but 
 we cannot discern any possible injury or good to come of it. 
 
 It might be very important to know how and when the defendant 
 obtained the pistol with which he shot deceased; and the court prop- 
 erly allowed proof of that fact. 
 
 It was wholly irrelevant and inadmissible to allow the state to 
 prove the genealogy of the wife of the defendant, the pecuniary con- 
 dition of her family, that her brother had no home, that her father 
 was dead, etc. This was highly improper. Such matters could only 
 unduly and improperly elicit sympathy for the wife, and for the 
 deceased, who seems to have supported her and lived with her and 
 to have had improper relations with her. 
 
 The character and the pecuniary condition of the wife and the 
 merits of the divorce proceedings between her and her husband, 
 should not have been gone into. This trial was not the proper time
 
 EXAMINATION OF WITNESSES 87 
 
 or plaee to inquire into these matters, which were wholly "res inter 
 alias acta." The facts of the separation of the husband and wife, the 
 pendency of divorce proceedings, the relation of the deceased to these 
 matters, might be proper; but it was not proper to go into the details 
 and the merits of these controversies. 
 
 It was competent for the state to prove that the defendant had 
 been convicted of manslaughter. He made himself a witness, and 
 this evidence was therefore admissible, to go to his credibility, and the 
 fact that he, as a witness, admitted the conviction and sentence, did 
 not prevent or preclude the state from proving it by record evidence; 
 but this evidence went to his credibility only as a witness, and should 
 have been so limited by the court, on request of the defendant. It 
 was not admissible for the purpose of showing that, because he was 
 guilty of manslaughter for killing Manning, he was also guilty of man- 
 slaughter in Killing Roden, the deceased, for which he was then on 
 trial. 
 
 The judgment is reversed, and the cause remanded. 
 
 Reversed and remanded. 
 
 DOWDEXI,, C. J., and SIMPSON and BENSON, JJ., concur. 
 
 PAGE v. PARKER. 
 40 TV. H. 47. (1860) 
 
 In the deposition of Arioch Wentworth, introduced by the plaintiff, 
 is the following question and answer on direct examination by the 
 plaintiff, to wit: "State whether or not any of this stone was so 
 hard that it could not be sawed with the common saw used in sawing 
 soap-stone." 
 
 Ans. "I should think some of it was so hard it would be rather 
 difficult." The defendants objected to the question, as leading, at 
 the caption of the deposition and also on the trial, but it was ad- 
 mitted. 
 
 FOWLER, J. A variety of questions are raised by the case, and 
 have been discussed by counsel, to only a portion of which have we 
 found it necessary to direct our attenion in arriving at a conclusion. 
 
 The question proposed to Arioch Wentworth in his deposition 
 was manifestly leading. It suggested a material fact in such a 
 way as to indicate very decisively to the witness that he was ex-
 
 88 CASES ON EVIDENCE 
 
 pected to verify its truth by his answer, and might have been an- 
 swered by a simple affirmative or negative. It was an argumenta- 
 tive or pregnant interrogatory, assuming the existence of a particu- 
 lar condition of the soap-stone, which had not been proved, but which 
 the witness was evidently expected to establish, i Gr. Ev., sec. 434; 
 Bartlett v. Hoyt, 33 N. H. 165; Dudley v. Elkins, 39 N. H. 78; Spear 
 v. Richardson, 37 N. H. 23. 
 
 A question is leading which instructs the witness how to answer 
 on material points, or puts into his mouth words to be echoed back, 
 as was here done, or plainly suggests the answer which the party 
 wishes to get from him, whether it be put in the alternative form 
 or not. 2 Phill. Ev. (Edwards' Ed.), ch. 10, sec. I, and notes; People 
 v. Mather, 4 Wend. 229; i Stark. Ev. 123; Courteen v. Touse, i 
 Camp. 43; Snyder v. Snyder, 6 Binn. 483. 
 
 Exceptions sustained new trial granted. 
 
 COMMONWEALTH v. DORR. 
 216 Mass. 314. (1914) 
 
 RUGG, C. J. The defendant was indicted for the murder of one 
 George E. Marsh. The defendant admitted the killing, but asserted 
 'that it was in self defense. It was undisputed that the deceased died 
 instantaneously, from bullet wounds received from the defendant. 
 
 Two witnesses were called by the Commonwealth for the purpose 
 of identifying the button found in the road near the place where the 
 body of the deceased was discovered, and being a button from the coat 
 of the defendant. The button was shown to each of the witnesses 
 and then inquiries were made about it. The defendant objected upon 
 the ground that it was a leading question, to present an article to a 
 witness with an inquiry about it. But even if it be treated as a 
 leading question, this is not ground for setting aside the verdict. 
 Within reasonable limits, leading questions may be permitted as mat- 
 ter of discretion by the presiding judge. Moody v. Rowell, 17 Pick. 
 490, 498. York v. Pease, 2 Gray, 282. Green v. Gould, 3 Allen, 465. 
 Commonwealth v. Meserve, 154 Mass. 64, 68. 
 
 Exceptions overruled.
 
 EXAMINATION OF WITNESSES 89 
 
 CHRISTENSEN v. THOMPSON. 
 123 Iowa 7/7. (1904) 
 
 WEAVER, J. The plaintiff, a married man, charges the defendant 
 with alienating the affections of his wife, and inducing her to aban- 
 don her husband and home. Defendant denies the charge, and says 
 that if the wife has been alienated from her husband, it has been 
 caused by the husband's ill treatment. Upon trial to a jury, verdict 
 was returned in plaintiff's favor for $500, and from the judgment 
 entered therein defendant appeals. 
 
 The plaintiff, as a witness in his own behalf, having testified that 
 on one or more occasions, coming home from his work, he had found 
 defendant there, he was asked by his counsel "Was he ever there 
 when he did not have any business there, at night, that you know 
 of?" Over the defendant's objection the witness was allowed to 
 answer: "A. I don't know that he did, or was coming to ask 
 her to come over and bake bread for him ; something like that. I 
 won't say that. I don't think he did always. I did not get sus- 
 picions of him. The first I thought anything was wrong, the children 
 commenced to talk. After my wife left, I had a talk with Thomp- 
 son about it." Error is assigned upon this ruling, because, it is said, 
 it called for the mere conclusion or conjecture of the witness. It 
 is to be admitted that the form of the question leaves it open to 
 the construction which appellant puts upon it, but when fairly inter- 
 preted it is not objectionable. It is, in effect, as if counsel had asked, 
 "What was his errand there?" or, "Do you know whether he had 
 any errand there?" in which form we think the inquiry would have 
 been allowable. But, even if we were to hold that the objection should 
 have been sustained, the answer discloses nothing which was not 
 properly admissible in evidence, and the error would be without preju- 
 dice. 
 
 It is further objected in argument that the answer was not re- 
 sponsive to the question, but this point was not made in the court 
 below, and, moreover, the objection of want of responsiveness is 
 not available except to the party propounding the interrogatory. 
 
 The same witness was asked, "What did he (defendant) say to you 
 about her not being your wife something like that?" Defendant's 
 objection to this question was overruled, and the witness answered 
 "He said, 'Your wife leave you, and she is not your wife any more, 
 and I have a right to take her wherever I want to.' " The question
 
 9O CASES ON EVIDENCE 
 
 was quite leading; a form of interrogatory which should not ordi- 
 narily be permitted; but its allowance is so far a matter within the 
 discretion of the court that it will not justify a reversal save where 
 that discretion has been abused. It appears from the record that 
 the parties are of foreign birth, and their command of the English 
 language quite imperfect. Under such circumstances direct and lead- 
 ing inquiries are often permissible, if not, indeed, necessary. The 
 answer called for by this question was competent and material. It is 
 true the alleged conversation took place after plaintiff's wife had left 
 him, but the conduct and statements of the defendant with refer- 
 ence to her, and his disposition, if any, to seek her society in defi- 
 ance of her husband's wishes, were circumstances having more or 
 less bearing upon the truth of the charge of prior intimacy between 
 them. 
 
 One Williamson, a witness for plaintiff, testified that he was the 
 pastor of the parties, and that, after the separation had taken place, 
 he met them at a neighbor's house, and sought to induce plaintiff's 
 wife to return to her husband, but that she and defendant said they 
 "wanted to be cleared first." On cross-examination he was asked 
 what the wife said in that conversation about having been accused 
 by her husband of improper conduct with men other than defendant. 
 Upon objection by the plaintiff, answer to this question was ruled 
 out as not being proper cross-examination. The objection could well 
 have been overruled without error, but the same witness did answer 
 later that Mrs. Christensen did say that on a former occasion her 
 husband had become jealous of one Hayfeldt, and had found fault 
 with her several times before about other men. The wife herself 
 also testified to such accusations against her by the plaintiff, and 
 everything which could have been obtained by allowing the question 
 to be answered by the pastor seems to have gone to the jury. The 
 defendant suffered no prejudice by the ruling. 
 
 The judgment of the District Court is affirmed.
 
 EXAMINATION OF WITNESSES 91 
 
 MAYVILLE v. FRENCH. 
 246 III 434; 92 N. H. pip. (1910) 
 
 MR. JUSTICE CARTWRIGHT delivered the opinion of the court. 
 
 Permelia Brown died in Chicago on July 9, 1909, possessed of real 
 and personal property and leaving a last will and testament dated 
 December i, 1904, and a codicil dated December 28, 1907, which 
 were admitted to probate in the Probate Court of Cook County. 
 The appellant, Anthony Mayville, her nephew, filed his bill in this 
 case in the Superior Court of Cook County, setting forth the two in- 
 struments and charging that they were not executed according to 
 law; that she was in her dotage and not of sound mind and memory 
 and that the will was the product of undue influence exercised upon 
 her by interested persons, and praying that the instruments be de- 
 clared null and void and the probate set aside. Issues were made up 
 and submitted to a jury, which returned a verdict that the instru- 
 ments were her last will and testament. The court entered a decree 
 on the verdict, and an appeal was prosecuted to this court. 
 
 There were some rulings on the admission of evidence which were 
 excepted to. Some of them related to receiving opinions of the wit- 
 nesses as to the mental capacity of the testatrix and her capacity to 
 transact business. The witnesses had known her for a considerable 
 period of time and had stated their opportunities for observation and 
 the facts on which their opinions were founded. In this class of 
 cases witnesses, after showing such facts, may give an opinion. In 
 the case of the attorney who drew the will and codicil and was present 
 at their execution, questions were objected to on the ground that 
 they were leading and suggestive. The witness had already testified 
 that the testatrix was of sound and disposing mind and memory, and 
 his answers to the leading questions did not add anything to the tes- 
 timony already given. It need not be said that he needed no sug- 
 gestion as to what was wanted and that he was not aided by any. 
 The manner in which questions may be put to a witness is largely in 
 the' discretion of the trial court, and while some questions put to the 
 attorney were leading in form, there was no injury to the appellant 
 from the ruling. 
 
 None of the rulings of the court which were excepted to would 
 justify a reversal of the decree, and accordingly it is affirmed. 
 
 Decree affirmed.
 
 92 CASES ON EVIDENCE 
 
 GRANGER v. DARLING. 
 156 Mich. 31; 120 N. W. 32. (1909) 
 
 GRANT, J. Plaintiff was calling at the house of the defendant 
 on business. As she was upon the steps leading into the house, she 
 was attacked and bitten by a dog, claimed to be the defendant's. She 
 brought suit against him and recovered a judgment for $500. 
 
 Defendant called a wtness named Andrew Messick, and asked him : 
 "Have you been paid for being a witness in this case more than the 
 regular fee?" Counsel for plaintiff objected to the form of the 
 question, in that it was suggestive and leading, and it did not ap- 
 pear that witness knew what the regular fee is. The court sustained 
 the objection, and stated that defendant's counsel could ask witness 
 in any other form about what he had been paid, if he desired. Coun- 
 sel did not take advantage of the offer. There was no error in the 
 ruling. 
 
 Judgment affirmed. 
 
 BLAIR, C. J., and MONTGOMERY, MOORE and MCALVAY, JJ., con- 
 curred. 
 
 PEEBLES v. O'GARA COAL CO. 
 2 39 IU- 3?o; 88 N. H. 166. (1909) 
 
 This is an action on the case brought by defendant in error in 
 the Circuit Court of Saline county to recover damages for injuries 
 sustained by him while at work as a miner in plaintiff in error's 
 mine, Aug. 13, 1906. 
 
 The declaration originally consisted of four counts. The third 
 count having been withdrawn by defendant in error, the case was 
 tried on the first, second and fourth counts, and plaintiff in error 
 was found guilty by the jury on the first and fourth only, the ver- 
 dict and judgment being for $1500. This judgment was affirmed 
 by the Appellate Court on appeal, and a writ of error has been sued 
 out from this court. 
 
 MR. JUSTICE CARTER delivered the opinion of the court. 
 
 Plaintiff in error further complains that the trial court improp- 
 erly permitted defendant in error's counsel to ask leading questions
 
 EXAMINATION OF WITNESSES 93 
 
 of his witnesses. A question is leading when it indicates to the 
 witness the real or supposed fact which the examiner expects and 
 desires to have confirmed by the answer. (2 Elliott on Evidence, 
 sec. 836.) Defendant in error contends that in many of these ques- 
 tions objected to, the examiner avoided the grounds for objection 
 by using the term "whether or not". This does not necessarily keep 
 the question from being leading, as it still may suggest to the wit- 
 ness the answer desired. (2 Elliott on Evidence, sec. 837.) Tn 
 Daugherty v. Heckard, 189 111. 239, in discussing this subject we 
 said (p. 246) : "The propriety of admitting or excluding leading 
 questions is within the sound discretion of the trial court. In some 
 of the states this discretion is not subject to review ; in others the 
 rule is that a manifest and injurious abuse of the discretion may be 
 corrected in the courts having appellate jurisdiction. The latter rule 
 obtains in this court." In Funk v. Babbitt, 156 111. 408, the rule was 
 laid down that the allowance of leading questions would only be 
 ground for reversal when the discretion of the trial court was pal- 
 pably abused and substantial injury done. The questions objected to 
 as leading are quite numerous. It is sufficient to say that we have 
 examined them, and think, under the rules stated above, they were 
 within the bounds of the discretion vested in the trial court, and 
 that the answers to such questions were not on this record, prejudicial 
 to plaintiff in error. It may be noted that some of these questions 
 come within the rule laid down in Swartwout v. Evans, 41 111. 376, 
 in merely directing the witness' attention to the particular point in 
 controversy, and therefore were not improper. 
 
 Plaintiff in error further insists that the court erred in its ruling 
 as to a certain question asked of one of its witnesses, and the an- 
 swer thereto. The question was double in its nature, and it is ap- 
 parent from the record that the part of the question that counsel 
 desired answered was afterward asked and answered, so that no harm 
 was done by the ruling. 
 
 We find no reversible error in the record, and the judgment of the 
 Appellate Court will therefore be affirmed.
 
 94 CASES ON EVIDENCE 
 
 KANKAKEE v. ILLINOIS CENTRAL RY. CO. 
 258 III 368; 101 N. H. 592- 
 
 MR. CHIEF JUSTICE DUNN delivered the opinion of the court. 
 
 The city council of the city of Kankakee passed an ordinance for 
 the paving of a part of East avenue from the north line of Hickory 
 street to the north line of River street and of a part of River street 
 from the east line of East avenue to the west line of Washington 
 avenue, and directed that the whole cost of the improvement should 
 be paid by special taxation to be levied upon the property contiguous 
 to and abutting thereon, in the proportion of the frontage of each 
 lot, block, tract, or parcel of land and property. * * * The railroad 
 company objected to the confirmation of the assessment roll but its 
 objections were overruled, and this appeal is from the judgment of 
 confirmation. 
 
 In examining a witness called for the purpose of sustaining the 
 assessment appellee's counsel asked the following question in chief: 
 "I show you now the assessment roll filed in this case, with an as- 
 sessment total of $6799.61 assessed against that portion of the Illinois 
 Central right of way lying between the north line of Hickory street 
 and the south line of River street, and I will ask you whether in 
 your opinion that assessment exceeds the benefits that that property 
 will derive from this improvement?'* The question was objected to 
 as leading, and the witness answered : "No sir ; I don't think it does, 
 according to my assessment." Substantially the same thing occurred 
 with another witness. The objection should have been sustained. 
 The question merely set up a mark for the witness to hit. That 
 question was the ultimate fact to be determined. Witnesses could 
 properly be called upon to give an opinion as to the amount that the 
 property was benefited but not to determine the whole issue. 
 
 Reversed and remanded.
 
 EXAMINATION OF WITNESSES 95 
 
 ANDERSON v. BERRUM. 
 36 Nev. 463; 136 Pac. 973. 
 
 By the Court, TAI.BOT, C. J. : 
 
 Plaintiff brought this action to recover for trespass by defendant's 
 band of about 2,800 sheep. In the complaint filed upon the com- 
 mencement of the action, the different items constituting the damage, 
 but not the amount claimed for each, were stated, and an aggregate 
 sum of $350 demanded, and, after demurrer was interposed and 
 sustained, plaintiff filed an amended complaint in which he asked judg- 
 ment for twice that amount, and specified the sums he claimed for the 
 different acts causing the damage. 
 
 According to the amended complaint, it is sought to recover as 
 damages $350 for herding and grazing the sheep upon the lands of 
 the plaintiff, and the eating, and tramping of the grass and verdure 
 so it would not replenish, $50 for knocking down a part of the piles 
 of cordwood which plaintiff had upon the land, $150 for tramping 
 and filling with rocks and debris the road and trails used by the 
 plaintiff for packing wood, and $150 tramping, choking up, and filling 
 springs which were situated on the land, and which were used by 
 plaintiff for household, stock, and domestic purposes, and for fluming 
 wood. 
 
 Over the objection of the defendant, the court allowed plaintiff 
 to answer upon his redirect examination several leading questions 
 which put into his mouth words of his attorney. 
 
 In this and in most jurisdictions in this country, the cross-examina- 
 tion must be limited to matters stated in the examination in chief 
 and questions to test the accuracy, veracity, and credibility of the 
 witness. (Buckley v. Buckley, 12 Nev. 423; Furguson v. Ruther- 
 ford, 7 Nev. 385; Cokely v. State, 4 Iowa, 477; People v. Miller, 33 
 Cal. 99; Houghton v. Jones, 68 U. S. 706, 17 L,. Ed. 503; Hughes 
 v. Coal Co., 104 Pa. 207; Hurlburt v. Meeker, 104 111. 541 ; Jones on 
 Evidence, sec. 820.) 
 
 This rule does not prevent the cross-examining party from making 
 the witness his own after the adverse party has closed his case in 
 chief, and does not prevent the court from allowing, in its discretion 
 a rigid examination of the witness if he is hostile. (Nash v. Mc- 
 Xamara, 30 Nev. 143, 16 L. R. A. n. s. 168, 144 Am. St. Rep. 694; 
 Houghton v. Jones, 68 U. S. 706; 17 L. Ed. 503.) 
 
 On cross-examination it is competent to call out anything to modify
 
 g6 CASES ON EVIDENCE 
 
 or rebut the conclusion or inference resulting from the facts stated by 
 the witness on his direct examination. (Wilson v. Wagar, 26 Mich. 
 452.) 
 
 There was no good reason for allowing questions so flagrantly lead- 
 ing, such as the hostility or lack of understanding of the witness, 
 and this testimony does not come under any of the exceptions to the 
 rule forbidding the putting to a party of the action of leading ques- 
 tions by his own attorney. As an excuse for asking these leading 
 questions, it is said that when a party brings out new matter upon 
 cross-examination he makes the witness his own, and that leading 
 questions may be asked upon re-examination. (People v. Court, 83 
 N. Y. 438.) But no such rule applies to new matter which is prop- 
 erly a part of the cross-examination of the witness, or relating to 
 matters testing his accuracy or veracity, and it ought not to apply to 
 a party to the action when he is being interrogated by his own attor- 
 ney. The reasons which allow a litigant to call the opposing party 
 or a hostile witness to the stand and ply him with leading questions 
 should ordinarily preclude the asking of leading questions on his 
 cross, redirect or any examination by his own attorney. If the 
 bounds of proper cross-examination are not exceeded, and they were 
 not in this instance, the witness is deemed to be continually the wit- 
 ness of the party introducing him. (Stephen's Digest of the Law of 
 Evidence, Chase ed. art. 127, note I.) 
 
 The questions which the defendant's attorney asked the plaintiff 
 relating to his having claimed, in an action brought in the justice's 
 court and in the original complaint in this action, about half the 
 amount of damage he claimed on the trial were proper cross-exam- 
 ination, because they tended to test his accuracy or vary his testi- 
 mony. (Stephen's Dig. of Ev. art. 129; Jones on Ev. sec. 822.) They 
 did not relate to new matter in any way authorizing his own attorney 
 to ply him with leading questions. The same rule applies to any 
 witness, but for greater reasons to a party to the action. Although 
 on redirect examination the allowing of these leadings questions was 
 unfair and improper, it is not deemed reversible error, and especially 
 in view of the conclusion that the judgment must be reduced or the 
 case remanded for a new trial, under the claim that the verdict is 
 excessive, and that the evidence will not sustain a recovery for more 
 than $350. After it had been shown that the plaintiff had brought 
 the suits originally for less than the amount of damage he claimed 
 upon the trial, it would have been proper for his attorney to have 
 asked him to explain why he had sued for less than he was claiming,
 
 EXAMINATION OF WITNESSES 97 
 
 and, if the leading questions had been disallowed, as they should have 
 been, no doubt by direct questions the plaintiff's reasons would have 
 been elicited. 
 
 Whether leading questions should be allowed is a matter mostly 
 within the discretion of the trial court, and any abuse of the rules 
 regarding them is not ordinarily a ground for reversal. (State v. 
 Williams, 31 Nev. 360; i Greenleaf. Ev. sec. 435; Jones Ev. sec. 
 819; i Wigmore, Ev. sec. 776; Maguire v. People, 219 111. 16, 76 
 N. E. 67; City of Witman, 122 Ind. 538, 23 N. E. 796; Gibson v. 
 Glizozinski, 76 111. App. 400; Peters v. U. S. 94 Fed. 127, 36 C. C. A. 
 105; State v. Whalen, 148 M. 286, 49 S. W. 989.) But the improper 
 allowing of leading questions may be so prejudicial as to require re- 
 versal. (Woodruff v. State, 72 Neb. 815, 101 N. W. 1114; State v. 
 Hazlett, 14 N. D. 490; 105 N. W. 617; Turney v. State, 8 Smedes & 
 M. 104, 47 Am. Dec. 75.) 
 
 As a considerable sum, but something less than half of the $350 
 claimed for grazing and eating the grass, may have been allowed by 
 the jury for grazing and eating the grass on the Yerington lands, it 
 is evident that the judgment should not stand for the full $500 
 awarded by the verdict. If within ten days the plaintiff files in this 
 court a written consent thereto, an order will be made that the amount 
 of the judgment be reduced to $350, and that the costs of the appeal 
 be paid by the plaintiff. If such consent is not filed, the judgment 
 will be reversed, and the case remanded for a new trial. 
 
 ROBINSON v. N. Y. ELEVATED R. R. CO. 
 175 AT. Y. 219. (1903) 
 
 BARTLETT, J. This is the usual elevated railroad case to recover 
 free and rental damages, and under the unanimous decision the de- 
 fendant railway companies are confined to the argument of legal 
 errors duly raised by exceptions. 
 
 The counsel for the appellants insist that the learned trial judge 
 admitted, over objection and exception, evidence regarding sales and 
 rentals of specific pieces of property on Pearl street other than the 
 premises in suit, in violation of the rule laid down by this court in 
 the case of Jamieson v. Kings County Elevated Railway Co. (147 
 N. Y. 322, 325.) Judge Finch there said: "The plaintiff sought
 
 98 CASES ON EVIDENCE 
 
 to prove the evil effect of the road in diminishing values by the 
 process of calling the owners of property in the vicinity and prov- 
 ing, in each case, what the particular premises owned by the wit- 
 ness rented for before the road was built and what thereafter. There 
 were objections and exceptions. Such a process is not permissible. 
 Each piece of evidence raised a collateral issue (Gouge v. Roberts, 
 53 N. Y. 619), and left the court to try a dozen issues over as 
 many separate parcels of property. We have held such a mode of 
 proof to be inadmissible. (Huntington v. Attrill, 118 N. Y. 365; 
 Matter of Thompson, 127 N. Y. 463.) The elevated railroad cases 
 in this court, to which the plaintiff refers us, give no warrant for such 
 a mode of proof, but indicate that the general course and current of 
 values must be shown by persons competent to speak, leaving to a 
 cross-examination any inquiry into specific instances if such be deemed 
 essential. Almost all the evidence of depreciation was of the erro- 
 neous character, and we cannot say that it may not have worked harm 
 to the defendant." 
 
 The rule thus laid down was followed in Witmark v. New York 
 Elevated R. R. Co. (149 N. Y. 393) and other cases. 
 
 The course of procedure under this rule may be thus briefly stated : 
 Plaintiff having called as a witness an expert, is permitted to show 
 the general course and current of values in the immediate vicinity, 
 leaving to a cross-examination any inquiry into specific instances if 
 such be deemed essential, the reason for the rule being that to per- 
 mit evidence of the rental or free value of other premises would 
 raise in each case a collateral issue to be tried. 
 
 When the plaintiff's expert witness is cross-examined by the de- 
 fendant as to specific instances it is competent upon a redirect exam- 
 ination for the plaintiff to make such full inquiry as he may be ad- 
 vised, as to each one of the specific instances brought out on cross- 
 examinations. 
 
 In the case at bar the plaintiffs swore their expert and conducted 
 the direct examination in compliance with the rule; on cross-examina- 
 tion the defendants made inquiry as to about twelve pieces of other 
 property in the vicinity of the premises in suit ; on redirect examination 
 the plaintiffs examined the witness, over the objection and exception 
 of the defendants in regard to the free or rental value of some six- 
 teen additional pieces of property in the immediate neighborhood. 
 
 We are of opinion that the introduction of evidence by the plain- 
 tiffs in regard to these additional pieces of property in the immediate 
 neighborhood was in direct violation of the rule we have discussed.
 
 EXAMINATION OF WITNESSES 99 
 
 PARKER, Ch. J., GRAY, O'BRIEN, HAIGHT, MARTIN and VANN, JJ., 
 concur. 
 
 Judgment and order reversed, etc. 
 
 BUNNELL v. BUTLER. 
 23 Conn. 65. (1854) 
 
 This was an action upon a promissory note, tried before the Superior 
 Court, at Hartford, at the January term, 1854. 
 
 On the trial to the jury, the defendant, under his plea of set off, 
 introduced in evidence, a promissory note, executed by the plaintiff 
 and two others, for the sum of $824.06, payable to the defendant, 
 upon which he claimed more was due him, than he owed the plaintiff, 
 and that he had a right to recover the balance. 
 
 The jury having returned their verdict in favor of the plaintiff, 
 the defendant moved for a new trial, claiming that the judge on the 
 circuit erred in his instructions to the jury, upon the subjects of 
 duress and confirmation, and in limiting the number of impeaching 
 witnesses; and the questions of law were reserved for the advice of 
 this court. 
 
 WAITE, J. Upon the trial of this case, in the court below, the 
 only defense made, was a right to set off against the plaintiff's de- 
 mand, a balance claimed to be due upon a certain promissory note. 
 
 Now the question, whether the plaintiff was indebted to the defend- 
 ant, in the manner claimed by him, was distinctly submitted to the 
 jury, and found in favor of the plaintiff, and no complaint is made, 
 that the question was not properly made or fairly submitted. If that 
 question has been correctly determined, then it is immaterial, whether 
 the defendant attempted to set off the note or the original indebted- 
 ness. In neither case can his defense prevail. 
 
 In the next place, it is claimed that the court erred, in limiting the 
 number of impeaching witnesses. This, however, was a matter within 
 the discretion of the court. It would be absurd to hold that upon 
 an enquiry of that sort, depending, in a great measure, upon the 
 opinion of witnesses, a party has the right to examine as many as he 
 pleases, and that the court and jury are bound to sit and hear them 
 without any power to interfere. 
 
 There must necessarily be a limit to such enquiries, and it is for
 
 ioo CASES ON EVIDENCE 
 
 the court to prescribe it.- We are not, however, to be understood as 
 saying, that in all cases, the number of impeaching witnesses is to be 
 the same, as that allowed in the present case. Ordinarily that num- 
 ber ought to be deemed sufficient to enable the triers to pass upon 
 the credit of the principal witness. Much, however, will depend upon 
 the circumstances of the case, and the importance of his testimony. 
 If it should appear, that the case would probably turn upon the degree 
 of credit to be given to it, a more extended enquiry, as to his char- 
 acter for truth, might properly be allowed. 
 
 On the other hand, if his testimony should be unimportant, hav- 
 ing little or no effect upon the merits of the case, but little time ought 
 to be consumed by such an enquiry. 
 
 Nor do we mean to say, that if it should be made to appear that 
 in consequence of such an order, a party has manifestly suffered 
 by it, this court will not grant a new trial. But, in the present case, 
 we discover nothing indicating that the discretion of the court was 
 not fairly and properly exercised. 
 
 For these reasons we do not advise a new trial. 
 
 In this opinion the other judges concurred, except Storrs, J. who 
 tried the cause in the court below, and was disqualified. 
 
 New trial not to be granted. 
 
 BECKER et al., Assignees v. KOCK, Sheriff, Appellant. 
 104 N. Y. 394. (1887) 
 
 PECKHAM, J. This action was brought by the plaintiffs as assignees 
 for the benefit of creditors of one Exstein, to recover from the de- 
 fendant the possession of some personal property amounting in value 
 to about $4,000, or in default thereof to recover such value. 
 
 The court directed a verdict for the plaintiffs, and if, therefore, 
 there was evidence enough to authorize a submission of the question 
 of fraud to the jury the judgment must be reversed. We think there 
 was, and had it not been for the rule of law adopted by the court 
 below, we suppose that court would have been of the same opinion. 
 That rule was that as the defendant called a witness by whom he 
 attempted to prove the fraud, and as that witness denied it, the de- 
 fendant was bound by that denial, in the absence of contradiction by
 
 EXAMINATION OF WITNESSES 101 
 
 some other witness, even though the jury might think some parts of 
 the evidence of the witness clearly showed its existence. 
 
 To show exactly how the question arose and what was decided by 
 the court, some reference must be made to the testimony, although 
 it will be unnecessary to allude to it all. 
 
 The assignor, Exstein, was a merchant engaged in a large business 
 in Buffalo. He kept regular books of account in his business, which 
 were produced upon the trial, and he was called as a witness for the 
 defendant and gave evidence in relation to the books and upon other 
 matters. 
 
 The court held, in substance, that the books of the witness Exstein 
 showed a prima facie case of an indebtedness of the witness in the 
 amounts therein appearing, and to the persons therein mentioned, and 
 the witness said they were correct. He then stated what has already 
 been alluded to as to those entries made on the sixteenth of October, 
 and continued by explaining the facts upon which they were based. 
 This explanation, the court said, was totally uncontradicted by any 
 other witness, and defendant was, therefore, bound by what Exstein 
 said on that subject, for the reason that he could not discredit or 
 impeach him, and must take what he said as, under the circumstances 
 of the case, true. 
 
 If that were the true rule, the court was correct in directing a 
 verdict. The General Term, it must be presumed, also took the same 
 view of the case in directing judgment for the plaintiffs, without 
 delivering any written opinion. 
 
 The general rule prohibiting the impeachment or discrediting of 
 a witness by the party calling him was extended too far in this case. 
 Here was an issue of fraud in the making of an assignment by the 
 assignor, and the defendant, in order to prove its existence, called 
 the very man as a witness whom he alleged was guilty of the fraud. 
 He might well be regarded, therefore, as an adverse witness, whom 
 the party by the exigencies of his case was obliged to call. 
 
 With regard to such witnesses it is well settled that all the rules 
 applicable to the examination of other witnesses do not in their strict- 
 ness apply. An adverse witness may be cross-examined, and lead- 
 ing questions may be put to him by the party calling him, for the 
 very sensible and sufficient reason that he is adverse and that the 
 danger arising from such a mode of examination by the party calling 
 a friendly or unbiased witness does not exist. 
 
 What favorable facts the party calling him obtained from such a 
 witness may be justly regarded as wrung from a reluctant and unwill-
 
 102 CASES ON EVIDENCE 
 
 ing man, while those which are unfavorable may be treated by the 
 jury with that degree of belief which they may think is deserved, 
 considering their nature and the other circumstances of the case. 
 
 Starkie, one of the ablest and most philosophical of English writers 
 on this branch of the law, in speaking of a reluctant or adverse wit- 
 ness, uses almost the precise language stated and which has been 
 substantially quoted from him. (Starkie on Ev. [gth ed.] m. p. 248.) 
 Sometimes rather loose language has been indulged in to the general 
 effect that a party cannot impeach his own witness, but when an ex- 
 amination is made as to the limits of the rule the result will be found 
 to be that it only prohibits this impeachment in three cases, viz. : 
 (i) the calling of witnesses to impeach the general character of 
 the witness; (2), the proof of prior contradictory statements by him; 
 and (3) a contradiction of the witness by another where the only 
 effect is to impeach and not to give any material evidence upon any 
 issue in the case. (Lawrence v. Barber, 5 Wend. 301-305; People 
 v. Saffor, 5 Den. 112; Thompson v. Blanchard, 4 N. Y. 303-311; 
 Coulter v. Express Co., 56 N. Y. 585; 2 Starke on Ev. (9 Am. ed.), 
 m. p. 244-250; 2 Phil, on Ev. (C. and H. & Ed. notes), m. p. 981, 
 982, 983 and note 602; I Green on Ev.. sec. 442.) In regard to the 
 first class the rule has been stated to rest upon the theory that when 
 a party calls a witness he presents him to the jury as worthy of be- 
 lief, and to allow him to call witnesses thereafter to impeach his gen- 
 eral character as a man would be to permit an experiment to be 
 made upon the jury by producing a person as worthy of belief (whom 
 he knows and has witnesses to prove to be the contrary), and if his 
 evidence be favorable, to get the benefit of it, and if the reverse, to 
 overwhelm it by the impeaching witnesses. 
 
 In such a case as this, however, there is no deception. The de- 
 fendant calls the very man he accuses of the fraud as a witness to 
 prove it and says, in effect, to the jury, that such evidence as the 
 witness gives which tends to show the perpetration of the fraud al- 
 leged is forced from him by the exigencies of the case and the 
 surrounding facts which cannot be denied, while that which he gives 
 that looks towards an explanation of the fraud shall give such faith 
 to as under all the facts in the case they may think it entitled to. 
 
 As to the second class, in which an impeachment is forbidden, the 
 authorities in England were in conflict, many of the judges thinking 
 it allowable to prove prior contradictory statements by a witness, but 
 the weight of authority was against it, thereby creating the occasion 
 for an interference by the legislature with the law of evidence, which
 
 EXAMINATION of WITNESSES 103 
 
 passed an act permitting just such evidence under certain restrictions. 
 (See C. L. Pro. act of 1854, 17 & 18 Vic., chap. 125, paragraph 22.) 
 The non-admissibility of such evidence in the courts of this state 
 is, of course not open to discussion. It is alluded to only to show 
 the opinion of the English Parliament (in matters of this nature 
 almost exclusively guided by lawyers), upon this question of impeach- 
 ing one's own witness, and the readiness of that body to alter the 
 law of evidence in the direction of what seemed to it greater oppor- 
 tunity of ascertaining and administering that for which all courts are 
 instituted, viz., truth and justice. 
 
 The third of the above classes, where' no impeachment is allowed, 
 is plainly set forth in several of the cases and text-books above cited. 
 
 It is not admissible, even in the case of a witness called by the 
 other side, to impeach him by proof of prior contradictory state- 
 ments on immaterial or collateral issues, and there is not much dif- 
 ference in the two cases, and, therefore, no reason why it should be 
 allowed with reference to one's own witness. But all the cases concur 
 in the right of a party to contradict his own witness by calling wit- 
 nesses to prove a fact (material to the issue) to be otherwise than 
 as sworn to by him, even when the necessary effect is to impeach him. 
 
 Why should not the right exist to show that a portion of the evi- 
 dence of your own witness is untrue, by comparing it with another 
 portion of the evidence of the same witness and with the other facts 
 in the case? 
 
 It is a good general rule that the credibility of a witness is matter 
 for the jury, and the fewer technical obstructions there are to the 
 practical operation of that rule the better. 
 
 We think that the whole evidence of Exstein in this case should 
 have been submitted to the jury for them to pass upon its credibility, 
 and that they were at liberty to believe that portion ' which tended 
 to show the debts to be fictitious and to disbelieve the explanation, 
 or that they might regard it as sufficient, just as in their judgment 
 intelligently and honestly exercised, they might determine. 
 
 The judgment should be reversed and a new trial granted, costs to 
 abide the event. 
 
 All concur. Judgment reversed.
 
 104 CASES ON EVIDENCE 
 
 (TEDENS v. SCHUMERS. 
 112 III. 263. (1884) 
 
 MR. JUSTICE WALKER delivered the opinion of the court: 
 This was an action of assumpsit, brought by Schumers, in the Cir- 
 cuit Court of Cook county, against J. H. Tedens and T. Thormahlm. 
 There was filed the general issue, under which a trial was had re- 
 sulting in a verdict and a judgment against defendants for $1379. 
 The verdict, as returned by the jury was for $2758, but to avoid a 
 new trial plaintiff remitted one-half and took judgment for the bal- 
 ance. On an appeal to the Appellate Court for the First District 
 the judgment was affirmed, and defendants bring the record to this 
 court, and ask a reversal. 
 
 On the trial, appellee testified to his theory of the case. Appel- 
 lants, on the stand, contradicted him, and testified to their version of 
 the matter. In some portions of this evidence they are corroborated 
 by other witnesses. Appellee, to support his testimony, called a num- 
 ber of witnesses to prove his general character for truth and veracity, 
 to which appellants objected, but the court admitted the evidence, 
 and they excepted, and urge its admission as error. Appellee claims 
 this evidence was admissible on the ground that his character for 
 truth and veracity was attacked by being contradicted by other wit- 
 nesses. This is, we think, a misconception of the rule. As we un- 
 derstand the rule of evidence, a witness cannot call witnesses to sup- 
 port his general character for truth and veracity until it is assailable. 
 Mere contradictions, or different versions by witnesses, do not jus- 
 tify the application of the rule that he may call witnesses to support 
 his character for truth. When witnesses are called who may say his 
 general character is bad, then he may call witnesses in support of 
 his general character. Before he can do so his general character 
 must be attacked. If the practice sanctioned the calling of witnesses 
 to prove general character whenever a witness is contradicted, it 
 would render trials interminable. The greater portion of the time 
 of courts would be liable to be engaged in the attack and support of 
 the character of witnesses. If permitted, each of the contradicting 
 witnesses would have the same right, and not only so, but all of 
 the supporting witnesses on each side contradicting each other would 
 be entitled to the same privilege. It is thus seen that the rule must 
 be limited to cases where witnesses are called to impeach the general 
 character of a witness, otherwise, it, instead of reaching truth by
 
 EXAMINATION OF WITNESSES 105 
 
 the verdict, would tend to stifle it under a large number of side issues, 
 calculated to obscure and not to elucidate them. It may be that some 
 courts have made exceptions to the rule, but we are not inclined to 
 adopt them as the rule. Many cases referred to were where the 
 witness was charged with crime by other witnesses, when it was held 
 he might call witnesses to support his character for honesty. 
 
 It has never been the practice in this State to permit a witness 
 in support of his character for veracity, to prove that he has been 
 honest in his dealings, or moral and free from vice. It does not fol- 
 low that because a man deals honestly, and is otherwise moral, he is 
 therefore truthful. Nor is it believed that because a man is not fair 
 in his dealings, or is immoral, he is therefore untruthful. We are 
 aware that some courts have reached and announced conclusions that 
 immorality and unfair dealing establish a want of credibility for 
 truth, and that morality and fairness in his dealings establish his 
 character for veracity. We presume no one would contend that 
 evidence of general good character for truth and veracity would be 
 admissible to disprove a charge of murder, robbery or larceny. In 
 the charge of murder, proof that the accused had borne a good char- 
 acter as a peaceable, orderly and quiet citizen, in a doubtful case 
 might have a strong tendency to exculpate the accused from the 
 charge, and such evidence is admissible in such cases. So in cases 
 on the charge of robbery or larceny, evidence of general character for 
 honesty and uprightness is admissible in doubtful cases, but not good 
 character for truth and veracity or even other traits of character. 
 This evidence was only calculated to confuse the issue and mislead 
 the jury in their finding, and should not have been introduced. 
 
 For the errors indicated, the judgment of the Appellate Court is 
 reversed and the cause remanded. 
 
 Judgment reversed. 
 
 MASSEY v. FARMERS NAT. BANK OF VIRGINIA. 
 104 III. 327. (1882) 
 
 MR. JUSTICE SHELDON delivered the opinion of the court : 
 This was a suit brought by the Farmers' National Bank of Vir- 
 ginia, against Henry C. Massey, Henderson E. Massey, and George 
 W. Laurie, upon a promissory note, purporting to have been executed 
 jointly and severally by the defendants to the bank. Two trials were
 
 io6 CASES ON EVIDENCE 
 
 had, in which the jury failing to agree, they were discharged. The 
 plaintiff afterward dismissed its suit as to the defendant Laurie, 
 and a third trial was entered upon, on the second day of which, on 
 motion of the plaintiff, the default as to Henry C. Massey was set 
 aside and the suit dismissed as to him, and subsequently a verdict 
 was rendered against Henderson E. Massey for $4982.42, upon which, 
 after overruling a motion for a new trial, judgment was entered, 
 which was affirmed on appeal to the 'Appellate Court for the Third 
 District, and an appeal taken by Massey to this court. There are 
 various errors assigned. 
 
 One Gatton, a witness for plaintiff, testified that some years be- 
 fore, he had seen Henderson E. Massey write, and that it was his 
 impression that the signature of the name of said Massey to the note 
 in question was in his handwriting. After then stating, on cross- 
 examination, that it was six or seven years since he saw Massey write, 
 and that he did not know that "he could pick out his signature in 
 the bank," defendant's counsel handed the witness a paper having 
 written on it the name "H. E. Massey" sixteen times, and asked the 
 witness to point out the genuine signatures, if any were genuine. The 
 court excluded the question, and exception is taken to this. It is 
 urged that this question was proper on cross-examination, for the 
 purpose of testing the knowledge of the witness, and as authority 
 therefor reference is made to i Wharton on Evidence, sec. 710, where 
 the author says : "There is little question that a witness may, on 
 cross-examination, be tested by putting to him other writings not 
 admitted in evidence in the case, and asking him whether such writ- 
 ings are in the same hand with that in litigation." Without stop- 
 ping to inquire as to the general correctness of this observation, and 
 especially where the rule obtains, as in this state, that evidence of 
 the genuineness of handwriting based on comparison of hands, is not 
 admissible, we think that at least with reference to test papers got 
 up for the occasion, as in the present case, there was no error in not 
 allowing the cross-examination proposed. The same author, further 
 on, in sec. 715, remarks: "We have already seen that a party can not 
 make testimony for himself by writing specimens for the instruction 
 of witnesses afterwards to be called, as to his handwriting. By the 
 same reasoning a party cannot be permitted to get up in this way 
 test papers to be used subsequently for comparison of hands." And 
 although the paper here offered was not to be used professedly for 
 comparison of hands, we think its admission for the purpose declared 
 would be alike objectionable. See Griffits v. Ivery, u A. & E. 322,
 
 EXAMINATION OF WITNESSES 107 
 
 and King v. Donahue, 100 Mass. 155. In the former case, where 
 there was the disallowance of a like course of cross-examination for 
 the purpose of testing the witness' knowledge, Coleridge, J. said: 
 "We must not allow papers which are not evidence in the cause to 
 be let in for any purpose whatever. 
 
 Henderson E. Massey was a witness, in his own behalf on the 
 trial, and testified to the non-execution of the note by him. One 
 Beard, called as a witness on the part of the plaintiff, testified that 
 the general reputation of the defendant, Henderson E. Massey, for 
 truth and veracity was very good. Against the objection of defend- 
 ant's counsel, the court then permitted this question to the witness: 
 "From that reputation would you, or not, in a case where he was 
 personally interested, believe him under oath?" to which the witness 
 made answer: "If Mr. Massey was interested, I would hesitate 
 to believe him." To seven other witnesses, called by the plaintiff, the 
 same questions against defendant's objection, were allowed as the 
 one to the witness Beard, who made substantially the same answer as 
 he did. This is complained of as error. In Frye v. Bank of Illinois, 
 ii 111. 369, this court laid down as the rule, that the proper question 
 to be put to a witness called to impeach another is, whether he knows 
 the general reputation of the person sought to be impeached among 
 his neighbors for truth and veracity, and if this question be answered 
 affirmatively, the witness may then be inquired of as to what that 
 reputation is, and whether, from that reputation, he would believe 
 him on oath. This latter inquiry as to belief is the English rule upon 
 the subject which we have adopted. Mr. Greenleaf, after stating the 
 English rule, remarks that in the American courts perhaps the weight 
 of authority is now against permitting the witness to testify as to 
 his own opinions. This is a consideration against extending such rule 
 of inquiry as to the witness' own belief beyond the limit for which 
 it has the sanction of authority. This mode of impeachment is con- 
 fined to general reputation. Evidence is not admitted of particular 
 facts, and the opinion allowed to be expressed is to be based solely 
 on general reputation, and not on particular facts. The opinions 
 which were permitted to be given in the present case were not founded 
 upon general reputation alone, but upon general reputation, and in- 
 terest in the case. Now, the effect of interest upon the credibility 
 of testimony is solely for the consideration and judgment of the 
 jury, and no witness should be allowed to pronounce upon it. The 
 naked question, whether, from defendant's interest in the case, the 
 witness would believe him on oath, no one would pretend to justify.
 
 io8 CASES ON EVIDENCE 
 
 There would be the same objection, though less in degree, to such an 
 inquiry, based upon general reputation for truth, and interest in the 
 case. Both questions would be improper, as calling for an expres- 
 sion of opinion as to the effect of personal interest upon the credi- 
 bility of testimony, in the one case, as to the effect of interest alone ; 
 in the other, as to its effect in conjunction with another discrediting 
 circumstance. There should not be given the opinions of witnesses 
 upon the discrediting effect of interest, in whole or in part, upon 
 testimony. Here, the question laid down by the books as the proper 
 one in such case, whether, from the defendant's general reputation 
 for truth and veracity, the witness would believe defendant on oath, 
 was not put; but the question put was whether, from such reputation 
 they would so believe him in a case where he was personally inter- 
 ested, asking an opinion based in part on interest. The question has 
 not the warrant of authority, and was improper. 
 
 To what extent the consideration of personal interest influenced 
 the opinions expressed, we have no means of knowing. The form 
 of the answer, "if Mr. Massey was interested," etc., would indicate 
 that defendant's interest in the case had controlling force. We can- 
 not say defendant was not prejudiced by the improper question put, 
 and that the answer would not have been different and less unfavor- 
 able for the defendant had the proper question been asked. The 
 credibility of defendant as a witness was a vital matter. Other wit- 
 nesses testified as to their opinions of defendant's signature from 
 having seen him write. Defendant knew whether the signature was 
 his own or not, and testified from actual knowledge. Improper tes- 
 timony, unfavorable to his credibility, was calculated to do him great 
 harm. Where a party gives testimony in his own cause, the admitting 
 of many witnesses to give their opinions in any respect as to the 
 effect of his personal interest in diminishing his credibility, is placing 
 such testimony under an unfair disadvantage. We hold that there 
 was error in the allowance of the question. 
 
 For the error indicated, the judgment must be reversed, and the 
 cause remanded. 
 
 Judgment reversed.
 
 EXAMINATION OF WITNESSES 109 
 
 STOLP v. BLAIR. 
 
 68 III. 541. (i8 73 ) 
 
 MR. JUSTICE SHELDON delivered the opinion of the court: 
 
 This was an action of assumpsit, brought by Blair against Stolp, 
 to recover $500, money alleged to have been loaned by the former to 
 the latter. The plaintiff below recovered, and the defendant ap- 
 pealed. 
 
 Three certain rulings of the court below in the admission of evi- 
 dence are assigned for error, as also that the verdict was contrary 
 to the evidence. 
 
 The other ruling excepted to was, in the admission of the following 
 testimony of the witness Bailes: "I borrowed $10 of Blair; am not 
 positive about date, but think it was on Friday of that week (of 
 Sept. i8th 1871). I spoke of giving a note for the money I borrowed, 
 and Blair said : 'I loaned $500 to Mr. Stolp, and did not take a note ; 
 I would not think of taking a note of you for $10.' " 
 
 The witness further stated, Blair said he let Henry Stolp have 
 $500. The i8th of September, the day of the alleged loan, was Mon- 
 day. It is contended by appellee's counsel that this statement of 
 Blair, of his loan of $500 to Stolp, was properly admitted as re- 
 butting testimony to sustain Blair, after the defendant below had at- 
 tempted to impair the credibility of Blair on cross-examination, and 
 by testimony contradicting him. 
 
 This court, in Gates v. The People, 14 111. 434, recognized the 
 existence of a conflict of authority upon the question whether the 
 former declarations of a witness, whose credibility is attacked, may 
 be given in evidence to corroborate his testimony, but did not find 
 it necessary in that case to determine in regard to the general rule, 
 as that case came within one of the admitted exceptions to the rule 
 of exclusion. 
 
 We find the decided weight of authority to be, that proof of dec- 
 larations made by a witness out of court, in corroboration of testi- 
 mony given by him on the trial of a cause, is, as a general rule, in- 
 admissible, even after the witness has been impeached or discredited; 
 and we are satisfied with the correctness of the rule. The following 
 may be referred to among the authorities sustaining such rule: 2 
 Phil. Ev. 5th ed. 973; marginal; i Stark. Ev. 147; I Greenl. Ev. sec. 
 469; Robb et al. v. Hackley et al. 23 Wend. 50; Gibbs v. Tinsley, 13 
 Verm. 208 ; Ellicott v. Pearl, 10 Pet. 412 ; Conrad v. Griffey, 1 1 How.
 
 no CASES ON EVIDENCE 
 
 480. A collection of cases upon the subject, on either side, will be 
 found in the notes to 2 Phillipps, by Cowen & Hill, 979, marginal, and 
 in the case cited from n Howard. 
 
 In some places, as in England and New York, the rule has been 
 adopted in the place of a prior contrary one. As recognized in Gates 
 v. The People, supra, the authorities agree that the former statements 
 of the witness may, in some instances be introduced for the purpose 
 of sustaining his testimony; as, where he is charged with testifying 
 under the influence of some motive prompting him to make a false 
 statement, it may be shown that he made similar statements at a 
 time when the imputed motive did not exist, or when motives of 
 interest would have induced him to make a different statement of 
 facts. So, in contradiction of evidence tending to show that the wit- 
 ness' account of the transaction was a fabrication of a recent date, 
 it may be shown that he gave a similar account before its effect and 
 operation could be foreseen. In some cases the admission of the 
 confirmatory statement has been confined to the sole case of an im- 
 peachment by a contradictory statement of the witness ; and again, 
 such confirmatory statements have been held to be especially not ad- 
 missible, if they were made subsequent to the contradictions proved 
 on the other side as in Ellicott v. Pearl, supra, and Conrad v. Griffey, 
 supra. 
 
 In the case under consideration, there were no contradictory state- 
 ments of Blair introduced in evidence. There was nothing further 
 in the way of impeachment than that it was sought to impeach him 
 on cross-examination, and that there was contradictory testimony to 
 his in the case. The statement of Blair which was admitted, does 
 not come within any of the admitted exceptions to the general rule of 
 inadmissibility. It was her mere declaration of the fact made not 
 under oath, which was not evidence. We are of opinion that, on prin- 
 ciple and authority, it was not competent, and was wrongly received. 
 As we find this a sufficient ground for reversal, we will express no 
 opinion upon the weight of the evidence. 
 
 The judgment is reversed and the cause remanded. 
 
 Judgment reversed.
 
 EXAMINATION OF WITNESSES in 
 
 C. R. I. & P. R. R. CO. v. BELL, Admr. 
 70 ///. 102. (1873) 
 
 MR. JUSTICE SHELDON delivered the opinion of the court: 
 
 The plaintiff in the court below commenced two actions against the 
 railroad company, founded upon a collision between a train on the 
 defendant's railroad and the wagon and team of John Boyd, deceased, 
 the plaintiff's intestate, at a highway crossing near Minooka, in Grundy 
 county. One action was for damages sustained by the death of Boyd, 
 and the other for damages 'resulting from the killing of his horses 
 and the destruction of his wagon and harness. 
 
 The declaration alleged, as the negligence of the defendant which 
 caused the collision, an omission to ring the bell or blow the whistle 
 for a distance of 80 rods before reaching the crossing, as required 
 by statute. The cases were consolidated. 
 
 Verdicts and judgments were rendered in favor of the plaintiff in 
 both cases, and the defendant has appealed. 
 
 It is urged that the court erred in excluding the testimony of wit- 
 nesses as to what Meade, one of the plaintiff's witnesses, said, at 
 the time of the accident, in regard to Boyd's habit of going home 
 intoxicated. 
 
 The testimony was not admissible for the purpose of impeaching 
 Meade, as he had given no evidence upon that subject. It is true, 
 he was asked, on cross-examination, whether he had not made such a 
 statement, and denied it. But the question was incompetent, as it 
 was not relevant to any testimony which the witness had given, and 
 his answer, it being as to a collateral matter, had to be taken as con- 
 clusive. It was not admissible afterward to contradict him in that 
 respect, and thus introduce into the case his unsworn statements. 
 If the defendant sought any statement of Meade upon that subject, 
 it should have examined him as a witness, and got his sworn state- 
 ment. 
 
 It is insisted that the court below erred in excluding evidence 
 of what were the personal habits of the deceased when intoxicated. 
 The inquiry was general, without any specifications of the sort of 
 habits sought to be proved. 
 
 We think the court was justified in rejecting the offered testimony, 
 without some particularizing of the habits offered to be proved, so 
 that it might be seen that they were such as that the proof of them 
 would have a legitimate bearing upon the issue.
 
 ii2 CASES ON EVIDENCE 
 
 It is insisted that the verdict was manifestly against the evidence 
 and the instructions of the court. 
 
 We are of opinion that the verdict was manifestly against the 
 evidence, and that the judgment should be reversed. 
 
 Judgment reversed. 
 
 HILL v. MONTGOMERY. 
 
 184 III. 220. (1900) 
 
 MR. JUSTICE CRAIG delivered the opinion of the court: 
 At the May term, 1895, of the Circuit Court of Vermilion county 
 one John Montgomery was convicted of grand larceny and sentenced 
 to the penitentiary. Mary A. Montgomery, his wife, the appellee, 
 employed appellant a practicing attorney at the Vermilion county bar, 
 to obtain for her a divorce from Montgomery on ground that he 
 had been convicted of a felony. On September 15, 1896, Hill filed a 
 bill on her behalf for divorce. Summons was issued and served on 
 Montgomery, and at the October term, 1896, a default was entered 
 against him. At the October term, 1896, the cause was continued 
 for evidence, and at the January term, 1897, was dismissed for want 
 of prosecution, at the cost of the complainant therein. On January 
 5, 1899, Mary A. Montgomery brought suit against appellant, Hill, 
 for $10,000 damages, claiming that he had willfully, maliciously, 
 fraudulently and falsely represented to her that she had been granted 
 a divorce from Montgomery, and, acting under such representations 
 and believing them to be true, she entered into marriage with one 
 John Hampton, and continued to live with Hampton as his wife until 
 December 30, 1898, when she learned that she had not been divorced 
 from Montgomery, whereby her good name and reputation were 
 damaged and she was brought into public scandal and disgrace. De- 
 fendant pleaded the general issue. The cause was tried by a jury, 
 resulting in a verdict of guilty and fixing appellee's damages at $5,000. 
 On appeal the judgment was affirmed in the Appellate Court. 
 
 The facts in the case have been settled adversely to appellant by 
 the judgment of the Appellate Court, and that judgment, as to con- 
 troverted facts, must be regarded as final on this appeal. It therefore 
 only remains to be determined whether the Circuit Court erred, on 
 the trial, in its ruling on questions of law.
 
 EXAMINATION OF WITNESSES 113 
 
 In the argument of counsel for the appellant three grounds are 
 relied upon to reverse the judgment: First, the court erred in re- 
 fusing to admit certain evidence offered by the appellant ; second, the 
 court made improper remarks in the hearing of the jury during the 
 progress of the trial; and third, the court gave improper instructions 
 on behalf of the plaintiff. 
 
 Under the first point relied upon, the cross-examination of the 
 plaintiff appellant undertook to prove by her that she first became 
 acquainted with John Hampton, the person to whom she was mar- 
 ried, in a house of prostitution in Danville. The object of this evi- 
 dence was to prove that the character of the plaintiff for chastity was 
 bad. It may be conceded that in an action of this kind, brought to 
 recover damages sustained by the plaintiff to her good name and 
 character, it was competent, in mitigation of damages, to prove the 
 character of the plaintiff, and if appellant had offered competent evi- 
 dence to establish that fact it might have been admitted. But appel- 
 lant undertook to make proof of bad character on cross-examination 
 of the plaintiff, and the court held that the evidence thus offered 
 was incompetent on cross-examination. The court did not hold that 
 appellant could not prove the fact at the proper time, but merely 
 ruled, and so stated at the time, that the evidence was not admissible 
 on cross-examination. If the plaintiff, on her direct examination, 
 had given evidence in reference to her character, then, of course, the 
 appellant would have been entitled to cross-examine her fully on this 
 subject. But such was not the case. The plaintiff, on her direct 
 examination, was asked nothing and said nothing in regard to her 
 character, and it was proper to confine the cross-examination to facts 
 called out in chief. 
 
 Under the third head relied upon, it is claimed that the court erred 
 in giving instructions 4 and 5 for plaintiff. Instruction No. 4 given 
 for the plaintiff was as follows: 
 
 "The court instructs the jury that one of the modes recognized 
 by law for impeaching the veracity of a witness is the introduction 
 of persons as witnesses who testify that they are acquainted with 
 the general reputation for truth and veracity of the person sought to 
 be impeached, in the neighborhood where he resides; and if the jury 
 believe, from the evidence in this case, that the reputation for truth 
 and veracity of any party or witness who has testified before you, in 
 the neighborhood where he resides, is bad, then the jury have a right 
 to disregard the whole of such person's testimony and treat it as
 
 ii4 CASES ON EVIDENCE 
 
 untrue, except so far as it is corroborated by other credible evidence 
 or by facts and circumstances proved on the trial." 
 
 The fifth instruction directed the jury that if they believed, "from 
 the preponderance of the evidence, that the general reputation for 
 truth and veracity of any person who testified upon the trial of the 
 cause has been successfully impeached, or that any witness has will- 
 fully sworn falsely as to any matter or thing material to the issues 
 of this case, then the jury are at liberty to disregard the entire tes- 
 timony of any such witness, except in so far as the same has been 
 corroborated by other credible evidence, or by facts and circumstances 
 proved upon the trial of this cause." 
 
 We think the law is well settled that where the general reputation 
 of a witness for truth and veracity is bad in the neighborhood where 
 he resides, the jury may disregard his evidence, except so far as it 
 is corroborated by other evidence or by the facts and circumstances 
 proven on the trial, ^and this is the substance of the fourth instruc- 
 tion. The fifth instruction announces the same principle, with the 
 addition that if any witness has willfully sworn falsely as to any 
 matter or thing material to the issue. The instructions are, in our 
 opinion, sustained by Freeman v. Easly, 117 111. 317, Hirschman v. 
 People, 101 id. 568, and Miller v. People, 39 id. 457. In the last 
 case cited an instruction in substantially the same language as No. 5 
 was considered and sustained. Indeed, the sixth instruction given at 
 the request of appellant announces the same rule contained in the two 
 instructions complained of in the argument. 
 
 Affirmed. 
 
 THE PEOPLE v. COLE. 
 43 N. Y. 508. (1871) 
 
 Error to the late General Term of the Supreme Court in the fifth 
 district, to review the reversal by that court of a conviction of the 
 defendant in error of grand larceny at the Jefferson County Sessions, 
 on the 1 5th of September, 1869. 
 
 The prisoner was charged, with stealing from the prosecutor, 
 Adams, a government bond for $500. The bond was in a bureau 
 drawer, in the house of Adams, and was taken while he was out of 
 the house milking the cow. It appeared that the wife of Adams was
 
 EXAMINATION OF WITNESSES 115 
 
 present when the bond was taken. Mrs. Adams swore on her direct 
 examination that the prisoner, while her husband was out milking, 
 came into, the dining room where the bond was, and said she must 
 let him have it. That she told him she could not, and that, if he 
 wanted it, he must ask her husband, that it was not hers. That the 
 prisoner then said that the husband would not let him have it, if he 
 asked him; that he must have it, and that unless she gave him the 
 bond he would tell her husband of their improper intimacy. That 
 thereupon she "got the bond out of a drawer, in a box in a morocco 
 case, and laid it on the bureau, and the prisoner took it and carried 
 it away with him. 
 
 The witness, at the close of her direct examination, was taken 
 with fainting fits, and soon went into convulsions. It was conceded 
 that during the whole of the remaining part of the trial she was 
 entirely unfit to be cross-examined. 
 
 The prisoner's counsel called on the district attorney to produce 
 her for cross-examination, and moved that her evidence be stricken 
 out, asked a postponement of the trial until she should recover, and 
 asked that the prisoner be discharged. All these requests were denied 
 by the court, and he permitted the evidence given by Mrs. Adams to 
 be submitted to the jury. The prisoner declined to give any evidence, 
 and moved for his discharge, on the ground that there was not suffi- 
 cient legal evidence- to convict him. He also requested a charge that 
 in the absence of evidence of improper intercourse between him and 
 Mrs. Adams, there was no proof sufficient to constitute larceny. This 
 was refused by the court. 
 
 The prisoner was convicted and sentenced to State prison for five 
 years. 
 
 GROVER, J. The evidence was ample to submit to the jury, for 
 them to determine whether the prisoner, at the time he took the 
 bond, did not know that such taking was against the will of Mr. 
 Adams, the owner, and with the fraudulent intent to deprive him of 
 his property, with instructions, that in case they found the affirmative 
 of these facts, they should find the defendant guilty, notwithstanding 
 the consent of the wife to such taking. It will be seen that I should 
 have found no difficulty in sustaining the conviction in the present 
 case, had not the witness, Mrs. Adams, been sworn at all. The other 
 evidence was ample, if believed by the jury, to authorize the con- 
 viction, but this does not relieve the case from difficulty. Mrs. 
 Adams was sworn and examined in chief, and upon such examina- 
 tion gave material evidence against the prisoner and before the
 
 n6 CASES ON EVIDENCE 
 
 prisoner had had any opportunity for cross-examination became so 
 severely ill as to render her cross-examination impossible. This evi- 
 dence against the exception of the prisoner was submitted to the 
 consideration of the jury. This evidence may have injured the pris- 
 oner; and if incompetent against him, his request that it should be 
 struck out and withdrawn from the jury should have been complied 
 with. The question presented is of rare occurrence, upon which there 
 has been but little judicial authority. The only case in this State 
 involving the question is that of Kissam v. Forest (25 Wendell, 651). 
 In this case, upon trial before referees, at the close of the direct 
 examination of a witness, the referees proposed an adjournment, to 
 which the parties consented. Before the adjournment day the wit- 
 ness died. The referees disregarded the testimony, and the Supreme 
 Court affirmed the judgment. The rule at common-law was discussed, 
 and the authorities examined, and the conclusion arrived at that the 
 rule was that no evidence should be admitted but what was or might 
 be under the examination of both parties. That this was the com- 
 mon law rule is shown from the authorities cited; and the reason 
 upon which it was founded was that ex parte statements were too 
 uncertain and unreliable to be considered in the investigation of con- 
 troverted facts, and should not therefore be received as evidence. 
 The rule of the civil law is different. In those countries where the 
 latter system prevails, the testimony of witnesses is often taken in 
 secret, and the party to be affected thereby is often kept in ignorance 
 of what it is until too late to controvert it by counter testimony. 
 The great superiority of the common-law rule is obvious, and that 
 should be adhered to, although in some cases there may be an ap- 
 parent hardship. No injustice is done to the party seeking to avail 
 himself of the evidence to require, that, before its admission, its 
 truth shall be subjected to such tests as the experience of the ages 
 has shown were necessary to render reliance thereon at all safe, and 
 where this has been prevented without any fault of the adverse party, 
 to exclude the evidence. Forest v. Kissam (supra) was reversed by 
 the court for the Correction of Errors. (7 Hill, 463.) In the latter 
 court, the chancellor and two senators gave opinions to the effect 
 that the testimony ought to be considered for what it was worth, 
 although there had been no opportunity for cross-examination, the 
 witness and the party introducing him being wholly free from fault. 
 Some senators gave opinions for reversal, upon the ground that the 
 party, by consenting to the adjournment at the close of the direct, 
 had waived the right of cross-examination. Under these circum-
 
 EXAMINATION OF WITNESSES 117 
 
 stances, it is impossible to determine upon what ground the reversal 
 was placed by the majority of the court, and the case is consequently 
 no authority. The chancellor cites some cases, showing that in chan- 
 cery the direct examination has been received where there has been 
 no opportunity to cross-examine. The rule in chancery is entitled 
 to but little weight upon the inquiry as to what it is at common-law, 
 for the reason that the practice and rules in chancery were to a great 
 extent derived, not from the common, but from the civil law. The 
 mode of examination of witnesses in chancery was entirely different 
 from that at common-law. My conclusion is, that, both upon prin- 
 ciple and authority, the testimony of Mrs. Adams was incompetent. 
 
 Reversal affirmed. 
 
 THE PEOPLE v. DARR. 
 262 III. 202. (1914) 
 
 MR. JUSTICE VICKERS delivered the opinion of the court : 
 Samuel F. Darr and Harvey Austin Six, the plaintiffs in error 
 together with Louis Wood Hill and John Doe, were indicted at the 
 September term of the Circuit Court of Peoria county, 1911, for a 
 conspiracy to obtain money and property from the German Fire In- 
 surance Company of Peoria by means of false pretenses. Darr and 
 Six were jointly tried at the January term, 1912, of the Circuit Court 
 and found guilty and each of them was sentenced to the penitentiary 
 for a term of three years. A writ of error was sued out by them 
 from the Appellate Court for the Second District, and that court hav- 
 ing affirmed the conviction the record has been brought to this court 
 for review by writ of error. 
 
 Complaint is made that plaintiff in error, Six, was asked about 
 certain fires that had occurred in Springfield, one of which was a 
 store owned by the wife of Six. These questions were asked Six 
 on his cross-examination. The point is made that the effect of asking 
 these questions was to insinuate that there had been something 
 crooked in connection with these fires, and to arouse a possible sus- 
 picion in the minds of the jury that Six was in some way responsible 
 for such fires. It is not pretended by the defendant in error that any 
 of the fires in Springfield had any connection whatever with the 
 burning of the Aldine Hotel, in Peoria. Some of them apparently
 
 u8 CASES ON EVIDENCE 
 
 occurred several years before the burning of the Peoria property. 
 This cross-examination was improper. It was not germane to any- 
 thing that had been testified to by Six in chief. Six, however, in 
 answer to these interrogatories, disclaimed any interest in any of the 
 fires referred to, denied that he had any property destroyed in any of 
 them or that he ever collected any insurance as the result of such 
 fires, and his answers were not improper, still, in view of the answers 
 given by the witness, we cannot believe that the jury were misled 
 or otherwise unfavorably influenced against plaintiffs in error by 
 reason of this testimony. We think the admission of this evidence 
 was harmless. 
 
 There being no reversible error in this record, the judgment of the 
 Circuit Court of Peoria county is affirmed. 
 
 Judgment affirmed. 
 
 DEHAVEN v. DEHAVEN. 
 
 77 Ind. 236. (1881) 
 
 ELUOTT, C. J. Nancy A. DeHaven and Christopher DeHaven, 
 her husband, instituted this action against the appellants, Jacob De- 
 Haven and James T. DeHaven, and five others. 
 
 The issue made by the pleadings in this case was, whether Nancy 
 DeHaven was an heir of Isaac DeHaven, deceased, and as such 
 entitled to a distributive portion of his estate. 
 
 The appellants ask a reversal upon the ground that a new trial 
 was erroneously denied them. The questions argued by counsel all 
 arise upon the rulings admitting and excluding testimony. 
 
 The appellants upon cross-examination asked the witness, Tyner, 
 the following question: "State whether or not, during the earlier and 
 later period of his life, you heard him, Isaac DeHaven, make any 
 other statements or expressions in regard to the parentage of Betsy, 
 other than you have given upon your original examination?" The 
 declarations of Isaac DeHaven, the ancestor, were called out upon 
 appellee's direct examination for the purpose of proving the parentage 
 of her mother, and were properly admitted for declarations concern- 
 ing pedigree constitute a marked and important exception to the rule 
 excluding hearsay evidence. The declarations are admitted upon the 
 theory th?t thev tend to show that the person to whom they refer
 
 EXAMINATION of WITNESSES 119 
 
 was recognized and treated as one of a family. The statements of 
 an ancestor or deceased kinsman are not to be regarded as separate 
 and distinct conversations, constituting in themselves independent 
 subjects of investigation, but they are to be taken as a connected and 
 indivisible thing indicating the treatment of the person whose pedi- 
 gree is in dispute. The acts and declarations of the deceased kins- 
 man are an entirety, and the question is, not simply what he said or 
 did on one day, or within one week, but what was his general line 
 of conduct. The subject-matter which the appellee by her direct 
 examination laid open for investigation, was the manner of the de- 
 ceased kinsman's treatment of her mother, and not simply what such 
 kinsman said or did on this or that particular day. In entering upon 
 this general subject, the appellee opened for examination a wide 
 field, that of the general conduct of such deceased ancestor, and did 
 not merely expose a spot here and there as particular days or in- 
 stances were selected by her counsel. The qustion was proper, and 
 the court erred in refusing to permit it to be answered. 
 
 It is true, as appellee's counsel assert, that the English rule respect- 
 ing cross-examinations has been modified by the courts of this coun- 
 try, and that a cross-examination must, under the American rule, 
 be confined to the subject-matter of the examination in chief. Sub- 
 ject-matter is not, however, to be given such a narrow and restricted 
 meaning as that ascribed to it by counsel. Facts and circumstances 
 connected with the subject may be asked for and called out upon 
 cross-examination, and the cross-examining party cannot be restricted 
 to mere parts of a general and continuous subject which constitute 
 a unity. 
 
 Judgment reversed. 
 
 PEOPLE v. ROBINSON. 
 755 Mich. 511; 98 N. W. 805. (1905) 
 
 HOOKER, J. The defendant was convicted of violating the law 
 prohibiting the sale of spirituous and intoxicating liquor, known as 
 the "Local Option Law," which is in force in this country, and the 
 case is before us on exceptions before sentence. 
 
 A witness called by the people testified on cross-examination that 
 he had bought liquor of respondent for medicinal purposes, had seen
 
 I2O CASES ON EVIDENCE 
 
 his name registered, and had never seen anything out of character 
 at respondents store. On redirect he was asked "what difficulty he 
 bought medicine for," and stated that he could not tell, and that it 
 was well known that he took daily drinks. On his direct he was 
 asked questions relating to the administering the oath to respondent 
 when he verified the reports. The redirect examination complained 
 of was in response to new matter drawn out on the cross-examination, 
 and was competent. 
 
 Conviction affirmed. 
 
 STRUTH v. DECKER. 
 100 Md. 368, 5p Atl. /<?/. (1905) 
 
 PEARCE, J., delivered the opinion of the court: 
 
 This is an appeal from rulings of the Court of Common Pleas 
 of Baltimore City in the trial of a caveat to the will of Charles Struth, 
 deceased. Six issues were sent by the Orphans' Court to be tried by 
 a jury. The first related to the signing and attestation of the paper of- 
 fered for probate ; the second, to the question of testamentary capacity ; 
 the third, to knowledge of the contents of the paper; the fourth, in- 
 quired whether any part of said paper was contrary to the testator's 
 instructions; the fifth, whether any part of said paper was misun- 
 derstood by him at the time of execution; and the sixth, whether its 
 execution was procured by undue influence exercised over him. The 
 jury answered "yes" to the ist, 2nd and 3rd issue, and "no" to the 
 4th, 5th and 6th, the verdict being for the caveatees on all the issues. 
 
 Upon cross-examination, Dr. Street, after stating that he had heard 
 the will read, was asked this question : 
 
 "Now Doctor, if it should turn out in the proof that every piece 
 of property he owned was mentioned in this will, and that all his 
 beneficiaries are mentioned in this will, and that he has charged 
 certain ones with advancements, and that he has made certain pro- 
 visions in regard to certain stock mentioned therein, and that all this 
 originated with him, himself, and without any knowledge on the part 
 of counsel, do you mean to say that such a man as that was incapable 
 of making a valid deed or contract?" This was objected to, and the 
 second exception was taken to its allowance. This question may not 
 be framed with strict regard to the usual form of hypothetical ques-
 
 EXAMINATION of WITNESSES 121 
 
 tions, but it is clearly proper cross-examination, and the refusal of 
 the question would have been hypercritical. 
 
 The fifth exception was taken to the allowance of the following 
 question to Mr. Decker, the attorney who drew the will : "What was 
 his mental condition the day you drew the will as compared with 
 his mind as you knew him before?" It is contended that this asks 
 for mere opinion, from one w,ho is neither an expert, nor a subscrib- 
 ing witness, and was therefore improper. But Mr. Decker had known 
 Mr. Struth for fifteen years, had been accustomed to meet him so- 
 cially at the Germania Maennorchor where he frequently played cards 
 with him, and had transacted one piece of business with him three 
 or four years before, and we think he had the opportunity to form 
 a rational opinion and that the facts deposed to by him in his tes- 
 timony did furnish a rational ground for making the comparison 
 sought in the question. The Berry will Case, 93 Md. 580. 
 
 Dr. Street was called in rebuttal by the caveators, and after reciting 
 to him portions of Mr. Decker's testimony as to the dictation of the 
 will to him by Mr. Struth ; and his own previous ignorance of the 
 testator's property, and its intended disposition, he was asked "with 
 this additional knowledge what he had to say as to Mr. Struth's 
 capacity to make the will in question," and the tenth exception was 
 taken to the refusal of this question. 
 
 We cannot perceive that this tended to rebut anything brought out 
 in Mr. Decker's testimony, and if intended to reply to the hypothetical 
 question and answer to Dr. Street which was the subject of the second 
 exception, the witness should have been re-examined upon the conclus- 
 ion of the cross-examination, and not called in rebuttal. 
 
 It follows that the ruling appealed from must be affirmed. 
 
 Rulings affirmed and cause remanded. 
 
 GRABOWSKI v. STATE. 
 126 Wis. 447; 105 N. W. 805. (1905) 
 
 CASSODAY, C. J. The plaintiff in error was convicted of having, 
 on December 14, 1904, taken improper and indecent liberties with the 
 person of one Franceska Heine, a female person of the age of about 
 ten years, of Polish parentage, contrary to the statute, and was sen-
 
 122 CASES ON EVIDENCE 
 
 tenced to imprisonment in the house of correction for the term of 
 two years. 
 
 Error is assigned because the court admitted testimony of the 
 little girl as to the accused taking indecent liberties with her person 
 a short time prior to the time in question. Such evidence was clearly 
 admissible, as tending to prove the motive and intent of the accused 
 in doing the acts complained of. Benedict v. State, 14 Wis. 423 ; 
 Proper v. State, 85 Wis. 615, 628-631, 51 N. W. 1035; Lanphere v. 
 State, 114 Wis. 193, 200, 201, 89 N. W. 128; Bannen v. State, 115 
 Wis. 317, 330, 331, 91 N. W. 107, 965; 4 Elliott, Evidence, sec. 2720, 
 and cases cited there. So there was no error in allowing the little girl, 
 on redirect examination, to testify to the effect that the reason why 
 she told the accused that what she had said about his committing the 
 offense was all a lie was because she was afraid he would kill her. 
 On rebuttal a witness for the state was asked what conduct or lan- 
 guage he saw and heard between the accused and his wife when he 
 went to the saloon at the time in question. In overruling the objec- 
 tion to the question the court said : "It is only relevant by reason 
 of the testimony given by the defendant on this subject." Having 
 opened the door for the admission of such testimony the accused is 
 in no position to take exception thereto. Schissler v. State, 122 Wis. 
 365, 372, 373, 99 N. W. 593. Counsel contends that it was only on 
 cross-examination of the accused that such testimony was adduced. 
 But in the direct examination of the accused he testified as to what 
 took place between him and his wife back of the bar in the saloon 
 after his wife and the little girl carhe downstairs. The state, on 
 rebuttal, sought to prove by a physician that he had examined the 
 wife of the accused, and what he had examined her for. On ob- 
 jection being made, the district attorney insisted that the testimony 
 was proper as impeaching the accused in swearing "that he had not 
 abused his wife," and thereupon the objection was sustained. Such 
 ruling was in favor of the accused. We perceive no ground of 
 criticism in such remarks of the district attorney. 
 
 By the Court. The judgment of the Municipal Court of Milwaukee 
 county is affirmed.
 
 EXAMINATION OF WITNESSES 123 
 
 RIGGS v. STERLING. 
 60 Mich. 644. (1886) 
 
 Ejectment. Plaintiff brings error. Affirmed. 
 
 SHERWOOD, J. The action in this case is ejectment, to recover the 
 possession of less than forty acres of land situate in the county of 
 Wayne and not included in any town plat, city, or village. It was 
 purchased by William Sterling, the husband of the defendant, in 1874, 
 and was used and occupied by them as their homestead until the sixth 
 day of March, 1883, when the husband died, and the defendant has 
 made the same her home, continuing the occupancy thereof by her- 
 self and tenants up to the time of commencing this suit. 
 
 The value of this homestead was really the only question to be 
 determined in this case. Six^ witnesses on each side were allowed to 
 testify upon the subject and no more. The refusal to allow more to 
 testify on the part of the plaintiff is assigned as error; but we think 
 there was no abuse of discretion on the part of the court in not 
 allowing more cumulative evidence upon this point. Under the cir- 
 cumstances of this case, I can see no reason why a larger number 
 than composed the panel of jurors to try the cause should have been 
 necessary. 
 
 KRAIMER v. STATE. 
 777 Wis. 350. (1903) 
 
 WINSLOW, J. Douglas Kraimer was convicted in the Circuit Court 
 for Price county of an assault upon one Peter Isaacson, being armed 
 with a dangerous weapon and with intent to kill and murder said 
 Isaacson, and he brings his writ of error to reverse the judgment. 
 
 The plaintiff in error was asked upon cross-examination whether 
 he had ever been convicted of a crime, and replied that he was con- 
 victed of stealing a horse in Indiana, and sent to prison for eighteen 
 months. Afterwards, in the trial, the plaintiff in error called as a 
 witness one Peter Smith, who lived in the vicinity and knew the 
 accused well, and asked him whether he knew Kraimer's reputation 
 for truth and veracity in the community where he lived, and upon 
 objection the testimony was ruled out on the ground that the repu-
 
 124 CASES ON EVIDENCE 
 
 tation of the accused had not been attacked. It is very plain that 
 this ruling was erroneous, and equally plain that the error was preju- 
 dicial. Our statute allows the fact of the former conviction of a wit- 
 ness for a criminal offense to be proven by cross-examination of the 
 witness himself; but such fact is only allowed to be proven to affect 
 the credibility of the witness, or, in other words to impeach him. Sec. 
 4073, Stats. 1898. It is simply a method of impeaching the character 
 of the witness for truth and veracity. The rule is well settled that 
 when a witness is impeached, whether by the evidence of witnesses 
 who testify to his reputation for truth and veracity, or by proof of 
 a former conviction of crime, it is competent to introduce witnesses 
 to testify to his good character in that respect. 3 Jones, Evidence, 
 Sec. 870; Gertz v. Fitchburg, R. Co., 137 Mass. 77. 
 
 By the Court. Judgment reversed, and action remanded for a new 
 trial. 
 
 WARFIELD v. RAILROAD. 
 104 Tenn. 74. (1900) 
 
 WILKES, J. These actions were for unlawfully ejecting the plain- 
 tiff from the cars of the defendant road. 
 
 They were tried together in the court below and in this court, and 
 there was verdict and judgment in each case in the trial court for the 
 railroad, and the plaintiffs have appealed and assigned errors. 
 
 It is said it was error to allow evidence to sustain the general 
 character of the witness, Corbett, the conductor on the train. This 
 witness was assailed in a severe and searching cross-examination by 
 questions which, in their substance and manner of asking, were cal- 
 dilated to impeach his veracity and question his truthfulness. Under 
 such circumstances it was proper to allow evidence to sustain his 
 character. Richmond v. Richmond, 10 Yer. 343-5. 
 
 Upon the whole record we have not been able to find any reversible 
 error, and the judgment of the court below is affirmed with costs.
 
 EXAMINATION of WITNESSES 125 
 
 SHIELDS v. CONWAY. 
 133 Ky. 35. (1909) 
 
 Opinion of the court by JUDGE CARROL. Affirming. 
 
 Appellee, who was plaintiff below, brought this action in slarider 
 against the appellant, Shields, who was defendant below, charging 
 that in the presence and hearing of divers and sundry persons Shields 
 falsely and maliciously spoke of and concerning him the following 
 words, to-wit: "Oh, yes; you are paving the way to have another 
 lawsuit with me, so you can go down to Bardstown and swear to 
 some more damned lies like you did on the other trial." thereby 
 meaning to charge Conway with the crime of perjury committed in 
 his testimony in a case pending between the parties a short time pre- 
 viously. The answer did not deny the fact that Conway had previ- 
 ously testified in the suit, but did deny speaking the words charged. 
 Upon trial before a jury the plaintiff recovered a judgment for $400. 
 
 On the trial of the case, after a witness named Barnett testified 
 in behalf of plaintiff, the defendant introduced a record of the Nel- 
 son Circuit Court, consisting of an -indictment against Barnett and 
 a judgment, showing that in 1887 on the charge of murder he was 
 convicted and his punishment fixed at eighteen years in the State 
 penitentiary. Thereupon the plaintiff introduced in rebuttal a num- 
 ber of witnesses, who testified to the general good reputation of 
 Barnett for truth and morality. The admission of this evidence is 
 the principal error complained of. It is the contention of appel- 
 lant that this evidence was incompetent because the general reputa- 
 tion of Barnett was not attacked or impeached by the introduction 
 of the record of his conviction. Section 597 of the Civil Code of 
 Practice declares that: "A witness may be impeached by the party 
 against whom he is produced, by contradictory evidence, by show- 
 ing that he has made statements different from his present testimony, 
 or by evidence that his general reputation for untruth fulness or immor- 
 ality renders him unworthy of belief ; but not by evidence of particu- 
 lar wrongful acts, except that it may be shown by the examination 
 of a witness, or record of a judgment, that he has been convicted 
 of felony." And section 599 provides: "Evidence of the good 
 character of a witness is inadmissible until his general reputation has 
 been impeached.' Under section 597 it was competent for the de- 
 fendant to introduce the record of Barnett's conviction, but the ad- 
 missibility of the evidence of his good character depends upon the
 
 126 CASES ON EVIDENCE 
 
 question whether or not the introduction of this record was such an 
 impeachment of his general reputation, within the meaning of sec- 
 tion 599, as authorized the introduction of evidence of his good char- 
 acter. This precise question has not heretofore been decided by this 
 court, but it has come before other courts of last resort some of 
 them holding that evidence of this character is competent, and others 
 holding it incompetent. 
 
 In our opinion the evidence was competent. The purpose in in- 
 troducing the record of conviction was to impeach the general repu- 
 tation of the witness, and to impress the jury with the fact that he 
 was not worthy of belief. However serious an offense a man may 
 have committed, and however damaging to his reputation it may be, 
 he should be allowed the privilege of outliving the odium attached to 
 it, and reinstating himself in the confidence and respect of his neigh- 
 bors and acquaintances. No matter how bad a man may have been, 
 or how low in the estimation of his neighbors he may have fallen, 
 he should not be denied the right to reform or the high privilege- 
 of becoming an honored and useful citizen ; and when he does so re- 
 establish himself, and the record of his former delinquency is offered 
 to discredit him, he should have the right to show that his reformation 
 is genuine, and that his neighbors and acquaintances regard his 
 general reputation for truthfulness and morality as good. It would 
 be a hard and almost cruel rule to lay down that a man on the 
 witness stand might be confronted with the record of a crime, com- 
 mitted many years before, offered for the purpose of embarrassing, 
 humiliating and discrediting him, and yet denied the right to show 
 by persons competent and qualified to speak that afterwards by good 
 conduct and an upright life he had established himself in the respect 
 of his neighbors. We think this conclusion fully authorized by a 
 fair construction of the Code provisions referred to. A witness 
 may not be impeached by evidence of particular wrongful acts, with 
 the exception that it may be shown that he has been convicted of a 
 felony. Although he may have committed a dozen particular wrong- 
 ful acts, each involving greater moral turpitude than many felonies, yet 
 evidence of them is not competent ; but if he has committed one amount- 
 ing to a felony, followed by a conviction, this one offense may be 
 offered in evidence against him. It is therefore manifest that the 
 Legislature intended to place the one act followed by a conviction 
 for a felony in a class different from other wrongful acts not so 
 punished, and in the same category as an attack upon the general 
 reputation of the witness. A witness cannot be impeached by evi-
 
 EXAMINATION OF WITNESSES 127 
 
 dence of particular wrongful acts, because he may not be prepared 
 to meet them ; and, if he was, to allow an explanation for each, would 
 often unreasonably protract the trial, besides bringing into it many 
 side issues. And, as the witness cannot be impeached by evidence 
 of particular wrongful acts, neither can evidence be offered to sus- 
 tain his character, as such evidence is not admissible until his good 
 character has been put in issue until an attack has been made upon 
 it in a general way. But a witness may be impeached by a record of 
 conviction for a felony, and, as he cannot excuse or justify its com- 
 mission or go behind the judgment, it would follow that if there 
 was no other way by which he could show the jury or the court 
 that he was truthful and moral, he must stand mute before the 
 silent but impressive evidence of his guilt, and see his reputation 
 attacked without an opportunity to defend. Although a witness 
 when thus impeached may not go behind or explain the conviction, 
 yet he may show that since the judgment was pronounced he has 
 lived an honorable and upright life and is held in high esteem by 
 friends and neighbors ; and this, upon the ground that the evidence 
 of conviction is in fact and truth an attack upon his general reputa- 
 tion within the fair meaning of the Code. 
 
 But counsel say that, if it is allowable to offer evidence of good 
 character to rebut the presumption of unworthiness arising from a 
 conviction for a felony, it would logically result in allowing a wit- 
 ness who had made contradictory statements or declarations in con- 
 flict with his present testimony, or who was shown to have an in- 
 terest in the case, to introduce evidence in support of his good 
 character. There is no reason, however, for carrying the rule we 
 have announced to this extent. A witness may be related to the 
 party in whose behalf he is testifying, or he may be interested in the 
 result of the controversy, or he may have made contradictory state- 
 ments, or declarations in conflict with his present testimony, but 
 evidence of these facts, or any or all of them would not be an im- 
 peachment of the general reputation of the witness for morality and 
 truth. A witness of the highest character may be related to a party 
 to the litigation, or interested in the result of the trial, or have made 
 statements contradictory of his evidence, but these circumstances do 
 not involve his general reputation for truthfulness, nor are they re- 
 garded as impeaching his character. We have carefully examined 
 the instruction criticized, but we do not find it open to the objection 
 urged against it. 
 
 Perceiving no error, the judgment is affirmed.
 
 128 CASES ON EVIDENCE 
 
 YORK v. PEASE. 
 68 Mass. 282. (1854) 
 
 Action of tort, brought by an infant, by Dr. Simeon D. York, his 
 father and next friend, for slander, in charging the plaintiff with 
 larceny by the following words : "The trouble was instigated by 
 Dr. York. I discharged his boy for being dishonest, for stealing. 
 He stole money from me, and I turned him away." Answer, that 
 the words "were true, and spoken for justifiable ends." 
 
 BIGELOW, J. i. The plaintiff, in proving his prima facie case, 
 offered evidence to show that the words alleged to be slanderous 
 were not spoken under circumstances which would bring them within 
 the rule touching privileged communications. He was not bound to 
 do this ; but in the exercise of his own discretion, he saw fit thus far to 
 anticipate the defense. Having thus opened this part of the case, 
 and introduced as much evidence respecting it as he deemed expedient, 
 he could not afterwards claim, as a matter of right, to accumulate 
 testimony upon the same point. It was then a mere matter of dis- 
 cretion, with the judge who presided at the trial, to admit or reject 
 the evidence, to the exercise of which no exception can be taken, 
 i Greenl. Ev. sec. 74, and 431. Browne v. Murray, Ry. & Mood. 
 254. As a general rule in the conduct of trials, if a party elects 
 to proceed in the first instance with proof to anticipate the defense, 
 he should not afterwards be allowed to offer evidence on the same 
 point, in reply to the case made by the testimony of the defendant. 
 To permit a party thus to divide his case leads to confusion, and gives 
 him an unfair advantage over his adversary. 
 
 2. When, and under what circumstances, a party may be allowed 
 to put leading questions to his own witness, is also a matter of dis- 
 cretion, resting solely with the judge before whom the trial is had, 
 and is not subject to revision or exception. Moody v. Rowell, 17 
 Pick. 498. i Greenl. Ev. sec. 435. The questions put to the prochein 
 ami by the defendant come clearly within this rule. 
 
 Exceptions overruled.
 
 EXAMINATION OF WITNESSES 129 
 
 THE STATE v. PFEFFERLE. 
 36 Kan. 90. (1886) 
 
 Prosecution for a violation of the prohibitory liquor law. The 
 defendant, Pfefferle, and another, jointly charged in an information 
 containing five counts, were jointly tried at the June Term, 1886, 
 and were found guilty on all the counts. Pfefferle was sentenced on 
 each count to pay a fine of $100, to be imprisoned for thirty days 
 in the county jail, and to pay the costs of the prosecution, taxed at 
 $213.25. 
 
 The opinion of the court was delivered by 
 
 JOHNSTON, J. : The information in this case contained five counts, 
 in each of which it was charged that O. Pfefferle and August Guter- 
 kunst sold intoxicating liquors at stated times during the year 1886, 
 without having a permit to do so. They were jointly tried, and 
 were both found guilty on each count, but Pfefferle only has appealed. 
 
 Gutekunst voluntarily became a witness in behalf of Pfefferle and 
 himself, and upon cross-examination he was asked if he was not an 
 old saloon keeper, and if he had not been tried and convicted in that 
 court several times for the sale of liquor. Other questions of like 
 importance were asked, and the witness over the objection of the 
 defendant, admitted that he had been engaged in the sale of liquor, 
 and had recently been tried and convicted for its unlawful sale. The 
 admission of this evidence is the principal error complained of. By 
 taking the witness stand, Gutekunst changed his status, for the time 
 being, from defendant to witness, 1 and was entitled to the same privi- 
 leges and subject to the same treatment, and to be contradicted, dis- 
 credited and impeached the same as any other witness. But if a 
 different rule applies to the defendant who becomes a witness, as 
 some authorities seem to hold, it would not avail the appellant, as 
 the defendant Gutekunst has not appealed and is not complaining, 
 and therefore stands in the same relation to the appellant as any other 
 witness. Although there is some diversity of judicial opinion con- 
 cerning how far a witness may be cross-examined upon matters not 
 relevant to the issue, with a view of discrediting him, yet we think 
 the limits of cross-examination for such purpose rest largely in the 
 discretion of the court; and there is abundant authority for allowing 
 the questions asked in this case. Mr. Wharton, in discussing this 
 question, says that 
 
 "In this country there has been some hesitation in permitting a
 
 130 CASES ON EVIDENCE 
 
 question, the answer to which not merely imputes disgrace, but touches 
 on matters of record; but the tendency now is, if the question be given 
 for the purpose of honestly discrediting a witness, to require an 
 answer." (Wharton's Crim. Ev. sec. 474.) 
 
 Stephens, in art. 129 of his Digest of the Law of Evidence, in 
 speaking of what are lawful questions on cross-examination, says: 
 
 "When a witness is cross-examined, he may be asked any questions 
 which tend first, to test his accuracy, veracity, or credibility ; or 
 second, to shake his credit by injuring his character. He may be 
 compelled to answer any such question, however irrelevant it may 
 be to the facts in issue, and however disgraceful the answer may be 
 to himself, except in the case provided in article 120, viz., when the 
 answer might expose him to a criminal charge, or penalty." 
 
 In Wroe v. The State, 20 Ohio St. 460, the witness for the de- 
 fendant was asked on cross-examination, "Were you not discharged 
 or compelled to resign from the police force of the city of Dayton?" 
 and also, "Are you not now under indictment for murder in the 
 second degree in this court?" And another witness for the de- 
 fendant was asked if he had not been indicted for assault and bat- 
 tery in that court, and pleaded guilty. The Supreme Court held that 
 the questions were allowable under the latitude of cross-examination ; 
 and stated in its opinion that 
 
 "It is difficult to lay down any precise rule fixing the limits to 
 which a witness may be cross-examined on matters not relevant to 
 the issue. This must in a great measure rest in the sound discre- 
 tion of the court trying the cause. Such questions may well be al- 
 lowed when there is reason to believe it will tend to the ends of 
 justice; but they ought to be excluded when the disparaging course 
 of the examination seems unjust to the witness, and uncalled for by 
 the circumstances of the case." 
 
 In a later case in that state, where the defendant was on trial for 
 murder in the first degree, and having offered himself as a witness 
 was asked on cross-examination if he had not previously been in- 
 dicted for assault with intent to kill, and pleaded guilty to the same, 
 and if he had not frequently been arrested in that county on charges 
 of assault and battery, objections to these questions were overruled, 
 and the Supreme Court held that it was within the discretion of the 
 court to allow the questions for the purpose of judging of the char- 
 acter and credit of the witness from his own admissions, and that 
 it did not appear that the discretion had been abused. (Tanoff v. 
 The State, 37 Ohio St. 178.)
 
 EXAMINATION of WITNESSES 131 
 
 In Brandon v. The People, 42 N. Y. 265, the defendant became a 
 witness in his own behalf, and on cross-examination he was asked: 
 "Have you ever been arrested before for theft?" The counsel for 
 the defendant objected to the question on the ground that the prose- 
 cuting attorney had no right to attack the character of the prisoner, 
 she not having put her character in issue. The objection was over- 
 ruled, and the court of appeals held the question proper for the 
 purpose of impairing the credibility of the witness, saying that 
 
 "It has been the practice of the courts of this state from a very 
 early period to permit questions of this character to be put to a wit- 
 ness, and for the purpose indicated. Its abuse is guarded against 
 in two modes: first, by the privilege of the witness to decline to 
 answer any questions which may disgrace him or may tend to charge 
 him as a criminal; second, by the power of the court of its own 
 motion to prohibit an unreasonable or oppressive cross-examination." 
 
 The Supreme Court of Michigan considered the propriety of such 
 testimony in a case where the defendant was sworn as a witness in 
 his own behalf and controverted the plaintiff's case. On cross-ex- 
 amination he was allowed, against objection to be asked whether he 
 was ever confined in a state prison. The court held the objection 
 was not tenable saying that 
 
 "It has always been held that within reasonable limits a witnesss 
 may, on cross-examination, be very thoroughly sifted upon his char- 
 acter and antecedents. The court has a discretion as to how far pro- 
 priety will allow this to be done in a given case, and will or should 
 prevent any needless or wanton abuse of the power. But within this 
 discretion we think a witness may be asked concerning all antece- 
 dents which are really significant, and which will explain his credibil- 
 ity, and it is certain that proof of punishment in a state prison may be 
 an important fact for this purpose. And it is not very easy to con- 
 ceive why this knowledge may not be as properly derived from the 
 witness as from other sources. He must be better acquainted than 
 others with his own history, and is under no temptation to make his 
 own case worse than truth will warrant. There can with him be 
 no mistakes of identity. If there are extenuating circumstances, no 
 one else can so readily recall them. We think the case comes within 
 the well-established rules of cross-examination, and that the few au- 
 thorities which seem to doubt it have been misunderstood, or else 
 have been based upon a fallacious course of reasoning, which would, 
 in nine cases out of ten, prevent an honest witness from obtaining
 
 132 CASES ON EVIDENCE 
 
 better credit than an abandoned ruffian." (Wilbur v. Flood, 16 Mich. 
 40.) 
 
 In Clemens v. Conrad, 19 Mich. 170, a witness was required to 
 answer whether he had not been indicted and convicted of a criminal 
 offense. The objection was there made, as it is in this case, that the 
 testimony involved matters of record, and was for that reason ob- 
 jectionable; but Judge Cooley, speaking for the court said: 
 
 "We think the reasons for requiring the record evidence of a 
 conviction have very little application to a case where the party con- 
 victed is himself upon the stand, and is questioned concerning it, 
 with a view to sifting his character upon cross-examination. The 
 danger that he will falsely testify to a conviction which never took 
 place, or that he may be mistaken about it, is so slight that it may 
 almost be looked upon as purely imaginary, while the danger that 
 worthless characters will unexpectedly be placed upon the stand, 
 with no opportunity for the opposite party to produce the record 
 evidence of their infamy, is always palpable and imminent. We pre- 
 fer the early English rule upon the subject: Priddle's Case, Leach 
 C. L. 382 ; King Vv Edwards, 4 T. R. 440 ; and for the reasons which 
 were stated in Wilbur v. Flood." 
 
 The judgment of the District Court will be affirmed. 
 
 All the Justices concurring. 
 
 FUNDERBERG v. THE STATE. 
 
 100 Ala. 3<5. (1803) 
 INDICTMENT FOR GAMING. 
 
 HEAD, J. The defendant, as all defendants in criminal trials are 
 privileged to do, could have introduced evidence, available to him, 
 of his previous good general character, to be considered by the jury 
 in connection with the other evidence in determining the question 
 of guilt or innocence. It is his general character, we say, not par- 
 ticular traits of character, which he may thus put in issue. In the 
 present case, the defendant became a witness in his own behalf, and, 
 to bolster up his testimony, undertook to prove by witnesses that he 
 was a man of good character for truth and veracity. This is not 
 allowable. He had not been, or attempted to be impeached as a wit-
 
 EXAMINATION of WITNESSES 133 
 
 ness, by the State, either by the introduction of evidence of bad 
 character on his part, or of statements made by him out of court, 
 contradictory of his testimony on the trial ; without which he would 
 not be permitted to sustain himself as a witness, by proof of his good 
 character for truth and veracity. The fact that his testimony con- 
 flicted with that of other witnesses gave him no right to introduce 
 evidence of his character. That constituted no impeachment. If the 
 defendant desired to avail himself of good character to be considered 
 by the jury, as a fact, on the question of guilt or innocence, which 
 we have said he had a right to do, he should have introduced his 
 general character, not limited to truth and veracity. 
 
 There is no error in the record and the judgment is affirmed. 
 
 Affirmed. 
 
 STATE v. SPERITUS. 
 Mo. 24. (1905) 
 
 BURGESS, P. J. On the 2Oth day of April, 1904, there was filed 
 an information in the office of the clerk of the Circuit Court of the 
 city of St. Louis by W. Scott Hancock, assistant circuit attorney of 
 said city, under his oath of office, charging the defendant with bur- 
 glary in the second degree and larceny. Upon trial had, defendant 
 was convicted of both burglary and larceny, and his punishment 
 fixed at three years' imprisonment in the penitentiary for the bur- 
 glary, and two years for the larceny. After unavailing motions for 
 new trial and in arrest of judgment, defendant appeals. 
 
 On the trial, the defendant testified in his own behalf and stated 
 that Vaughn, a witness for the State, was at work for him sometime 
 before the alleged burglary and larceny, and that he found out that 
 Vaughn had been stealing some stuff from him, defendant, and that 
 he paid him off and told him that he had no more work for him. 
 In rebuttal, over the objection of defendant, the State was permitted 
 to prove by Vaughn that he had never been arrested for stealing, 
 and by another witness, that Vaughn had a good reputation for hon- 
 esty. There was no ground laid for the introduction of this evidence 
 other than as stated, and defendant claims that its admission was 
 error. The argument is that defendant's statement that he had dis- 
 charged Vaughn was not intended as an impeachment of Vaughn
 
 134 CASES ON EVIDENCE 
 
 for veracity and honesty, but as a reason why he had stopped work- 
 ing for the defendant; that if it was not competent for that purpose, 
 the State's counsel should have objected and moved to strike it out, 
 or had the court limit its effect and purpose, and that it could not be 
 taken as a pretext for bolstering up the State's witness and case by 
 evidence of his good reputation. 
 
 While we fully appreciate the plausibility of this argument, we 
 are not impressed with its logic, and for these reasons: Conceding, 
 for the sake of the argument, that the testimony was not competent 
 for the purpose of impeaching Vaughn for veracity or honesty, the 
 State was not obliged to object, or move to strike it out, or to ask the 
 court to limit its effect and purpose, but it had a right to do as it 
 did do meet the charge by countervailing evidence. If a party to 
 a suit introduces illegal and incompetent evidence, it does not lie in 
 his mouth to say that, because the adverse party did not object to it 
 or move to strike it out, he is, therefore, bound by it and precluded 
 from introducing evidence tending to contradict it. Moreover, if a 
 party should object to the introduction of evidence reflecting upon 
 his character, or move to strike it out rather than meet it by evi- 
 dence tending to show it to be untrue, he would, by so doing, run the 
 risk of unfavorable inferences as to his character being drawn by 
 the court or jury. We recognize the rule that evidence is not ad- 
 missible to prove the good character of a witness or a party to a 
 suit unless it has in some way been assailed; and in the case in hand 
 we think Vaughn's character was assailed when it was said he was 
 a thief. 
 
 Reversed on other grounds. 
 
 HOWARD v. McDONOUGH. 
 77 N. Y. 592. (1879) 
 
 This action was brought to recover for the alleged unlawful taking 
 of the materials and fixtures of a job printing office, which were 
 seized by defendant McDonough as city marshal, under an execution 
 against a third person. 
 
 Upon the trial a witness for plaintiff testified that shortly after 
 the seizure he made a list or schedule of the articles which he knew 
 to have been taken and of their values, which the witness testified
 
 EXAMINATION ci* WITNESSES 135 
 
 he knew; the articles were very numerous. The witness was allowed 
 under objection and exception to use the list in testifying to the 
 articles and their value, and after he had gone through the list it was 
 offered and received in evidence under objection and exception. Held 
 no error. 
 
 The court laid down the rule as to the use of memoranda as fol- 
 lows: 
 
 "The law as to the use of memoranda by witnesses while testifying 
 is quite well settled in this State, i. A witness may, for the purpose 
 of refreshing his memory, use any memorandum, whether made by 
 himself or another, written or printed, and when his memory has 
 thus been refreshed, he must testify to facts of his own knowledge, 
 the memorandum itself not being evidence. 2. When a witness has 
 so far forgotten the facts that he cannot recall them, even after 
 looking at a memorandum of them, and he testifies that he once knew 
 them and made a memorandum of them at the time or soon after 
 they transpired which he intended to make correctly, and which he 
 believes to be correct, such memorandum, in his own handwriting, 
 may be received as evidence of the facts therein contained, although 
 the witness has no present recollection of them. 3. Memoranda 
 may be used in other cases which do not precisely come under either 
 of the foregoing heads. A store of goods is wrongfully seized, and 
 an action is brought to recover for the conversion. There are thou- 
 sands of items. No witness could carry in his mind all the items 
 and the values to be attached to them. In such a case, a witness may 
 make a list of all the items and their values, and he may aid his 
 memory while testifying by such list. He must be able to state that 
 all the articles named in the list were seized, and that they were of 
 the values therein stated, and he may use the list to enable him to 
 state the items. After the witness has testified, the memorandum 
 which he has used may be put in evidence, not as proving anything 
 of itself, but as a detailed statement of the items testified to by the 
 witness. The manner in which the memorandum, in such a case, 
 may be used is very much in the discretion of the trial judge. He 
 may require the witness to testify to each item separately, and have 
 his, evidence recorded in the minutes of the trial; and then the in- 
 troduction of the memorandum will not be important; or he may al- 
 low the witness to testify quite generally to the items and their values; 
 and receive the memorandum as the detailed result of his examination, 
 leaving to the adverse party a more minute cross-examination. With- 
 out the use of a memorandum in such cases, it would be difficult, if
 
 136 CASES ON EVIDENCE 
 
 not impossible, to conduct a trial involving the examination of ;i 
 large number of items. (Driggs v. Smith, 36 N. Y. Superior Ct, 283, 
 affirmed in this court; McCormick v. Penn. Central R. R. Co., 49 N. 
 
 Y. 303-)" 
 
 EARL, J., reads for affirmance. 
 All concur. 
 
 Judgment affirmed. 
 
 BANK v. ZORN. 
 14 S. C. 444. (1880) 
 
 This action was commenced January 7th, 1878, and was upon a 
 promissory note, made by J. B. Zorn, the defendant, on January 29th, 
 1876, for $157.51, payable to the order of Wroton & Bowling at 
 their office, in Charleston, on October ist, 1876, and endorsed before 
 maturity to the Bank of Charleston National Banking Association, 
 as collateral security to a note of Wroton & Dowling, given for money 
 borrowed from plaintiff, the collaterals being in the proportion of 
 about $2 for $i of principal debt. The note of Wroton & Dowling was 
 renewed several times after October ist, 1876, the defendant's note, 
 with other collaterals, remaining in the possession of the bank. 
 
 The evidence showed that Wroton & Dowling were cotton factors 
 and commission merchants in Charleston, and the defendant, a far- 
 mer, resident in Barnwell county, was one of their customers, the 
 note in suit having been given for supplies of merchandise advanced 
 defendant by them, the understanding being that it was to be met by 
 the proceeds of cotton to be shipped to them by defendant for sale 
 on commission, as was the general custom in Charleston between 
 factors and their country customers. 
 
 SIMPSON, C. J. It is objected, second, that an account current be- 
 tween the respondent and Wroton & Dowling was allowed to be 
 made use of by the defendant, respondent, as a witness, to refresh 
 his memory as to the amount of money in the hands of Wroton & 
 Dowling, at a certain date, sufficient to have discharged the note 
 in question and this is made the second ground of appeal. The rule 
 upon this subject, in its broadest outline, embraces two classes of 
 cases: first, where the witness, after referring to the paper, speaks 
 from his own memory, and depends upon his own recollection as to
 
 EXAMINATION of WITNESSES 137 
 
 the facts testified to; second, where he relies upon the paper and 
 testifies only because he finds the facts contained therein. In the first 
 class the paper is always permitted to be used by the witness without 
 regard to when or by whom made. 
 
 In the second class this rule of admission is much more stringent. 
 In fact, it cannot be used unless it be an original paper made by the 
 witness himself, and contemporaneously with the transaction referred 
 to. 
 
 Admitted under any other circumstances, it would be obnoxious to 
 the doctrine of hearsay and other important principles regulating the 
 admission of evidence, and would render the administration of jus- 
 tice uncertain and doubtful. The principles above laid down will 
 be found sustained in i Greenl., paragraph 436; State v. Rawls, 2 
 N. & McC. 331; Cleverly v. McCullough, 2 Hill 446; and O'Neale 
 v. Walton, i Rich. 234. In this case the account current was offered 
 in evidence, but, upon objection, was ruled out. The witness was 
 afterwards permitted to examine it, and upon this examination he 
 was prepared to speak from recollections, and did so speak, as it 
 appears from the record at least so we understand from the brief 
 agreed upon by the counsel. Whether he was entitled to credit, 
 testifying under such circumstances, or could speak from memory 
 after examining the paper, was for the jury, and is not a matter 
 before us. The question here is, was it legally competent for him 
 thus to testify? We think this case falls within the first class above 
 referred to, and that there was no error on the part of the circuit 
 judge in ruling the testimony competent. 
 
 The judgment below is affirmed and the appeal dismissed. 
 
 MclvER and McGowAN, A. J.'s, concurred. 
 
 MILLER v. PREBLE, Admr. 
 142 Ind. 632. (1895) 
 
 JORDAN, J. Appellee instituted this action against appellant, to 
 recover a money judgment, and to enforce a vendor's lien against 
 the real estate described in the complaint. 
 
 A trial, by jury, resulted in a verdict in favor of appellee, and over 
 appellant's motion for a new trial judgment was rendered for the
 
 138 CASES ON EVIDENCE 
 
 amount assessed by the jury, and for a foreclosure of the lien in 
 question. 
 
 The first contention of the appellant's learned counsel is, that there 
 was error in the trial court, allowing one John Ingles, a witness in 
 behalf of appellee to testify relative to certain statements mad* by 
 appellant in a former examination. This question is not clearly pre- 
 sented by the record, for the reason that the objections and exceptions 
 interposed by appellant to the evidence, and the ruling of the court 
 thereon, are so irregular and in such confusion in the bill of excep- 
 tions as to leave the question in doubt as to what were the grounds 
 of the objections made. It may be said to appear, however, from the 
 statements of Ingles, when on the witness-stand, that he was a ste- 
 nographer, and that previous to the trial he had acted in that capacity, 
 in taking down in shorthand notes an examination of appellant, had 
 before one Jacob Kroch, whose official character, if any is not dis- 
 closed. Appellee, for the purpose of impeachment, sought to prove 
 by this witness, that the appellant had, upon the occasion of this 
 examination, made statements upon certain material points which 
 were different from those made by him upon the trial, relative to 
 the same points. 
 
 It further appears that the witness, after refreshing his memory 
 by his shorthand notes made by him upon the aforesaid occasion, read 
 therefrom to the jury certain parts of appellant's examination, bear- 
 ing upon the question involved. The witness stated that after re- 
 freshing his memory by these notes he remembered, independently 
 thereof that the statements which he had read to the jury were those 
 made by the appellant upon said examination. There is no contention 
 that these statements as given to the jury by this witness were not 
 correct. 
 
 Under the facts, so far as they are disclosed to us by the record, 
 the court did not err in permitting this witness to thus testify. Sage 
 v. State, 127 Ind. 15; Bass v. State, 136 Ind. 165. 
 
 But appellant's counsel urge and say "That this examination bore 
 the signature of appellant, and was taken under the statute, and if 
 appellee desired to use it upon the trial to impeach appellant, as a 
 witness, he ought to have introduced the written examination as an 
 entirety and not in parts." But this latter proposition is not borne 
 out or presented by the record, inasmuch as it does not appear there- 
 from, that the examination in question was taken before any author- 
 ized officer, or that it had been filed as a deposition in court, or that 
 it c rhted at the time of the trial in any other form than the short-
 
 EXAMINATION OF WITNESSES 139 
 
 hand notes of the stenographer. Surely if the examination had been 
 taken by appellee, and filed under the statute, and had the latter 
 seen fit to have used it upon the trial to impeach appellant, he could 
 not have been compelled to read the entire deposition to the jury, 
 but would have been permitted to select and read such parts, if he 
 desired, as tended to contradict or impeach the witness upon the 
 material point in question. In this event, however, appellant would 
 have had the right, at the proper time, to have read to the jury so 
 much, or all, if necessary and pertinent, as tended to explain or 
 modify the statements introduced against him, or as tended to show 
 that his testimony on the examination upon the point involved was 
 consistent with the statements made by him upon the trial. Bass v. 
 State, supra. 
 
 The next alleged error of which appellant complains is that of 
 the court in admitting the depositions of Catherine Earley and W. S. 
 Young, for the reason, as insisted, that these depositions embraced 
 evidence in chief only. The cause was to put at issue by a denial, 
 and plea of payment, and the depositions in controversy seem to con- 
 tain evidence, which at least tends to rebut that of appellant given 
 under his plea of payment, and therefore they were proper to be 
 read to the jury in rebuttal. But if it were conceded that these depo- 
 sitions were wholly in chief, it however was within the discretion of 
 the court to admit them at any stage of the trial, and unless an 
 abuse of this discretion, prejudicial to appellant, was properly dis- 
 closed by the record, the action of the court in admitting them in re- 
 buttal would not alone constitute reversible error. Western Union 
 Tel. Co. v. Buskirk, 107 Ind. 549; Stewart v. Smith, in Ind. 526. 
 
 There is no apparent available error, and the judgment is therefore 
 
 Affirmed. 
 
 OVERTOOM v. C. & E. I. R. R. CO. 
 
 181 III. 323. (1899) 
 
 MR. JUSTICE CARTER delivered the opinion of the court: 
 
 The appellant brought her action against appellee, in the Superior 
 
 Court of Cook County, to recover damages for the alleged wrongful 
 
 killing of her intestate, Adrian Overtoom. There was a verdict and 
 
 a judgment for the defendant, which judgment has been affirmed by
 
 140 CASES ON EVIDENCE 
 
 the Appellate Court. The errors alleged by appellant on this her 
 further appeal relate to the admission and exclusion of evidence and 
 to the giving and refusing of instructions. 
 
 Edward H. Senniff, who, acting as attorney and stenographer for 
 appellee took in shorthand notes the testimony of the witnesses at 
 the coroner's inquest and upon the trial below, was called as a 
 witness on appellee's behalf, testified that his notes were correct, and 
 against the objection of appellant, was permitted to read to the jury 
 his notes so taken of the testimony of Thomas J. Silverman, a wit- 
 ness for appellant, for the purpose of impeaching Silverman. Silver- 
 man had testified on the trial that he was about one hundred yards 
 away and saw the train strike Overtoom, and that he ran to him and 
 helped turn him over; that the gates were open at the time and that 
 the train was running thirty or thirty-five miles an hour; that he did 
 not hear the bell ring or whistle blow; that the freight train made a 
 great deal of noise. The witness Senniff read from his notes to the 
 effect that Silverman testified at the coroner's inquest that the gates 
 were down at the time of the accident. Senniff testified that he 
 remembered in a general way, what the testimony was, but could not 
 say that he had any independent recollection outside of his notes. 
 The witness did not pretend to testify from memory refreshed by 
 his notes, but read his translation of so much of his notes to the 
 jury as evidence as was called for, the court remarking on overruling 
 plaintiff's objection, that it was "much better than testifying from 
 memory." It is not necessary in this case to consider whether the 
 notes of testimony taken by one who was present and heard it, and 
 who swears to their correctness, may not in some cases be competent 
 as the best evidence of what that testimony was. (See Mineral Point 
 Railroad Co. v. Keep, 22 111. 9; Roth v. Smith, 54 id. 431; Iglehart 
 v. Jernegan 16 id. 513; Schoonover v. Myers, 28 id. 308; Wilson v. 
 Genseal, 113 id. 403; Kankakee and Seneca Railroad Co. v. Horan, 
 131 id. 288; Luetgart v. Volker, 153 id. 385; Brown v. Luehrs, 79 id. 
 575.) But in Phares v. Barber, 61 111. 271, this court held that it 
 was not error to exclude a transcript of a stenographic report of a 
 witness' former testimony, offered for the purpose of contradiction. 
 In the case at bar, the stenographer's notes, or the transcript of them, 
 were incompetent for another reason: The testimony of Silverman 
 was taken by the coroner, and, as the statute required it, we will 
 presume it was written out and signed by the witness and filed and 
 preserved in the office of the Coroner. (Rev. Stat. chap. 31, sec. 18.) 
 Had his deposition thus taken been produced and Silverman's atten-
 
 EXAMINATION OF WITNESSES 141 
 
 * 
 
 tion properly directed to it, it could have been used to contradict him 
 (Consolidated Ice Machine Co. v. Keifer, 134 111. 481; United States 
 Life Ins. Co. v. Vocke, 129 id. 557.) That deposition was the best 
 evidence, and the stenographer's notes were not admissible. 
 
 The error in allowing the notes of Senniff to be read in evidence 
 was intensified by the following erroneous instruction given at the 
 request of the defendant: 
 
 "The jury are instructed that if they believe any witness has testi- 
 fied falsely, then the jury may disregard such witness' testimony, 
 except in so far as it may have been corroborated by other credible 
 evidence in the case which you believe to be true." 
 
 A witness may have testified falsely upon some matter inquired 
 about, from forgetfulness or honest mistake, and in such case the 
 jury would not be authorized to disregard his entire testimony, 
 whether corroborated or not. It is the corrupt motive, or the giving 
 of false testimony, knowing it to be false, that authorizes a jury to 
 disregard the testimony of a witness and the court to so instruct them. 
 (Pollard v. People, 69 111. 148; Pennsylvania Co. v. Conlan, 101 id. 
 93; ii Encyc. of PI. & Pr. 304.) Standing alone, this instruction 
 has other patent defects not necessary here to mention. 
 
 The judgment of the Appellate Court and that of the Superior 
 Court are both reversed, and the cause is remanded to the latter court 
 for further proceedings not inconsistent with what we have here said. 
 
 Reversed and remanded. 
 
 COMMONWEALTH v. JEFFS. 
 132 Mass. 5. (1882) 
 
 Indictment for the manslaughter of James M. Jeffs, at Gloucester, 
 on September i, 1881. 
 
 At the trial in the Superior Court, before Rockwell, J., the govern- 
 ment offered evidence of statements made and evidence given by the 
 defendant at the inquest. To contradict this evidence, the defendant 
 called one Stickney, a short-hand reporter and editor of a newspaper 
 in which a report of the defendant's statements and evidence at the 
 inquest had been published, and asked him what the defendant said 
 at the inquest. He answered, that he could state by refreshing his 
 memory by the report in the newspaper, and was allowed to so re-
 
 142 CASES ON EVIDENCE 
 
 fresh his memory; but, as the defendant's counsel was in the act of 
 handing him the paper, the witness said that, upon reflection, he did 
 not need to look at it, and did not actually take the paper in his hands 
 at that time, but proceeded to give his evidence. The reporter aho 
 stated, that his minutes of the evidence had gone into the waste- 
 basket, and that the newspaper only contained from one-third to one- 
 half of the full evidence, being the most important part of the same. 
 
 On cross-examination, the witness was asked a question by the 
 government, and replied that he could better answer the question if 
 he was allowed to refresh his memory from said newspaper, where- 
 upon the attorney for the government said, "Very well, you may do 
 so." He refreshed his memory from the newspaper, and then an- 
 swered. The counsel for the defendant then asked to have the news- 
 paper read to the jury, or so much of the report in it as related to the 
 inquiry of the government. The judge, on the objection of the govern- 
 ment, excluded the same. The defendant alleged exceptions. 
 
 ENDICOTT, J. A witness may be allowed to refresh his memory by 
 looking at a printed or written paper or memorandum, and, if he 
 thereby recalls a fact or circumstance, he may testify to it. It is 
 not the memorandum which is evidence, but the recollection of the 
 witness. We are not aware of any case where it has been held that 
 the memorandum could be put in evidence simply because it refreshed 
 the memory of the witness. Commonwealth v. Ford, 130 Mass. 64. 
 In that case, and in many of the cases cited therein, it is stated that 
 the memorandum per se cannot be used in evidence. 
 
 In Field v. Thompson, 119 Mass. 151, it was held that the memo- 
 randum was not competent and that it could not be put in evidence 
 in confirmation of the recollection of the witness. Alcock v. Royal 
 Exchange Assur. Co., 13 Q. B. 292. On the other hand, where a wit- 
 ness produces a memorandum to assist his memory, the opposite party 
 is entitled to inspect it, and he may cross-examine the witness in re- 
 gard to it; and it may be shown to the jury, not for the purpose of 
 establishing the facts therein contained, but for the purpose of show- 
 ing that it could not properly refresh the memory of the witness. 
 But even in such a case, only those portions of the memorandum 
 which relate to the cause on trial and the testimony of the witness 
 can be put in evidence. Commonwealth v. Haley, 13 Allen, 587. 
 
 In Dugan v. Mahoney, n Allen, 572, it was held that if a witness, 
 upon looking at a memorandum made by him at the time, is able to 
 testify to the delivery of goods, the testimony is admissible, although 
 the witness ba< no present memory of the transaction, and the mem-
 
 EXAMINATION OF WITNESSES 143 
 
 orandum itself is incompetent. In that case, the memorandum con- 
 sisted of certain entries made in a book, and it was said in the opin- 
 ion, that the books were properly submitted to the jury, because the 
 testimony of the witness to his positive knowledge of the fact in issue 
 and his means of knowledge were regularly before the jury, and it 
 was for the jury to consider them. See Rex v. Ramsden, 2 C. & P. 
 603. So a witness may be required in the discretion of the court to 
 look at memoranda or papers to aid his recollection. Chapin v. Lap- 
 ham, 20 Pick. 467. And in Commonwealth v. Fox, 7 Gray, 585, a 
 witness was called who could not read or write, and a paper signed 
 with her mark was produced as a memorandum to refresh her recol- 
 lection; and it was held that the paper could not be read to the wit- 
 ness in the presence of the jury, but that the witness should withdraw 
 with one of the counsel on each side and the paper should be read 
 to her without comment. 
 
 In the case at bar, one of the witnesses for the defendant was 
 allowed, in answer to a question put by the attorney for the govern- 
 ment, upon cross-examination to refresh his memory from a report, 
 published in a newspaper, of the defendant's statements at the in- 
 quest, and the defendant thereupon, without putting any question to 
 the witness, asked to have so much of the paper as related to the 
 inquiry by the district attorney read to the jury. The court excluded 
 it. It does not appear what facts the witness testified to after look- 
 ing at the paper, or what were the contents of the report, or that the 
 same was called to the attention of the presiding judge, or that it 
 was offered for the purpose of showing that it could not properly 
 refresh the memory of the witness, or that any reason was given or 
 any ground was stated why it was admissible. It is consistent with 
 the bill of exceptions that the defendant offered it for the purpose 
 of confirming the testimony of her own witness. 
 
 It may be that under certain circumstances the paper might prop- 
 erly have been admitted, but, as the case is stated, it falls within 
 none of the exceptions to the general rule, that a memorandum 
 used to refresh the memory of a witness is not in itself evidence for 
 the jury. The bill of exceptions affords us no means of determining 
 that its exclusion was wrong. 
 
 Exceptions overruled.
 
 PART m. 
 
 PRINCIPLES AND RULES OF EXCLUSION. 
 
 RELEVANCY AND MATERIALITY. 
 
 HUDSON v. C. & N. W. R. R. CO. 
 5P Iowa 581. (1882) 
 
 Plaintiff claims damages in the sum of one hundred dollars for an 
 injury to a horse, alleged to have been caused by a defective cross- 
 ing over defendant's road; the defect consisting in placing the plank 
 on the inside of one of the iron rails of the road so far from the 
 rail that, in driving the horse over the crossing, he stepped into the 
 aperture thus made, and was injured and crippled. 
 
 There was a trial by jury and a verdict and judgment for the plain- 
 tiff. Defendant appeals. 
 
 ROTHROCK, J. Plaintiff introduced a witness who testified "that, 
 some six months before the accident complained of, a horse driver! 
 by him over the crossing in question got his foot between the plank 
 and the rail at the same place where plaintiff's horse was injured. 
 The defendant objected to this testimony as incompetent. The objec- 
 tion was overruled and an exception taken. Upon this point in the 
 case the Circuit Court certified the following question: "Ought the 
 court to have admitted evidence of former accidents at the same 
 place to parties other than the plaintiff?" 
 
 In Collins v. Inhabitants of Dorchester, 6 Cush. 396, the plaintiff 
 was injured by driving against a post in a highway. He sought to 
 prove that another person had met with precisely the same kind of 
 accident before, at the same place, and from the same cause. 
 
 In determining the question the court said: "The testimony of 
 Sprague that he, before the injury complained of by the plaintiff, 
 received a similar injury at or near the same place, without any neg- 
 ligence on his part, was not competent for the purpose of proving 
 that the road was defective at the time and in the place of the plain- 
 tiff's injury. It was testimony concerning collateral facts which fur- 
 nish no legal presumption as to the principal facts in dispute, and 
 which defendants were not bound to be prepared to meet. 2 Stark, 
 on Ev., 381 ; I Green. Ev. sec. 52." 
 
 144
 
 RELEVANCY AND MATERIALITY 145 
 
 Parker v. Portland Publishing Company, 69 Maine, 173, was an 
 action to recover damages for negligence in not properly lighting a 
 passage way. Evidence was received tending to show at different 
 times the condition of the hallway and the entrance to the rooms of 
 the building as to light whether more or less or none and of what 
 had happened to other men at other times, and of their fortunate 
 escape from peril. The court, Appleton, J., said: "These facts were 
 all collateral to the main issue, and should have been excluded." Cit- 
 ing i Greenleaf on Evidence, Sec. 52. It was further said: "If evi- 
 dence of this character is receivable, contradictory proofs would 
 be admissible, and there would be as many collateral issues as there 
 were collateral facts and witnesses testifying to them." It was held 
 that allowing such evidence to be introduced was against the entire 
 weight of judicial authority; citing Hubbard v. R. R., 39 Maine, 506; 
 Aldrich v. Pelham, i Gray, 510; Kidder v. Dunstable, n id. 342; and 
 other cases. 
 
 In Blair v. Pelham, 118 Mass. 420, an action for a personal in- 
 jury caused by a defect in a highway, it was held that what happened 
 at the same place a year before was rightly rejected. 
 
 A different rule was announced in the case of Kelley v. The South- 
 ern Minn. R. R. Co., Sup. Court of Minn., N. W. Rep., Vol. 9, 588. 
 But it appears in that case that the testimony objected to showed 
 that the accident to which it related "was produced by a different 
 cause, and at a point in the crossing about the condition of which 
 there was no complaint," and the court held that the defendant, if it 
 deemed the evidence prejudicial, should have moved to have it stricken 
 out. The rule as stated in the opinion in that case is not discussed, 
 and no authority is given in its support. 
 
 We think, both upon principle and authority, the evidence in ques- 
 tion was improperly admitted, and that the question certified must be 
 answered in the negative. 
 
 Reversed. 
 
 HOUSE v. METCALF. 
 27 Conn. 631. (1858) 
 
 Action on the case for damage from a nuisance. The declaration 
 alleged that the defendant, on the 2ist day of March, 1857, was pos- 
 sessed and in the actual occupation and use of a certain gristmill, 
 in the town of Lebanon, erected within the inclosed limits of a cer-
 
 146 CASES ON EVIDENCE 
 
 tain highway and within twenty feet of the traveled path, which was 
 operated by a large overshot water wheel, uninclosed and uncovered, 
 which when in motion was calculated to frighten horses ; that the 
 mill and wheel were, and ever since they had been erected had been 
 a public nuisance; and that, on said 2ist day of March, the plaintiff 
 was driving by the mill, along the traveled path, in a buggy, with a 
 valuable horse belonging to him, and was using care and skill in 
 driving w r hen the horse became frightened at the water wheel, which 
 was in motion, and to such a degree that the plaintiff could not con- 
 trol him, and ran with great violence until he fell and threw out the 
 plaintiff with great force upon the ground, hurting him seriously, and 
 greatly injuring the horse and breaking the buggy in pieces. The case 
 was tried by the jury, on the general issue. 
 
 On the trial, the plaintiff, for the purpose of showing that the mill 
 was a nuisance, offered one Arabella Cobb as a witness, to prove that 
 in the year 1844, when the mill was the same in all respects, she 
 was driving along the highway leading by the mill, when the wheel 
 was in motion, and that her horse became frightened thereby. The 
 plaintiff did not claim that this fact was ever known to the defendant. 
 To the admission of this testimony the defendant objected, but the 
 court admitted it. 
 
 SANFORD, J. I. The defendant claims that the testimony of Ara- 
 bella Cobb, to prove that the same wheel which frightened the plain- 
 tiff's horse also frightened hers, ought not to have been received. 
 
 We think it was properly admitted. The plaintiff's claim was, 
 that the wheel in motion was an object naturally calculated to frighten 
 horses traveling on the public road, and was, therefore, a public nui- 
 sance. And we think he had a right, not only to show the facts 
 regarding its size, form, location, exposure to view, and mode of op- 
 eration, from which the jury might infer what effects it would 
 naturally, necessarily, or probably produce, but also to prove what 
 effects it had produced in fact. A single instance should indeed be 
 of little avail standing alone. A number of instances might afford 
 satisfactory, if not demonstrative evidence. And the inquiry in every 
 such case is, not whether the evidence offered is sufficient to prove 
 the fact claimed but whether it tends to prove it. 
 
 It is claimed that the evidence was objectionable because it pre- 
 sented a new issue to the triers, and operated as a surprise upon the 
 defendant. That the, reception of the evidence rendered proper an 
 inquiry into the character of Miss Cobb's horse, and her ability to 
 manage him, and, indeed, into all of the circumstances under which
 
 RELEVANCY AND MATERIALITY 147 
 
 i 
 
 the accident occurred, is not to be denied; as the value of the result 
 always depends upon the fairness of the experiment, and the triers 
 cannot know how to appreciate the one, until the other is made 
 known to them. But every piece of evidence, introduced in any 
 case, is, or may be, subjected to the same or similar tests, and can- 
 not for that reason be rejected. And because the fact to be estab- 
 lished to wit, that the wheel was an object of terror to horses, was 
 directly involved in the issue on the record, and the evidence objected 
 to tended to establish it, and therefore to prove the issue, the defend- 
 ant was bound to come prepared to meet it. It was of no importance 
 that the defendant was ignorant of Miss Cobb's misfortune. The 
 question was, whether testimony that her horse was frightened by 
 the wheel conduced to prove that wheel a nuisance; and the defend- 
 ant's ignorance of the accident had no bearing on the question. 
 
 New Trial not Advised. 
 
 GRAND TRUNK R. R. CO. v. RICHARDSON. 
 9 i U. S. 454- (1875) 
 
 This is an action by the defendants in error to recover damages for 
 the destruction of their saw-mill, lumber-shed, store, boardinghouse, 
 manufactured 'lumber, and other personal property, by fire, alleged to 
 have been communicated by a locomotive engine of the plaintiff in 
 error on the seventh day of June, 1870. 
 
 MR. JUSTICE STRONG delivered the opinion of the court: 
 The plaintiffs below were permitted to adduce evidence that those 
 of the injured buildings which were within the lines of the road 
 way had been erected within those lines by the license of the com- 
 pany, for the convenience of delivering and receiving freight. The 
 admission of this evidence is the subject of the first assignment of 
 error; and in its support it has been argued that it was the duty of 
 the railroad company to preserve its entire road way for the use for 
 which it was incorporated; that it had no authority to grant licenses 
 to others to use any part thereof for the erection of buildings ; and, 
 therefore, that the license to the plaintiff's, if any was made, was 
 void. Thus the basis of the objection to the evidence appears to be, 
 that it was immaterial. We are, however, of opinion that it was 
 properly admitted. If the buildings of the plaintiffs were rightfully 
 where they were, if there was no trespass upon the roadway of the 
 company, it was clearly a pertinent fact to be shown; and while it
 
 148 CASES ON EVIDENCE 
 
 
 must be admitted that a railroad company has the exclusive control 
 of all the land within the lines of its roadway, and is not at liberty 
 to alienate any part of it so as to interfere with the full exercise of 
 the franchises granted, we are not prepared to assert that it may not 
 license the erection of buildings for its convenience,' even though 
 they may be also for the convenience of others. It is not doubted 
 that the defendant might have erected similar structures on the 
 ground on which the plaintiffs' buildings were placed, if in its judg- 
 ment the structures were convenient for the receipt and delivery of 
 freight on its road. Such erections would not have been inconsistent 
 with the purposes for which its charter was granted. And, if the 
 company might have put up the buildings, why might it not license 
 others to do the same thing for the same object; namely, the increase 
 of its facilities for the receipt and delivery of freight? The public 
 is not injured, and it has no right to complain, so long as a free and 
 safe passage is left for the carriage of freight and passengers, T,here 
 is, then no well-founded objection to the admission of evidence of a 
 license, or evidence that the plaintiff's buildings were partly within 
 the line of the roadway by the consent of the defendant. 
 
 The second assignment of error is, that the court excluded testi- 
 mony offered by the defendant to show that the usual practice of 
 railroad companies in that section of the country was not to employ 
 a watchman for bridges like the one destroyed. It is impossible 
 for us to see any reason why such evidence should have -been ad- 
 mitted. The issue to be determined was, whether the defendant had 
 been guilty of negligence; that is, whether it had failed to exercise 
 that caution and diligence which the circumstances demanded, and 
 which prudent men ordinarily exercise. Hence the standard by which 
 its conduct was to be measured was not the conduct of other railroad 
 companies in the vicinity; certainly not their usual conduct. Besides, 
 the degree of care which the law requires in order to guard against 
 injury to others varies greatly according to the circumstances of 
 the case. When the fire occurred which caused the destruction of 
 the plaintiffs' buildings, it was a very dry time, and there was a high 
 wind. At such a time, greater vigilance was demanded than might 
 ordinarily have been required. The usual practice of other companies 
 in that section of the country sheds no light upon the duty of the 
 defendant when running locomotives over long wooden bridges, in 
 near proximity to frame buildings, when danger was more than com- 
 monly imminent. 
 
 The third assignment of error is, that the plaintiffs were allowed
 
 RELEVANCY AND MATERIALITY 149 
 
 to prove, notwithstanding objection by the defendant, that, at various 
 times during the same summer before the fire occurred, some of the 
 defendant's locomotives scattered fire when going past the mill and 
 bridge, without showing that either of those which the plaintiffs 
 claimed communicated the fire was among the number, and without 
 showing that the locomotives were similar in their make, their state 
 of repair or management, to those claimed to have caused the fire 
 complained of. The evidence was admitted after the defendant's case 
 had closed. But, whether it was strictly rebutting or not, if it 
 tended to prove the plaintiffs' case, its admission as rebutting was 
 within the discretion of the court below, and not reviewable here. 
 The question, therefore, is, whether it tended in any degree to show 
 that the burning of the bridge, and the consequent destruction of 
 the plaintiff's property, were caused by any of the defendant's loco- 
 motives. The question has often been considered by the courts in 
 this country and in England; and such evidence has, we think been 
 generally held admissible, as tending to prove the possibility, and 
 consequent probability, that some locomotive caused the fire, and as 
 tending to show a negligent habit of the officers and agents of the 
 railroad company. Piggott v. R. R. Co., 3 M. G. & S. 229 ; Sheldon v. 
 R. R. Co., 14 N. Y. 218; Field v. R. R. Co., 32 id. 339; Webb v. R. R. 
 Co., 49 id. 420; Cleveland v. R. R. Co., 42 Vt. 449; R. R. Co. v. Wil- 
 liams, 42 111. 358; Smith v. R. R. Co., 10 R. G. 22; Longabaugh v. R. R. 
 Co., 4 Nev. 811. There are it is true, some cases that seem to assert 
 the opposite rule. It is, of course, indirect evidence, if it be evidence 
 at all. In this case it was proved that engines run by the defendant 
 had crossed the bridge not long before it took fire. The particular 
 engines were not identified; but their crossing raised at least some 
 probability, in the absence of proof of any other known cause, that 
 they caused the fire ; and it seems to us, that, under the circumstances, 
 this probability was strengthened by the fact that some engines of the 
 same defendant, at other times during the same season, had scattered 
 fire during their passage. We cannot, therefore, sustain this assign- 
 ment. 
 
 The judgment is, therefore, affirmed.
 
 150 CASES ON EVIDENCE 
 
 MILLER v. PENDLETON. 
 74 Mass. 547. (1857) 
 
 Action of tort against a ferryman on the Connecticut River, for 
 the loss of the plaintiff's horse and wagon by the negligence of the 
 defendant's servants while crossing the ferry. 
 
 At the trial in the Court of Common Pleas in Hampden, before 
 BISHOP, J., the plaintiff introduced evidence tending to show that 
 there was a chain at the forward end of the boat, which, if it had 
 been fastened up, would have prevented the horse from going over r 
 board. The defendant offered evidence, which was admitted without 
 objection, that his custom was to have the chain put up when pas- 
 sengers requested it and not otherwise, and that the person in charge 
 of the plaintiff's horse and wagon did not request it. He also offered 
 to prove that it was customary, at other ferries on the Connecticut 
 River, to have a chain, and manage it in a similar way. But this evi- 
 dence was objected to, and excluded. 
 
 BY THE COURT. The evidence of custom was rightly rejected, 
 for several reasons. It did not tend to prove a general usage, or 
 to prove that the defendant's custom was right in this particular 
 case. The usage sought to be proved would not be a good usage if 
 it prevailed; it would make the safety of the passenger depend upon 
 his own conduct, and not on the care and vigilance of the ferryman. 
 If the putting up of the chain was a reasonable and proper precaution, 
 it ought to be put up by the ferryman, without a request; if it was 
 not, a request would not make it so. 
 
 Exceptions overruled. 
 
 SHELDON v. THE HUDSON RIVER R. R. CO. 
 14 N. Y. 218. (1856) 
 
 This action was to recover the value of a building called the mill- 
 house, and its contents, which stood upon the plaintiff's premises 
 in Greenburgh, Westchester county, about sixty-seven feet from the 
 track of the defendant's railroad. The complaint alleged that in 
 February, 1852, the defendants so carelessly and unskill fully ran 
 and managed a locomotive steam engine, which was imperfectly, un-
 
 RELEVANCY AND MATERIALITY 151 
 
 4 
 
 skillfully and negligently constructed, over their road, that sparks 
 and coals of fire escaped from the engine and communicated fire to 
 the building which, with all its contents, was consumed. The an- 
 swer denied the complaint. The cause w r as tried before Justice S. 
 B. Strong and a jury at the Westchester County Circuit Court, and 
 the plaintiff was non-suited. The plaintiff made a bill of exceptions, 
 and on appeal the judgment was affirmed at a general term in the 
 second district. The plaintiff appealed to this court. The only ques- 
 tion decided by this court was an exception to the exclusion of evi- 
 dence offered by the plaintiff. This question is stated in the opinion, 
 by Denio, C. J. 
 
 DENIO, C. J. The plaintiff owned and possessed a building used 
 as a storehouse, in Greenburgh, Westchester county, standing on 
 the easterly side of the defendants' road, and about sixty-seven and 
 one-half feet from the track. It was in the charge of two of the 
 plaintiff's servants. The outer doors were kept locked, and no fire 
 was in it. On the /th of February, 1852, it took fire and w r as con- 
 sumed. It was proved that about twenty-five minutes before the fire 
 was discovered, a train of cars of the defendants drawn by a loco- 
 motive engine called the Oneida, passed the place. On the first floor 
 of the building there was a parcel of shavings and a quantity of 
 lumber, and some of the glass in the windows of that story had been 
 broken. As I understand the testimony, the place where the fire was 
 first seen was on this floor, and not far from one of the windows. 
 Having proved these facts, and that the day on which the fire took 
 place was windy, tfye direction of the wind being towards the building, 
 and the persons in charge having sworn that no person, to their 
 knowledge, had been in it during that day, the plaintiff proposed to 
 prove, by a witness who lived close to the railroad and about one- 
 fourth of a mile from the building, that shortly before it was burned 
 he had seen sparks and fire thrown from the engines used by the 
 defendants in running their trains, through the witness' premises, a 
 greater distance than this building stood from the track of the rail- 
 road, and that he had picked up from the track after the passage 
 of the trains, lighted coals more than two inches in length. The evi- 
 dence was objected to by the defendant's counsel and excluded by 
 the court. The plaintiff's counsel excepted. 
 
 It is argued by the defendants' counsel that the evidence offered 
 and rejected was too remote and indefinite to have a just influence 
 upon the particular question in issue in the case ; that it did not refer 
 to any particular engine, and that it may be that the one which ran
 
 152 CASES ON EVIDENCE 
 
 past the plaintiff's premises, just before the discovery of the fire, was 
 a quite different one from those which scattered fire on occasion 
 to which the evidence offered would apply. This argument is not 
 without force; but at the same time I think it is 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 cannot readily distinguish one from 
 another. It will, therefore, generally happen that when the prop- 
 erty of a person is set on fire by an engine, the owner, though 
 he may be perfectly satisfied that it was caused by an engine, and 
 may be able to show facts sufficient legitimately to establish it, yet 
 he may be utterly ignorant what particular engine, or even what par- 
 ticualr train did the mischief. It would be, practically, quite im- 
 possible 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 the operation. I think, therefore, it is 
 competent prima facie evidence for a person seeking to establish 
 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 ilkely to set on fire objects not more remote 
 than the property burned. 
 
 The judgment must be reversed and there must be a t\ew trial. 
 
 CROCKER v. MCGREGOR. 
 
 76 Me. 282. (1884) 
 
 On exception and motion to set aside the verdict, by the defendant. 
 
 LIBBEY, J. This action comes before this court on exceptions and 
 motion. It is for an injury to the female plaintiff, alleged to have 
 been caused by the fright of her horse by steam escaping from the 
 defendant's mill, situated on the margin of the public highway, which 
 the plaintiff alleges was a public nuisance to the travel over the way. 
 
 The exception is to the admission of evidence produced by the
 
 RELEVANCY AND MATERIALITY 153 
 
 plaintiff. Witnesses for the plaintiff were permitted to testify that 
 when travelling by the mill with horses well broken and ordinarily 
 safe, their horses were frightened by the escaping steam. This evi- 
 dence was limited to a short time before and after the plaintiff's 
 injury, when the mill was in the same condition as when she was in- 
 jured; and was admitted for the sole purpose of showing the ca- 
 pacity of the escaping steam to frighten the ordinary horses. We 
 think it was properly admitted. 
 
 The issue was, whether the mill as constructed and used, with 
 the steam escaping into the way, was a nuisance to the public 
 travel. Evidence showing that it naturally frightened ordinary horses 
 when being driven by it, was competent to show its effect upon the 
 public travel, its character and its capacity to do mischief. Its effect 
 on horses was not dependent upon the acts of men, which may be 
 the result of incapacity or negligence, but was caused by action of 
 the inanimate thing upon an animal acting from instinct. It was 
 not to show that other parties were injured at the same place by the 
 same cause, and is, therefore, distinguishable from cases against 
 towns for injury from defects in a highway, in which this court 
 has held that evidence of accidents to others at the same place is 
 inadmissible, because it raised too many collateral issues. Here the 
 only issue is the effect to the sight and sound of the steam upon ordi- 
 nary horses, as tending to show that travel over the way was thereby 
 rendered dangerous. Hill v. P. & R. Railroad Co., 55 Me. 439; Bur- 
 bank v. Bethel Steam Mill Co., 75 Me. 373. We think the compe- 
 tendency of the evidence rests upon the same principle as evidence in 
 actions against railroad corporations for damage by fire, alleged to 
 have been set by coals or sparks from a passing locomotive, that 
 the same locomotive, or others similarly constructed and used, have 
 emitted sparks and coals, and set fire at other places and on other 
 occasions. It tends to show the capacity of the inanimate thing to 
 do the mischief complained of. Grand Trunk R. Co. v. Richardson, 
 91 U. S. 454- 
 
 Exceptions and motion overruled. 
 
 PETERS, C. J., WALTON, DANFORTH and VIRGIN, JJ., concurred.
 
 154 CASES ON EVIDENCE 
 
 LORING v. WORCESTER & NASH R. R. CO. 
 131 Mass. 469. (1881) 
 
 Tort for the destruction of the plaintiff's property at Sterling 
 Junction, by fire alleged to have been communicated from a locomotive 
 engine of the defendant, on Saturday, June 29, 1878. At the trial 
 in the Superior Court, before Aldrich, J., the jury returned a verdict 
 for the defendant; and the plaintiff alleged exceptions to the ex- 
 clusion of certain evidence, the nature of which appears in the opinion. 
 
 MORTON, J. The defendant introduced evidence that the engine, 
 which the plaintiff contended communicated fire to his barn, "was 
 furnished with the ordinary appliances of a cone and netting for 
 arresting sparks, which netting was examined on arrival at Wor- 
 cester on the return trip the following Monday and found to be 
 whole and in good condition." It was accompanied by evidence that 
 the engine on the return trip was in the same condition and used 
 the same kind of fuel as on the outward trip on Saturday. The 
 obvious purpose of the evidence was to induce the jury to believe 
 that the engine on the trip on Saturday could not emit sparks which 
 would communicate fire to the plaintiff's barn. 
 
 We are of opinion that it was competent for the plaintiff to show 
 that the engine on the return trip emitted sparks which set fire to 
 property in the same neighborhood. Such evidence tended to show 
 that the spark-arrester, testified to by the defendant's witnesses, was 
 either faulty in construction or out of repair, and thus to rebut the 
 presumption which the jury might draw from the defendant's evi- 
 dence, which it tended to contradict and control. Ross v. Boston & 
 Worcester Railroad, 6 Allen, 87. 
 
 Exceptions sustained. 
 
 HEWITT v. TAUNTON STREET RY. CO. 
 167 Mass. 483. (1897) 
 
 Tort, by the administrator of the estate of Frederick Hewitt, for 
 causing his death. 
 
 At the trial in the Superior Court, before Lilley, J., it appeared 
 that the plaintiff's intestate was a child three years and eight months
 
 RELEVANCY AND MATERIALITY 155 
 
 old, and lived with his parents on Bay Street in Taunton, which was 
 one of the main thoroughfares in the city, and upon which the defend- 
 ant's electric railway ran; that, on the day of the accident, the child's 
 father came home about five o'clock in the afternoon and went di- 
 rectly into the house, leaving the child alone in the yard, where he 
 was then playing; that the yard adjoined the sidewalk, having a fence 
 with gates opening thereon; that the child's mother was also in the 
 house, and both parents remained there, attending to domestic duties 
 and taking no notice of the child for about fifteen minutes; and 
 that the child was seen to run across the street with a companion, 
 and then start to return running diagonally across the street with his 
 back turned towards an approaching car, which struck and killed 
 him. 
 
 The jury returned a verdict for the plaintiff; and the defendant 
 alleged exceptions to the refusal to rule that, "as matter of law, the 
 parents of the child were not exercising due care, and so the plaintiff 
 could not recover," and also to the admission of certain evidence, the 
 nature of which appears in the opinion. 
 
 ALLEN, J. The two grounds upon which the plaintiff relied were, 
 that Carroll was an incompetent man in the position which he occu- 
 pied, and that there was gross negligence on the part of Carroll and 
 Smith in the operation of the car. Carroll was a witness for the 
 defendant, and on his cross-examination the following question and 
 answer were admitted, under exception: Q. Have you had any car 
 to run since the accident? A. No car to run steady." There was 
 also some evidence respecting Carroll's pay. In respect to this evi- 
 dence, the court instructed the jury as follows: "That was admitted 
 as bearing upon the question merely of the light in which Carroll 
 was viewed by the defendant company itself." The admission of this 
 evidence for the purpose stated presents the question whether the 
 virtual discharge of a servant from his regular employment after an 
 accident can be proved, in a case like this, as an implied admission by 
 his employer that he had been careless, or was incompetent. The 
 plaintiff contends that this evidence bore directly on the defendant's 
 negligence or carelessness in employing such a person. 
 
 It has heretofore been held that taking additional precautions, after 
 an accident, to prevent other accidents, is not admissible in evidence 
 in a case like this for the purpose of showing negligence. Shinners 
 v. Proprietors of Locks & Canals, 154 Mass. 168. Downey v. Sawyer, 
 157 Mass. 418. Columbia & Puget Sound R. v. Hawthorne, 144 U. S. 
 202. The same reasons which led to those decisions apply in the
 
 CASKS ON EVIDENCE 
 
 present case. To hold otherwise would tend to discourage the adop- 
 tion of additional safeguards by improving the quality and raising 
 the standard of the service. The admission of this evidence for the 
 purpose stated may have prejudiced the defendants case in the mind 
 of the jury. 
 
 Exceptions sustained. 
 
 CHAEACTEE.i 
 
 HARWOOD v. THE PEOPLE. 
 26 N. Y. 190. (1863) 
 
 DAVIES, J. The indictment charged the plaintiff in error with keep- 
 ing a bawdy house. It was proved that he kept a house in the city 
 of Syracuse, and to make out the offense, it was necessary to estab- 
 lish the character or kind of house so kept by him. A bawdy house 
 is denned to be a house of ill-fame, kept for the resort of unlawful 
 commerce of lewd people of both sexes. (Bouv. Law Die., vol. I, 
 p. 163.) It was essential therefore, for the prosecution to establish 
 the character of the house, and to show the character of the persons 
 frequenting or occupying it. The questions put to the witnesses ob- 
 jected to, only called out the fact that females were found in the 
 house of the plaintiff and were taken from there, before a magistrate, 
 and convicted as prostitutes, and punished as such. This was primi 
 facie evidence of the character of the persons frequenting the plain- 
 tiff's house, and was legitimate and proper evidence, to establish such 
 character. Proof that prostitutes were found frequently at the plain- 
 tiff's house, and were notoriously so, were circumstances bearing 
 directly on the issue, whether the plaintiff kept a bawdy house or 
 house of ill- fame, and the jury would be warranted in finding as 
 they did, from such circumstances and the additional one that con- 
 victed and notorious prostitutes were frequently arrested there, that 
 he kept a house of that character. The materiality of the inquiry did 
 not consist in the fact that arrests of such w r omen were made in the 
 plaintiff's house, but in the fact that women of such character were 
 frequently found there, and permitted there after their arrest and 
 conviction as prostitutes. The inquiry as to the agency of the plaintiff 
 in procuring bail for them, when arrested upon such charges, was
 
 CHARACTER 157 
 
 eminently legitimate as tending to show his knowledge of the char- 
 acter of the women occupying and frequenting his house. A man 
 careful of the reputation of his house, and regulating it upon correct 
 principles, is not accustomed to have found there women notoriously 
 charged with the offense of prostitution ; and for the purpose of fix- 
 ing on the plaintiff the knowledge of the character of the inmates of 
 his house, and as their character and habits determined the kind and 
 character of the house he kept, it was proper to show that he knew 
 these charges against them, and that such knowledge was evidenced 
 by his becoming bail for them before the police magistrate. The 
 time of making the arrests was of no materiality, except as indicating 
 the presence in the plaintiff's house of women of the character his 
 inmates were proved to be, and the time when they were thus found 
 to be there was a material inquiry; and in this aspect, the questions 
 as to the time of making the arrests and when last made, were 
 properly allowed to be put. 
 
 In the view we take of this case, and the facts necessary to be 
 established by the prosecution, to warrant the jury in convicting the 
 plaintiff, the judge correctly told the jury that the frequent arrests 
 at the plaintiff's house of females, theretofore convicted as pros- 
 titutes, was a circumstance proper to be taken into consideration by 
 the jury in making up their verdict. It was not the fact that such 
 females were frequently arrested in the plaintiff's house, which gave 
 point and significance to this part of the charge, but the fact that 
 females theretofore convicted as prostitutes were frequently found 
 in the plaintiff's house. The fact of such conviction stamped them 
 as prostitutes, and its notoriety, and the circumstance of such frequent 
 arrests must have brought home to the plaintiff knowledge of their 
 character. The character of the inmates of the plaintiff's house deter- 
 mined the kind of house he kept, and if it was frequented by pros- 
 titutes, notoriously so, and they were frequently arrested there by the 
 police officers, the jury were authorized to find it was a bawdy house 
 or house of ill-fame. 
 
 We see no error in the admission of the evidence objected to, or 
 in that part of the charge excepted to, and think the judgment should 
 be affirmed. 
 
 Judgment affirmed. 
 iHughes on Evidence, p. 39.
 
 158 CASES ON EVIDENCE 
 
 WINN v. PECKHAM. 
 42 Wis. 493. (1877) 
 
 Action to recover damages for an alleged malicious prosecution 
 of the plaintiff, by the defendant, for perjury. The testimony on 
 the trial tended to show the facts. 
 
 LYON, J. Evidence was received of the pecuniary condition of the 
 defendant. This is claimed to be error. The action is one in which 
 the jury might properly award exemplary damages in their discretion, 
 and it is settled in this state that in such an action testimony of the 
 pecuniary circumstances of the defendant is competent. 
 
 By the Court. Judgment affirmed. 
 
 HOUGHTALING v. KELDERHOUSE. 
 2 Barb. (N. Y.) 149. (1848) 
 
 This was an action of slander, for charging the plaintiff with 
 having killed the defendant's horses by administering poison to them. 
 The defendant pleaded not guilty, and gave notice of justification. 
 The cause came on for trial at the Albany Circuit in June 1845. 
 On the trial the plaintiff proved the speaking of the words as laid in 
 the declaration. The defendant then proved that his horses had been 
 poisoned, and died in consequence thereof on the night of November 
 6, 1844. The defendant also proved, that, in July, previous to the 
 poisoning, there had been a difficulty between the parties, on the oc- 
 casion of the settlement of a note the plaintiff held against the 
 defendant, when the plaintiff used harsh language and exhibited some 
 ill feeling against the defendant. The defendant also proved facts 
 and circumstances tending to show that the plaintiff was guilty of 
 having poisoned the horses. After examining a large number of wit- 
 nesses in support of such justification, he "rested his defense. 
 
 The plaintiff then offered to prove that after the settlement of 
 the note, and prior to the poisoning, the plaintiff told the witness, 
 in a different conversation and in the defendant's absence, that he 
 was satisfied with the said settlement. This evidence was objected 
 to by the defendants counsel, and excluded by the circuit judge; to 
 which decision the plaintiff's counsel excepted.
 
 CHARACTER 159 
 
 After the plaintiff's counsel had called witnesses and introduced 
 evidence in reply to the defendant's testimony, he offered to prove 
 that the plaintiff's general character was good. The defendant's 
 counsel objecting, this evidence was also excluded by the judge, and 
 his decision excepted to by the plaintiff. 
 
 The jury gave a verdict in favor of the defendant, and the plain- 
 tiff moved for a new trial on a bill of exceptions. 
 
 By the Court, PARKER, J. It cannot be necessary to refer to 
 cases to show that the judge was right in not permitting the plaintiff 
 to prove his own declarations, made in the absence of the defendant, 
 and in a conversation different from that previously proved on the 
 other side. The general and well settled rule forbids a party making 
 his declarations evidence in his own favor was clearly applicable, 
 nothing had been proved on the part of the defendant to bring the 
 evidence offered within any exception to that rule. 
 
 But the principal point made by the plaintiff, in moving for a new 
 trial, is that the circuit judge refused to receive evidence that the 
 plaintiff's general character was good, which evidence was offered 
 by the plaintiff after testimony had been introduced on the part of 
 the defendant, tending to show that the plaintiff had poisoned the 
 horses of the defendant. 
 
 The rule as laid down by the chancellor in Townsend v. Graves 
 (3 Paige, 455,) is broad enough to admit the evidence in question. 
 The chancellor there says, "It is a general rule of evidence that if 
 a party is charged with a crime or any other act involving moral tur- 
 pitude, which is endeavored to be fastened upon him by circumstantial 
 evidence, or by the testimony of witnesses of doubtful credit, he may 
 introduce proof of his former character for honesty and integrity, 
 to rebut the presumption of guilt arising from such evidence, which 
 it may be impossible for him to contradict or explain." And the 
 chancellor proceeds to say, without dissent, that such doctrine has 
 been held applicable to a defendant in a civil suit, in Ruan v. Perry 
 (3 Caines, 120.) The case last cited went that entire length, and 
 in delivering the opinion of the court in that case, Tompkins, justice, 
 says : "The evidence of character was also in my opinion properly 
 admitted. In actions of tort, and especially charging a defendant with 
 gross depravity and fraud, upon circumstances merely, as was the 
 case here, evidence of uniform integrity and good character is often- 
 times the only testimony which a defendant can oppose to suspicious 
 circumstances." The same rule was held in Harding v. Brooks (5 
 Pick. 244.)
 
 160 CASES ON EVIDENCE 
 
 But the case of Ruan v. Perry has been distinctly and repeatedly 
 overruled by the Supreme Court of this state, and the English rule 
 adopted, as laid down in The Attorney General v. Bowman (2 Bos. 
 & 1'ull. 532, note a.) In Fowler v. The ^Etna Fire Ins. Co. (6 Cowen, 
 673) in commenting on the case of Ruan v. Perry, Savage, Ch. J. 
 says: "If such evidence is proper, then a person may screen himself 
 from the punishment due to fraudulent conduct till his character 
 becomes bad. Such a rule of evidence would be extremely dangerous. 
 Every man must be answerable for every improper act, and the 
 character of every transaction must be ascertained by its own cir- 
 cumstances, and not by the character of the parties." In the later 
 case of Gough v. St. John (16 Wend. 646,) this question is fully 
 examined by Cowen, Justice; who says the case of Ruan v. Perry is 
 virtually exploded by the late authorities, and that the practice of 
 receiving such evidence has not for many years been followed at 
 the circuit, to any considerable extent. Opposed to Ruan v. Perry, 
 are also the cases of Woodruff v. Whittlesey (Kirby, 60) ; Ander- 
 son v. Long (10 Serg. & Rawle, 55) ; Nash v. Gilkeson (5 Id. 352) ; 
 Potter v. Webb (6 Greenl. 14) ; and Humphrey v. Humphrey (7 
 Conn. Reports 116). And Justice Cowen cites with approbation the 
 following extract from the opinion of Daggett, justice, in the case 
 last referred to. "Causes charging cruelty, gross fraud, and even 
 forgery, are often agitated in suits by individuals; and the result 
 not unfrequently affects the property and reputation of the party 
 deeply; yet no individual has been permitted to attempt to repel the 
 proof by showing a good reputation." And in the opinion of Justice 
 Cowen on this point, Chief Justice Nelson and Justice Bronson con- 
 curred. 
 
 I cannot, therefore, hesitate to regard the rule as now well settled 
 in this state, that such evidence is inadmissible in a civil suit. At the 
 time the case of Townsend v. Graves was decided, in 1832, it had 
 probably escaped the notice of the chancellor that the case of Ruan 
 v. Perry had been overruled by the decision in 6 Cowen, made in 
 1827. And the still later case of Gough v. St. John seems to have 
 put the question at rest in this state. Indeed there appears to be 
 a good reason for the distinction that is taken. In a criminal prose- 
 cution, it is safest, in mercy to the accused, that he should avail him- 
 self of his previous good character to save himself from punishment 
 in a doubtful case; but in a civil suit, where the personal rights of 
 opposite parties are to be weighed in a nicely adjusted balance, no
 
 CHARACTER 161 
 
 proof, except that relating to the facts in controversy, should be ad- 
 mitted to turn the scale. 
 
 The admission of such evidence in a criminal case, is but an 
 exception to what must be regarded a general rule, resting upon 
 principle. If the plaintiff might prove his good character to resist 
 the conclusion of his guilt, then it would have been equally proper 
 for the defendant, in the first instance to introduce evidence of the 
 bad character of the plaintiff, for the purpose of sustaining his jus- 
 tification. If character can be legitimately examined, with a view to 
 ascertain the fact of guilt, neither party could be prevented giving 
 evidence in regard to it. The absurdity of such a practice is, we 
 think, apparent. 
 
 New trial denied. 
 
 COMMONWEALTH v. CHURCHILL. 
 52 Mass. 538. (1846) 
 
 The defendant was indicted, on the Rev. Sts. c. 130, sec. 4, for 
 lewdly and lasciviously associating and cohabiting with Lavinia Cash. 
 At the trial in the Court of Common Pleas, before Cushing, J. the 
 said Lavinia testified in behalf of the Commonwealth, and the de- 
 fendant, in order to impeach her testimony, offered to prove that she 
 then was, and for ten years next preciding had been, a common pros- 
 titute, and obtained her living, in whole or in part, by the prostitution 
 of her person for hire and gain. The judge ruled that the offered 
 proof was inadmissible and excluded it. The jury found the defend- 
 ant guilty and he alleged exceptions. 
 
 SHAW, C. J. This case presents the direct question, whether evi- 
 dence is admissible to impeach the credibility of a female witness, 
 which tends to show that she is, and for some time has been a com- 
 mon prostitute, and has obtained her living in whole or in part, by the 
 prostitution of her person for gain. 
 
 The only reported case, in which it has been held that such evi- 
 dence is admissible, is Commonwealth v. Murphy, 14 Mass. 387. It 
 was a decision made in the course of a capital trial, and probably 
 without much time for deliberation, or reference to authorities. It 
 was followed, we think, with some doubt and hesitation, in a few 
 other cases not reported. It is referred to in Commonwealth v.
 
 1 62 CASES ON EVIDENCE 
 
 Moore, 3 Pick. 196, and spoken of as a relaxation of the general 
 rule, which confines the impeaching testimony to the general char- 
 acter of the witness for veracity. We consider it as a deviation from 
 the established rule of the common law on the subject. It has been 
 regarded, by the judges of this Commonwealth, with disapprobation, 
 and has not been adopted by the courts of other States. See Jackson 
 v. Lewis, 13 Johns. 504. Bakeman v. Rose, 14 Wend. 105, and 18 
 Wend. 146. Morse v. Pineo, 4 Verm. 281. The State v. Smith, 7 
 Verm. 141. Spears v. Forrest, 15 Verm. 435. It is not required 
 by any strong considerations of fitness or expediency, and cannot 
 be regarded as having acquired the force of a settled rule of law. 
 We are therefore of opinion that the decision of the judge, in reject- 
 ing the evidence tendered, was correct. 
 
 Exceptions overruled. 
 
 GAITHER v. BLOWERS. 
 ii Md. 536. (1857) 
 
 LE GRAND, C. J. This is an action of assault and battery, 
 brought by the appellee against the appellant. The pleas were "not 
 guilty and son assault demesne;" the replication to the second plea 
 was "deinjuria et cetera." 
 
 The second exception of the appellant, grows out of the court's 
 allowing the plaintiff to give evidence, with the view of increasing 
 his damages, that he was a laboring man, and had a wife and children 
 to support. 
 
 The general rule is, that it is not necessary to state specially any 
 matters which are the legal and natural consequences of the battery 
 nor are the jury confined to the mere corporal injury which the 
 plaintiff has sustained ; but they are at liberty to consider the malice 
 of the defendant, the insulting character of his conduct, the rank in 
 life of the several parties, and all the circumstances of the outrage, 
 and thereupon to award such exemplary damages as the circumstances 
 may in their judgment require. 2 Greenlf. on Ev., sec. 89. In 
 McNamara v. King, 2 Gilman, 436, the court say, that "in actions of 
 this kind, the condition in life, the circumstances of the parties, are 
 peculiarly the proper subjects for the consideration of the jury, in 
 estimating the damages; their pecuniary circumstances may be in-
 
 CHARACTER 163 
 
 quired into. It may readily be 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 exer- 
 tions for the support of himself and family, than to an individual 
 differently situated in life. The effect of the injury might be to 
 deprive him and his family of the comforts and necessaries of life. 
 It is proper that the' jury should be influenced by the pecuniary 
 resources of the defendant. The more affluent, the more able he is 
 to remunerate the party he has wantonly injured. In this class of 
 cases, the jury may give exemplary damages, not only to compensate 
 the plaintiff, but to punish the defendant. The standard of dam- 
 ages is not a fixed one, applicable to all cases, but is to be regulated 
 by the circumstances of each particular case." This is good sense, 
 and is sustained by the decisions in most states. An injury done to 
 a person not dependent on manual labor for the support of himself 
 and family, is in nowise as great as one to a person so situated. We 
 are of opinion the court properly overruled the objection. 
 
 Judgment affirmed. 
 
 O'BRIEN v. FRASIER. 
 47 N. 7. L. 349- (1885) 
 
 The suit was for a malicious prosecution. The declaration set 
 forth, in the usual form, the good character of the plaintiff, and 
 that the defendant, intending to injure her in her fame and credit, 
 without any reasonable cause made a charge of perjury against her, 
 and so caused her arrest and imprisonment in the county jail, until 
 she was discharged on account of no indictment having been found 
 against her by the grand jury; that by means of these facts she was 
 greatly injured in her said credit and reputation, and brought into 
 public scandal, infamy and disgrace, &c. The plea was the general 
 issue. 
 
 The opinion of the court was delivered by 
 
 BEASLEY, Chief Justice. The basis of the suit was the arrest and 
 imprisonment of the plaintiff on an affidavit made by the defendant, 
 containing a charge of perjury, and which charge, it was asserted had 
 been made falsely, maliciously and without probable cause. 
 
 The second objection urged against the proceedings at the trial
 
 164 CASES ON EVIDENCE 
 
 also arises from the exclusion of proofs offered by the defendant. 
 
 The defendant, desirous, apparently, to disparage the general repu- 
 tation of the plaintiff in point of morals, asked of a witness the fol- 
 lowing question : "Do you know the reputation of Mrs. Frasier, in 
 the city of Paterson?" This interrogatory in the form stated was 
 overruled, the court directing the counsel to make the inquiry more 
 specific. The following interrogatories were then propounded and 
 were successively overruled, to wit: "Are you acquainted with the 
 general reputation among her neighbors and acquaintances, of the 
 plaintiff?" "Do you know whether the plaintiff has been charged 
 with crime prior to the complaint which Mr. O'Brien made against 
 her ?" "Are you acquainted with the general reputation which the 
 plaintiff had amongst her friends and neighbors prior to the time that 
 Mr. O'Brien made his charge against her?" "Do you know whether, 
 prior to the charge that Mr. O'Brien made against her, the defendant 
 had obtained and acquired the good opinion and credit of her neigh- 
 bors?" "Are you acquainted with the reputation which Mrs. Frasier 
 had prior to Mr. O'Brien's charge against her for virtue?" 
 
 With respect to these inquiries two topics are discussed in the 
 briefs of counsel, first, whether the general character of the plaintiff 
 in this action was open to attack, and, second, this being answered 
 in the affirmative, whether the interrogatories, or any of them which 
 were addressed to the witness, were in due form. 
 
 Touching the first subject, it is conceived that when a plaintiff in 
 a suit for malicious prosecution founds his action in part on an 
 injury done to his character by such prosecution, the legal rule is 
 quite settled that he thereby puts his general character in issue. As 
 long ago as the case of Savile v. Roberts, reported in i Ld. Raym. 
 374, Lord Holt, in defining the damages which will support a suit of 
 this character, states as his first class those instances where the 
 only damage consists in the "injury done to a man's fame, as if the 
 matter whereof he be accused be scandalous." It would seem to fol- 
 low therefore, that whenever the action is used as a means of repara- 
 tion for an injury, in whole or in part, done to his character, the 
 plaintiff in such procedure must stand in precisely the same attitude 
 that the actor in an action for libel or slander assumes, and in the 
 latter class of cases, it has been adjudged in this court, that the 
 general bad character of the plaintiff at the time of the alleged 
 grievance is admissible on the part of the defense in mitigation of 
 damages. The case indicated is that of Sayre v. Sayre, I Dutcher 
 235, in which Chief Justice Green reviews the English and American
 
 CHARACTER 165 
 
 decisions on this subject, and finally declares the class of evidence in 
 question is admissible, in mitigation of damages, on the broad ground 
 "that it cannot be just that a man of infamous character should, for 
 the same libelous matter, be entitled to equal damages with the man 
 of unblemished reputation." It is also to be noted, in this connec- 
 tion, that in his discussion of this subject the accurate jurist just 
 mentioned, evidently considered the action for malicious prosecution 
 based upon an injury to character, as in pari materia with the action 
 for libel or slander, and refers to both procedures, throughout his 
 opinion, as resting on the same general principle. And indeed it does 
 not seem to be deniable that a malicious prosecution for an indictable 
 and odious offense is a libel to which is, in some cases, superadded 
 illegal imprisonment and the loss of property, so that it would be 
 quite abnormal for the same court to declare that in the actions for 
 libel the plaintiff's character is in issue, but in actions for malicious 
 prosecution it is not in issue. 
 
 And the decision just referred to appears to accord with the great 
 weight of authority, as will plainly appear by a reference to any 
 of the leading^ text-books treating of the subject, i Whart. Ev., 
 sec. 54; Bacon v. Towne, 4 Cush. 217; Fitzgibbon v. Brown, 43 Me. 
 169. 
 
 Evidence as to the bad moral character of the plaintiff was, it is 
 considered, plainly admissible in mitigation of damages. Whether 
 such testimony would have been proper, if such issue had been pre- 
 sented on the facts as a circumstance going to make up a reasonable 
 cause for the conduct of the defendant, is a question not now sub 
 judice. 
 
 Judgment reversed. 
 
 ELTRINGHAM v. EARHARDT 
 67 Miss. 492. (1889) 
 
 COOPER, J. delivered the opinion of the court. 
 
 This is an action by appellee to recover damages for injuries in- 
 flicted by appellant by an assault and battery. From a verdict and 
 judgment for two hundred dollars the defendant appeals. The prin- 
 cipal error assigned is the action of the court in giving the sixth 
 instruction asked by the plaintiff, which is as follows : 
 
 "The court instructs the jury that if they find for plaintiff they
 
 1 66 CASES ON EVIDENCE 
 
 hive the right to take into consideration, in estimating the damages, 
 the pecuniary condition of both the plaintiff and defendant." 
 
 It is said by counsel for appellant that there is neither principle 
 nor authority for instructing a jury in cases of this character to take 
 into consideration the poverty of the plaintiff. 
 
 We find no difficulty in supporting the charge upon both principle 
 and authority. The evidence shows that the plaintiff was a poor 
 man, dependent upon his personal labour for his support, and that 
 by reason of the injuries inflicted upon him he was for more than two 
 weeks unable to properly perform his duties, and yet feels the effect 
 of the blows and kicks administered by the defendant. 
 
 In actions of this character, in which insult and mortification 
 bear so large proportion to the injury inflicted, juries are not re- 
 stricted to the actual pecuniary damages sustained. Treating of 
 such actions, Greenleaf says : "Nor are the jury confined to the 
 mere corporal injury which the plaintiff has sustained; but they are 
 at liberty to consider the malice of the defendant, the insulting char- 
 acter of his conduct, the rank in life of the several parties, and all the 
 circumstances of the outrage, and thereupon to award such exem- 
 plary damages as the circumstances may in their judgment require." 
 
 We find no error in the proceedings. The appellant may congratu- 
 late himself upon escaping with so moderate a verdict. A very much 
 larger one would have been supported by the evidence and would 
 have met our hearty approval. 
 
 Affirmed. 
 
 SOUTHERN KAN. RWY. CO. v. ROBBINS. 
 43 Kan. 145. (1890) 
 
 Action brought against the Railway Company by Robbins, as admin- 
 istrator of the estate of John F. Patterson, deceased, to recover 
 damages for the benefit of his widow and child. Judgment for the 
 plaintiff, at the October -term, 1887, for $5,500. 
 
 JOHNSTON, J. Errors are assigned her upon the rulings of the 
 court in admitting evidence. 
 
 A witness was asked, and over objection permitted to state, as 
 to whether the deceased was a careful and skillful railroad man. 
 This was clearly erroneous. The question whether Patterson exer-
 
 CHARACTER 167 
 
 cised due care in this particular instance was an important issue. It 
 was alleged that he was guilty of negligence, and it was contended 
 that the absence of the handhold on the top of the car was an obvious 
 danger, and apparent to anyone, and that to ascend a perpendicular 
 ladder in the manner in which he did, by letting go his hold of the 
 rung on the side of the car before laying hold of the rung on the 
 top of the car, was negligence. The issue of his want of ordinary 
 care was before the jury, and there was much testimony submitted 
 concerning his' conduct at the time of the injury. There were eye- 
 witnesses present, who at the trial described the manner in which he 
 ascended the ladder, and the care which he exercised at the time the 
 accident occurred; and hence there was no necessity nor propriety 
 in admitting the opinion of an expert as to whether he was generally 
 a careful and skillful man. The determination of whether he was 
 exercising due care when he fell from the car does not depend upon 
 the care exercised by him at other times, or whether he was usually 
 careful in the performance of his duties as a railroad man, but does 
 depend upon his conduct at the time of the accident. The witness 
 who gave the testimony was a conductor on the same railroad; had 
 been acquainted with him for a year, and claimed to have the means 
 of knowing as to whether he was a careful railroad man; and his 
 testimony may have had much weight with the jury in determining 
 that the deceased was in the exercise of due care. With the evi- 
 dence before them as to the care he used at the time, the jury could 
 determine better than any expert whether or not he was negligent; 
 and the fact that he was generally careful would be unavailing if 
 the testimony showed that his negligence in this instance contributed 
 to the injury. Testimony of this character is no more admissible 
 than an offer by the railroad company to show his want of care at 
 the time of the accident by proving that he was negligent at other 
 times, or generally careless. Exceptions are made in some cases 
 where there are no eyewitnesses of the accident, and better evidence 
 cannot be obtained as to whether the injured person exercised due 
 care; but all the authorities hold such testimony to be inadmissible 
 where the testimony of persons who witnessed the accident is avail- 
 able. (Bryant v. Rid. Co., 56 Vt. 710; Dunham v. Rackliff, 71 Me. 
 345 ; Hays v. Millar, 77 Pa. St. 238 ; Tenney v. Turtle, I Allen, 185 ; 
 McDonald v. Savoy, no Mass. 49; Chase v. Rid. Co., 19 Am. & 
 Eng. Rid. Cases, 356; Morris v. East Haven, 41 Conn. 252; Baldwin 
 v. Western Rid. Co., 4 Gray, 333; Cen. Rid. Co. v. Roach, 64 Ga. 
 635; Chicago &c. Rid. Co. v. Clark, 108 111. 113; same case, 15 Am.
 
 1 68 CASES ON EVIDENCE 
 
 & Eng. Rid. Cases, 26; Elliott v. Chicago &c. Rid. Co., 38 Am. & 
 Eng. Rid cases, 62; I Greenl. Ev. sec. 84.) 
 
 Neither was the testimony introduced in regard to how railroad 
 men should and do ascend the ladder of a box car relevant nor 
 competent. The practice followed by others throws no light on the 
 care used by Patterson in this case. It is not claimed that the opin- 
 ions of experts are necessary in the case; and to allow testimony 
 as to how others climbed the ladder, would be to create collateral 
 issues as to the prudence of their conduct and to unnecessarily pro- 
 tract the trial. The question of whether Patterson was guilty of 
 such negligence as would preclude a recovery, was an issue before 
 the jury, and the practice or usage of others would not tend to 
 prove care on his part; and such testimony should not have been 
 received. (Chicago, &c., Rid. Co. v. Clark, supra; Lawrence v. Hud- 
 son, 12 Heisk. 671; Chicago, &c. Co. v. Moranda, 108 111. 576; Rly. 
 Co. v. Evansich, 61 Tex. 3 ; Bryant v. Rid. Co., supra; Bailey v. New 
 Haven, &c. Co., 107 Mass. 496; Koons v. Rid Co., 65 Mo. 592; 
 Crocker v. Schureman, 7 Mo. App. 358; Cleveland v. Steamboat Co., 
 5 Hun. 523; Lawson on Usages, 328.) 
 
 To account for the fall, a witness, who was not present at the 
 time gave the following testimony: 
 
 "Q. You say you have passed over this road a great many times? 
 A. I have. 
 
 "Q. And over this bridge? A. Yes, sir. 
 
 "Q. Now, can you state to the jury, under the circumstances 
 which surrounded Mr. Patterson there, whether or not there was 
 Any cause why he should have ascended that car with great speed 
 and haste, and if so, what that cause was? Explain to the jury. 
 A. Well, the way that man started in to go up the side of the car, 
 he couldn't see the bridge when he started; and at the speed the 
 train was running, and him climbing up the side of the car, by the 
 time the engine struck the bridge he would be towards the top, and 
 when he heard the thundering noise that the engine makes when it 
 strikes a bridge, and he hurried to get on top of the car." 
 
 This testimony was given over the objection of the plaintiff in 
 error. The witness was the conductor of another train, who was far 
 away when Patterson fell from the box car. He did not know and 
 could not state whether Patterson could see the bridge when he 
 started to ascend the ladder, nor how far he had ascended when the 
 bridge was reached; neither was he competent to state what causes
 
 CHARACTER 169 
 
 operated on the mind of Patterson that led him to ascend the ladder 
 with great speed and haste. 
 
 The admission of the incompetent testimony was error, for which 
 the judgment will be reversed, and the cause remanded for a new 
 trial. 
 
 All the Justices concurring. 
 
 GERTZ v. FITCHBURG R. R. CO. 
 137 Mass. 77. (1884) 
 
 Tort, for personal injuries received by the plaintiff while in the 
 defendant's employ. At the trial in the Superior Court, before 
 Aldrich, J., the jury returned a verdict for the defendant; and the 
 plaintiff alleged exceptions to the exclusion of certain evidence, which 
 appears in the opinion. 
 
 HOLMES, J. In this case, the plaintiff having testified as a witness, 
 the defendant put in evidence the record of his conviction in 1876, 
 in the United States District Court, of the crime of falsely personat- 
 ing a United States revenue officer. The plaintiff then offered evi- 
 dence of his character and present reputation for veracity, which 
 was excluded, subject to his exception. 
 
 We think that the evidence of his reputation for truth should 
 have been admitted, and that the exception must be sustained. There 
 is a clear distinction between this case and those in which such evi- 
 dence has been held inadmissible, for instance to rebut evidence of 
 contradictory statements ; Russell v. Coffin, 8 Pick. 143 ; Brown v. 
 Mooers, 6 Gray, 451; or where the witness is directly contradicted 
 as to the principal fact by other witnesses. Atwood v. Dearborn, i 
 Allen, 483. 
 
 In such cases, it is true that the result sought to be reached is 
 the same as in the present, to induce the jury to disbelieve the 
 witness. But the mode of reaching the result is different. For, while 
 contradiction or proof of contradictory statements may very well 
 have the incidental effect of impeaching the character for truth of 
 the contradicted witness in the minds of the jury, the proof is not 
 directed to that point. The purpose and only direct effect of the 
 evidence are to show that the witness is not to be believed in this 
 instance. But the reason why he is not to be believed is left un-
 
 170 CASES ON EVIDENCE 
 
 touched. That may be found in forgetfulness on the part of the 
 witness, or in his having been deceived, or in any other possible 
 cause. The disbelief sought to be produced is perfectly consistent 
 with an admission of his general good character for truth, as well as 
 for the other virtues; and until the character of a witness is assailed, 
 it cannot be fortified by evidence. 
 
 Oh the other hand, when it is proved that a witness has been con- 
 victed of a crime, the only ground for disbelieving him which such 
 proof affords is the general readiness to do evil which the conviction 
 may be supposed to show. It is from that general disposition alone 
 that the jury is asked to infer a readiness to lie in the particular case, 
 and thence that he has lied in fact. The evidence has no tendency 
 that he was mistaken, but only that he has perjured himself, and it 
 reaches that conclusion solely through the general proposition that 
 he is of bad character and unworthy of credit. I Gilb. Ev. (6th ed.) 
 126. 
 
 The conviction in the United States District Court was for a felony 
 punishable with imprisonment (U. S. St. of March 2, 1867, sec. 28) 
 and, assuming that it stands on the same footing as a conviction in 
 another State, it would have been admissible, according to the dicta 
 in our cases, independently of statute, not to exclude the witness, 
 but to impeach his credit. Commonwealth v. Green, 17 Mass. 515, 
 541. Commonwealth v. Knapp, 9 Pick. 496, 511. Utley v. Merrick, 
 ii Met. 302. See Rev. Sts. c. 94, sec. 56. And when a conviction 
 is admitted for that purpose, it always may be rebutted by evidence 
 of good character for truth. Commonwealth v. Green, ubi supra. 
 Russel v. Coffin, 8 Pick. 143, 154. Rex v. Clarke, 2 Stark, 241. Webb 
 v. State, 29 Ohio St. 351. 
 
 It is true that a doubt is thrown upon this doctrine in Harrington 
 v. Lincoln, 4 Gray, 563, 568 ; but that case was decided on the ground 
 that the cross-examination which showed that the witness had been 
 charged with a crime also showed that he had been acquitted, and 
 cannot be regarded as an authority against our decision, whether the 
 ratio decidendi adopted be reconcilable with later cases or not. Com- 
 monwealth v. Ingraham, 7 Gray, 46. 
 
 The applicability of the foregoing reasoning is made clear by the 
 language of our statutes. By the Pub. Sts. c. 169, sec. 19, the only 
 purpose for which conviction of a crime may be shown, in any case, 
 is to affect credibility. Even if the conviction proved here would have 
 excluded the witness but for the statute cutting down its effect, it 
 could not be maintained that evidence of reputation for truth re-
 
 CHARACTER 171 
 
 mained inadmissible because it would have been so when the witness 
 was excluded. The statute puts all convictions of crime on the same 
 footing, those which formerly excluded, those which always have 
 gone only to credibility, and it would seem, those which formerly 
 would not have been admissible at all. (We assume that the words 
 "a crime" in the Pub. Sts. c. 169, sec. 19, mean the same as "any 
 crime" in the St. of 1870, c. 393, sec. 3. Gen. Sts. c. 131 sec. 13. 
 Sts. 1852, c. 312, sec. 60; 1851, c. 233, sec. 97. Commonwealth v. 
 Hall, 4 Allen, 305.) And therefore any evidence which was admis- 
 sible to rebut a conviction that only discredited before the statute, 
 must now be admissible to rebut all convictions that may be put in 
 evidence. Whether any different rule would apply when the fact is 
 only brought out on cross-examination we need not consider. 
 
 The exception to the exclusion of evidence that the witness was 
 innocent of the offense of which he was convicted, and explaining 
 why he was convicted, is not much pressed, and is overruled. Com- 
 monwealth v. Gallagher, 126 Mass. 54. 
 
 COMMONWEALTH v. O'BRIEN. 
 j/p Mass. 342. (1876) 
 
 Indictment charging the defendant with an assault on July 7, 1875, 
 on James M. Ellis, with a certain dangerous weapon, to wit, with a 
 knife, with the intent to kill. 
 
 During the trial the defendant called several witnesses, who tes- 
 tified to the fact that the defendant had the reputation of being a 
 peaceable and quiet person. The defendant did not testify in the 
 case. After the evidence for the defense was closed, the government 
 called one Davis, an officer, and offered to show by him that the de- 
 fendant was one of four defendants named in an indictment for an 
 assault upon one John Walsh. The defendant objected, but the judge 
 admitted the evidence, and the defendant excepted. 
 
 ENDICOTT, J. The defendant called witnesses who testified to his 
 general reputation as a peaceable and quiet citizen. The government 
 was then allowed to prove that the defendant had been indicted for 
 an assault, and to put in evidence an indictment, wherein he was 
 with other persons, indicted for an assault upon one John Walsh. To 
 this indictment it appeared that the defendants pleaded not guilty;
 
 172 CASES ON EVIDENCE 
 
 two days afterwards satisfaction was filed, and on the day following 
 the plea was retracted by the defendants, and they pleaded guilty. 
 The indictment was then placed on file on payment of costs, which 
 were paid, but no sentence was passed. The evidence thus admitted 
 to meet evidence of general reputation, was, in substance, that the 
 prisoner had committed another assault, and had in court admitted 
 or confessed the same by a plea of guilty. And the question is, can 
 a particular fact be proved to rebut evidence of a general reputation. 
 
 Where a party undertakes to show that his reputation is good, or 
 that the reputation of the other party or witness is bad, he cannot 
 put in evidence of particular facts to prove the general reputation 
 he is endeavoring to establish. And to meet evidence of general 
 reputation the opposing party may put in evidence to the contrary 
 of a like general character. But he cannot prove particular facts for 
 the reason that a particular fact does not necessarily establish a gen- 
 eral reputation or fairly meet the issue presented, and may also raise 
 collateral issues ; and for the further reason that while a party is pre- 
 sumed always to be ready to defend his general reputation, he is 
 not expected to be prepared to meet a distinct and specific charge. 
 Peterson v. Morgan, 116 Mass. 350. 
 
 In Commonwealth v. Hardy, 2 Mass. 303, 318, it was said by Chief 
 Justice Parsons : "It is not competent for the prosecutor to go into 
 this inquiry, until the defendant has voluntarily put his character in 
 issue, and in such case there can be no examination as to particular 
 facts." See Commonwealth v. Sackett, 22 Pick. 394; Commonwealth 
 v. Webster, 5 Cush. 295. 
 
 In a case heard before all the judges of England, it was held that 
 if evidence of good character is given in behalf of the prisoner evi- 
 dence of bad character may be given in reply; but in either case the 
 evidence must be confined to the prisoner's general reputation, and 
 the individual opinion of the witness as to his disposition, founded 
 on his own experience and observation is inadmissible. Chief Justice 
 Cockburn, in delivering the opinion of the court, says : "The only 
 way of getting at it (his character) is by giving evidence of his 
 general character founded on his general reputation in the neighbor- 
 hood in which he lives." "It is quite clear that, as the law now stands, 
 the prisoner cannot give evidence of particular facts, although one 
 fact would weigh more than the opinion of all his friends and neigh- 
 bors. So, too, evidence of antecedent bad conduct would form equally 
 good ground for inferring the prisoner's guilt, yet it is quite clear evi- 
 dence of that kind is inadmissible." * * *
 
 CHARACTER 173 
 
 It is true that upon cross-examination of a witness, testifying 
 to general reputation, questions may be put to show the sources of 
 his information, and particular facts may be called to the witness's 
 attention, and he may be asked if he ever heard of them; but this is 
 allowed not for the purpose of establishing the truth of these facts, 
 but to test the credibility of the witness, and to ascertain what weight 
 or value is to be given to his testimony. Leonard v. Allen, n Cush. 
 241. Rex v. Martin, 6 C. & P. 562. So in actions for slander, evi- 
 dence of general bad character of the plaintiff may be put in evi- 
 dence in mitigation of damages ; and where the plaintiff alleges that 
 the defendant has slandered him in a particular respect, as for thiev- 
 ing, the defendant may put in evidence for the same purpose that the 
 plaintiff's general reputation in that respect is also bad. Clark v. 
 Brown, 116 Mass. 504. But we are not aware of any case, where the 
 defendant upon that issue has been allowed to prove a particular act 
 of theft. 
 
 We are of opinion therefore that the learned judge erred in admit- 
 ting this evidence. The government was entitled to rebut the evi- 
 dence of the defendant, he having put his character in issue, but could 
 not do so by proof of another assault. 
 
 Exceptions sustained. 
 
 REGINA v. RODEN. 
 12 Cox Cr. Ca. 630. (1874) 
 
 Prisoner was indicted for the murder of her child Clara Roden. 
 
 Counsel for the prosecution tendered evidence to prove that the 
 prisoner had had four other children who had also died in infancy 
 at early ages. He cited Reg. v. Cotton (12 Cox Cr. Ca. 400), where 
 a prisoner was charged with the murder of her child by poison, and the 
 defense was that its death resulted from an accidental taking of such 
 poison ; evidence to prove that two other children of hers and a lodger 
 in her house had died previous to the present charge from the same 
 poison was held to be admissible. 
 
 Rose objected. The evidence tendered, although of no real legal 
 value, would, if given, greatly prejudice the case in the minds of the 
 jury. That admitted in Reg. v. Cotton pointed directly to prior acts
 
 174 CASES ON EVIDENCE 
 
 of poisoning, but here it is not proposed to prove that the four chil- 
 dren died from other than natural causes. 
 
 LUSH, J. The value of the evidence cannot affect its admissibility. 
 The principle of Reg. v. Cotton applies. The Lord Chief Justice and 
 I were consulted upon the point in that case by my brother Archibald 
 before the trial, and, having considered it, \ve were clearly of opinion 
 that the evidence was admissible. I think the evidence now tendered 
 may likewise be received. 
 
 Verdict Not Guilty. 
 
 HATT v. MAY. 
 144 Mass. 186. (1887) 
 
 Tort for personal injuries occasioned to the plaintiff while at work 
 with a pile driver in the defendant's employ. At the trial in the 
 Superior Court, before Thompson, J., the jury returned a verdict 
 for the defendant; and the plaintiff alleged exceptions. 
 
 DEVENS, J. The plaintiff, while in the defendant's employ, was 
 injured through the alleged negligence of the defendant's foreman. 
 He was permitted to put in evidence that the foreman's reputation for 
 competency was bad. As the defendant was bound to use due care, 
 both in procuring and retaining a suitable person as the foreman in 
 his employ, this evidence was properly admissible. The plaintiff 
 desired further to put in testimony as to certain specific acts of care- 
 lessness on the part of the foreman, while engaged on the same job, 
 and before the accident happened. This was properly excluded. 
 Because a servant may have been guilty of negligence on certain speci- 
 fied occasions, it by no means follows that he was on the occasion in 
 question, or that he might not ordinarily be a careful and skillful 
 workman, and properly employed as such. The investigation of other 
 individual acts of alleged carelessness on the foreman's part would 
 necessarily have a tendency to continue the case by collateral inquiries, 
 to protract it indefinitely if those inquiries were carefully made, and 
 to mislead and distract a court or jury from the true issue. Robinson 
 v. Fitchburg & Worcester Railroad, 7 Gray, 92. Maguire v. Middle- 
 sex Railroad, 115 Mass. 239. 
 
 Exception overruled.
 
 ADMISSIONS AND CONFESSIONS 175 
 
 ADMISSIONS AND CONFESSIONS.* 
 
 SMITH v. PALMER. 
 60 Mass. 513. (1850) 
 
 This was an action of assumpsit, in which the plaintiff declared 
 originally on the common counts, and on an account annexed for an 
 order drawn by the plaintiff in favor of the defendant on one George 
 C. Goodwin, for matches, and paid for by him, and for money fur- 
 nished by the plaintiff to the defendant. 
 
 FLETCHER, J. Besides the exception in regard to the amendment, 
 the case presents two other exceptions to the ruling of the judge. 
 The new count set out a contract of the defendant, to discontinue 
 the suit in Maine, and alleged as a breach, that the defendant did not 
 discontinue, but prosecuted the suit to judgment and execution, and 
 that the plaintiff had been compelled to pay the amount recovered. 
 Upon the trial, the plaintiff was permitted to give in evidence in sup- 
 port of the allegations in the writ of the pendency of the suit in 
 Maine, of the failure of the defendant to discontinue it, and of the 
 prosecution of the suit to judgment and execution, the oral declara- 
 tions, confessions, and admissions of the defendant, connected with a 
 certain paper writing, purporting to be an execution issued in said 
 action, and an assignment thereon executed by the defendant. The 
 defendant then requested the judge to rule that the plaintiff could 
 not maintain his case on the special count, without producing a cer- 
 tified copy of the judgment, or accounting for its non-production, so 
 as to let in secondary evidence. But the court refused so to rule, and 
 instructed the jury, that the foregoing evidence, though not the most 
 satisfactory, was yet important evidence for their consideration, on 
 the question submitted to them under the special counts in the dec- 
 laration. To this ruling and instruction the defendant excepted. 
 
 The doctrine maintained by the defendant's counsel, and the au- 
 thorities cited, are no doubt correct, but do not apply to the case. 
 The case of Sheldon v. Frink, 12 Pick. 569, was an attempt to prove a 
 record by parol, by a witness on the stand. But this evidence was 
 most properly rejected. A record cannot be proved by parol, by a 
 witness on the stand; nor can the contents of any paper be proved, 
 without the production of the paper, if the paper can be produced. 
 
 But this doctrine does not apply to the present case, this is a case 
 of the admission of a party, and the admission of a party stands on 
 
 i Hughes on Evidence, pp. 21 and 44.
 
 176 CASES ON EVIDENCE 
 
 distinct grounds. The admissions of a party are not open to the 
 same objection which belongs to parol evidence from other sources. 
 A party's own statements and admissions are, in all cases, admissible 
 in evidence against him, though such statements and admissions may 
 involve what must necessarily be contained in some writing, deed or 
 record. Thus, the statements of a party, that certain land had been 
 conveyed, might be admitted, though the conveyance must be by deed 
 recorded. 
 
 The general principle, as to the production of written evidence as 
 the best evidence, does not apply to the admissions of parties; as 
 what a party admits against himself may reasonably be taken to be 
 true. The weight and value of the statements and admissions will 
 vary according to the circumstances and must be determined by the 
 jury. The ruling of the judge in the court below on this point is 
 well supported by the authorities. See the case of Slatterie v. 
 Pooley, 6 M. & W. 664, where the distinction between the admissions 
 of parties, and parol statements from other sources, as to written 
 instruments, is fully explained and supported. The general doctrine 
 is also found in i Greenl. Ev. sees. 96 and 97 and cases cited therein. 
 In the present case, the principal fact was, that the defendant had not 
 performed his contract, in regard to which there could be no doubt 
 that his admission would be important evidence, and the execution 
 reciting the judgment assigned by the defendant himself was pro- 
 duced, in connection with the admissions and statements of the de- 
 fendant. 
 
 Exceptions overruled. 
 
 PEOPLE v. McMAHON. 
 15 N. Y. 384. (1857) 
 
 Writ of error to the Supreme Court. The appellant was tried at 
 the Rensselaer Oyer and Terminer, upon an indictment for the mur- 
 der of his wife. On the day after the alleged murder, McMahon 
 was arrested by a constable without warrant, as the probable mur- 
 derer. He was taken in the custody of the officer before a coroner 
 then holding an inquest upon the body of the deceased woman, and 
 was sworn and examined as a witness, and immediately thereafter was
 
 ADMISSIONS AND CONFESSIONS 177 
 
 committed to jail. Upon the trial his testimony thus taken was read 
 in evidence against him. At the time the evidence was received, it 
 was not known that the prisoner was charged with the crime when 
 sworn and no objection was taken to its admission, but upon the facts 
 appearing in the course of the trial, the prisoner's counsel moved to 
 strike out the evidence, and the court refusing so do do, took an 
 exception. This was the only error alleged to have been committed. 
 The prisoner was convicted and sentenced. A bill of exceptions was 
 made and the case taken upon writ of error to the Supreme Court, 
 which affirmed the judgment of the Oyer and Terminer, and the 
 cause was thereupon brought to this court by writ of error. 
 
 SEXDEN, J. Confessions and statements, made by persons charged 
 with crime, have been very differently regarded by the civil and the 
 common law. The former, reposing with confidence upon the as- 
 sumption that one who is innocent will never admit that which tends 
 to show guilt, treats the declarations and admissions of the accused 
 as evidence of the most satisfactory kind. To such an extent does it 
 carry this idea, that in all except capital cases a confession by the 
 accused is deemed conclusive evidence of guilt, unless met by over- 
 whelming proof to the contrary. (Domat's Civil Law, sec. 2086, Cush- 
 ing's ed.) 
 
 The common law, on the other hand, with, as I think, a truer 
 philosophy and better appreciation of the nature and operations of 
 mind, regards this species of evidence with distrust. It carefully 
 scrutinizes the circumstances, and rejects the evidence if it sees that no 
 safe inferences can be drawn from it. The first distinction which 
 it makes is between a declaration or statement made before, and 
 one made after, the accused was conscious of being charged with or 
 suspected of the crime. If before, it is admissible in all cases, whether 
 made under oath or without oath, upon a judicial proceeding or 
 otherwise; but if made afterwards, the law becomes at once cautious 
 and hesitating; the inquiry then is, was it voluntary? For unless 
 entirely voluntary, it is held not to be admissible. 
 
 In order to apply this rule it is necessary to know what is meant 
 by the terms voluntary. The word is evidently not in all cases used 
 in contradistinction to compulsory; because a confession obtained 
 by either threats or promises, from any one having authority over the 
 accused or concerned in the administration of justice, is uniformly 
 held to be inadmissible. However slight the threat or small the in- 
 ducement thus held out, tEe statement will be excluded as not volun- 
 tary. It is plain therefore that, in such cases at least, by voluntary
 
 178 CASES' ON EVIDENCE 
 
 is meant, proceeding from the spontaneous suggestion of the party's 
 own mind, free from the influence of any extraneous disturbing 
 cause. 
 
 The principle upon which this rule is based is obvious. It is, that 
 we cannot safely judge of the relation between the motives and the 
 declarations of the accused, when to the natural agitation conse- 
 quent upon being charged with crime is superadded the disturbance 
 produced by hopes or fears artificially excited. It is because it is in 
 its nature unreliable, and not on account of any impropriety in the 
 manner of obtaining it, that the evidence is excluded. In this all the 
 authorities agree. Mr. Phillips, speaking on this subject, says : "A 
 confession so obtained cannot be received, on account of the uncer- 
 tainty and doubt whether the prisoner might not have been induced, 
 from motives of fear or interest, to make an untrue statement." 
 
 The case of Rex v. Warickshall (i Leach C. C, 263) affords a 
 strong test of this doctrine. The prisoner had made a confession 
 which was held to be inadmissible; but this confession had led to 
 the discovery of other facts sufficient to convict. Her counsel con- 
 tended that, the confession being inadmissible, facts discovered by 
 means of it must be equally so; and if the confession was excluded, 
 not as unreliable, but as having been improperly obtained, or on ac- 
 count of any supposed violation of the public faith, as was there con- 
 tended, the argument would have been unanswerable. The evidence, 
 however, was received, and the court say: "Confessions are received 
 in evidence or rejected as inadmissible, under a consideration whether 
 they are or are not entitled to credit." (See also Rex v. Butcher, note 
 to Warickshall's case; Rex v. Lockhart, I Leach C. C 386; Regina 
 v. Gould, 9 Car. & Pa. 364.) 
 
 The doctrine of the American courts is the same. In the case of 
 Commonwealth v. Knapp (9 Pick. 496), Morton, J., speaking of the 
 grounds upon which the statements of prisoners are excluded are not 
 voluntary, after remarking that it is not because their admission 
 would be a breach of good faith, nor because they have been illegally 
 extorted, says: "but the reason is that, in the agitation of mind in 
 which the party charged is supposed to be, he is liable to be influenced 
 by the hope of advantage or fear of injury to state things which are 
 not true." 
 
 Judgment reversed and new trial ordered.
 
 ADMISSIONS AND CONFESSIONS . 179 
 
 COMMONWEALTH v. MYERS. 
 160 Mass. 530. (1894) 
 
 Indictment, for the larceny of two whiffletrees, the property of 
 Edwin V. Kinsley, on September 22, 1893, at Canton. Trial in the 
 Superior Court, before Bond, J., who allowed a bill of exceptions, 
 in substance as follows. 
 
 The government offered in evidence an alleged confession of the 
 defendant to one Richard Vanston, a police officer in the town of 
 Stoughton. The officer testified that he made the arrest of the de- 
 fendant and one Sylvester, who was joined with the defendant in the 
 indictment, upon the night of October 2, 1893 ; that he took the de- 
 fendant to the lock-up in Stoughton; and that the defendant at first 
 denied any knowledge of the alleged larceny. The officer further 
 testified, that having the defendant in his custody in the lock-up, "I 
 told him he had better tell the truth." The confession alleged to have 
 been made to the officer at that time was thereupon excluded. 
 
 The government then called Edwin V. Kinsley, the owner of the 
 property, who testified that he was present the next day, October 3, 
 in the District Court of Southern Norfolk, when the defendant 
 was arraigned; that the defendant was in the dock, and was asked 
 whether he was guilty or not guilty, and he said "he did not know 
 anything about the whiffletrees" ; that Vanston, the officer to whom it 
 was alleged the defendant made the confession the night before, there- 
 upon asked the defendant "if he was not there when they were taken, 
 and he said he was there, but did not go into the barn" ; that the 
 officer then asked him, "Didn't you stay outside ?" and he said, "Yes" ; 
 and that he then asked him "if he waited for Sylvester to bring out 
 the stuff and went with him and hid them up," and he said, "Yes." 
 
 The defendant objected to the admission of Kinsley's testimony, as 
 above stated, but the judge admitted it; and the defendant excepted. 
 
 There was no other evidence to connect the defendant with the 
 crime. 
 
 The jury returned a verdict of guilty; and the defendant alleged 
 exceptions. 
 
 MORTON, J. The exclusion of the confession made to Vanston on 
 the night of the arrest was correct. Commonwealth v. Nott, 135 
 Mass. 269. Commonwealth v. Preece, 140 Mass. 276. The point now 
 is whether the questions to the defendant by the same officer, and the 
 defendant's answers thereto the next day in the District Court, as tes-
 
 i8o CASES ON EVIDENCE 
 
 tified to by a witness who heard them, were rightly admitted. It may 
 be fairly assumed that the defendant was, to some extent at least, 
 induced to answer as he did by Vanston's knowledge derived from 
 what he had himself told him. But the question is whether the an- 
 swers were voluntary or were made under the influence of what the 
 officer had told him the night before when he said to him that he 
 had better tell the truth. 
 
 At the time of making the answers the defendant had been ar- 
 raigned, and was in open court. It does not appear at what time of 
 the night he was arrested, or at what time of day he was arraigned. 
 But a number of hours had passed since the remark of the officer, 
 and he had had abundant opportunity for reflection and consideration. 
 When asked if he was guilty or not guilty, instead of answering 
 directly, he said voluntarily that "he did not know anything about the 
 whiffletrees." Thereupon, in the presence of the justice, and with- 
 out objection from him the officer asked the questions, and the de- 
 fendant made the answers, which were testified to. No indictment 
 was then held out to him. He was not obliged to answer if he did 
 not choose to. He could have applied to the court, if he had seen fit, 
 for protection. He did not do so. He appears to have answered the 
 questions freely, voluntarily, and truthfully, and so far as the evidence 
 discloses without relying upon or even remembering the words of the 
 officer the night before. Confessions are not to Jt>e excluded because 
 they are the admissions of a person charged with the commission 
 of a crime, but only where the circumstances are such under which 
 they are made that a reasonable presumption arises that they may 
 have been induced by a promise or threat from one in authority, 
 and consequently are open to the objection that they may not be true. 
 Commonwealth v. Sego, 125 Mass. 210, 213. Commonwealth v. 
 Preece, tibi supra. There are many cases in which confessions made 
 originally under the influence of a promise or threat, and then repeated, 
 have been excluded, because of the presumption that, under the cir- 
 cumstances of the case, the party in making them was influenced by 
 the original promise or threat. There are also many cases where 
 such confessions nave been admitted on the ground that there was 
 no reasonable presumption that the threat or promise operated to 
 induce them. It would serve no useful purpose to attempt to review, 
 or consider, or reconcile all of these cases, if that were possible. For 
 a collection of them, see 3 Am. & Eng. Encyc. of Law, 439 et seq. 
 We think that this case comes within the latter class, and that the 
 circumstances were not such as to afford a reasonable presumption
 
 ADMISSIONS AND CONFESSIONS 181 
 
 that the defendant's answers were influenced by the remark made 
 to him by Vanston, and that therefore they must be regarded as made 
 voluntarily. If they had been made to another officer, we presume 
 no question would have been raised as to their admissibility. We 
 do not think that, under the circumstances, the fact that they were 
 made to the same officer to whom the original confession was made, 
 and who then held out the inducement, renders them incompetent. 
 See Commonwealth v. Morey, I Gray, 461 ; Commonwealth v. Whitte- 
 more, n Gray, 201; Commonwealth v. Cuffee, 108 Mass. 285; Com- 
 monwealth v. Crocker, 108 Mass. 464; Commonwealth v. Mitchell, 
 117 Mass. 431; 432; Commonwealth v. Smith, 119 Mass. 305; Com- 
 monwealth v. Sego, 125 Mass. 210, 213; Commonwealth v. Flagg, 
 135 Mass. 5451. 
 
 STATE v. KORNSTETT. 
 62 Kan. 221. (1900) 
 
 The opinion of the court was delivered by 
 
 JOHNSTON, J. John Kornstett was charged with and convicted 
 of the murder of his cousin, Nora Kornstett, and the severest penalty 
 of the law was adjudged against him. In substance, the information 
 charged the appellant with having attempted to ravish his cousin, 
 and that then, with deliberation and premeditation, he choked and 
 beat hpr and struck her head against a tree with great violence, and 
 afterward he threw her body into a well about twenty feet deep all 
 with intent to kill and murder her, and that the wounds and injuries 
 so purposely and feloniously inflicted caused her death. 
 
 Proof of confessions made by the defendant was received in evi- 
 dence over his objections, and upon these rulings error is assigned. 
 About the time of his arrest he was closely questioned by the sheriff, 
 who believed the defendant was connected with the commission of 
 the offense, and before admitting his guilt he was told that some of 
 his prior statements had been found to be untrue. He finally ac- 
 knowledged his guilt to the sheriff, giving the circumstances in con- 
 siderable detail, and he afterward repeated the confession to a num- 
 ber of other persons. He knew that suspicion was directed toward 
 him, and that there was considerable excitement in the community 
 because of the brutal character of the crime, but the sheriff, to whom
 
 1 82 CASES ON EVIDENCE 
 
 the confession was first made, testified that it was not given by reason 
 of any threat made or promise held out. While the defendant 
 claimed that he was induced by the pressure of fear and hope to 
 make the admission, the sheriff states that he told the defendant that 
 he believed the defendant knew who committed the offense, and 
 that he would better tell all he knew about it; and that if he was 
 guilty it would be better for him to admit the truth, and that if he 
 was innocent he should stick to it regardless of the suspicion against 
 him, and that he, the sheriff would protect him. It is claimed and 
 the defendant testified, that hope was held out to him that the pun- 
 ishment for the offense would be confinement in the reform school 
 or reformatory, but this is expressly denied by the sheriff, although 
 he does state that in response to an inquiry by the defendant he 
 explained to him the character of those institutions. It is well settled 
 that an extra-judicial confession will not be received in evidence 
 unless it has been freely and voluntarily made. If it has been ex- 
 torted by fear or induced by hope of profit, benefit, or amelioration, 
 it will be excluded as involuntary. However, mere advice or admoni- 
 tion to the defendant to speak the truth, which does not import 
 either a threat or benefit, will not make a following confession incom- 
 petent. According to the testimony of the sheriff, the confession 
 was admissible; and the fact that the defendant confessed so freely 
 and frequently to others at different places and times and under vary- 
 ing circumstances appears to sustain the sheriff. 
 
 The judgment is affirmed. 
 
 REX v. DERRINGTON. 
 2 Car. & P. 650. (1826) 
 
 The prisoners were indicted for a burglary in the house of Mr. 
 George Simcox. 
 
 For the prosecution, a letter written by the prisoner Derrington 
 was offered in evidence. It appeared, that, after Derrington was 
 committed to Stafford jail on this charge, he asked the turnkey if he 
 would put a letter into the post; he promised to do so, and the pris- 
 oner gave him the letter in question, which was addressed to the 
 prisoner's father; but instead of putting the letter into the post, the
 
 ADMISSIONS AND CONFESSIONS 183 
 
 turnkey gave it to the visiting magistrates of the jail, who sent it to 
 the prosecutor. 
 
 GARROW, B. I am clearly of opinion that in point of law, this 
 letter is admissible in evidence. I remember, many years ago, mak- 
 ing this very objection before the late Mr. Justice Gould, who over- 
 ruled it. The only cases in which what a prisoner says or writes is 
 not evidence are two; ist, where the prisoner is induced to make 
 any confession in consequence of the prosecutor, &c., holding out 
 any threat or promise to induce him to confess; and 2ndly, where 
 the communication is privileged, as being made to his counsel or 
 attorney. This not being either of those cases, I must receive the 
 evidence. 
 
 Verdict Guilty. 
 
 STATE v. MITCHELL. 
 61 N. C. 447. (1868) 
 
 Murder, tried before Warren, J., at a Court of Oyer and Terminer 
 for Lenoir, held on the first Monday in August, 1867. 
 
 The prisoner had been arrested by the military authorities of the 
 United States, for the murder of one James B. Allen, without being 
 informed of the charge against him. Upon the trial the State offered 
 evidence of his confessions made in prison to one Cook, who was 
 at that time also a prisoner, for a misdemeanor, and had previously 
 been his acquaintance. 
 
 They were made under the following circumstances. The prisoner 
 asked the witness, What in the hell do you suppose I was arrested 
 for? Witness replied that he did not know. After some other con- 
 versation, the prisoner said, If you will not tell me I will tell you 
 something. Witness said he would not tell, but if he did, it would 
 make no difference, for one criminal could not testify against another. 
 The prisoner then said, I want to know what to do; and witness re- 
 plied that if he knew the circumstances he could tell him what to do. 
 
 Objection was made to the reception of the confessions thereupon 
 made by the prisoner, on the ground that they were improperly and 
 illegally obtained. They were however received by the court. 
 
 The prisoner was convicted, and a rule having been obtained for 
 a new trial it was discharged, and there was judgment and appeal.
 
 1 84 CASES ON EVIDENCE 
 
 BATTLE, J. The only question presented by the bill of excep- 
 tions is, whether the confession of the prisoner was admissible. 
 
 The principle upon which the competency of the confession of a 
 prisoner depends was well stated by Judge Henderson, in the case of 
 the State v. Roberts, i Dev. 261. He said, "confessions are either 
 voluntary or involuntary. They are called voluntary when made 
 neither under the influence of hope or fear, but are attributable to 
 that love of truth which predominates in the breast of every man not 
 operated upon by other motives more powerful with him, and which, 
 it is said, in the perfectly good man cannot be countervailed. These 
 confessions are the highest evidences of truth, even in cases affecting 
 life. But it is said, and said with truth, that confessions induced 
 by hope or extorted by fear are of all kinds of evidence, the least to 
 be relied on, and are therefore entirely to be rejected." This principle 
 thus clearly enunciated by a very able judge, will be found to have 
 pervaded every case upon the subject which has been decided by this 
 court. See Battle's Digest, Title Evidence, sec. xxvi, p. 505. 
 
 The confession proposed to be proved in the present case must be 
 regarded as coming under the head of voluntary confessions. The 
 prisoner himself commenced the conversation which led to his con- 
 fession. When the prisoner said to the witness, "I want to know 
 what to do," he must have been aware that the witness could not 
 tell him without knowing the circumstances of his case. When the 
 latter told him so, therefore, he only told him that which he already 
 knew ; and what he, thereupon went on to state to the witness was not 
 induced by any hope of advantage held out to him by the witness, but 
 by the suggestion of his own mind to get the witness' advice as to 
 the course he ought to pursue. So far from being under any influence 
 to make a false statement, he had the strongest motive to tell the 
 truth, so that the advice of his acquaintance might be of service to 
 him. In view of the question, the mistake of the witness as to the 
 law about one prisoner testifying against another, cannot make any 
 difference. The prisoner could not thereby have been in the least 
 induced to make a false statement of the facts and circumstances of 
 his case. All that can be said is, that he found himself placed in a 
 difficult and dangerous position, and wanted the advice of a friend 
 as to the best course to be pursued for his relief. To obtain that 
 advice he voluntarily unbosomed himself to a person who he thought 
 might be trusted, but who afterwards proved treacherous and dis- 
 closed his secret. We do not know of any such ground for excluding 
 confessions, and think the Judge was right in admitting them.
 
 ADMISSIONS AND CONFESSIONS 185 
 
 It must be certified that we find no error in the record. PER 
 CURIA M. 
 
 No Error. 
 
 THE QUEEN v. THOMPSON. 
 2 Q. B. D. 12. (1893) 
 
 9 f 
 
 Case stated by the acting chairman of quarter sessions for the 
 county of Westmoreland. 
 
 At the Westmoreland Quarter Sessions, held at Kendal on Oct. 21, 
 1892, Marcellus Thompson was tried for embezzling certain moneys 
 belonging to the Kendall Union Gas and Water Company, his masters. 
 
 Mr. Crewdson, the chairman of the company, at whose instance 
 the warrant for the prisoner's apprehension had been issued was called 
 as a witness by the prosecution to prove among other things a confes- 
 sion by the prisoner. 
 
 As soon as this confession was sought to be put in evidence, ob- 
 jection was taken to its admissibility, and we therefore, before receiv- 
 ing further proof, allowed the witness to be cross-examined by the 
 prisoner's counsel. In answer to the latter's questions, the witness 
 stated that, prior to the confession being made, the prisoner's brother 
 and brother-in-law had come to see him, and that at this interview 
 he said to the prisoner's brother, "it will be the right thing for Mar- 
 cellus to make a clean breast of it." The witness added "I won't 
 swear I did not say 'It will be better for him to make a clean breast 
 of it.' I may have done so. I don't think I did. I expected what 
 I said would be communicated to the prisoner. I won't swear I did 
 not intend it should be conveyed to the prisoner. I should expect it 
 would. I made no threat or promise to induce the prisoner to make 
 a confession. I held out no hope that criminal proceedings would not 
 be taken." No evidence was produced to the court tending to prove 
 that the details of the interview had been communicated to the 
 prisoner, or to rebut the evidence of Mr. Crewdson as to what took 
 place at the interview. 
 
 It was then contended by the prisoner's counsel that the above 
 statements to the prisoner's brother were inducements to the prisoner 
 to confess, held out by a person in authority, and that evidence of 
 the confession was therefore inadmissible.
 
 1 86 CASES ON EVIDENCE 
 
 The prisoner was convicted and sentenced to three years, penal 
 servitude. 
 
 The question for the opinion of the court is whether the evidence 
 of the confession was properly admitted. 
 
 CAVE, J. The question in this case is whether a particular admis- 
 sion made by the prisoner was admissible in evidence against him. 
 This is a question which must necessarily arise for decision in a 
 number of cases both at petty and quarter sessions ; and to my mind 
 it is very unsatisfactory that the principle which must guide the de- 
 cision of magistrates in these cases should be loosely or confusedly 
 interpreted. 
 
 Many reasons may be urged in favor of the admissibility of all 
 confessions, subject of course tq their being tested by the cross-ex- 
 aminations of those who heard and testify 'of them; and Bentham 
 seems to have been of this opinion (Rationale of Judicial Evidence, 
 Bk. v. ch. vi, s. 3). But this is not the law of England. By that 
 law, to be admissible, a confession must be free and voluntary. If it 
 proceeds from remorse and a desire to make reparation for the crime, 
 it is admissible. If it flows from hope or fear, excited by a person in 
 authority, it is inadmissible. On this point the authorities are unan- 
 imous. As Mr. Taylor says in his Law of Evidence (8th ed. Part 2, 
 ch. 15, s. 872), "Before any confession can be received in evidence 
 in a criminal case, it must be shewn to have been voluntarily made; 
 for, to adopt the somewhat inflated language of Eyre, C. B., 'a con- 
 fession forced from the mind by flattery of hope or by the torture of 
 fear, comes in so questionable a shape, when it is to be considered 
 as the evidence of guilt, that no credit ought to be given to it, and 
 therefore, it is rejected:' Warickshall's Case, (i) The material 
 question consequently is whether the confession has been obtained 
 by the influence of hope or fear ; and the evidence of this point being 
 in its nature preliminary, is addressed to the judge, who will require 
 the prosecutor to show affirmatively, to his satisfaction, that the 
 statement was not made under the influence of an improper induce- 
 ment, and who, in the event of any doubt subsisting on this head, 
 will reject the confession." 
 
 In the present case the magistrates appear to have intended to 
 state the evidence which was before them, and to ask our opinion 
 whether on that evidence they did right in admitting the confession. 
 Now there was obviously some ground for suspecting that the con- 
 fession might not have been free and voluntary; and the question i$ 
 whether the evidence was such as ought to have satisfied their minds
 
 ADMISSIONS AND CONFESSIONS 187 
 
 that it was free and voluntary. Unfortunately, in my judgment, the 
 magistrates do not seem to have understood what the precise point to 
 be determined was, or what evidence was necessary to elicit it. The 
 new evidence now before us throws a strong light on what was the 
 object of the interview between Mr. Crewdson and the prisoner's 
 brother and brother-in-law, why he made any communication to them, 
 and why he expected that what he said would be communicated to the 
 prisoner. There is, indeed, no evidence that any communication was 
 made to the prisoner at all ; but it seems to me that after Mr. Crewd- 
 son's statement, that he had spoken 'to the prisoner's brother and 
 brother-in-law about the desirability of the prisoner making a clean 
 breast of it, with the expectation that what he had said would be com- 
 municated to the prisoner, it was incumbent on the prosecution to 
 prove whether any and if so, what communication was actually made 
 to the prisoner, before the magistrates could properly be satisfied 
 that the confession was free and voluntary. 
 
 The magistrates go on to say that they inferred that the details 
 of the interview would be, by which I suppose they intend to say that 
 they inferred they were, communicated to the prisoner, which seems 
 to have been the right inference to draw under the circumstances. 
 They add that they found, as a fact, that the statements made by 
 Crewdson were calculated to elicit the truth, and that the confession 
 was voluntary. The first of these findings, if the ruling of Pollock, 
 C. B., in Reg. v. Baldry (i) is, as I take it to be, correct, is entirely 
 immaterial. The second finding, if it is a corollary from the. first, 
 does not follow from it, and if it is an independent finding, is not 
 warranted by the evidence; and, as the question for us is whether 
 this finding was warranted by the evidence, I feel compelled to say 
 that in my judgment it was not. Taking the words of Mr. Crewdson 
 to have been, "It will be the right thing for Marcellus to make a state- 
 ment," and that those words were communicated to the prisoner, I 
 should say that the communication was calculated in the language 
 of Pollock, C. B., to lead the prisoner to believe that it would be 
 better for him to say something. All this, however, is matter of con- 
 jecture ; and I prefer to put my judgment on the ground that it is the 
 duty of the prosecution to prove, in case of doubt, that the prisoner's 
 statement was free and voluntary, and that they did not discharge 
 themselves of this obligation. 
 
 I would add that for my part I always suspect these confessions, 
 which are supposed to be the offspring of penitence and remorse, and 
 which nevertheless are repudiated by the prisoner at the trial. It
 
 1 88 CASES ON EVIDENCE 
 
 is remarkable that it is of very rare occurrence for evidence of a 
 confession to be given when the proof of the prisoner's guilt is other- 
 wise clear and satisfactory; but when it is not clear and satisfactory, 
 the prisoner is not un frequently alleged to have been seized with the 
 desire born of penitence and remorse to supplement it with a con- 
 fession; a desire which vanishes as soon as he appears in a court 
 of justice. In this particular case there is no reason to suppose that 
 Mr. Crewdson's evidence was not perfectly true and accurate; but, 
 on the broad, plain ground that it was not proved satisfactorily that 
 the confession was free and voluntary, I think it ought not to have 
 been received. In my judgment no other principle can be safely worked 
 by magistrates. 
 
 LORD COLERIDGE, C. J., HAWKINS, DAY and WILLS, JJ., concurred. 
 
 Conviction quashed. 
 
 STATE v. RUSH. 
 5 Mo. jpp. 
 
 BRACE, J. The defendant was jointly indicted in the Circuit Court 
 of Jasper County with one Seth Beard for the crime of robbery in 
 the first degree, and on his motion was granted a separate trial; his 
 motion to quash the indictment having been overruled, he was tried, 
 found guilty, and his punishment assessed at imprisonment in the 
 penitentiary for a term of ten years, and he was sentenced accord- 
 ingly; his motion for new trial and in arrest of judgment having 
 been overruled he appealed, and assigns for error that the court 
 overruled his motion to quash the indictment, admitted incompetent 
 evidence, refused proper and gave improper instructions, failed to 
 declare all the law of the case, and refused to grant a new trial for 
 the improper conduct of the sheriff and jury. 
 
 Sheriff Bailey, sworn as a witness on behalf of the state, was per- 
 mitted, over the objections of the defendant, to testify to a conver- 
 sation he had with the defendant in which he made certain crim- 
 inating admissions, after answering the following preliminary ques- 
 tions: Q. "Did you have the defendant in your custody at that time? 
 A. Yes." Q. "Was that confession about getting the money from 
 Pirtle made after you had told Rush that Seth Beard had given him 
 away? A. Yes." E. S. Pike, who arrested the defendant in Kan-
 
 ADMISSIONS AND CONFESSIONS 189 
 
 sas and brought him back to Jasper county, was present at the same 
 conversation and testified in regard to it. He was also permitted to 
 testify, over the objection of the defendant, to the following con- 
 versation had with defendant on the way back : "I told him I was 
 satisfied that he was connected with the case, and he said he was not 
 guilty himself, but knew who was." These admissions of the de- 
 fendant were made to an officer having him in custody, but it appear- 
 ing that they were not induced by any promise of benefit or favor, 
 or threat or disfavor, or intimidation, connected with the subject of 
 the charge, made or held out by such officer, such admissions were 
 voluntary and admissible in evidence. State v. Simon, 50 Mo. 370. It 
 does not appear whether the statement made by the sheriff, "that 
 Seth Beard Jiad given him away," was true or false, but even if it 
 was false and the defendant made the admissions under the mis- 
 taken supposition that the co-defendant had divulged facts in relation 
 to the crime, this would not have rendered them inadmissible. State 
 v. Jones, 54 Mo. 478; State v. Phelps, 74 Mo. 128. 
 
 On the whole record we find no reversible error, and the judgment 
 is affirmed. All concur. 
 
 DAVIS v. COMMONWEALTH. 
 
 P5 Ky. 19. (1893) 
 
 BENNETT, C. J. The appellant having been convicted of the crime 
 of murdering Viona Pack by the Lawrence Circuit Court, he appeals 
 and complains as follows : First, that the court erred in not allowing 
 him to prove by G. W. Miller that Granville Pearl confessed to him 
 on his death-bed that he, Pearl, killed Viona Pack. It seems to us 
 that admissions and confessions as to competency stand upon the 
 same footing. Admissions cannot be used in evidence, except against 
 the persons making them in an issue between him and another per- 
 son, wherein the truth of the admissions is involved, or against his 
 privies claiming through him. And confessions are incompetent evi- 
 dence except against a person charged with crime, or, in a proper 
 state of case, against his confederates. Nor is the proposed evidence 
 competent as a dying declaration because such evidence is only com- 
 petent when it comes from a declarant whose personal injuries by an- 
 other have resulted in death, and the declarations must be confined to 
 th'e manner and circumstances of the injury and to the person that 
 did it. 
 
 Judgment affirmed.
 
 190 CASES ON EVIDENCE 
 
 THE BULE AGAINST HEARSAY.* 
 
 / 
 
 MIMA QUEEN AND CHILD v. HEPBURN. 
 7 Cranch. (U. S.) 291. (1813) 
 
 MARSHALL, CH. J. This was a suit instituted by the plaintiffs in the 
 Circuit Court of the United States for the County of Washington, 
 in which they claim freedom. On the trial of the issue certain depo- 
 sitions were offered by the plaintiffs, which were rejected by the 
 court and exceptions were taken. The verdict and judgment being 
 rendered for the defendants, the plaintiffs have brought the cause 
 into this court by writ of error, and the case depends on the correct- 
 ness of the several opinions given by the Circuit Court. 
 
 The first opinion of the court to which exception was taken was for 
 the rejection of part of the deposition of Caleb Clarke, who deposed 
 to a fact which he had heard his mother say she had frequently heard 
 from her father. 
 
 The second exception is to the opinion overruling part of the depo- 
 sition of Freeders Ryland, which stated what he had heard Mary, 
 the ancestor of the plaintiffs, say respecting her own place of birth 
 and residence. 
 
 The fifth exception is substantially the same with the second. 
 
 These several opinions of the court depended on one general prin- 
 ciple. The decision of which determines them all. It is this: That 
 hearsay evidence is incompetent to establish any specific fact, which 
 fact is in its nature susceptible of being proved by witnesses who 
 speak from their own knowledge. 
 
 However the feelings of the individual may be interested on the 
 part of a person claiming freedom, the court cannot 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 ago. 
 
 It was very justly observed by a great judge that "all questions 
 upon the rules of evidence are of vast importance to all orders and 
 
 i Hughes on Evidence, p. 51.
 
 THE RULE AGAINST HEARSAY 191 
 
 degrees of men: our lives, our liberty, and our property are all con- 
 cerned in the support of these rules, which have been matured by the 
 wisdom of ages, and are now revered from their antiquity and the 
 good sense in which they were founded." 
 
 One of these 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 existence of the fact, and the frauds which 
 might be practiced under its cover, combine to support the rule that 
 hearsay evidence is totally inadmissible. 
 
 To this rule there are some exceptions which are said to be as old 
 as the rule itself. These are cases of pedigree, or prescription of cus- 
 tom, and in some cases of boundary. There are also matters of gen- 
 eral and public history which may be received without that full proof 
 which is necessary for the establishment of a private fact. 
 
 It will be necessary only to examine the principles on which these 
 exceptions are founded to satisfy the judgment that the same prin- 
 ciples will not justify the admission of hearsay evidence to prove a 
 specific fact, because the eye witnesses to that fact 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 danger of admitting hear- 
 say 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 witnesses of any fact be dead 
 should justify the introduction 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. 
 
 This subject was very ably discussed in the case of the king against 
 the inhabitants of Eriswell, where the question related to the fact 
 that a pauper had gained a residence, a fact which it .was contended 
 might be proved by hearsay evidence. In that case the court was 
 divided, but it was afterwards determined that the evidence was in- 
 admissible. 
 
 This court is of the same opinion. 
 
 The general rule comprehends the case, and the case is not within 
 any exception heretofore recognized. This court is not inclined to 
 extend the exceptions further than they have already been carried.
 
 192 CASES ON EVIDENCE . 
 
 There is no error in the proceedings of the Circuit Court and the 
 judgment is affirmed. 
 
 DUVALL, J. The principal point in this case is upon the admis- 
 sibility of hearsay evidence. The court below admitted hearsay evi- 
 dence to prove the freedom of the ancestor from whom the petitioners 
 claim, but refused to admit hearsay of hearsay. This court has de- 
 cided that hearsay evidence is not admissible to prove that the ances- 
 tor from whom they claim was free. From this opinion I dissent. 
 
 In Maryland the law has been for many years settled that on a 
 petition for freedom where the petitioner claims for an ancestor who 
 has been dead for a great length of time, the issue may be proved 
 by hearsay evidence, if the fact is of such antiquity that living tes- 
 timony cannot be procured. Such was the opinion of the general 
 court of Maryland, and their decision was affirmed by the unanimous 
 opinion of the judges of the High Court of Appeals in the last resort, 
 after full argument by the ablest counsel at the bar. I think the 
 decision was correct. 
 
 Notes. The three chief reasons for excluding hearsay testimony are, 
 (1) the original statement is not made under oath; (2) no opportunity is 
 given the adverse party to cross-examine the person who made the original 
 statement; (3) no opportunity is given the jury to observe his demeanor 
 when making it. 
 
 The rule against hearsay is restricted to statements used testimonially. 
 Thus, In the celebrated Harry K. Thaw murder case letters written by Stan- 
 ford White, the deceased, to Thaw's wife were admitted because the purpose 
 in introducing them was not testimonial. It was to show the jury inferen- 
 tially the effect of the letters in producing in Thaw's mind a "brainstorm." 
 
 A few classes of statements are characterized as exceptions to the rule 
 against hearsay. They include statements pertaining to general reputation, 
 market values, what was said, etc. As a general rule, however, these con- 
 stitute original evidence. 
 
 Several of the so-called exceptions to the rule against hearsay are in 
 fact independent rules. Their origin antedates that of the rule against 
 hearsay. Thus, account-book entries and entries made in the regular course 
 of business were held admissible in evidence long before the rule against 
 hearsay came into existence.
 
 FORMER EVIDENCE 193 
 
 FORMER EVIDENCE.1 
 
 YALE v. COMSTOCK. 
 
 112 Mass. 267. 
 
 Complaint under the mill act. Trial in the Superior Court, before 
 Dewey, J., after a verdict for the respondent, allowed the complain- 
 ant's bill of exceptions, from which it appeared that the complainant 
 derived his title by deed from Allen S. Yale, July 31, 1871. 
 
 The respondent derived his title by deed from Marshall Brace. 
 Feb. 26, 1868, and claimed a prescriptive right to maintain his dam 
 at the height it was maintained during the time covered by this com- 
 plaint. 
 
 It appeared that a mill and dam, for the working of the same, had 
 been maintained, by those under whom the respondent derived his 
 title, since the year 1843, on the same site as at present, and that 
 in the year 1863, Marshall Brace being then the owner of the re- 
 spondent's dam and mill, and Allen S. Yale of the land now owned 
 by the complainant, the dam was in various respects altered and rebuilt, 
 and a material point in issue in the present case was whether, when 
 Brace altered and rebuilt the dam, the new dam was made higher than 
 the old one. It was agreed that Brace had since died. 
 
 The respondent called L. H. Gamwell, Esquire, who testified that 
 as a master in chancery, under the order of the Supreme Judicial 
 Court, he took the testimony of various witnesses in the suits in 
 equity of Brace v. Yale, and Yale v. Brace, 99 Mass. 488, and that he 
 took the testimony of Marshall Brace; that the counsel of both par- 
 ties were present as well as the parties during the whole time; that 
 the testimony was given in answer to interrogatories and cross-inter- 
 rogatories, and taken in narrative form by the consent of the counsel, 
 read to the witnesses carefully, and if any corrections were made 
 they were entered, that after having made such corrections, if any, he 
 made an accurate copy of the part in which corrections were made, 
 and connected it with that part of which no corrections were made; 
 that the testimony thus taken was returned by him to court; that he 
 could not tell whether any corrections were made in Brace's testi- 
 mony, or whether the paper was the original one on which he took 
 the evidence. 
 
 i Hughes on Evidence, p. 57.
 
 194 CASES ON EVIDENCE 
 
 The respondent produced from the files of the clerk the master's 
 report in the cases of Brace v. Yale and Yale v. Brace, and Gamwell 
 identified it and testified that he intended to state the testimony of 
 Marshall Brace in the exact language used, and believed that it was 
 so stated in the report. 
 
 The papers in the suits of Yale v. Brace, and Brace v. Yale were 
 introduced and referred to, to show what questions were in contro- 
 versy between the parties in the suit, and the court being of the 
 opinion that one of the matters in controversy between Brace and 
 Yale was as to whether the height of the dam had been raised by 
 Brace in the year 1863, admitted, against the objections of the com- 
 plainant, the evidence of Brace's testimony upon the point, as stated 
 in the report, and offered to permit the complainant to introduce the 
 whole or any part of the testimony of Brace, in addition to that in- 
 troduced by the respondent. 
 
 MORTON, J. It is an established rule of law that evidence of what 
 a deceased witness testified on a former trial is competent in any 
 subsequent trial of the same issue, between the same parties. And 
 privies in estate are deemed to be the same parties within this rule. 
 Commonwealth v. Richards, 18 Pick. 434. Warren v. Nichols, 6 Met. 
 261. Jackson v. Lawson, 15 Johns. 539. Jackson v. Crissey, 3 Wend. 
 251. Under this rule the presiding judge rightly admitted evidence 
 of what Marshall Brace testified in the former trial of the cases be- 
 tween Brace and Yale. The parties in this suit derive their titles 
 respectively from said Yale and Brace, and as to them are privies in 
 estate. The court found, and it is not disputed, that one of the issues 
 in the former suits was the same as one of the issues in this suit. 
 Brace being dead, his testimony at the former trial upon this issue 
 was competent. It has been held with great strictness in this Com- 
 monwealth, that the witness called to prove what a deceased witness 
 testified in a former trial must be able to state the language in which 
 the former testimony was given substantially and in all material par- 
 ticulars. Warren v. Nichols, ubi supra. 
 
 It is clear that the witness called to prove the testimony of Brace 
 fulfilled this condition. Acting as a master in chancery, he took the 
 testimony in writing, read it carefully to the witness, and made a 
 report thereof to the court. He identified the report, and testified 
 that "he intended to state the testimony of Marshall Brace in the 
 exact language of said Brace, and believed that it was so stated in 
 said report." No case could arise, except that of a deposition signed 
 by the witness, in which more satisfactory guarantees could be fur-
 
 FORMER EVIDENCE 195 
 
 nished that the exact testimony of the deceased witness is laid before 
 the jury. 
 
 The point made by the complainant at the argument, that the ques- 
 tion whether the witness could state the exact testimony of Brace 
 should have been submitted to the jury, was not raised at the trial, 
 is not open upon this bill of exceptions, and need not be considered. 
 
 Exceptions overruled. 
 
 JACKSON v. LAWSON. 
 . 15 Johns. (N. Y.) 529 . (1818) 
 
 This was an action of ejectment for a farm in Poughkeepsie, in 
 the county of Dutchess. The cause was tried before Air. J. Van 
 Ness, at the Dutchess Circuit, in August, 1817. 
 
 On the trial, John C. Brower, a witness on the part of the plaintiff, 
 testified, that he knew William Lawson. the father of Peter Law- 
 son, and the grandfather of the defendant; that W. Lawson died in 
 possession of the premises in question in July, 1791 ; that the defend- 
 ant was in possession of about fifty or sixty acres of land, the prem- 
 ises in question, which the defendant recovered in an action of eject- 
 ment against the witness, and Elizabeth Lawson, widow of W. 
 Lawson, and that he went into possession by virtue of that recovery, 
 seventeen or eighteen years before the trial, and had continued in 
 possession ever since; that when W. Lawson died, he left his widow, 
 Elizabeth, who is since dead, in possession; and that Peter Lawson 
 had possessed the farm for a long time previous to his death, and 
 the witness always understood that he bought the farm of his father 
 W. Lawson. 
 
 The defendant gave in evidence the record of a recovery in an 
 action of ejectment in this court, for the land in question, wherein 
 James Jackson, on the demise of John Lawson, the now defendant, 
 was plaintiff, and Elizabeth Lawson, the widow of W. Lawson and 
 John Brower were defendants, and which cause was tried on the 
 i4th of June, 1797, before Morgan Lewis, Esq., then one of the 
 justices of this court, and judgment was signed the 4th of August, 
 1797. The defendant then offered to prove that the lessor of the' 
 plaintiff was present at the trial in that suit; that he was the agent 
 of E. Lawson, in preparing the defense, conducting the trial, and 
 examining and cross-examining the witnesses ; and that Peter Dubois,
 
 196 GASES ON EVIDENCE 
 
 / 
 
 who is since dead, was sworn as a witness at that trial, on the 
 part of the then plaintiff, and testified, in the hearing and presence 
 of the lessor in this suit, that he surveyed the premises in question on 
 the I4th of Feb. 1769, at the request of P. Lawson. and his father, 
 William, and drew a deed in fee simple from William to Peter, and 
 a bond from Peter to William for the purchase money, and that 
 William told the witness, some months afterwards, that he had con- 
 veyed the premises to his son, and was afraid that he would not be 
 able to pay the residue of the consideration money. This testimony 
 was objected to, and excluded by the judge. The jury found a verdict 
 for the plaintiff, which the defendant now moved to set aside, for a 
 new trial, on the grounds, I. That the verdict was contrary to evi- 
 dence; and, 2. That the judge had rejected proper testimony. 
 
 VAN NESS, J., delivered the opinion of the court. 
 
 The first question I shall consider is, whether the testimony given 
 by Dubois in the action of ejectment brought by the present defend- 
 ant against the widow of William Lawson and Brower, and in which 
 the then plaintiff had judgment in 1787, was properly rejected or not. 
 By the will of William Lawson, he devised all his estate to his 
 wife during her widowhood, with remainder to certain of his chil- 
 dren, part of whose estate the now lessor of the plaintiff purchased 
 in 1791. Both the widow of William Lawson, and the lessor of the 
 plaintiff, thus claim under the same will; and I am inclined to think, 
 that there is such a privity of estate between them, and the verdict 
 in that case was, for certain purposes, evidence (though not conclus- 
 ive) in this. It was evidence, at least, to lay the foundation for 
 admitting the testimony given by Dubois, more especially as the lessor 
 of the plaintiff, in point of fact, had notice of, and defended the 
 former ejectment; was present at the trial, and had an opportunity 
 of cross-examining the witnesses, though I lay no particular stress 
 on these latter facts. The estate devised to the widow during her 
 widowhood, and the remainder over, constitute but one estate carved 
 out of the same inheritance, created and subsisting together, the one 
 in possession, the other in expectancy. An estate in remainder is a 
 present interest, though to be enjoyed in the future, and is capable of 
 being aliened, devised, and otherwise disposed of, in the same man- 
 ner as an estate in possession. The possession of the widow was, 
 for certain purposes, the possession of the remainder men, and the 
 entry of the present defendant, under the recovery in the ejectment, 
 was a prejudice to those in remainder, for, in consequence of it, the 
 estate in remainder has become a right in action only. The lessor
 
 FORMER EVIDENCE 197 
 
 of the plaintiff had an interest in defeating the recovery, and his 
 right was so interwoven with that of the widow, that the evidence of 
 Dubois affected the one almost equally with the other. My attention 
 was not called to this view of the subject at the trial; and the fact 
 that the present lessor of the plaintiff had purchased part of the estate 
 in remainder before the trial in 1797, was overlooked; and the counsel 
 for the defendant put. the admissibility of the testimony offered, on 
 the ground that the lessor of the plaintiff was the agent of the widow, 
 and present at the trial. It was held by Ch. J. Holt, "that if several 
 estates in remainder be limited in a deed, and one of the remainder 
 men obtains a verdict for him, in an action brought against him for 
 the same land, that verdict may be given in evidence for the sub- 
 sequent man remainder in action brought against him for the same 
 lands, though he does not claim any estate under the first remainder 
 man, because they all claim under the same deed." Pike v. Crouch 
 (i Lord Ray in. 730.) 
 
 If the verdict in the former ejectment was admissible on the trial 
 of the suit, by reason that the tenant for life and the remainder 
 men are privies in estate, it follows, that the evidence given in the 
 first suit by a deceased witness, is also admissible. The rule is, that 
 such evidence is proper, not only when the point in issue is the 
 same in a subequent suit between the same parties, but also for or 
 against persons standing in the relation of privies in blood, privies 
 in estate or privies in law. On this ground, the defendant is entitled 
 to a new trial; though, independently of this, I think a new trial 
 ought to be granted on the other grounds taken in the argument, that 
 the verdict is against the weight of evidence. The proof of a con- 
 veyance by William Lawson, in his lifetime, to his son Peter, is very 
 clear and satisfactory. 
 
 New trial granted with costs to abide the event. 
 
 CORNELL v. GREEN. 
 10 S. & R. (Pa.) 16. (1823) 
 
 Error to the Court of Common Pleas of Dauphin County, in an 
 ejectment, brought by the plaintiff below, Innis Green, administrator 
 Cum Testamento annexe, of Robert McCord, deceased, against 
 Thomas D. Cornell, James Armstrong and John Sawyer, the de-
 
 198 CASES ON EVIDENCE 
 
 fendants below, in which a verdict and judgment were rendered in 
 favor of the plaintiff. 
 
 Exceptions were taken by the defendants below, on the opinion 
 of the court on points of evidence, and also to their charge. 
 
 GIBSON, J. After the plaintiff had opened his rebutting evidence, 
 he offered Mr. Fisher, who was of counsel in the cause, to prove what 
 had been sworn on a former trial by a witness since deceased. On 
 being examined as to the state of his recollection, Mr. Fisher tes- 
 tified that "from having been consulted before the suit was insti- 
 tuted, and having directed to be done, what the witness in the former 
 trial swore was done; as well from frequently having recurred to his 
 notes of the witness's testimony, as from conversations with him be- 
 fore the trial came on ; he had a perfect recollection of what the wit- 
 ness swore ; that he would not, however, pretend to say without a 
 previous knowledge of all these facts, what the witness did or did 
 not swear; that he is in the habit of taking down the very words of a 
 witness, and not the substance of his testimony; and that to the best 
 of his knowledge, his notes contain every word said by the witness 
 on the occasion." Mr. Fisher added, "that conversant as he was with 
 the cause, without frequently recurring to his notes, he would not 
 undertake to state every word said by the witness, but that the ma- 
 terial part of what he had said he could state without recurring to 
 his notes." The defendants then objected to Mr. Fisher's compe- 
 tency to prove the matters proposed ; but the court admitted him and 
 sealed a bill of exceptions. I confess I cannot see any reason for the 
 rule stated in Mr. Phillipp's treatise, that a person called to prove 
 what a deceased witness had said, must undertake to repeat his very 
 words, and not merely to swear to their effect. The rule applied with 
 that degree of strictness, would be altogether useless in practice for 
 there is no man, be his powers of recollection what they may, who 
 could in one case picked out of ten thousand, be qualified to give 
 such evidence; and if he should undertake to swear positively to the 
 very words, the jury ought on that account alone to disbelieve him. 
 The reason assigned, that the jury and not the witness is to judge 
 of the effect, is more plausible than sound. It is a good general rule 
 that a witness is not to give his impressions, but to state the facts 
 from which he received them, and thus leave the jury to draw their 
 own conclusion; and wherever the facts can be stated, it is not to be 
 departed from. But every man must judge of external objects ac- 
 cording to the impressions they make on his senses ; and after all, 
 when we come to speak of the most simple fact which we have wit-
 
 EVIDENCE 199 
 
 nessed, we are necessarily guided by our impressions. There are 
 cases where a single impression is made by induction from a number 
 of others; as, where we judge whether a man is actuated by passion, 
 we are determined by the expression of his countenance, the tone of 
 his voice, his gestures, and a variety of other matters; yet a witness 
 speaking of such a subject of inquiry, would be permitted directly 
 to say whether the man was angry or not. I trust this will not be 
 considered as refining too much, when it is considered that the sub- 
 tlety is in the subject, and not in the manner of treating it. I take it, 
 that whereever the facts from which a witness received an impression 
 are too evanescent in their nature to be recollected, or are too com- 
 plicated to be separated and distinctly narrated, his impressions from 
 these facts become evidence; and this on the ground that it is the 
 ,best evidence of which the nature of the case is susceptible. Now 
 the meaning of a witness often depends not much less on his em- 
 phasis, gestures, and even the expression of his countenance, than on 
 the particular words he utters; and the superior value of viva voce 
 evidence in the presence of the jury, depends altogether on this; yet 
 no one will pretend that a by-stander who is unable minutely to de- 
 scribe all these, may not be heard. The truth is, that evidence of 
 what a deceased witness said, being inferior in its nature to a per- 
 sonal examination before the jury, is admissible only from necessity 
 and on the ground that better evidence does not remain behind, the 
 jury being left to form their own judgment of the accuracy of the 
 narration. I cannot therefore see why the same necessity which opens 
 the way for secondary evidence of the very words of a deceased wit- 
 ness, should not open the way also for the substance of his testimony 
 when his very words cannot be recollected; or discover the policy of 
 a rule which should shut out the little light that is left, when it is 
 all that is left, merely because it may not be sufficient to remove every 
 thing like obscurity. But even where written notes of the evidence 
 of a deceased witness are produced, it is sufficient to prove by the 
 person who made them that they contain the true substance of what 
 was said. Miles v. O'Hara, 4 Binn. 108. For these reasons, I am 
 of opinion that Mr. Fisher was competent to testify to what the wit- 
 ness had sworn. It seems, however, singular that instead of trusting 
 to Mr. Fisher's recollection, the plaintiff did not offer his notes in 
 evidence against which, when properly authenticated, there could be 
 no sort of objection. 
 
 Judgment affirmed.
 
 2OO CASES ON EVIDENCE 
 
 WARREN et al. v. NICHOLS. 
 47 Mass. 261. (1843) 
 
 Trespass for breach and entry of the plaintiffs' close by the de- 
 fendant's horses and sheep. * * * 
 
 SHAW, C. J. The jury in this action, which is trespass quare 
 clausam fregit, having returned a verdict, that the alleged trespass 
 was casual and involuntary, and assessed the damages at $12, and it 
 appearing that $12 had been tendered as damages, before the action 
 was brought, the defendant moves for judgment. This is opposed by 
 the plaintiffs, who move for a new trial on the grounds stated in the 
 report. The principal one is, that the testimony of Oliver Luce, as to 
 what a deceased witness, Brown, had formerly testified, in this cause, 
 in the Court of Common Pleas, and which was tendered by the plain- 
 tiffs, ought to have been received. 
 
 The rule upon which evidence may be given of what a deceased 
 witness testified on a former trial between the same parties, in a case 
 where the same question was in issue, seems now well established 
 in this Commonwealth by authorities. It was fully considered in the 
 case of Commonwealth v. Richards, 18 Pick. 434. The principle 
 on which this rule rests was accurately stated, the cases in support of 
 it were referred to, and with the decision of which we see no cause 
 to be dissatisfied. The general rule is, that one person cannot be 
 heard to testify as to what another person has declared, in relation 
 to a fact within his knowledge, and bearing upon the issue. It is 
 the familiar rule which excludes hearsay. The reasons are obvious, 
 and they are two. First, because the averment of fact does not come 
 to the jury sanctioned by the oath of the party on whose knowledge 
 it is supposed to rest; and secondly, because the party, upon whose 
 interests it is brought to bear, has no opportunity to cross-examine 
 him on whose supposed knowledge and veracity the truth of the fact 
 depends. 
 
 Now, the rule, which admits evidence of what another said on a 
 former trial, must effectually exclude both of these reasons. It must 
 have been testimony, that is, the affirmation of some matter of fact, 
 under oath; it must have been in a suit between the same parties 
 in interest, so as to make it sure that the party, against whom it is 
 now offered, had an opportunity to cross-examine; and it must have 
 been upon the same subject-matter, to show that his attention was 
 drawn to points now deemed important. It must be the same testi-
 
 FORMER EVIDENCE 201 
 
 mony which the former witness gave, because it comes to the jury 
 under the sanction of his oath, and the jury are to weigh the testi- 
 mony and judge of it, as he gave it. The witness, therefore, must 
 be able to state the language in which the testimony was given, sub- 
 stantially and in all material particulars, because that is the vehicle, 
 by which the testimony of the witness is transmitted, of which the 
 jury are to judge. 
 
 If it were otherwise, the statement of the witness, which is offered, 
 would not be of the testimony of the former witness; that is, of the 
 ideas conveyed by the former witness in the language in which he 
 embodied them; but it would be a statement of the present witness's 
 understanding and comprehension of those ideas, expressed in lan- 
 guage of his own. Those ideas may have been misunderstood, modi- 
 fied, perverted or colored, by passing through the mind of the 
 witness, by his knowledge or ignorance of the subject, or the language 
 in which the testimony was given, or by his own prejudices, predilec- 
 tions or habits or thought and reasoning. To illustrate this distinction, 
 as we understand it to be fixed by the cases : If a witness, remarkable 
 for his knowledge of law and his intelligence on all other subjects, of 
 great quickness of apprehension and power of discrimination, should 
 declare that he could give the substance and effect of a former wit- 
 ness's testimony, but could not recollect his language, we suppose 
 he would be excluded by the rule. But if one of those remarkable 
 men should happen to have been present, of great stolidity of mind, 
 upon most subjects, but of extraordinary tenacity of memory for lan- 
 guage, and who could say that he recollected and could 'repeat all the 
 words uttered by the witness ; although it should be very manifest that 
 he himself did not understand them, yet his testimony would be ad- 
 missible. 
 
 The witness called to prove former testimony must be able to sat- 
 isfy one other condition, namely, that he is able to state all that 'the 
 witness testified on the former trial, as well upon the direct as the 
 cross-examination. The reason is obvious. One part of his state- 
 ment may be qualified, softened or colored by another. And it would 
 be of no avail to the party against whom the witness is called to 
 state the testimony of the former witness, that he has had the right 
 and opportunity to cross-examine that former witness, with a view of 
 diminishing the weight or impairing the force of that testimony 
 against him, if the whole and entire result of that cross-examination 
 does not accompany the testimony. It may perhaps be said, that, 
 with these restrictions, the rule is of little value. It is no doubt true,
 
 2O2 CASES ON EVIDENCE 
 
 that in most cases of complicated' and extended testimony the loss 
 of evidence by the decease of a witness cannot be avoided. But the 
 same result follows, in most cases, from the decease of a witness, 
 whose testimony has not been preserved in some of the modes pro- 
 vided by law. But there are some cases, in which the rule can be 
 usefully applied, as in case of testimony embraced in a few words 
 such as proof of demand or notice on notes or bills cases in which 
 large amounts are often involved. If it can be used in a few cases, 
 consistently with the true and sound principles of the law of evidence, 
 there is no reason for rejecting it altogether. At 'the same time, care 
 should be taken so to apply and restrain it, that it may not, under 
 a plea of necessity, and in order to avoid hard cases, be so used as 
 to violate those principles. It is to be recollected that it is an ex- 
 ception to a general rule of evidence supposed to be extremely im- 
 portant and necessary; and unless a case is brought fully within the 
 reasons of such exception, the general rule must prevail. 
 
 I am aware that Mr. Greenleaf, in his learned and very excellent 
 Treatise on Evidence, sec. 165, has intimated a doubt whether it is 
 wise to hold the rule in question with this strictness ; and the cases 
 from the Pennsylvania Reports justify the suggestion, and warrant a 
 more liberal construction of the rule, so far as it is practised in 
 that State. But Mr. Greenleaf does not cite the case of Common- 
 wealth v. Richards, 18 Pick. 434, and probably he had not adverted 
 to it, when his treatise was written. That is a recent case, and one 
 which we are bound to regard as of high authority in this Common- 
 wealth. 
 
 The rule in regard to proving what a witness formerly testified, 
 on a prosecution for perjury, does not seem to be strictly analogous. 
 There, if it is proved by a witness, that the party now on trial for- 
 merely testified positively to a fact, and did not afterwards, in the 
 course of his testimony, retract or modify that statement; on proof 
 that the matter, thus testified as a fact, was not true, and the wit- 
 ness knew it, the perjury assigned may be considered well proved, 
 although the accused testified to many other things, on the same trial, 
 which the witness now called does not recollect, and which perhaps 
 would be irrelevant, if he could. But the cases, we think, stand on 
 different grounds. Rex v. Rowley, i Mood. Cr. Cas. in. 
 
 All that the witness could state, in the present case, was, that 
 he could give the substance of the witness's testimony, but not 
 his precise language. We lay no stress upon the epithet "precise." 
 It might properly lead to a further preliminary examination of the
 
 FORMER EVIDENCE 203 
 
 extent of his knowledge and probably did so. As he could only give 
 the substance and effect of the testimony, but* not the language in 
 which it was given, we think the judge did right in excluding him. 
 
 Judgment for the defendant for his costs. 
 
 JACKSON v. STATE. 
 81 Wis. 127. (1892) 
 
 CASSODAY, J. It appears that there was a former trial of this case, 
 and the jury disagreed. Upon that trial the complaining witness, 
 William Summers, was examined as a witness on the part of the 
 state, and cross-examined on the part of the accused. After that trial, 
 and before the last trial, that witness had died and his testimony, as 
 taken by the stenographer on the former trial, was admitted in evi- 
 dence upon this last trial against objection. It is claimed that such 
 ruling was an infringement of a right secured to the accused by that 
 clause of the constitution of this state which declares that "in all 
 criminal prosecutions the accused shall enjoy the right to meet the 
 witnesses face to face." Sec. 7, art. I. 
 
 This language is quite similar to that contained in art. VI of 
 the amendments to the constitution of the United States. In State v. 
 Cameron, 2 Pin. 499, Stow, C. J., said: "The trial by jury, as it 
 existed of old, is the trial by jury secured by our national and state 
 constitutions. It is not granted by these instruments ; it is more it 
 is secured. It is no American invention. Our fathers brought it 
 with them to this country more than two centuries ago, and by making 
 it a part of the constitution they intended to perpetuate it for their 
 posterity, and neither legislatures nor courts have any power to in- 
 fringe even the least of its privileges." That language is quoted 
 approvingly by Ryan, C. J. in In re Eldred, 46 Wis. 553. 
 
 Thus it appears that the right of the accused to meet the witnesses 
 face to face was not granted, but secured, by the constitutional clauses 
 mentioned. It is the right, therefore, as it existed at common law 
 that was thus secured. That right was subject to certain exceptions. 
 One of these exceptions was that the declarations of a murdered 
 person, made when he was at the point of death and every hope of 
 this world gone, as to the time, place and manner in which, and the 
 person by whom, the fatal wound was given, are admissible in evi-
 
 204 CASES ON EVIDENCE 
 
 dence, notwithstanding such deceased person was not sworn nor 
 examined, much less cross-examined. This court has frequently held 
 that the constitutional clause quoted is no bar to the admission in 
 evidence of such declarations. State v. Cameron, 2 Pin. 490; Miller 
 v. State, 25 Wis. 387 ; State v. Martin, 30 Wis. 223 ; State v. Dickin- 
 son, 41 Wis. 308. In these cases, it is, in effect, said that such rule 
 as to the admission of such dying declarations was well settled before 
 the adoption of our constitution, and that the same was not abrogated 
 by the clause of the constitution quoted. 
 
 The testimony of a deceased witness, given upon a former trial, 
 would seem to be admissible upon the same theory. "The chief rea- 
 sons for the exclusion of hearsay evidence," says Mr. Greenleaf, "are 
 the want of the sanction of an oath and of any opportunity to cross- 
 examine the witness. But where the testimony was given under 
 oath, in a judicial proceeding in which the adverse litigant was a 
 party, and where he had the power to cross-examine and was legally 
 called upon to do so, the great and ordinary test of truth being no 
 longer wanting, the testimony so given is admitted, after the decease 
 of the witness, in any subsequent suit between the same parties." i 
 Greenl. Ev., sec. 163. In speaking of criminal cases, Mr. Cooley says: 
 "If the witness was sworn before the examining magistrate, or before 
 a coroner, and the accused had an opportunity then to cross-examine 
 him, or if there were a former trial on which he was sworn, it seems 
 allowable to make use of his deposition, or of the minutes of his 
 examination, if the witness has since deceased, or is insane, or sick 
 and unable to testify, or has been submitted but appears to have been 
 kept away by the opposite party." Cooley, Const. Lim. (6th ed.), 
 387, citing numerous cases. The attorney general cites numerous 
 cases under similar constitutional provisions to the same effect. 
 
 Of course, to be admissible, such former testimony should be estab- 
 lished or identified with reasonable certainty. Here the stenographer 
 testified, in effect that while he did not recollect the fact, yet that he 
 thinks he took down all the questions put to the witness, and his 
 answers, and that he believed they were substantially correct. Coun- 
 sel contend that this was not sufficient to authorize such admission 
 within the rule of Zitske v. Goldberg, 38 Wis. 216, and Elberfeldt v. 
 Waite, 79 Wis. 284. In neither of those cases had such testimony 
 been taken down by the official court reporter. In each it was taken 
 down by a justice of the peace. In the former it was said by the 
 present chief justice that "the minutes of testimony taken by a justice 
 of the peace on a trial before him are subjected to no such scrutiny
 
 FORMER EVIDENCE 205 
 
 (as in a bill of exceptions), and possess none of these important and 
 essential elements of verity. On the contrary, they are made in the 
 haste and confusion of trials, generally by men who are quite unused 
 to the business and no power to make corrections after the trial is 
 vested in any one. Hence the reasons for admitting such testimony 
 when it is found in a settled case or bill of exceptions, entirely fail 
 ' when the offered testimony is contained in the justice's minutes." 
 Mr. Greenleaf says that "it was formerly held that the person called 
 to prove what a deceased witness testified on a former trial must be 
 required to repeat his precise words, and that testimony merely to' the 
 effect of them was inadmissible. But this strictness is not now in- 
 sisted upon in proof of the crime of perjury; and it has been well 
 remarked that to insist upon it in other cases goes in effect to exclude 
 this sort of evidence altogether, or to admit it only where, in most 
 cases, the particularity and minuteness of the witness' narrative, and 
 the exactness with which he undertakes to repeat every word of the 
 deceased's testimony, ought to excite just doubts of his own honesty 
 and of the truth of his evidence. It seems therefore, to be generally 
 considered sufficient if the witness is able to state the substance of 
 what was sworn on the former trial. But he must state in substance 
 the whole of what was said on the particular subject which he is 
 called to prove." I Greenl. Ev. sec. 165. Since the proof of such 
 former testimony may be different upon a new trial, it becomes un- 
 necessary, in the view we have taken on the case, to say more about 
 it here. 
 
 grounds. 
 
 THE UNITED STATES v. MACOMB. 
 5 McLane's Rep. 286 (U. S. C. C.) (1873) 
 
 DRUMMOND, J. The defendant was indicted under the 2ist and 
 22nd sections of the Post Office Act of March 3, 1825, 4 Statutes at 
 Large 107-9, for stealing from the mail a packet containing a land 
 warrant and fifty dollars in bank notes. The defendant was pres- 
 ent with his counsel at the examination, during which one Hurl- 
 but, since deceased, who had enclosed the land warrant and bank notes, 
 and directed and posted the letter, testified as a witness for the United 
 States.
 
 206 CASES ON EVIDENCE 
 
 In this case there was other evidence, independent of the testi- 
 mony of Hurlbut before the committing officer, which might have 
 authorized the jury in finding their verdict ; but there can be no doubt 
 that his testimony may have had much influence upon the jury, and, 
 under the circumstances of this case, I should grant a new trial if 
 I thought the testimony should have been excluded. After reflection, 
 however, and all the examination I have been able to give to the sub- 
 ject, I am of the opinion that the ruling at the trial was correct. 
 
 The objection resolves itself into the two following propositions: 
 First. The declarations of a deceased witness made at a former 
 trial between the same parties, upon the same subject-matter can 
 never be given in criminal cases. Secondly. If they can be, it is 
 only when the persons who are called on to give the declarations of a 
 deceased witness can repeat the precise words of the witness, and it 
 being admitted that that was not done here, the testimony ought to 
 have been rejected. 
 
 It is well known that there has long been a difference of opinion 
 upon both these points. 
 
 It is not controverted that the testimony of a deceased witness given 
 at a former trial between the same parties, in the same issue, is ad- 
 missible in civil cases. There seems no difference of opinion as to 
 that. But some of the authorities &c., deny the application of the rule 
 to criminal cases. 
 
 In the United States v. Wood, 3 Washing. C. C. R. 440, which, 
 like this, was a case of robbing the mail, though the testimony was 
 rejected because the precise words could not be given, no allusion 
 whatever is made to any difference between civil and criminal cases. 
 
 The King v. Joliffe, 4 T. R. 290, in which Lord Kenyon used these 
 words in relation to the rule which has been since so often quoted, 
 was a criminal information, and he speaks of no distinction. 
 
 Most of the modern elementary writers, Phillips, Starkie, Roscoe, 
 and Greenleaf advert to the rule as one of general application in all 
 cases. And Russell, particularly, in his valuable little treatise of the 
 law of Evidence, which he has added to his work on Crimes, says 
 expressly, the rule applies to criminal prosecutions, 2 Russ. 683.
 
 FORMER EVIDENCE 207 
 
 PEOPLE v. LEM YOU. 
 p/ Cal. 224. (1893) 
 
 McFARLAND, J. Defendant was convicted of perjury, and appeals 
 from the judgment, and from an order denying a new trial. 
 
 It is charged in the information that the appellant, Lem You, gave 
 certain false and material testimony on the trial of one Wong Ark 
 for the alleged murder of a woman named Goot Gue, who was shot 
 in or in front of the house in which she lived, on the night of April 26, 
 1891, in the city of Los Angeles. 
 
 For the purpose of showing the materiality of the alleged false tes- 
 timony of appellant, the prosecution offered evidence of the testimony 
 which two witnesses named Rohn and Bevan gave at the said trial of 
 said Wong Ark. (There were two or three trials of the said Ark, but 
 the alleged false testimony occurred at the first of said trials.) To 
 this evidence the appellant objected, as incompetent, irrelevant, and 
 immaterial, because appellant, not being present when said testimony 
 was given, had no opportunity to examine or cross-examine said 
 witnesses, because said Rohn was living within the jurisdiction, and 
 should have been called himself, and because Bevan having since died, 
 there is no rule by which his former testimony can be introduced in 
 this cause. The court overruled the objections, and appellant ex- 
 cepted. 
 
 The ruling of the court was right. The purpose was, not to produce 
 said testimony anew, as tending to prove the facts stated therein: it 
 was offered merely for the purpose of showing as a fact that such 
 testimony had been given, and it was expressly limited by the court 
 to that purpose. The materiality of alleged false testimony does not 
 always appear upon its face, or when simply compared with the in- 
 dictment; it may be material on account of certain other testimony 
 which had been previously introduced on the trial of a cause. The 
 the testimony given by another witness which is material, or if going 
 to the credit or discredit of other witnesses, etc. For instance, if, on 
 the trial of A for a felony B should testify that C was at a certain 
 place at a certain time, this would not appear upon its face to be 
 material; but if C had previously testified that he was at another 
 and remote place at said time, and had seen A commit the criminal 
 offense charged, then it clearly would be material. And so the previ- 
 ous evidence, and the state of the cause in the action in which the 
 alleged false testimony was given, may be proven, in order to show
 
 208 CASES ON EVIDENCE 
 
 the materiality of the latter (2 Russell on Crimes, 662; 3 Greenleaf 
 Ev. 197) ; otherwise the materiality of alleged false evidence could 
 rarely be shown. The rule contended for by appellant was confronted 
 with the witnesses who testified to that fact. If the greater part of 
 the testimony of appellant given in the Wong Ark trial was material 
 at all, it was so only in connection with the said testimony of said 
 witnesses Rohn and Bevan. 
 
 Reversed on other grounds. 
 
 BROWN v. COMMONWEALTH. 
 73 Pa. St. 321. (1873) 
 
 At the April Term 1872 of the court below, the grand jury found 
 a true bill against Joseph Brown for the murder of Daniel S. Kraemer. 
 
 There was a large amount of evidence tending to connect the pris- 
 oner with the murder. 
 
 The Commonwealth having examined a great number of witnesses 
 and having shown that one Isaac Hummel had been arrested with the 
 prisoner on suspicion of being connected with the murder, called B. B. 
 McCool, Esq., a member of the Schuylkill county bar, who testified : 
 
 "I was present at the examination of Charles Ewing before 'Squire 
 Reed in this court-house.' Squire Reed is a justice of the peace in 
 the borough of Pottsville. Joseph Brown was present at that hearing 
 and represented by counsel. There were two members of the bar, 
 Messrs. Farquhar and Strouse, there. They represented Brown and 
 Hummel. It was not a preliminary hearing before the committing 
 magistrate I took notes of the testimony as given by Charles Ewing; 
 (notes shown witness) these are the notes. These notes are correct 
 of Charles E wing's testimony. Mr. Ewing was very much excited 
 and embarrassed and not very coherent. I took down nearly every 
 word he said, and order in which he said it, and I think in his lan- 
 guage. I will say that I think the notes contain the exact words of 
 the witness. In taking the notes I made the question and answer 
 conform to the exact words of the attorney and witness. I had not 
 time to write down the questions, but took questions and answers to- 
 gether. I was not acting as counsel, but as clerk for the district 
 attorney, at his request. I am now counsel in the case, retained for
 
 FORMER EVIDENCE 209 
 
 the Commonwealth. I think my notes contain the exact words of the 
 witness." 
 
 The Commonwealth then offered to read the testimony of Ewing 
 from the notes of Mr. McCool. The offer was objected to by the 
 defendant, admitted by the court, and a bill of exceptions sealed. 
 
 READ, C. J. This is a writ of error to the Criminal Court of 
 Schuylkill county, sued out under the Act of the I5th' of Feb. 1870, 
 
 upon the oath of the defendant, and brings up the whole record. 
 * * * 
 
 On the preliminary hearing before the committing magistrate, the 
 defendant and his counsel being present, a witness was examined 
 whose testimony was taken down by defendant's counsel, and the 
 witnesses having died before the trial, the notes of his evidence proved 
 by the counsel under oath, were offered in evidence, objected to and 
 admitted. It was objected that by the Constitution of the state, the 
 defendant was entitled to meet the witnesses face to face. 
 
 The doctrine on this subject is thus laid down in the 3rd volume of 
 Russell on Crimes, by Greaves, 4th edition, 1865, page 249. "If there 
 has been a previous criminal prosecution between the same parties, 
 and the point in issue was the same, the testimony of a deceased wit- 
 ness, given upon oath at the former trial, is admissible on the sub- 
 sequent trial, and may be proved by any one who heard him give 
 evidence," and the same is repeated at page 424 in the note. We find 
 the same rule in I Phillips & Arnold's Evidence, pp. 445, 447. Dr. 
 Wharton, in his valuable Treatise on Criminal Law in the United 
 States, vol. I, p. 667, says: "The testimony of a deceased witness 
 given at a former trial or examination, may be proved at a subsequent 
 trial by persons who heard him testify. Even the notes of counsel 
 of the testimony of such witness on a former trial between the same 
 parties, touching the same subject-matter, are evidence when proved 
 to be correct in substance, although the counsel does not recollect the 
 testimony independently of his notes. The better opinion seems to be 
 that it is sufficient to prove the substance of what the deceased wit- 
 ness said, provided the material particulars are stated, though it has 
 been sometimes held, that unless the precise words could be given the 
 testimony would be rejected." 
 
 In this state the most liberal rule has been adopted, in relation to 
 the former evidence of what was testified to by a deceased witness 
 on a former trial or examination, as will be seen by referring to 
 Cornell v. Green, 10 S. & R. 14; Chess v. Chess, 17 Id. 409; Moore 
 v. Pearson, 6 W. & S. 50, and Rhine v. Robinson, 3 Casey 30, in which
 
 2io CASES ON EVIDENCE 
 
 Chief Justice Lewis said: "The notes of counsel, showing what a 
 deceased witness testified to on a former trial between the same 
 parties touching the same subject-matter, are evidence when proved 
 to be correct in substance, although the counsel did not recollect the 
 testimony independent of his notes, and although he did not recollect 
 the cross-examination." To which may be added the decision in Phil. 
 & Reading R. R. v. Spearen, n Wright, 306, the opinion being deliv- 
 ered by my brother Agnew. 
 
 There was, therefore, no error in the court admitting the notes 
 of Mr. McCool of the testimony of Ewing, a deceased witness in the 
 examination before the committing magistrate, or the notes of any 
 other counsel, or those of the committing magistrate himself. 
 
 Reversed on other grounds. 
 
 DYING DECLABATIONS.i 
 
 RAILING v. COMMONWEALTH. 
 i jo Pa. St. 100. (1885) 
 
 GREEN, J. The principal question in this case is that which relates 
 to the admissibility of the dying declarations of Annie Foust. The 
 defendant was charged with administering to her a drug with intent 
 to procure a miscarriage, and it was also charged that her death re- 
 sulted in consequence. There were four counts in the indictment 
 and all of them charged the death of the woman as the result of the 
 defendant's unlawful act. It is entirely unquestioned that dying dec- 
 larations are admissible only in homicide cases, as a rule, and that 
 the death of the deceased must be the subject of the charge and the 
 circumstances of the death of the subject of the declarations: i 
 Greenl. Ev. sec. 156, I3th ed. Whart. C. Ev. sec. 276; Whart. Am. Cr. 
 Law sec. 669 et seq. It is equally unquestioned that there is no grade 
 of homicide involved in this case, the offense charged being the one 
 commonly known as abortion. It is argued, however, with much 
 force, that the. death of the woman, when it occurs, is a necessary 
 ingredient of the offense, under our statute, and therefore brings the 
 case within the rule above stated. It is claimed that the death is in 
 
 i Hughes on Evidence, p. 62.
 
 DYING DECLARATIONS 211 
 
 part at least the subject of the charge. In one sense this is true. 
 But the question is, is it so in the real sense of the rule which con- 
 trols the subject? That inquiry involves the necessity of an examina- 
 tion of our criminal statute against abortion. It consists of two sec- 
 tions, the 87th and 88th of the criminal code of 1860. The 8/th pro- 
 vides that if any person shall unlawfully administer any drug or sub- 
 stitute to a pregnant woman, or use any instrument with intent to 
 procure her miscarriage, and she or the child shall die, in consequence 
 of such act, such person shall be guilty of felony, and shall be sen- 
 tenced to pay a fine not exceeding $500, and to undergo imprison- 
 ment at labor not exceeding seven years. The 88th section provides 
 that if any person with intent to procure the miscarriage of any 
 woman shall unlawfully administer to her any drug or substance 
 or use any instrument or other means with like intent, he shall be 
 guilty of felony and be sentenced to pay a fine not exceeding $500, 
 and undergo an imprisonment at labor not exceeding three years. 
 In the last case the offense is complete without the death of the 
 woman or child. In both cases the grade of the offense is the same 
 felony. In both, the acts done by the prisoner are the same. In the 
 first, if those acts are followed by the death of the mother or child 
 as a consequence, that is, in the relation of effect to a cause, a differ- 
 ence results in one of the penalties imposed. The possible fine is the 
 same, but the possible imprisonment is longer, seven years instead 
 of three. The facts which constitute the crime are precisely the same 
 in both cases, to wit, the administering the drug, or using the instru- 
 ment with intent to procure a miscarriage. It follows that the death 
 is no part of the facts which go to make up or constitute the crime. 
 It is complete with the death or without it. The death therefore 
 considered in and of itself is not a constituent element of the offense. 
 It may happen or it may not. If it does not happen a certain pos- 
 sibility of penalty follows. If it does happen the same character 
 of penalty results but with a larger possibility, not a certainty, in one 
 of the items. This seems to be a precise expression of the difference 
 between the cases provided for in the two sections. This being so 
 the question recurs, is the difference between the two of such a char- 
 acter as to change the application of the rule of law relating to the 
 admissibility of dying declarations. Of course they are not admissible 
 if death does not result as a consequence from the unlawful acts. 
 Therefore if the woman should subsequently die from some entirely 
 different and independent cause, her dying declarations in relation to 
 a prior miscarriage would be clearly incompetent. In case she does
 
 212 CASES ON EVIDENCE 
 
 / 
 
 die in consequence of the unlawful acts, the crime charged and tried 
 is not homicide in any of its forms, but the felony of administering 
 a drug, or using an instrument, with intent to produce a miscarriage. 
 In its facts and in its essence it is the same crime that is charged and 
 tried if no death results. The death, when it occurs, is an incident 
 the sole purpose of which is to determine whether the imprisonment 
 of the defendant may be longer than when the death does not occur. 
 The facts which constitute the crime may not be proved by any dec- 
 larations of the woman, when death does not follow, or when it 
 follows from some other cause. Why then should the very same 
 facts be proved by such declaration, when death does result? Not 
 because it is a homicide case and the rule as to dying declarations 
 admits them in such cases, because it is not a case of homicide in 
 any point of view. Not because the death is the subject of the charge, 
 for the charge is the attempted or accomplished miscarriage by means 
 of a drug or instrument. That crime is as fully completed without 
 the death as with it. The death therefore is not an essential in- 
 gredient of it. Its function under the statute, when it occurs as a 
 consequence is, not to determine the factum, or the character, or the 
 grade of the crime, but the character of the penalty to be endured 
 by the criminal. Of course if the statute had declared that when 
 death resulted the offense should be manslaughter or any other grade 
 of homicide, the case would be entirely different. Then the death 
 would be an essential ingredient of the offense, and would be the 
 subject of the charge, and the rule as to dying declarations would 
 apply. But such is not this case and we do not think it wise to en- 
 large the operation of the rule so as to embrace cases other than 
 homicide strictly. The objections to the admission of such testi- 
 mony are of the gravest character. It is hearsay, it is not under 
 the sanction of an oath, and there is no opportunity for cross-exam- 
 ination. It is also subject to the special objection that it generally 
 comes from persons in the last stages of physical exhaustion, with 
 mental powers necessarily impaired to a greater or less extent, and 
 at the best represents the declarant's perceptions, conclusions, infer- 
 ences and opinions, which may be and often are, based upon im- 
 perfect and inadequate grounds. Nor is the reason ordinarily given 
 for their admission at all satisfactory. It is that the declarant in the 
 immediate presence of death is so conscious of the great responsibility 
 awaiting him in the near future if he utters falsehood, that he will 
 in all human probability utter only the truth. The fallacy of this 
 reasoning has been many times demonstrated. It leaves entirely out
 
 DYING DECLARATIONS 213 
 
 of account the influence of the passions of hatred and revenge which 
 almost all human beings naturally feel against their murderers, and it 
 ignores the well known fact that persons guilty of murder, beyond all 
 question, very frequently deny their guilt up to the last moment on 
 the scaffold. 
 
 But in point of fact the reason we are considering cannot be re- 
 garded as the real or the controlling reason for the rule, because, 
 in terms, it would be just as applicable to declarations made by 
 dying persons in regard to civil affairs or to all minor criminal mat- 
 ters, as to the facts attending a homicide. In truth there would be 
 less temptation to falsify in regard to such matters fhan in regard 
 to acts of violence perpetrated upon the person of the declarant. 
 Yet it is undisputed that in all civil cases and in all crimes other 
 than homicide, such declarations are entirely incompetent. A far 
 better reason in support of the rule, as it seems to us, is, that dying 
 declarations are admitted from the necessity of the case and in order 
 that murderers may not go unpunished. Such a reason only can 
 justify their admission in cases involving the life of the accused. 
 While ordinarily the precautions against illegitimate testimony in- 
 crease with the danger menacing the accused, in this one exceptional 
 case of homicide they are relaxed, and the rule which excludes mere 
 declarations in all other cases is reversed. In Whart. Crim. Ev. sec. 
 278, the rule is thus stated: "Dying declarations are admitted from 
 the necessity of the case, to identify the prisoner and the deceased, 
 to establish the circumstances of the res gestae, and to show the trans- 
 actions from which the death results." In Greenl. on Ev. Vol. i) I3th 
 ed.) sec. 156, the writer says: "These or the like considerations, have 
 been regarded as counterbalancing the force of the general principle 
 above stated; leaving this exception to stand only upon the ground 
 of the public necessity or preserving the lives of the community by 
 bringing manslayers to justice. For it often happens that there is 
 no third person present to be an eye-witness to the fact ; and the 
 usual witness in other cases of felony, namely, the party injured, is 
 himself destroyed." In the foot-note 2 to the above section the opin- 
 ion of Judge Redfield is quoted in the following words : "But it 
 was from a misapprehension of the true grounds upon which the 
 declarations are receivable as testimony. It is not received on any 
 other grounds than that of necessity, in order to prevent murder going 
 unpunished. What is said in the books about the situation of the 
 declarant, he being virtually under the most solemn sanction to speak 
 the truth, is far from presenting the true ground of admission."
 
 214 CASES ON EVIDENCE 
 
 Believing this to be the true ground upon which to place the admis- 
 sibility of dying declarations, it will be seen at once that they are 
 incompetent except in cases of actual homicide, where the killing is 
 the very substance and subject of the criminal accusation on trial. 
 This we hold to be the true sense in which to interpret the rule that 
 such declarations are only admissible, where the death is the subject 
 of the charge. 
 
 All the text books and a host of judicial decisions assert that the 
 rule of admissibility is confined to cases of homicide. Thus this court 
 in Brown v. Commonwealth, 23 P. F. S., on p. 327, state the rule 
 quoting from Whart. Am. Cr. Law, sec. 669 in these words: "The 
 dying declarations of a person who expects to die, respecting the cir- 
 cumstances under which he received a mortal wound are constantly 
 admitted in criminal prosecutions where the death is the subject of 
 criminal inquiry, though the prosecution be for manslaughter; though 
 the accused was not present when they were made and had no oppor- 
 tunity for cross-examination, and against or in favor of the party 
 charged with the death." 
 
 There is a vast number of cases in which where the prisoner is 
 tried for a crime other than homicide the dying declarations of the 
 persons upon whom the crime was perpetrated are inadmissible, though 
 they relate to the circumstances of the crime. Thus in Rex v. Lloyd 
 et al., 4 Carr. & P. 233, it was held that on an indictment for robbery 
 the declaration in articulo mortis of the party robbed is not admissible 
 in evidence. Boland, B., said, "I think that declarations in articulo 
 mortis are not admissible in evidence to make out a charge of rob- 
 bery; nor indeed any other charge except those in which the death 
 of the deceased person, by whom the declaration was made, is the 
 subject of inquiry." A citation of this class of cases is not necessary 
 as they are quite familiar and are not at all disputed. It only re- 
 mains to consider ithe course of authority upon the very question now 
 before us. It has never heretofore been before this court. But in 
 England and several of the states it has been considered and de- 
 termined, and the weight of authority seems to be quite decidedly 
 against the admissibility of the evidence. Thus in Rex v. Hutchinson, 
 2 B. & C. 608, note a, the prisoner was indicted for administering 
 savin to a woman pregnant but not quick with child, with intent to 
 procure abortion. The woman was dead, and for the prosecution, 
 evidence of her dying declaration upon the subject was tendered. The 
 court rejected the evidence, observing that although the declaration 
 might relate to the cause of the death, still such declarations were
 
 DYING DECLARATIONS 215 
 
 admissible in those cases alone where the death of the party was the 
 subject of the inquiry. In Reg. v. Hind, 8 Cox, C. C, 300, the de- 
 fendant was indicted for using instruments upon a woman with intent 
 to produce an abortion, in consequence of which she died. It was 
 held that her dying declarations in relation to the offense were inad- 
 missible. The same course was followed in the state of New York 
 in the case of the People v. Davis, 56 N. Y. 95, where the statute is 
 quite similar to our own, the penalty being increased when the woman 
 dies in consequence of the unlawful acts. It was held that the dying 
 declarations of the woman were incompetent on the general ground that 
 the death was not the subject of the charge. In the case of the State 
 v. Harper, 35 Ohio St. Rep. 78, the same doctrine was held under a 
 statute almost identical with ours. The Chief Justice said, "This was 
 an indictment for unlawfully using an instrument with the intent of 
 producing an abortion, and not an indictment for homicide :" State 
 v. Barker, 28 Ohio St. 583 ; People v. Davis, 56 N. Y. 96. The death 
 was not the subject of the charge, and was alleged only as a conse- 
 quence of the illegal act charged, which latter was the only subject 
 of investigation. Did the court err in rejecting the dying declaration in 
 proof of the charge? We think not. The general rule is that dying 
 declarations are admissible only when the death of the declarant is the 
 subject of the charge, and the circumstances of the death are the 
 subject of the dying declaration: Rex v. Mead, 2 B. & C. 605; I 
 Greenl. Ev. 156; Rex v. Lloyd, 4 C. & P. 233." 
 
 On the other hand the Supreme Court of Indiana has held that 
 such declarations were admissible in an indictment under a similar 
 statute: Montgomery v. State, reported in 3 Crim. Law Mag., 523. 
 In State v. Dickinson, 41 Wis. 299, the declarations were admitted, 
 but by the statute of that state the offense is expressly made man- 
 slaughter where the woman dies and the case was therefore one of 
 homicide and within the rule. The case in Indiana appears to be the 
 only one in a court of last resort in which the declarations have been 
 held admissible. After a careful examination of the opinion in that 
 case, and also of two other cases decided by Courts of Quarter 
 Sessions in our own state, we feel constrained to say we think the 
 better, and the safer rule is to limit the admissibility of dying declara- 
 tions to cases of homicide only. We are therefore of opinion that the 
 learned court below was in error in receiving the declarations of Annie 
 Foust in this case and for that reason the judgment must be reversed. 
 
 Judgment reversed.
 
 216 CASES ON EVIDENCE 
 
 JOHNSON v. STATE. 
 50 Ala. 456. (1873) 
 
 The indictment in this case contained a single count charging that 
 the defendant, Jerry Johnson, "did carnally know, or abuse in the 
 attempt to carnally know, Frances Rickett, a female under the age 
 of ten years." The defendant, when arraigned, pleaded not guilty; 
 and he was tried on issue joined on that plea. On the trial, as the 
 bill of exceptions states, "the court admitted, against the defendant's 
 objection, evidence of the dying declarations of the child upon whom 
 the outrage was committed, as to who committed it, to go to the jury, 
 not for the purpose of showing complaint made, but to be consid- 
 ered by the jury as competent evidence to fix guilt on the defendant, 
 along with the other evidence of the case, if the jury believe such 
 declarations were made. The proper predicate was laid for the 
 introduction of the dying declarations, if they were competent evi- 
 dence under the issues in the cause, and they were to this effect : 
 'Ma, I'm going to die, and Jerry Johnson done me so/ the child 
 pointing at the time to her injured parts. The defendant moved to 
 exclude said dying declarations from the jury, on the ground that they 
 were illegal in the case; which motion the court overruled, and the 
 defendant duly excepted. This was all the evidence in any way 
 affecting or material to the ruling of the court upon the admissibility 
 of said declarations." 
 
 The verdict of the jury was, "We, the jury, find the defendant 
 guilty, to be ^punished by imprisonment in the penitentiary for life." 
 The defendant moved in arrest of judgment, ist, because the indict- 
 ment charges two offenses, and the verdict is of guilty merely, with- 
 out ascertaining of what ; 2ndly because it is impossible to tell of what 
 offense the defendant was convicted, or whether the finding is sup- 
 ported by the evidence." The court overruled the motion in arrest 
 of judgment, and sentenced the defendant to confinement in the peni- 
 tentiary for life. 
 
 The admission of the dying declarations of the child and the over- 
 ruling of the motion in arrest of judgment, are now assigned as 
 error. 
 
 BRICKELL, J. The statute (Rev. Code, sec. 3663) declares the car- 
 nal knowledge of a female under the age of ten years, or the abuse 
 of such female in the attempt carnally to know her must, at the 
 discretion of the jury, be punished either by death, imprisonment in
 
 DYING DECLARATIONS 217 
 
 the penitentiary for life, or hard labor for the county for life. The 
 form of the indictment prescribed by the Code (and which in this case 
 has been pursued) is, "A. B. did carnally know, or abuse in the attempt 
 to carnally know C. D., a female under the age of ten years." This 
 form of indictment the Code authorizes, when offenses are of the 
 same character, and subject to the same punishment. Rev. Code, 
 sec. 4125. It was permissible, at common law, to charge such offenses 
 in different counts, to meet the evidence when fully disclosed on the 
 final trial. No right of the accused is invaded, in permitting them to 
 be charged in the alternative, in the same count, instead of several 
 counts charging each alternative. Burdine v. State, 25 Als. 60 ; Sher- 
 rod v. State, Ib. 78. Under such an indictment, the defendant may be 
 convicted on proof of either grade or form of the offense. McElhany 
 v. State, 24 Ala. 71 ; Mooney v. State, 8 Ala. 328; Cheek v. State, 38 
 Ala, 227. And a general verdict of guilty, on such an indictment is 
 not ground of error, or motion in arrest of judgment. Cawley v. 
 State, 37 Ala. 152. It is not ground of error, or motion in arrest of 
 judgment, because it protects the defendant from any future prosecu- 
 tion for either grade or form of the offense, and the sentence pro- 
 nounced cannot impose any greater punishment, than would have fol- 
 lowed a specific finding of guilt of one form or grade of the offense, 
 and not guilty as to the other, they must have affixed the punishment, 
 not other or different for the one than the other grade. No possible 
 injury can, therefore, result to the accused from such finding. 
 
 2. The bill of exceptions expressly negatives any presumption 
 that the dying declarations of the child, on whom the injury is charged 
 to have been committed, were offered or received as part of the res 
 gestce, or were so closely connected with the wrong as to be con- 
 sidered as her complaint thereof. It is affirmed they were offered 
 strictly as her dying declarations. In so admitting them, the court 
 erred. Dying declarations, according to the unbroken current of 
 modern authorities, are admissible only in cases of homicide, when 
 death, with the circumstances attendant on it, and the guilty agent in 
 producing it, is the subject of inquiry. 2 Phil. Ev. 610, note 455. 
 
 For this error, the judgment is reversed, and the cause remanded; 
 but the prisoner must remain in custody, until discharged by due 
 course of law.
 
 218 CASES ON EVIDENCE 
 
 THURSTON v. FITZ. 
 pi Kan. 468. (1914) 
 
 WEST, J. The theory on which dying declarations have been ad- 
 mitted is that the realization of impending death operates on the 
 mind and conscience of the declarant with strength equal to that of an 
 ordinary oath administered in a judicial proceeding. After such 
 declarations became classed as hearsay in other cases it was thought 
 better to accept this sort of substitute for a formal oath in homicide 
 cases than to let a guilty manslayer escape. As stated in The State v. 
 O'Shea, 60 Kan. 772, 57 Pac. 970, the rule is limited to cases of hom- 
 icide and is confined to the act of killing and the circumstances im- 
 mediately attending the act which form a part of the res gesta. In 
 The State v. Bohan, 15 Kan. 407, it was said by Chief Justice King- 
 man: 
 
 "Its admission can be justified only on the ground of absolute neces- 
 sity, growing out of the fact that the murderer by putting the witness, 
 and generally the sole witness, of his crime beyond the power of the 
 court by killing him, shall not thereby escape the consequences of his 
 crime." (p. 418) 
 
 But in The State v. Reed, 53 Kan. 767, 37 Pac. 174, the present 
 chief justice stated that: 
 
 "The controlling question is, whether the declarations were uttered 
 under a sense of impending dissolution, and the fact that death did not 
 immediately ensue, or that a hope of recovery was subsequently en- 
 tertained, will not affect their admissibility. (p. 773) 
 
 And in The State v. Knowll, 69 Kan. 767, 77 Pac. 580, the state- 
 ment was made that: 
 
 The reasons why dying declarations are taken out of the rule 
 which excludes hearsay testimony are those of necessity, joined with 
 the conclusion that a realization by the declarant of the certain and 
 speedy approach of death would be as powerful an incentive on his 
 part to tell the truth as would the administration of an oath." (p. 
 770) 
 
 The history of the rule and its application as given by the leading 
 text writers on evidence shows that at a very early time it was 
 thought with the fathers of the civil law that one would tell the 
 truth on his death-bed, and for a time dying declarations were ad- 
 mitted in cases both civil and. criminal ; but later they were confined 
 to cases of homicide, the idea having become prevalent that so excep-
 
 DYING DECLARATIONS 219 
 
 tional and dangerous a class of evidence should be restricted in its 
 use and application to the "Public necessity of preserving the lives of 
 the community by bringing manslayers to justice." (i Greenleaf on 
 Evidence, I5th ed. sec. 156.) 
 
 It has ever been realized that the party most vitally affected by 
 such declarations is without the means of cross-examination, and 
 it is somewhat curious to observe the readiness with which the courts 
 have concluded that their admission is not in conflict with the con- 
 stitutional right to meet one's witness face to face. I Elliot on Evi- 
 dence, sec. 345.) It would seem that the courts first conceived and 
 recognized the sanction which pending death would give to, the state- 
 ment, and that this was rather a predecessor than an exception tq 
 the general rule excluding hearsay testimony; that after hearsay 
 had become generally regarded as inadmissible it was reasoned that 
 dying declarations inherently belong in that class, but that as a mat- 
 ter of public policy or necessity their legitimacy should be recog- 
 nized in homicide cases only. One author informs us that some of 
 the earlier text-writers interpreted the rule as applying to civil as 
 well as criminal cases and the courts upon examination found that 
 such interpretation was incorrect, (i Elliot on Ev. sec. 351.) An- 
 other states that up to 1800 no distinction is found between civil and 
 criminal cases or between different kinds of criminal cases. 2 Wig- 
 more on Evidence, sec. 1431.) A writer in the American Law Journal 
 reviewing the history of the matter concludes that up to 1836 in 
 England such declarations were admitted in all cases, civil and crim- 
 inal, and that the present rule was reached by the decisions of various 
 courts in this country from 1806 to 1874. (i Am. Law Jour. p. 366.) 
 The real basis of admissibility, aside from any supposed theory of 
 necessity, is the notion which long ago became a rule of law that 
 the conscious danger of impending death is equivalent to the sanction 
 of an oath. Lord Chief Baron Eyre is credited with the dramatic 
 statement that: 
 
 "They are declarations made in extremity, when the party is at the 
 point of death, and when every hope of this world is gone; when 
 every motive of falsehood is silenced, and the mind is induced by 
 the most powerful consideration, to speak the truth. A situation so 
 solemn and so awful is considered by the law as creating an obligation 
 equal to that which is imposed by a positive oath in a court of jus- 
 tice." (i Qreenl. on Ev. I5th ed. sec. 156.) 
 
 Some have sought to base the change which restricts such evidence 
 to the one class of cases on the fact, disclosed by experience, that
 
 22O CASES ON EVIDENCE 
 
 some really do not tell the truth even in articulo mortis, and hence 
 it is argued that it was deemed safer to exclude such statements ex- 
 cept when the exclusion might let a murderer go free. If this was 
 ever seriously deemed the basis of the change it certainly lacked the 
 merit of logic or consistency, for some are not truthful when under 
 the sanction of an oath duly administered, and in no class of cases 
 should doubtful evidence be received more charily than in those in- 
 volving the life and liberty of the one on trial. And by so much- 
 the more should any sort of evidence safe to be admitted in such a 
 case be deemed proper in an action involving mere property rights. 
 Prof. Wigmore suggests that: 
 
 "The notion that a crime is more worthy the attention of courts 
 than a civil wrong is a traditional relic of the days when civil jus- 
 tice was administered in the royal courts as a purchased favor, and 
 criminal prosecutions in the King's name were zealously encouraged 
 because of the fines which they added to the royal revenues. The 
 sanction of a dying declaration is equally efficacious whether it speaks 
 of a murder or a robbery or a fraudulent will; and the necessity 
 being the same the admissibility should be the same." (2 Wig. on 
 Ev. sec, 1436.) 
 
 The rule admitting and the rule restricting the declaration, as in- 
 dicated, are entirely court made, and when the reason for this restric- 
 tion to cases of homicide ceases, if it ever existed, then such restriction 
 should likewise cease. It might be argued that this common-law 
 doctrine has become so embedded in our judicial system that it should 
 be left untouched. But it was said in Harrington v. Lowe, 73 Kan. 
 i ; 84 Pac. 570, that there was no longer any reason for the common- 
 law doctrine relating to the contracts of married women, "and with 
 the death of the reason for it every legal doctrine dies." (p. 21.) 
 
 In McFarland v. Shaw, 4 N. Car., 2nd ed. 200, 2 N. Car. Law 
 Repos. 102, the Supreme Court of North Carolina decided that in 
 an action by a father for the seduction of his daughter he could give 
 in evidence her dying declaration charging the defendant with having 
 been her seducer. It was said that the decision was confined to the 
 facts presented, but in holding the evidence competent the court used 
 this language : 
 
 "In cases where life is at stake, such evidence is uniformly received 
 and credited, and numerous are the victims of its authority, recorded 
 in the mournful annals of human depravity. Can the practice of 
 receiving it to destroy life, and rejecting it where a compensation
 
 DYING DECLARATIONS 221 
 
 is sought for a civil injury, derive any sanction from reason, justice 
 or analogy?" (p. 203.) 
 
 The Supreme Court of Georgia in criticizing this holding as con- 
 trary to the whole current of authority said : 
 
 "We will not say that there is not, perhaps, as much reason for 
 admitting the evidence in a case like this as in one of a homicide." 
 (Wooten v. Wilkins, 39 Ga. 223, 225.) 
 
 In Barfield v. Britt, 47 N. Car. 41, the decision in McFarland v. 
 Shaw was repudiated. It was said the holding had manifestly been 
 made under the impression then generally prevalent that dying dec- 
 larations were admissible under the rule stated by Lord Chief Baron 
 Eyre, and that if it stood upon the general principle alone "it might 
 well have been contended, as it was contended, that dying declarations 
 ought to be admitted in all cases, civil as well as criminal." (p. 43.) 
 But the court deemed the lack of opportunity for cross-examination 
 the reason for restricting such declarations to criminal homicide cases, 
 a view for which we do not find much reason or authority. We are 
 confronted with a restrictive rule of evidence commendable only 
 for its age, its respectability resting solely upon a habit of judicial 
 recognition, formed without reason and continued without justifi- 
 cation. The fact that the reason for a given rule perished long ago 
 is no just excuse for refusing now to declare the rule itself abro- 
 gated, but rather the greater justification for so declaring; and if no 
 reason ever existed, that fact furnishes additional justification. 
 
 The doctrine of stare decisis does not preclude a departure from 
 precedent established by a series of decisions clearly erroneous, un- 
 less property complications have resulted and a reversal would work 
 a greater injury and injustice than would ensue by following the rule, 
 (n Cyc. 749.) The tendency is towards the reception rather than 
 the rejection of evidence, experience having shown that more harm 
 results from its exclusion than from its admission. (Fish v. Poor- 
 man, 85 Kan. 237, 243, 116 Pac. 898; i Wigmore on Ev. sec. 578.) 
 We hold that the declaration is competent, and upon another trial 
 should be admitted. 
 
 The ruling sustaining the demurrer is reversed and the cause is 
 remanded for further proceedings. 
 
 BENSON, J. (dissenting) : The rule that dying declarations are 
 only admissible where the death of the declarant is the subject of 
 investigation is settled as firmly in the jurisprudence of this state 
 as any rule can be which is not established by constitution or statute. 
 
 Conceding that the rule should be changed, there is one obvious
 
 222 CASES ON EVIDENCE 
 
 reason, without referring to others, why the legislature and not the 
 court should make it. 
 
 Professor Wigmore, after a careful review of the decisions, in- 
 cluding those of this state, concludes that the limitations upon the 
 admission of dying declarations do not rest upon sound principles. 
 But his recommendation is that they be abolished by legislation. (2 
 Wigmore on Evidence, sec. 1436.) It is dangerous to abolish them 
 otherwise. 
 
 I dissent from that part of the opinion which overthrows the rule 
 of common law and the decisions of this court concerning dying dec- 
 larations. 
 
 BOYLE v. THE STATE. 
 97 Ind. 322. (1884) 
 
 NIBLACK, J. This was a prosecution for murder, under section 
 1904 R. S. 1881. 
 
 The indictment was in six counts. The first count charged the 
 appellant, William Boyle, with having, on the I5th day of March, 
 1884, at ^e county of Allen, in this State, unlawfully, purposely, 
 feloniously, and with premeditated malice, killed and murdered one 
 Daniel Casey, by then and there shooting him to death with a pistol. 
 A jury found the defendant guilty of murder in the first degree as 
 charged above in the first count of the indictment, and fixed his 
 punishment at death. After considering and overruling a motion 
 for a new trial, the court pronounced judgment upon the verdict, 
 and sentenced the defendant to be hung on Wednesday, the ist day 
 of October, 1884. 
 
 One question remains which ought to be ruled upon at the present 
 hearing to relieve the embarrassment which might otherwise result 
 when the cause shall again be tried. The dying declaration of Casey, 
 which had been reduced to writing, was, after satisfactory preliminary 
 proof, read in evidence by the prosecuting attorney, as follows: 
 
 "Dying declaration of Daniel Casey, taken at Monroeville, Allen 
 county, Indiana, on the i6th day of March, 1884. Q. W T hat is your 
 name and residence? A. Daniel Casey; Norwich, Connecticut. Q. 
 Have you given up all hope of life? A. I have, of course. Q. Is 
 this declaration which you now make free from all malice? A. Yes,
 
 DYING DECLARATIONS 223 
 
 it is ; I forgive him. Q. What is the name of the man who shot 
 you? A. I don't know his name. Q. Where were you when he 
 shot you? A. On the corner of Railroad and Empire streets in 
 the town of Monroeville, Allen county, Indiana. Q. Was the man 
 whom you identified on the i$th of March, in the presence of the 
 marshal of Fort Wayne, J. B. Neezer, Dr. C. A. Lester, and others, 
 the man who shot you? A. Yes, sir; that was the man who shot 
 me. Q. What reason, if any, had the man you have so identified 
 for shooting you? A. Not any that I know of; he said he would 
 shoot my damned heart out. Q. What were you doing at the time 
 the shooting took place? 
 
 his 
 
 DANIEL X CASEY." 
 mark. 
 
 It was objected that this declaration was inadmissible in evidence: 
 First, because it was in the form of a deposition. Secondly, because 
 the answer to the question "What reason, if any, had the man for 
 shooting you?" was a mere expression of an opinion by Casey, in 
 disregard of the inhibition imposed by the case of Binn v. State, 46 
 Ind. 311. Thirdly, because it was incomplete by reason of the failure 
 of Casey to answer the last question addressed to him. 
 
 In the first place, a dying declaration may be made in answer to 
 questions addressed to the dying man and reduced to writing. I 
 Greenl. Ev. sec. 159 and note; Com. v. Haney, 127 Mass. 455; State 
 v. Martin, 30 Wis. 216. 
 
 In the next place, the words "what reason," referred to in the 
 second objection, were, in the connection in which they were used, 
 synonymous with the phrase "what cause," and plainly had reference 
 to facts within Casey's knowledge, and not to opinions merely which 
 he might have entertained. Casey's answer, "Not any that I know 
 of," was more in the nature of the denial of a fact than the expression 
 of an opinion. 
 
 In the case of Wroe v.' State, 20 Ohio St. 460, the court held that 
 "There is no valid objection to the admission of the evidence of 
 Smith Davidson as to the dying declarations of the deceased. The 
 declaration of the deceased, in speaking of the fatal wound, that, 
 'it was done without any provocation on his part,' objected to as being 
 mere matter of opinion. Whether there was provocation or not, is a 
 fact, not stated, it is true, in the most elementary form of whiqh 
 it is susceptible, but sufficiently so to be admissible as evidence." 
 
 The conclusion reached in that case is sustained in principle by the
 
 224 CASES ON EVIDENCE 
 
 cases of Rex v. Scaife, i M. & R. 551, and Roberts v. State, 5 Tex. 
 Ap. 141, and the precedent it affords may, as we believe, be safely 
 followed in its fairly analogous application to the question now before 
 us. See, also, Whart. Crim. Ev., sec. 294. 
 
 In the third place, the declaration was complete as to the answers 
 to all questions which it purported to answer, and in that sense it 
 was not fragmentary within the meaning of the case of State v. Pat- 
 tejson, 45 Vt. 308 (12 Am. R. 200). Besides, the failure of Casey 
 to answer the last question was sufficiently explained by his attending 
 physician. In our opinion, therefore, the dying declarations of Casey 
 were properly admitted in evidence. 
 
 Reversed on other grounds. 
 
 JONES v. STATE. 
 52 Ark. 345. (1889) 
 
 Samuel D. Jones was tried on an indictment charging him with the 
 murder of Henry W. Keltner. He was convicted of murder in the 
 first degree and appealed. 
 
 PER CURIAM. One of the matters argued, though not raised in 
 proper form, is the alleged error of the court in excluding the tes- 
 timony offered as to the dying declaration of Keltner. The witness 
 says that some hours after the shooting Keltner said that Samuel 
 Hall shot him. 
 
 A mere expression of opinion by the dying man is not admissible 
 as a dying declaration, and it is immaterial whether the fact that the 
 declaration is mere opinion appears from the statement itself, or 
 from other undisputed evidence showing that it was impossible for 
 the declarant to have known the fact state'd: If, upon any view of 
 the evidence, it is possible for the declarant to know the truth of 
 what he states, his declarations, being otherwise competent, should 
 be received and considered by the jury in the light of all the evidence. 
 
 In the case at bar it was a physical impossibility for Keltner to 
 have seen who shot him, and the consciousness of wrong done in the 
 killing of Hall's father made him swift to suspect Hall of the com- 
 mission of the crime. 
 
 The facts in the case of Nick Walters v. State, 39 Ark. 225, were
 
 DYING DECLARATIONS 225 
 
 very similar to those now before the court, and the declarations in 
 that case were held to be properly admitted. 
 
 Affirmed. 
 
 MCLEAN v. THE STATE. 
 
 1 6 Ala. 672. (1849) 
 
 The plaintiff in error was indicted for the murder of one Marvin 
 Whatley. 
 
 CHILTON, J. The 2nd, 3rd, 4th and 6th assignments, which relate 
 to the inadmissibility of the dying declarations of the deceased as 
 evidence, may be considered in connection. It is insisted that as the 
 deceased had not, at the time he made the declarations proved by the 
 witness Wade, and which were made some three hours before his 
 death, given any evidence by his declarations that he was aware of 
 the near approach of his dissolution, the evidence should have been 
 excluded. The law certainly requires that to render dying declara- 
 tions admissible, they must be made under a sense of impending 
 death; for it is this sense of his danger that gives to the declaration 
 a sanction considered equivalent to an oath. But in order to show 
 that the party was sensible of his danger, it is not indispensable that 
 he should state it at the time he makes the declarations, or at any 
 time. "It is enough," says Mr. Greenleaf, "that it satisfactorily ap- 
 pears, in any mode, that they were made under that sanction, whether 
 it be directly proved by the express language of the declarant, or be 
 inferred from his evident danger, or the opinions of his medical or 
 other attendants, stated to him, or from his conduct, or other circum- 
 stances of the case, all of which are resorted to in order to ascertain 
 the state of the declarant's mind." Greenl. Ev. sec. 158. So in An- 
 thony v. the State, Meig's Rep. 265, it was held, "If the dying 
 person declare that he knows his danger, or it is reasonably to be 
 inferred from the wound or his state of illness, that he was sensible 
 of his danger, the declarations are good evidence." i East. PI. Cr. 
 354, Tinckler's case; ib. 357-8, John's case; 6 Car. & P. 386; ib. 631; 
 7 ib. 187; Whar. Amer. Cr. Law, 179-80; Anthony v. State, i Humph. 
 265; Dunn v. The State, 2 Pike 229; i Phil. Ev. C. & H. notes, 
 from page 606 to 612, where the authorities are collected, Chitty's 
 Crim. Law, 569-70; Roscoe's Cr. Ev. 25. The circumstances under
 
 226 CASES ON EVIDENCE; 
 
 which the declarations are made must be shown to the judge, who 
 is to determine upon the admissibility of the evidence. I Greenl. Ev. 
 sec. 160, and authorities in note 4, page 257 (3rd ed.) ; i Leach, 504; 
 Chitty's Cr. Law, 570; Wharton's C. L. 183; i Stark. Rep. 532; 3 
 C. & P. 629. We think, under the rule of law as above laid down, 
 and which is fully sustained by authority, the facts and circum- 
 stances shown by the proof as set out in the bill of exceptions, jus- 
 tified the court in admitting the declarations of the deceased. It is 
 needless to refer to these facts further than to state, that the deceased 
 had just been shot down, having received sixty small shot in his body, 
 penetrating a vital part, the right breast, that considerable blood 
 flowed externally, as well as into his chest, passing thence into his 
 mouth ; that he did not speak from the time he was shot down until 
 taken to the house, and his wounds dressed; that he was in extreme 
 agony and suffering. It further appears, that in a very short time 
 after he made the declarations to the witness, Wade, he stated to 
 another witness, Mrs. Graves, that he must die, which was repeated. 
 Under such circumstances, if the deceased was sensible of anything, 
 he must have been aware that death was immediately to follow,. and 
 was inevitable. 
 
 It is, however, objected to the declarations proved by Mrs. Graves 
 that they are imperfect and were not completed by the deceased, and 
 that not having answered all he intended answering, what he did say 
 should be excluded. It appears that this witness, a short time before 
 the death of the deceased, and after he stated that he was going to 
 die, asked him who shot him he replied, the prisoner. She then 
 asked him the cause of it, but from weakness and exhaustion, the 
 deceased could not and did not answer her question, but shook his 
 head. It is no objection to such declarations, that they were made in 
 answer to leading questions; but that the statement, whatever it may 
 be, must be complete in itself; for if incomplete if it appear that 
 the dying man intended to connect his statements with qualifications 
 and explanations, so remaining incomplete and unexplained, should 
 be excluded from the jury, i Greenl. Ev. sec. 159, p. 257; Com- 
 monwealth v. Vass, 3 Leigh's Rep. 786; Rex v. Fagent, 7 C. & P. 
 238. The declaration, however, in this case, was complete, and it is 
 not shown that he intended or desired to connect it with any other 
 fact or circumstance, explanatory of it. He simply stated that the 
 prisoner shot him, without attemping to explain the circumstances 
 attending it. 
 
 Reversed on other grounds.
 
 DYING DECLARATIONS 227 
 
 STATE v. WILLIAMS et al. 
 67 N. C. 12. (1872.) 
 
 The prisoners were indicted in several counts, Edward Williams 
 for the murder of Silas Avery, and Mary Ann Avery for being acces- 
 sory before the fact. 
 
 It was in evidence that the deceased was shot after dark, in his house, 
 by some one standing outside, through an aperture between the logs 
 of which the house was .built. He was sitting by the fire, with his 
 side near the aperture, and was shot in the side. 
 
 On the trial, the State proposed to give in evidence the dying 
 declarations of the deceased. Upon examination of witnesses as to 
 his condition at the time of the declarations, and the circumstances 
 attending them, his Honor held that the deceased was in extremis, 
 and the declarations were admissible as dying declarations. There- 
 upon a witness Lucina Wainwright, was permitted to state the dec- 
 larations of the deceased, to wit: that he knew who shot him. It was 
 Edward Williams -who shot me, though I did not see him." The 
 witness further stated that, in reply to a question asked the deceased 
 by her as to who shot him, he said, "I don't know what those poor 
 creatures shot me for; it was Ed. Williams who shot me, but I did 
 not see him." The counsel of the defendants excepted to the admis- 
 sion of the testimony. They contended that the declarations should be 
 entirely excluded from the jury; but the court ruled that they were 
 admissible, under the circumstances, for what they were worth, and 
 charged the jury to be careful in weighing these declarations, but 
 to consider them in connection with the other testimony in the case, 
 and give them what weight they were entitled to. Defendants' coun- 
 sel again excepted. 
 
 Verdict of guilty. Rule for a new trial discharged. Judgment, and 
 appeal by the defendants. 
 
 RODMAN, J. The admission of dying declarations is an exception 
 to the general rule of evidence, which requires that the witness 
 should be sworn and subject to cross-examination. The solemnity of 
 the occasion may reasonably be held to supply the place of an oath. 
 But nothing can fully supply the absence of a cross-examination. 
 In consequence of this absence, such declarations are often defective 
 and obscure. Hence, several Judges have felt it a duty to say that 
 they should be received with much caution, and that the rule which 
 authorizes their admission should not be extended beyond the reasons
 
 228 CASES ON EVIDENCE 
 
 which justify it. (See note to Rex v. John, 2 Leading Crim. Cases 
 396. Regina v. Hinds, Bell, C. C. 256. Regina v. Jenkins, Law Rep. 
 
 1 C. C. i Phil. Ev. 292, and opinion of Lord Denman in Sussex Peer- 
 age Case, ii Clark & Fin. 112.) And this is the more important 
 as such declarations when received, have great, and sometimes undue 
 weight with juries. 
 
 It is settled on authority and is consistent with reason, that if the 
 declarant would not have been permitted to testify had he survived 
 either because he was too young to comprehend the nature of an 
 oath, or was disqualified by infamy, or imbecility of mind, his dying 
 declarations are inadmissible. Rex v. Pike, 3 Car. & P. 598. Regina 
 v. Perkins, 2 Moody C. C. 135. Rex v. Drummond, i Leach C. C. 
 
 337-38. 
 
 It is equally clear that such declarations are admissible only to 
 those things to which the declarant would have been competent to 
 testify if sworn in the case. Consequently, if they be not the state- 
 ment of a fact, but merely the expression of the opinion of the de- 
 ceased, they are inadmissible. And so, if merely hearsay, or irrelevant. 
 
 2 Lead. Cr. Cas. 404. Rex v. Sellers, Carrington's Crim. Law, 233. 
 Oliver v. The State, 17 Ala. 587. Johnson v. The State, Id. 687. 
 
 It is contended for the prisoners, that the declarations in this case 
 were nothing more than the expression of an opinion or belief. 
 
 The case states that Lucina Wainwright testified that the deceased 
 said: "He knew who shot him. To which she replied that she did 
 not know. Then deceased said, it was Edward Williams, though I 
 did not see him." Further, in reply to a question by witness as to 
 who shot him, deceased said, "I don't know what those poor creatures 
 shot me for. It was Ed. Williams who shot me, thought I did not 
 see him." 
 
 The case further states, that the deceased was shot after dark, 
 while sitting in his house at the fire-place; with his right side near 
 an aperture between the logs of the outer wall, about three inches 
 wide. The shooting was done through the aperture by some person 
 standing on the outside of the house. The wounds were in the right 
 side and wrist. 
 
 It was said for the State that every allegation of the identity of 
 a person is necessarily the expression of an opinion only, because 
 it is a conclusion drawn from a comparison of the appearance of 
 the person at one time, with the recollection of his appearance at 
 some other time. This is true; but the admission of such evidence
 
 DYING DECLARATIONS 229 
 
 is an exception to the general rule excluding opinions, founded on the 
 necessity of the case. Best on Evidence, sec. 349. 
 
 But there must be some limit to the exception; a witness cannot 
 be allowed absolutely to substitute his judgment for that of the tri- 
 bunal to whom the law has committed the decision of the fact. Best 
 Ev. sec. 344-5-6. We think the limit may be drawn without any 
 difficulty, and consistently with the habitual practice of courts. 
 Whenever the opinion of the witness upon such a question, or on one 
 coming under the same rule, is the direct result of observation through 
 his senses, the evidence is admitted. As, for example, when a wit- 
 ness has seen a person or object at several times, and expresses his 
 opinion as to the identity of what he saw at one time with what he 
 saw at another, as human language is inadequate to convey to the 
 mind of another person fully and accurately the impression made 
 upon the mind of the witness through his sense of sight, his opinion, 
 as the result of that impression is admitted and is entitled to more or 
 less weight according to the circumstances. And although opinions, 
 as derived, may sometimes be erroneous, yet they are not generally 
 so, and when carefully weighed are sufficiently reliable for practical 
 use in the ordinary affairs of life. The witness does not unnecessarily 
 substitute his judgment for that of the tribunal. 
 
 But if the opinion of the witness is the result of a course of rea- 
 soning from collateral facts, it is inadmissible. As, for example, if at 
 the time to which the question of identity is applied he did not see or 
 have the testimony of any sense as to the person in question, but 
 believed it to have been him because he might have been there, and 
 had a motive to have been there and to have done the act alleged. 
 In such a case the tribunal is as competent to reason out the resultant 
 opinion as the witness is; and by the theory of the law, it alone is 
 competent to do so. To allow any influence of the opinion of the 
 witness would be unnecessarily to substitute him to the function of 
 the tribunal. 
 
 Now to apply these views to the language of the deceased, must 
 his words reasonably be understood to express an opinion as to the 
 identity of his assailant with the prisoner, as the direct result of 
 observation through his senses, or any of them? The deceased ac- 
 companied each declaration that it was Williams with the qualifica- 
 tion, "but I did not see him." He appears to have had in his mind 
 an idea of the distinction which I have been endeavoring to draw, 
 and to have wished to exclude the conclusion that his opinion was 
 anything more than one founded on an inference from facts and
 
 230 CASES ON EVIDENCE 
 
 motives which he may have supposed to exist, but which even if 
 they were in evidence on the trial (as to which the case is silent), 
 do not affect the present question. The deceased excludes sight as a 
 source of his opinion. A court is not at liberty to conjecture, that 
 he might have heard the prisoner and identified him in that way, 
 especially as there is no suggestion of that sort in the evidence. 
 
 We think that, whether we take the words of the deceased alone, 
 or in connection with the circumstances of the assault, they do not 
 purport, and were not meant to state, the identity of Williams with 
 the assailant, as a fact known through the senses, and that, conse- 
 quently, they were inadmissible. 
 
 The learned counsel who represented the State cited State v. Ar- 
 nold, 13 Ire. 184, as in point. There is an obvious distinction between 
 that case and this. In that, the deceased did not say that he did 
 not see the prisoner; and it was possible that he did see him. The 
 evidence in that case also suggested the possibility that his sense of 
 hearing contributed to his identification of the prisoner. Moreover, 
 in that case the exclamation of the deceased, being immediate upon 
 the shooting, was admissible as part of the res gesta. i Greenl. Ev. 
 sec. 156. Com. v. McPike, 3 Cushing, 181. State v. Shelton, 2 Jon. 
 360. 
 
 It was contended for the State that as upon the face of the dec- 
 larations of the deceased, it was possible that he might have iden- 
 tified the prisoner through hearing, the Judge ought to have left them 
 to be weighed by the jury and disregarded if worthless. But it is 
 the inflexible rule that the Judge must decide all preliminary questions 
 touching the competency of evidence. The instances and authorities 
 for this are so numerous and familiar that it is unnecessary to refer 
 to them. 
 
 From this, however, it is contended that the decision of the Judge 
 in this, as in analogous cases, comprised a decision both of fact and of 
 law. 
 
 1. Of fact; as to what were the declarations of the deceased, and 
 as to the circumstances under which they were made. 
 
 2. Of law ; were the declarations admissible alone, or in connec- 
 tion with the circumstances? 
 
 On the first question the Judge's finding was final. On the second 
 it was subject to review. 
 
 I will give a single illustration only of the doctrine here stated. 
 The declarations of a deceased person, made in contemplation of 
 impending death, are admissible. It is settled that the Judge passes
 
 DYING DECLARATIONS 231 
 
 upon the preliminary question of their admissibility. It is equally 
 well settled that in doing so he finds the circumstances under which 
 they were made; and also whether, considering the circumstances, 
 they were made in contemplation of impending death. This last is a 
 question of law. Regina v. Smith, Leigh & Cave, C. C. 627. Don- 
 nelly v. State, 2 Dutcher, 601. Starkie v. The People, 17 111. 24-25. 
 Rex v. Welbourn, i East. P. C. 358. Rex v. Hucks, I Stark. 523. 
 2 Crim. Cases, 400. The State v. Arnold, ubi sup., is also to that 
 effect. 
 
 We think, therefore, that the Judge properly undertook to decide 
 the question of admissibility; but that (for the reasons given) he 
 decided it erroneously. 
 
 READE, J. Dubitante. 
 
 CURIAM. Venire de novo. 
 
 COMMONWEALTH v. MATTHEWS. 
 8p Ky. 287, (1889) 
 
 HOLT, J. William Matthews was tried upon the charge of man- 
 slaughter for killing Henry Alves by shooting him. The jury failing 
 to agree, were discharged, and there has never been any final disposi- 
 tion of the case. During the progress of the trial the Commonwealth 
 excepted to certain decisions of the court upon legal points, and by 
 this appeal questions their correctness. 
 
 The accused was allowed over the objection of the Commonwealth, 
 to prove as a dying declaration what the injured party said after 
 the shooting as to the circumstances of it. It is urged that the proper 
 foundation was not laid for its introduction, and that the statement 
 was in itself incompetent. It was proven that about fifteen minutes 
 after he was shot the deceased, when lying upon the ground bleeding 
 and suffering, said that he hoped he would live long enough to take 
 the gun home, and that he died in about twenty minutes. The wit- 
 ness says that he did not say whether he believed he would die or 
 recover, and that he (the witness) did not know whether he was 
 conscious or not when he made the statement. 
 
 It is well settled that a statement to be admissible as a dying dec- 
 laration must be made when the party is in extremis, and has given 
 up all hope of this life; but whether this be so or not may be de-
 
 232 CASES ON EVIDENCE 
 
 termined not only by what he may say, but by his evident danger and 
 all the surrounding circumstances. The injured party need not, in ex- 
 press words, declare that he knows he is about to die, or make use of 
 equivalent language. (Peoples v. Commonwealth, 87 Ky. 487.) 
 
 Tested by this rule, we think the statement in this instance was 
 made under a sense of impending death and that what the injured 
 party then said also shows he was conscious not only of it, but of 
 what he was saying as to the transaction. The statement, in sub- 
 stance, was that he and the accused were playing and that it was an 
 accident. 
 
 To be competent as a dying declaration, the statement must not 
 only relate to the immediate circumstances of the transaction resulting 
 in the injury, but it must detail facts, and not the opinion of the 
 declarant. In our opinion, the statement in this instance conforms 
 to this rule. It is unlike the case where the injured party declared 
 that he had been killed for nothing. This was purely his opinion 
 and inference. Here the injured man said that he and the accused 
 were engaged in play, and that the shooting was an accident. This, 
 in our opinion, was the statement of a fact, more than the giving 
 of an opinion, and the court properly allowed it to be proven. 
 
 This opinion is ordered 'to be certified to the lower court. 
 
 MOORE v. STATE. 
 12 Ala. 764. (1848) 
 
 The plaintiff in error, was indicted and convicted, in the Circuit 
 Court of Tallapoosa County, for the murder of her husband. In the 
 course of the trial, a bill of exceptions was taken, and this cause 
 brought to this court by writ of error. 
 
 The bill of exceptions discloses the following facts. The wounds 
 of which the deceased died, appeared to be given with the edge of an 
 axe; one of them was on the front of the head, on the left side, and 
 in length about the width of an axe; that it cut through the skull 
 into the brain. His physician reached him within thirty-six or forty 
 hours after the wound was inflicted ; he was breathing, but insensible. 
 The wound was dressed, and the deceased appeared to revive. He 
 was asked if he felt better, to which he replied no. These were facts 
 deposed to by the physician, who also stated that he thought him in
 
 DYING DECLARATIONS 233 
 
 his right mind, but said that a man whose brain had been injured, 
 as his had, might speak rationally one moment, and be entirely out of 
 his mind the next. 
 
 The State then offered a witness, to prove, that on the evening 
 of the same day he took some nourishment to the deceased, and 
 requested him to eat, stating that if he would he would get well. 
 The deceased shook his head, and said no. The witness then said to 
 him, "do you know that Mrs. Moore done it?" The deceased an- 
 swered "oh yes, well enough well enough." To this evidence, the 
 prisoner objected, but the objection was overruled. The deceased 
 lived some four or five days after the above declaration was made ; and 
 another witness testified that some days after the above declaration was 
 made, the deceased stated, that Mrs. Moore "did not do it." 
 
 The court charged the jury, that the dying declaration of the de- 
 ceased owing to the condition of his mind, at the time they were 
 made, should not be regarded by them, as he spoke but little, and in 
 detached sentences. At any rate, that what one witness stated, was 
 neutralized by what was stated by the other, if they were of equal 
 credibility, and that they should not operate against the accused. To 
 which charge the prisoner excepted; and the bill of exceptions, with 
 the matters therein contained, are here assigned for error. 
 
 DARGAN, J. It is well settled, that in the trial of cases for homi- 
 cide, the declarations of the deceased, made under the belief that his 
 end is near, are admissible, not only to designate the party who com- 
 mitted the crime, but also to detail the circumstances under which it 
 was done. But these declarations must be made when the belief 
 of death is present to the mind of the declarant, and when he be- 
 lieves there is no hope of recovery, but that he must die of the 
 wounds or injury received. Declarations made under such circum- 
 stances are considered as made under circumstances equally solemn 
 as if made under the obligations of an oath, and are admissible. But 
 it is the duty of the court to determine, in the first place, upon the 
 admissibility of such declarations, and then it is for the jury 'to de- 
 termine upon the weight or credibility of them, (i Greenl. Ev. 190.) 
 
 The facts disclosed by the record, in this cause, must satisfy any 
 mind that the declarations were made at a time when the deceased 
 was without hope of life, on earth, and under the belief of impending 
 death. There was no error, therefore, in permitting the declarations 
 to go to the jury. 
 
 But it is objected, that the relation of husband and wife, existing 
 at the time between the accused and the deceased, rendered the dec-
 
 234 CASES ON EVIDENCE 
 
 larations incompetent proof. This is not the law. One of the first 
 cases in which the question arose, upon the admissibility of dying 
 declarations, was that of Woodcock, and the deceased was his wife. 
 Her declarations were received as evidence. (2 Starkie Ev. 458.) 
 And it is well settled that a wife may be a witness in a criminal 
 proceeding against her husband for injuries done to her person; and 
 there is no reason whatever, why a husband should not be a compe- 
 tent witness against his wife, for injuries done him. But in the 
 charge of the court, as given, there is error. It must be borne in 
 mind, that the evidence showed, that the deceased might be rational 
 at one moment insane or irrational at another. On one day he 
 said, in answer to the question, "do you know that Mrs. Moore did 
 it?" "Oh yes, well enough, well enough." At a subsequent day it 
 was testified, that he said she "did not do it." It may be fairly in- 
 ferred, that at one time he accused her as the guilty agent, and at a 
 subsequent time acquitted her of guilt. 
 
 We. conceive the rule to be, that the dying declarations of the 
 deceased may be given in evidence, as well to acquit as to convict the 
 accused, and they are not limited, as evidence in favor of the State 
 alone. (See Greenl. Ev. 190; Rex v. Scaife, i Mood. & R. 551.) 
 
 Here the declarations of the deceased were inconsistent with each 
 other. There was then a direct conflict of testimony. It was the 
 province of the jury to weigh the testimony, to reconcile it if they 
 could, and if it could not be, then to determine which to believe. 
 The declarations of the deceased, if made, as stated in the bill of 
 exceptions were in direct conflict with each other, and it was the duty 
 of the jury to determine which declaration was true, or to which 
 they gave credit as true. The charge of the court took from them 
 this duty, and determined that the contradictory declarations of the 
 deceased neutralized each other. Whether they did or not, or whether 
 either, or which one was true, was by law, the duty of the jury to 
 determine not that of the court; and for this error, the cause is re- 
 versed, and remanded, that the prisoner may be again tried, unless 
 in the mean time, she be discharged by due course of law.
 
 DYING DECLARATIONS 235 
 
 STATE v. BELCHER. 
 
 i 
 
 13 S. C. 459. (1880) 
 
 McGowAN, A. J. William Belcher was indicted for the murder 
 of his wife, Elizabeth. The indictment contained two counts, one for 
 murder by actual violence beating and kicking and the other by 
 neglecting to provide necessaries for her when she was sick and 
 helpless, from which neglect she died. The jury found him guilty on 
 the first count, and he appeals to this court for a new trial. 
 
 The first and second exceptions relate to the admissibility of the 
 statements of the deceased as proved by Dr. Harrison and will be 
 considered together. The judge reports that "Dr. W. A. Harrison 
 testified that he visited deceased as a physician, April 2ist, 1879; 
 was called in to see her at Dr. Nesbitt's ; she was suffering pain 
 and in a wretched condition ; made an examination ; found her gen- 
 eral appearance indicated anemia; her appetite was good; she may 
 have been in that condition for months. She said her condition was 
 caused by her husband; he threw her down; jumped on her womb, 
 and there remained on her; beat her on her breast and sides. She 
 had been in the condition in which he then saw her ever since. She 
 thought, at the time she would then die. The doctor then gave his 
 opinion that the effects she exhibited would follow the treatment she 
 said she received. This physician further said that the deceased was 
 suffering from peritonitis (chronic), and had some symptoms of 
 cancer. He mentioned symptoms of both diseases, in detail, and con- 
 cludes, that, in his opinion as a medical man, the woman died from 
 the treatment she received from her husband." The admission of 
 this testimony was objected to, and the objection is renewed here 
 upon several grounds. First. It is insisted that this statement of 
 the deceased should not have been received, for the reason that the 
 deceased was the wife of the accused, and if living, would not have 
 been a competent witness against her husband, being excluded by sec- 
 tion 415 of the code. The preamble of the code declares that "the 
 second part relates to civil actions in the courts of this state." The 
 first sub-division of Sec. 415 provides, generally, that "the husband 
 and wife shall be competent and compellable to give evidence, the 
 same as any other witness, except as hereinafter stated." The second 
 sub-division, manifestly for the purpose of excluding the inference 
 that the provisions of the section might be construed as applying to 
 criminal actions, declares that "nothing herein contained shall render
 
 236 CASES ON EVIDENCE 
 
 any husband or wife competent or compellable to give evidence for 
 or against the other, in any criminal action or proceeding, except," &c. 
 These provisions, taken together, leave the law of evidence in criminal 
 proceedings unchanged, and by the common law, the declarations of 
 the wife, "in articulo mortis" are admissible against the husband on 
 trial for the murder of his wife. I Phil. Ev. 251 ; Roscoe's Cr. Ev. 
 118. 
 
 The evidence is also objected to on the ground that they were not 
 "dying declarations." Hearsay is evidence of facts with which the 
 witness is not acquainted, but which he merely states from the re- 
 lation of others, and is inadmissible for the double reason that the 
 party originally stating the facts does not speak under oath, and the 
 party against whom the evidence is offered has no opportunity to 
 cross-examine the party making the statements. The only case in the 
 whole range of the criminal law where evidence is admissible against 
 the accused without an opportunity of cross-examination, is that of 
 "dying declarations" in cases of homicide, and they are only admis- 
 sible from the necessity of the case, and when made in extremity 
 when the party is at the point of death, and conscious of it when 
 every hope of this world is gone, and every motive to falsehood is 
 silenced by the most powerful considerations to speak the truth. For 
 the reason that the admission of such statement is exceptional, they 
 ought always to be excluded unless they come within the rule in every 
 respect. State v. Quick, 15 Rich. 342; State v. McElvoy, 9 S. C. 
 211 ; Roscoe's Cr. Ev. 31. The testimony of Dr. Harrison as to the 
 statements of the deceased to him, does not come within the definition 
 of dying declarations, and was mere hearsay. He did not witness the 
 acts complained of, but only related what she told him had taken 
 place. She was afflicted with a lingering disease. Her statement was 
 made April 21, and she did not die until July 12, nearly three months 
 after. It does not appear that the statement was made in extremity ; 
 she said she thought at the time the violence was inflicted that "she 
 would then die," but she did not say that, at the time she made the 
 statement, she considered herself in the very presence of death soon 
 to occur. 
 
 The judgment of the Circuit Court is set aside, and a new trial 
 granted. 
 
 , C. J., and MclvER, A. J., concurred.
 
 DECLARATIONS RELATING TO PEDIGREE 237 
 
 DAVIS v. COMMONWEALTH. 
 95 Ky. 19. (1893) 
 
 CHIEF JUSTICE BENNETT delivered the opinion of the court. 
 
 The appellant having been convicted of the crime of murdering 
 Viona Pack by the Lawrence Circuit Court, he appeals and complains 
 as follows: First, that the court erred in not allowing him to prove 
 by G. W. Miller that Granville Pearl confessed to him on his death- 
 bed that he, Pearl, killed Viona Pack. It seems to us that admissions 
 and confessions as to competency stand upon the same footing. Ad- 
 missions cannot be used in evidence, except against the person making 
 them in an issue between him and another person, wherein the truth 
 of the admissions is involved, or against his privies claiming through 
 him. And confessions are incompetent evidence except against a 
 person charged with crime, or, in a proper state of case, against 
 his confederates. Nor is the proposed evidence competent as a dying 
 declaration, because such evidence is only competent when it comes 
 from a declarant whose personal injuries by another have resulted 
 in death, and the declaration must be confined to the manner and 
 circumstances of the injury and to the person that did it. 
 
 The judgment is affirmed. 
 
 DECLARATIONS RELATING TO PEDIGREE.i 
 
 FULKERSON v. HOLMES. 
 1 17 U. S. 389. (1885) 
 
 This was an action of ejectment. The defendants in error were 
 the plaintiffs in the Circuit Court, and were the heirs at law of John 
 Holmes, deceased. They brought the action in August, 1871, to 
 recover a tract of three thousand acres of land in Lee county, in 
 the state of Virginia. The defendants pleaded the general issue. 
 The case was tried by a jury, and there was a verdict for the plain- 
 tiffs, on which the court rendered judgment and the defendants sued 
 out this writ of error. 
 
 Hughes on Evidence, p. 72.
 
 238 CASES ON EVIDENCE 
 
 It appeared from the bill of exceptions that the plaintiffs, to sus- 
 tain the issue on their part, offered in evidence a patent from the 
 Commonwealth of Virginia to Samuel Young, dated May 7, 1787, 
 for the premises in controversy, which was admitted without objec- 
 tion. 
 
 They next offered a deed for the same premises from Samuel C. 
 Young to John Holmes, dated July 2, 1918. This deed recited the 
 grant by the Commonwealth of Virginia to Samuel Young of the 
 premises in controversy, that Samuel Young, the patentee, had died 
 intestate, that Samuel C. Young, the grantor, was his only child and 
 heir, and that the title to said lands had vested in him. Appended to 
 the deed was a certificate of acknowledgment, dated July 15, 1819, 
 at the Eastern District of Pennsylvania, purporting to have been 
 taken by Richard Peters, United States judge for the district of 
 Pennsylvania, and signed by him. The deed appeared also to have 
 been witnessed by John Shaw and John Craige. Immediately after 
 the certificate of acknowledgment appeared what purported to be the 
 receipt of Samuel C. Young for the consideration money mentioned 
 in the deed, which was $10,400 signed by him and witnessed by 
 John Craige. The plaintiffs proved the handwriting of Judge Peters 
 to the certificate, and the death of John Shaw, one of the witnesses, 
 which took place more than fifty years before the trial. Appended 
 to the deed was the following certificate of registration: 
 
 "Virginia: At the court begun and held for Lee county, at the 
 court-house thereof, on the I5th day of January, 1838, this indenture 
 of bargain and sale for land between Samuel C. Young, of the one 
 part and John Holmes of the other part, was admitted to record upon 
 the certificate of Richard Peters, judge of the Pennsylvania district 
 of the United States. 
 
 J.. W. S. MORRISON, D. C." 
 
 The deed bore the following indorsement : 
 
 "Recorded in the clerk's office of the County Court of Lee, in book 
 No. 7, page 401. 
 "Teste : J. W. S. MORRISON, D. C." 
 
 MR. JUSTICE WOODS delivered the opinion of the court. He stated 
 the case and continued: 
 
 It is first assigned for error that the Circuit Court "allowed the 
 deed from Samuel C. Young to John Holmes to be read in evidence 
 without instructing the jury that the recitals therein in respect to the 
 death of Samuel Young and the heirship of Samuel C. Young were 
 not evidence against the defendants, even if it were admissible at
 
 DECLARATIONS RELATING TO PEDIGREE 239 
 
 all, without proof of its execution or possession accompanying and 
 held under it." 
 
 The deed of Samuel C. Young to John Holmes was rightfully ad- 
 mitted in evidence, as an ancient deed, without proof by the sub- 
 scribing witnesses, or of possession by the plaintiffs or those under 
 whom they claimed. When offered it was more than sixty years old ; 
 it was produced from the custody of the heirs of John Holmes, the 
 grantee, who claimed the lands described therein. It, as well as the 
 patent for the same land from the Commonwealth of Virginia to 
 Samuel Young, was shown to have been found among the papers of 
 John Holmes. The lands described therein were shown to have 
 been listed for taxation to John Holmes, or to his heirs, for a period 
 beginning with the year 1838 down to and including the year 1875, 
 which was after the bringing of this suit ; and it appeared that during 
 that time they had paid the taxes assessed on said lands, or the same 
 had been released to them by law. It was further shown that the 
 judge before whom the acknowledgment of the deed had been made 
 was dead ; that his signature to the certificate of acknowledgment was 
 genuine; that the deed had been recorded in the county where the 
 lands lay for more than forty-two years before it was offered in 
 evidence ; and that before and after the deed was put upon record the 
 lands described therein were reported to be the lands of John Holmes, 
 the grantee, and his heirs, and were known and designated in the 
 neighborhood where they lay as the "Holmes plantation." 
 
 This state of facts amply justified the admission of the deed in 
 evidence as an ancient document, without other proof. Caruthers v. 
 Eldridge, 12 Gratt. 670; Applegate v. Lexington & Carter County 
 Mining Co., decided in the present term, ante, 255, and the cases there 
 cited. 
 
 The question is, therefore, fairly presented, whether the recitals 
 made in the deed of Samuel C. Young to John Holmes, to the effect 
 that Samuel C. Young, the patentee, had died intestate, leaving one 
 child only, namely the said Samuel C. Young, the grantor, were admis- 
 sible in evidence against the defendants, who did not claim title under 
 the deed. 
 
 The fact to be established is one of pedigree. The proof to show 
 pedigree forms a well settled exception to the rule which excludes 
 hearsay evidence. This exception has been recognized on the ground 
 of necessity; for, as in inquiries respecting relationship or descent, 
 facts must often be proved which occurred many years before the 
 trial and were known to but few persons, it is obvious that the
 
 240 CASES ON EVIDENCE 
 
 strict enforcement in such cases of the rules against hearsay evi- 
 dence would frequently occasion a failure of justice. Taylor on Evi- 
 dence, ed. 1872 sec. 571. Traditional evidence is, therefore, admis- 
 sible. Jackson v. Browner, 18 Johns. 37 ; Jackson v. King, 5 Cowen, 
 237; Davis v. Wood, I Wheat. 6. The rule is that declarations of 
 deceased persons who were de jure related by blood or marriage to 
 the family in question may be given in evidence in matters of pedigree. 
 Jewell v. Jewell, i How. 219; Blackburn v. Crawfords, 3 Wall. 175; 
 Johnson v. Lawson, 2 Bing, 86; Vowles v. Young, 13 Ves. 140, 147; 
 Monkton v. Attorney-General, 2 Russ. & Myln. 147, 159; White v. 
 Strother, n Ala. 720. A qualification of the rule is, that, before a 
 declaration can be admitted in evidence, the relationship of the de- 
 clarant with the family must be established by some proof independent 
 of the declaration itself. Monkton v. Attorney-General, 2 Russ. & 
 Myln. 147, 156; Attorney-General v. Kohler, 9 H. L,. Cas. 653, 660; 
 Rex v. All-Saints, 7 B. & C. 785, 789. But it is evident that but 
 slight proof of the relationship will be required since the relationship 
 of the declarant with the family might be as difficult to prove as the 
 very fact in controversy. 
 
 Applying these rules, we are of opinion that the recital in the deed 
 of Samuel C. Young to John Holmes, supported as it was by the 
 circumstances of the case shown by the evidence, was admissible, as 
 tending to prove the facts recited, namely, that Samuel Young the 
 patentee was dead, and Samuel C. Young, the grantor, was his only 
 child and heir. 
 
 Judgment affirmed. 
 
 BLACKBURN v. CRAWFORDS. 
 70 U. S. 175. (1865) 
 
 Dr. Crawford, of Prince George's County, Maryland, died intestate 
 in December, 1859, the proprietor of large landed estates there; 
 Greenwood Park, Waring's Grove, Federal Hill, Westphalia, Ran- 
 leigh, &c. He left no wife, nor child, nor brother nor sister surviving 
 him. Claimants to such estates, however, were not long wanting. On 
 the one hand were relatives of the name of Blackburn, confessedly 
 his cousins-german ; on the other persons bearing his own respectable 
 Scottish name of Crawford; George Thomas Crawford, Mary Eliza-
 
 DECLARATIONS RELATING TO PEDIGREE 241 
 
 beth Crawford, Sarah Jane Crawford, and Anna Victoria Crawford, 
 the children of a brother Mr. Thomas B. Crawford, who had died 
 before him. The title of these children as nephew and nieces, and 
 nearer of course than cousins was clear, but for a single difficulty; 
 the fact that their legitimacy was called in question. It was asserted 
 that their mother had been the mistress, not the wife of their father. 
 The intercourse of the parties had, confessedly, in its origin been 
 irregular; but the allegation was that a marriage had subsequently 
 taken place. 
 
 To prove the marriage, the counsel of the children, the plaintiffs 
 in the case, offered in evidence the deposition of the Rev. J. P. 
 Donelan, to prove that he had frequently heard Sarah Evans say 
 that Mr. T. B. Crawford and Elizabeth Taylor were married. In 
 order to lay a foundation for this testimony, it was proved aliunde 
 that Sarah Evans was the sister of Elizabeth Taylor, and that she 
 had been dead several years. The testimony was admitted, under 
 objection by the other side. 
 
 MR. JUSTICE SWAYNE delivered the opinion of the court. 
 The first exception relates to the admission of evidence as to what 
 Sarah Evans had said in regard to the marriage of her sister, Elizabeth 
 Taylor with Mr. Crawford. Was the testimony rightly admitted? 
 Greenleaf says : "It is now settled that the law resorts to hear- 
 say evidence in cases of pedigree, upon the ground of the interest 
 of the declarants in the person from whom the descent is made out, 
 and their consequent interest in knowing the connections of the family. 
 The rule of admission is therefore restricted to the declarations of 
 deceased persons who were related by blood or marriage to the per- 
 son, and therefore interested in the succession in question." 
 
 It is well settled, that before the declarations can be admitted, the 
 relationship of the declarant to the family must be established by 
 other testimony. 
 
 Here the question related to the family of Dr. Crawford. The 
 defendants in error claimed to belong to the family, and to be his 
 nephew and nieces. To prove this relationship, it was competent 
 for them to give in evidence the declarations of any deceased member 
 of that family. But the declarations of a person belonging to an- 
 other family such person claiming to be connected with that family 
 only by the intermarriage of a member of each family rests upon a 
 different principle. A declaration from such a source of the mar- 
 riage which constitutes the affinity of the declarant, is not such evi- 
 dence aliunde as the law requires.
 
 242 CASES ON EVIDENCE 
 
 It is insisted by the defendants in error, upon the authority of 
 Moncton v. The Attorney General, That it was sufficient to show 
 the relationship of the declarant to Elizabeth Taylor. As we under- 
 stand that case, it has no application to the point under consideration. 
 None of the writers on the law of evidence have given it so wide a 
 scope. Hubback thus states the principle which it decides: "It is 
 sufficient that the declarant be connected by extrinsic evidence with 
 one branch of the family touching which his declaration is tendered." 
 Lord Brougham himself said in that case : "I entirely agree that, in 
 order to admit hearsay evidence in pedigree, you must, by evidence 
 dehors the declarations, connect the persons making them, with the 
 family. To say that you cannot prove the declarations of A., who 
 is proved to be a relation by blood of B., touching the relationship of 
 B with C., unless you have first connected him with C, is a propo- 
 sition which has no warrant, either in the principle upon which 
 hearsay is let in, or in the decided cases." If it had been proved 
 by independent testimony that Sarah Evans was related by blood 
 to any branch of the family of David Crawford, and her declarations 
 had been offered to prove the relationship of another person claiming, 
 or claimed to belong also to that family, this case would be in point. 
 But the declaration of Sarah Evans, offered to prove that her sister 
 was connected by marriage with a member of that family, was neither 
 within the principle nor the language of that authority. 
 
 In Edwards v. Harvey an issue out of chancery was directed to 
 try the question whether "A. B., from whom the plaintiff claimed, 
 was not proved to be related to C. D., who was the granting party in 
 the conveyance of the plaintiff.' A new trial was moved for, on the 
 ground that the court had rejected a paper offered in evidence by the 
 plaintiff. "It was a pedigree drawn out by Bridget Lloyd, a maiden 
 lady, deceased, showing that C. D., who was her relative was related 
 to A. B." The master of the rolls "refused a new trial, because if 
 Miss Bridget Lloyd's pedigree, written by herself, were evidence 
 for her relation, so would her declaration have been, to show that 
 she was herself entitled to the estate." 
 
 In Doe v. Fuller, Chief Justice Best said : "If there were no other 
 evidence than the declarations of John to show that James was a 
 member of the family, they could not have been received, as that 
 would be carrying the rule as to the admissibility of hearsay evidence 
 further than has ever yet been done, viz., to allow a party to claim an 
 alliance with a family by the bare assertion of it." 
 
 We think the court erred in admitting the testimony.
 
 DECLARATIONS RELATING TO PEDIGREE 243 
 
 Judgment reversed, with costs, and the case remanded to the Circuit 
 Court, with an order to issue a venire de novo. 
 
 HARLAND v. EASTMAN. 
 107111535. (1883) 
 
 This is an action of ejectment brought by appellee, against appel- 
 lant, claiming title in fee to lot 45, block 37, in school section addition 
 to Chicago, and for the possession thereof. The plea is not guilty. 
 
 Plaintiff claims that one Abraham B. Adams was the owner in fee, 
 and seeks to show title in himself through three deeds, executed, one 
 by Enoch E. Adams, one by Alfred A. Adams, and one by Adelaide B. 
 Pate, each purporting to convey to plaintiff an undivided one-third 
 of said lot. The proof shows that Abraham B. Adams died in 1872 
 or 1873, and these deeds were made in 1880 and in 1881. To show 
 title in plaintiff it was necessary to show title in these grantors. To 
 do this he undertook to prove that these three grantors constituted 
 the only hejrs at law of Abraham B. Adams, deceased. To this end 
 he introduced as a witness J. C. Tucker, who testified that' he lived in 
 Chicago from 1856 to 1860, "and off and on then until 1875," when he 
 moved back to Chicago, and had lived there ever since; that he knew 
 Abraham B. Adams in his lifetime; first saw him in 1863; he then 
 lived on this property and had a wife living with him, and witness 
 saw him once afterwards, two to five years later; that witness knew 
 two of his children; that there were three, Enoch E., Alfred A. and 
 Sarah; that Sarah was married, and afterwards died, some thirty 
 years ago, before the witness knew the family; that witness married 
 a daughter of Enoch E. Adams, a grand-daughter of Abraham B. 
 Adams ; that when Sarah died, she left one child, who married one 
 A. B. Pate, and is now living, and is Mrs. A. B. Pate; that Sarah 
 left no other child. (At this stage of the testimony defendant moved 
 to exclude from the jury this testimony as to Sarah and her children. 
 The motion was denied, and defendant excepted.) The witness fur- 
 ther testified that Enoch Adams and Alfred are both living, now, in 
 the State of Illinois, and that Mrs. Pate lives in Ohio. 
 
 On cross-examination the witness stated, that when he first saw 
 Abraham B. Adams, in 1863, the wife of witness was with him, and 
 thei stayed about two hours; that witness then lived at Cincinnati
 
 244 CASES ON EVIDENCE 
 
 and had never seen him before, and on the subsequent visit he stayed 
 about an hour, and this is all the acquaintance he had with him ; 
 that he has no personal knowledge of his death or his wife's death ; 
 that he never saw Sarah ,or knew her or her family, or of her death, 
 except from the relatives of the wife of witness; that he never heard 
 that Sarah ever had more than one child; that Abraham B. Adams 
 was married twice; that Alfred A., Enoch E., and Sarah were all 
 children by his first wife; that when witness called, as above stated, 
 Abraham B. Adams was living with his second wife; that witness 
 never heard of any children by her. The witness then stated that all 
 he knew about these things was hearsay, from his wife and relatives. 
 DICKEY, J. The motion for a new trial ought to have been sus- 
 tained. The testimony in the case palpably failed to show that the 
 three grantors in the deeds to plaintiff were the heirs, and only heirs, 
 of Abraham B. Adams. Facts involved in a question of pedigree 
 may be established by proof of general reputation in the family, or by 
 proof of what deceased members of the family have said. From the 
 necessity of the case, hearsay evidence of certain kinds is admissible 
 in establishing matters of pedigree, and this because it is the best evi- 
 dence of which the nature of the case admits. What has been said 
 by deceased members of the family is admissible, upon the presump- 
 tion that as such members they knew, from general repute in the 
 family, the facts of which they speak. Now while such a presumption 
 as to the husband of a grandchild of the intestate may, under some 
 circumstances, prevail, still when on cross-examination, it is shown 
 that two of the children of the intestate are living, and within the 
 reach of the process of the court, it will not do to say that the tes- 
 timony of such a witness shall be deemed sufficient where he shows 
 he has no personal knowledge on the subject, and fails to show a 
 general reputation in the family in support of what he has heard 
 and merely says he learned so and so from conversations with his 
 wife and her relatives. Such conversations have been such in extent 
 and variety, and may have been held under such circumstances, as 
 to enable a witness to say that such was the reputation in the family, 
 but such conversation may not have been such. The witness surely 
 could not be permitted to swear to any specific thing which his wife, 
 or either of her uncles, had said in his hearing, because they are all 
 living, and their sworn testimony is better than their unsworn state- 
 ments, unless all of them taken together, with their surroundings, 
 enable him to say such was the accepted state of the case in the family, 
 or such was the uncontradicted repute in the family.
 
 DECLARATIONS RELATING TO PEDIGREE 245 
 
 Again while the witness says Abraham B. Adams had three chil- 
 dren (Enoch, Alfred and Sarah), he nowhere says distinctly, that 
 these were his only children; and while he undertakes, in speaking 
 of Sarah, the aunt of his wife, who died many years before the wit- 
 ness knew the Adams family at all, to say she left only one child 
 who is still living, and the wife of one A. B. Pate, he nowhere tells 
 the given name of that child, or shows that she was the Adelaide B. 
 Pate who made the deed to plaintiff. If it be true that the several 
 grantors in these three deeds were really the only heirs at law, it can 
 readily be proven by these three living witnesses. While the wit- 
 ness produced is a relative of deceased (Adams) by marriage, yet 
 his own testimony shows that his association with the family was so 
 slight that the presumption arising from that relation of his knowl- 
 edge on the subject is entirely rebutted by his own statements. For 
 this reason, if for no other, the judgment ought to be reversed, and 
 another trial had. 
 
 The judgment is reversed and the cause remanded. 
 
 FLORA v. ANDERSON. 
 75 Fed. Rep. 217. (1896) 
 
 SAGE, District Judge. The complainant sues to recover two-twelfths 
 of the estate of Nicholas Longworth, claiming as the illegitimate 
 son of Eliza Longworth Flagg, under the will of Nicholas Long- 
 worth, her father, executed on the 25th of March, 1859 and under 
 the codicil thereto, executed on the I5th day of January, 1862, 
 whereby he devised to Larz Anderson his son-in-law, and to Joseph 
 Longworth, his son, who were named as executors, two-twelfths 
 of his estate, in trust for the benefit of his daughter, Eliza Longworth 
 Flagg, during her life with remainder to "the issue of her body sur- 
 viving her," and in default of such issue to his son, Joseph Long- 
 worth, and his grandson, John L. Stettinus. Nicholas Longworth 
 died on the I7th of Feb. 1863. Eliza Longworth Flagg died De- 
 cember 13, 1891, without issue of her marriage. To maintain his 
 claim, the complainant must establish : First, that he is the illegiti- 
 mate son of Eliza L. Flagg; and, second, that if so, he is entitled 
 under the will to the remainder devised to "the issue of her body 
 surviving her."
 
 246 CASES ON EVIDENCE 
 
 The law resorts to hearsay evidence in cases of pedigree upon the 
 ground of the interest of the declarants in the persons from whom 
 the descent is made out, and their consequent interest in knowing the 
 connections of the family. The rule of admission is, therefore, re- 
 stricted to the declarations of deceased persons who were related by 
 blood or marriage to the person, and in that way interested in the 
 succession in question. Greenl. Ev. sec. 103. 
 
 The rule that hearsay is admissible in cases of pedigree is limited 
 to cases of legitimate relationship. In such cases the presumption is 
 that declarations by deceased members of the family are true, be- 
 cause ordinarily there is no motive for false statements, as there is 
 likely to be in cases of illegitimacy. In Crispin v. Doglioni, 3 Swab. & 
 Tr. decided by Sir C. Cress well in 1863, the question was as to the 
 right of succession to property, the decedent having been a citizen 
 of Portugal, where under the law, bastards inherited from the father 
 in default of lawful issue. The plaintiff claimed to be the bastard 
 son of the decedent, and therefore entitled under the law of Portugal, 
 to his personal property. The defendant was a sister of the de- 
 cedent, and denied that the plaintiff was his son. The declarations 
 of a brother of the deceased, tending to show that the plaintiff was 
 the bastard son were offered. The judge said: 
 
 "I can well understand that where a matter is likely to be discussed 
 and well known in a family, a member of the family my be allowed 
 to give evidence of it; but in this case plaintiff, according to his 
 own account, is filius nullius by our law. The question is whether 
 a declaration of one member may be admitted to another member 
 of having had intercourse with a woman and having had a child by 
 her. I think it ought to be excluded." 
 
 Where a relationship is acknowledged as a matter of fact, and its 
 lawfulness is only disputed, hearsay from members of the family 
 may be introduced to show that such relationship was lawful or was 
 not lawful. But hearsay cannot be introduced to establish an un- 
 lawful relationship per se, where a lawful relationship is not claimed. 
 There are cases in which testimony as to declarations of members of 
 the family have been admitted to show that the claimant was a bastard. 
 But on examination it will appear that in those cases the testimony 
 was introduced, not to show bastardy per se, as a ground of claim, 
 but to dispute a claim of legitimacy. Vowles v. Young, 13 Ves. 147; 
 Goodright v. Moss, Cowp. 593 ; Murray v. Milner, 12 Ch. Div. 845 ; 
 Jewel v. Jewel, i How. 219; Haddock v. Railroad, 3 Allen, 298. In 
 Doe v. Barton, 2 Moody & R. 28, the declarations of illegitimate re-
 
 DECLARATIONS RELATING TO PEDIGREE 247 
 
 lations were rejected. See, also, Barnum v. Barnum, 42 Md. 251, 
 304; Richmond v. State, 19 Wis. 307; and Shoppert v. Nierle (Neb.) 
 63 N. W. 383. The only exception to the rule is in India, where, 
 under Act 2 of 1855, sec. 47, declarations of illegitimate members 
 of the family, and also of persons who, though not related by blood 
 or marriage to the family, were intimately acquainted with its mem- 
 bers, were made admissible after the death of the declarants in the 
 same manner and to the same extent as those of deceased members 
 of the family. But that is a statutory rule. Whether illegitimacy 
 is reputable in that country, and the statute was for that reason 
 enacted, or whether it was enacted because Great Britain makes her 
 experiment, in legislation as in other matters upon her colonies and 
 dependencies, it is not of importance to inquire. Under the ap- 
 plication of the rule in force here, what was left of complainant's 
 case under the first proposition of law is entirely barren of proof. 
 The Bill will be dismissed at the cost of the complainant. 
 
 INHABITANTS OK NORTH BROOKFIELD v. INHABITANTS 
 
 OF WARREN. 
 
 82 Mass. 170. (1860) 
 
 Action of contract for the support of William M. Chickering, a 
 pauper. 
 
 At the trial in the Superior Court before Lord, J. the plaintiffs 
 introduced " evidence tending to show that Harvey Chickering, the 
 pauper's father, was the legitimate son of Nathaniel Chickering and 
 Ruth Richardson (who as was agreed, were married in Connecticut 
 on the 22nd day of February, 1804), and that Nathaniel gained a 
 settlement in the defendant town under the St. of 1793. The de- 
 fendants, to prove that Harvey was born before the marriage of 
 his parents, and was therefore illegitimate, called a witness who tes- 
 tified that, in the fall of 1803, in company with her aunt, Mrs. Blair, 
 she made a visit to a relation who lived near the house in which 
 Ruth Chickering was then living, and while there saw Harvey Chick- 
 ering, then an infant two or three weeks old ; that she remembered 
 the date from the fact that Mrs. Blair's only daughter, named Sus- 
 anna, was with them and was about a year old, and this daughter 
 was born in September, 1802, and died on the I2th of Dec. 1803 ; and
 
 248 CASES ON EVIDENCE 
 
 that she had been kept in remembrance of the date of Susanna's 
 death by constant intercourse with her family since and by frequent 
 reference to the family record. The Blair family was not related to 
 the Richardson or the dickering family. 
 
 The defendants then offered as evidence that Susanna died on 
 the I2th of Dec. 1803, a large ornamented sheet of parchment, bear- 
 ing the inscription "family record," on which were entered the dates 
 of the birth and marriage of Susanna Blair's parents, the dates of the 
 birth and death of Susanna, and of the births, marriages and deaths 
 of two sons born subsequently of the same parents. One of these 
 sons, forty-seven years old, testified that, ever since his earliest recol- 
 lection, his father had kept this parchment framed and hanging 
 in a conspicuous place in his dwelling-house, and had handed it down 
 to him ; that during all this time the same entries had been on it ; and 
 that his father and mother were dead. And there was evidence that 
 the entries of the births and deaths upon the parchment were made, 
 all at one time, by direction of Susanna's father, more than forty 
 years before the trial; that the record of the marriages of his chil- 
 dren had been added, from time to time as they occurred; and that 
 he and his son kept and exhibited the parchment as a true statement 
 of the events recorded on it. 
 
 The defendants also offered to prove that an ancient grave-stone 
 in the burial-ground of the Blair family bore the name of Susanna, 
 and had inscribed on it December i2th, 1803 as the date of her death. 
 
 The evidence offered by the defendants was excluded; the jury 
 returned a verdict for the plaintiffs, and the defendants alleged ex- 
 ceptions. 
 
 BIGELOW, C. J. At the trial of this case, the date of the birth of 
 the father of the pauper, Harvey Chickering, became a material fact, 
 because the legal settlement in controversy depended on the ques- 
 tion whether the father was born prior to the marriage of his parents, 
 which took place on the 22nd of February, 1804. To prove the illegiti- 
 macy of Harvey Chickering, the defendants introduced a witness 
 who testified that she saw him, then an infant, during the lifetime 
 of Susanna E. Blair. It then became important to establish the date 
 of Susanna's death, because if she died before the date of the mar- 
 riage of the parent's of Harvey Chickering, it would follow that he 
 must have been born out of wedlock. 
 
 It was a case therefore where the proof of a fact material to the 
 issue depended on the existence of another collateral fact. The fac- 
 tum probandum might well be inferred from satisfactory evidence.
 
 DECLARATIONS RELATING TO PEDIGREE 249 
 
 that an event otherwise immaterial, took place at a particular time. 
 Such testimony is not only competent, but without it it would often 
 be impossible to prove essential facts in a court of justice. Direct 
 and positive proof cannot always be obtained, and in matters espe- 
 cially which relate to remote periods it is necessary to resort to cir- 
 cumstantial evidence and presumption to supply the place of that 
 testimony which is lost by the lapse of time and the imperfection of 
 human memory. Such evidence in the strict legal sense is not col- 
 lateral. It raises, it is true, a new and distinct inquiry; but if it 
 affords a reasonable presumption or inference as to the principal fact 
 or matter in issue, it is relevant and material and does not tend to 
 distract or mislead the jury from the real point in controversy. 
 
 The objection more strenuously urged to the evidence offered at 
 the trial is to the nature and quality of the proof by which the defend- 
 ants sought to establish the date of Susanna Blair's -death. It is not 
 denied that this evidence would have been competent, if it had been 
 introduced to prove a fact directly in issue, such, for instance as the 
 date of the pauper's birth ; but it is contended that it was inadmissible 
 to establish a fact collateral in its nature, from which the main fact 
 in issue was to be deduced by inference. But we know of no such 
 distinction in the rules of evidence. The competency of proof can- 
 not be made to depend on the inference or conclusion which is sought 
 to be drawn from it. If it is competent to prove a particular fact 
 in controversy when it is directly in issue, it is equally competent 
 when the same fact is to be established in order to form the ground 
 for an inference or presumption from which the material subject 
 of inquiry can be deduced. The true test is, to inquire whether the 
 evidence is admissible to prove the fact which it is offered to establish, 
 and not whether such fact is directly or only collaterally in issue. 
 
 In the present case, the defendants sought to prove the date of 
 the death of Susanna Blair by a document or chart containing a rec- 
 ord of the births, marriages, and deaths kept in her family for a long 
 series of years, and handed down by her deceased parent to his sons 
 as containing a true statement of the events therein recorded; and 
 also by proof of the inscription on the tombstone erected to her mem- 
 ory in the family burial-ground. Such evidence is deemed to be com- 
 petent and satisfactory proof of family descent, and also of the dates 
 of the leading events in family history, such as births, marriages 
 and deaths, especially when they relate to ancient occurrences. They 
 are contemporaneous with the events which they record; they are 
 made by parties who are cognizant of the facts, and who would have
 
 250 , CASES ON EVIDENCE 
 
 no interest or motive in misstating them ; and they are in their nature 
 public, openly exhibited, and well known to the family, and therefore 
 may be presumed to possess that authenticity which is derived from the 
 tacit and common assent of those interested in the facts which they 
 record. 
 
 Some of the authorities seem to limit the competency of this species 
 of proof to cases where the main subject of inquiry relates to pedi- 
 gree, and where the incidents of birth, marriage and death, and the 
 times when these events happened, are directly put in issue. But 
 upon principle we can see no reason for such a limitation. If this 
 evidence is admissible to prove such facts at all, it is equally so in 
 all cases whenever they become legitimate subjects of judicial inquiry 
 and investigation. 
 
 We are therefore of opinion, that the rejection of the proof offered 
 at the trial to establish the date of the death of a person who de- 
 ceased more than fifty years previously was erroneous, i Greenl. Ev. 
 sees. 103, 104. Berkeley Peerage Case, 4 Campb. 401. Monkton v. 
 Attorney General, 2 Russ. & Myl. 162. Jackson v. Cooley, 8 Johns. 
 
 131- 
 
 Exceptions sustained. 
 
 CAMPION v. MCCARTHY. 
 228 in. 87. (1907) 
 
 FARMER, J. This suit was begun by appellee, Henry McCarthy, 
 filing a bill for the partition of certain lands of John Earl deceased. 
 
 The controversy is as to whether the complainant, Henry Mc- 
 Carthy, is an heir of John Earl, deceased, and entitled to an interest 
 in the lands of which he died seized. Complainant claimed to be an 
 illegitimate son of Susan Champion, who was the mother of John 
 Earl. It is admitted that Earl was an illegitimate son of the said 
 Susan Campion, whose maiden name was Ayres. She originally lived 
 in Elizabeth township, near Brockville, Ontario, Canada. There she 
 was married to Elias Champion in 1830. John Earl was born to 
 Susan Champion (then Susan Ayres) in 1822, and after her marriage 
 to Elias Champion he became a member of his mother's family and 
 lived with her up to the time of her death, in 1893, usually being 
 known by the name of John Champion. In 1849 Elias and Susan
 
 DECLARATIONS RELATING TO PEDIGREE 251 
 
 Champion, and several children born to them after their marriage, 
 and John Earl, moved to DuPage County, Illinois, where they re- 
 sided about one year and then moved to Ogle county, where they 
 lived until the parents died. Susan Champion died in 1893, leaving 
 a will, in and by which she devised to John Earl the real estate in 
 controversy. Complainant claimed to be an illegitimate son of said 
 Susan Champion, born to her in Canada in 1826, before her mar- 
 riage to Elias Champion. This would make him a half brother to 
 John Earl, and, as such, an heir entitled to a one-fourth interest in 
 the real estate of which John Earl died seized. 
 
 It is not denied that hearsay evidence, such as declarations of de- 
 ceased parents and members of the family, may be proven to estab- 
 lish pedigree, but it is contended that the rule permitting such proof 
 is limited to cases of legitimate relationship and cannot be heard to 
 establish illegitimacy. While this position is apparently, sustained 
 in Flora v. Anderson, 75 Fed. Rep. 217, cited and relied on by ap- 
 pellants, that case is not in harmony with the great weight of author- 
 ity as well as the better reason. That case followed the English case 
 of Crispin v. Doglioni, 3 Swab. & Tr. 44, which appears to have 
 been based upon the common law rule that an illegitimate is filius 
 nullius. This common law rule has been abrogated in this and other 
 States by statute (Miller v. Pennington, 218 111. 220; Bales v. Elder, 
 118 id. 436) ; and where such statutes have been enacted. Crispin v. 
 Doglioni cannot be regarded as authority to be followed. The declara- 
 tions sought to be proved in that case were those of a deceased 
 brother of the intestate putative father, and the court held that the 
 putative father had no relationship with a bastard son, and his dec- 
 larations, or those of members of his family, were therefore incom- 
 petent. 
 
 As to whether declarations of the supposed father and members of 
 his family are competent there is some conflict in the authorities. 
 In Elliot on Evidence (vol. i, sec. 376), it is said: "There is a con- 
 flict as to whether the declarations as to a son's illegitimacy, by a 
 member of the father's family should be rejected. The better rule, is, 
 not to exclude such testimony in a proper case. There seems to be 
 no dissent whatever, however, as to the admission of the declarations 
 in a proper case, as to illegitimacy, made by a member of the mother's 
 family. There is, perhaps, a technical reason for excluding the dec- 
 larations as to illegitimacy where they show that the person is a 
 bastard, and not, therefore, a member of the father's family; but 
 this would hardly apply in the case of the mother, and in most of the
 
 252 CASES ON EVIDENCE 
 
 States there are statutes which change the common law status of 
 hastards." 
 
 The rule that declarations of the supposed parent and deceased 
 members of his or her family may be proven to establish the parentage 
 where the relationship is illegitimate, is supported in Crawford v. 
 Blackburn, 17 Md. 49 (77 Am. Dec. 323), Blackburn v. Crawford, 3 
 Wall. 175, .Watson v. Richardson, no Iowa, 678, and Alston v. 
 Alston, 114 id. 29. In all of these cases it is held that the declara- 
 tions of the putative father may be proven. Unquestionably, by the 
 great weight of authority the declarations of the mother and the mem- 
 bers of her family are competent to prove the relation of parent and 
 child without regard to whether the claim is that the child was legi- 
 timate or illegitimate. It is, of course, to be understood that this 
 rule is applicable only in cases where the child was born before mar- 
 riage of the mother, or in cases where she had never been married. 
 
 Decree affirmed. 
 
 WISE v. WYNN. 
 59 Miss. 588. (1882) 
 
 CHALMERS, J. More than forty years ago there came to Holmes 
 county in this state a man calling himself Charles Wise. His par- 
 entage and past antecedents were wholly unknown, and except to a 
 few persons he seems to have preserved great reticence on these 
 subjects. He lived in Holmes county continuously thereafter, until 
 his death in 1870, and in the meantime accumulated a considerable 
 landed estate. Dying intestate, unmarried, and without known heirs, 
 his property after his death was by regular proceedings escheated to 
 the State, and from the State subsequently purchased by the appellee, 
 Wynn. Within the time limited by our statutes (Code 1880, sec. 
 892, this action has been brought for the recovery of the property 
 by those who claim to be the heirs-at-law of the decedent. 
 
 They prove that they are the children of Thomas Wise, deceased, 
 formerly a resident of a place known as "Hell's Corner," In Amelia 
 County, Virginia, where the corners of three counties come together; 
 that nearly fifty years ago their father had a younger brother named 
 Charles, who having seduced a young lady of respectable family, fled 
 the country to escape the vengeance of her relatives, and announced
 
 DECLARATIONS RELATING TO PEDIGREE 253 
 
 at the time, to an intimate friend, that he expected to go to Texas 
 or Mississippi, and that he should take care that no one in Virginia 
 should ever discover the place of his future home. The friend to 
 whom this statement was made is still alive, and these facts are es- 
 tablished by his testimony. From that time forth, until within a 
 short time before the bringing of this suit, nothing was ever heard 
 in Virginia of the subsequent career of Charles Wise. Having made 
 this proof, the plaintiffs proposed to prove by two witnesses, living 
 in Holmes county, that the man known as Charles Wise, and whose 
 estate is involved in this litigation, told them that he came from a 
 place in Virginia known as "Hell's Corner," where the corners of 
 three counties came together, that he had there a brother named 
 Thomas, and that he had left there because of some trouble about a 
 woman. The whole of this proffered testimony was excluded by the 
 court below, except the isolated statement of the deceased that he 
 had a brother named Thomas, the witnesses not even being allowed 
 to state that the deceased had said that his brother Thomas lived in 
 Virginia, or that he himself came from that State. 
 
 This ruling of the learned judge was based upon the dicta of many 
 authorities to the effect, that while in questions of pedigree the hear- 
 say declarations of a deceased member of a family are receivable 
 in evidence, as to matters of birth, death, age, marriage, and the like, 
 declarations as to place are not. The later and better considered 
 cases, however, repudiate this distinction between declarations as to 
 place and those touching other family matters, where the inquiry is 
 strictly one of pedigree, and the declarations as to place are not relied 
 on as giving any right by reason of the place, but proof as to place 
 is made merely by way of identification of the person or family. 
 Thus, in a question of settlement under the poor laws, where the 
 right of settlement is dependent upon the place of present or former 
 residence, hearsay declarations as to place are inadmissible ; but where 
 the question is purely one of pedigree, and the effort is to identify 
 the particular person or family about whom the declarant was speak- 
 ing, declarations as to place stand upon the same footing as any others 
 relative to matters of family history. Wharton Ev. sec. 208, and 
 cases cited. Manifestly this is the true rule here. There can be no 
 reason founded in good sense for admitting the declarations of a 
 deceased person that he has a brother named Thomas, and excluding 
 his statement of where' that brother lives. The name wholly fails to 
 identify without identification of the place, and the one is worthless 
 without the other. If the court below was correct in admitting any
 
 254 CASES ON EVIDENCE 
 
 of the declarations of Charles Wise touching his family, it should 
 have admitted them all, since they all tended to establish his own 
 identity, and were proffered not for the purpose of basing any par- 
 ticular right on the place of his alleged nativity, but solely for the 
 purpose of showing who he was, and to what family he belonged. 
 
 But was it admissible to show this by his own statements, without 
 some proof outside of his own declarations connecting him with the 
 family of which he claimed to be a member? The general rule un- 
 doubtedly is, that before hearsay declarations in matters of pedigree 
 can be introduced in evidence, some proof dehors the declarations 
 must be made that the declarant was in fact a member of the family 
 about which he was speaking. It was unanimously so ruled by all the 
 judges in The Banbury Perrage Case, 2 Selwyn N. P. 764, where 
 the petitioner sought to introduce in evidence the statements and 
 depositions contained in a chancery litigation conducted more than 
 one hundred and fifty years before, in which an ancestor of the peti- 
 tioner styled himself, and was styled by those who professed to be- 
 long to the family, the legitimate son of A. B. It was held that such 
 statements were not admissible, though upon a question of pedigree, 
 until it could be shown by proof aliunde that those making these state- 
 ments actually were members of the family as to which the claim was 
 preferred. The same doctrine is announced in Monkton v. Attorney 
 General, 2 Russ. & Myl. 147, though it may perhaps be doubted 
 whether the conclusion reached in that case does not offend against 
 the doctrine. But in these and many other cases of a similar char- 
 acter, which might be cited, the attempt was to set up some rigjit 
 derived through the declarant, and to establish that right by his own 
 statements as to the pedigree of the family of which he claimed to 
 be a member. It seems manifest that this cannot be done without 
 precedent proof from other sources that he is what he claims to be, 
 to wit, a member of the family. Thus, if Charles Wise had married 
 here and left children, it is clear that those children could not have 
 claimed any interest in the estate of Thomas Wise, in Virginia, by 
 virtue alone of their father's statement that Thomas was his brother. 
 But how is it when the case is reversed, and a plaintiff is seeking to 
 reach the estate of the declarant by evidence of what he said with 
 reference to his family and kindred? It is quite clear that I cannot 
 establish my right to share in the estate of A. by proof alone of the 
 fact that my father declared in his lifetime that A. was his brother, 
 but may I not do so by showing that A. himself so declared? Upon 
 this question we find a singular dearth of authorities. In Adie v.
 
 DECLARATIONS RELATING TO PEDIGREE 255 
 
 Commonwealth, 25 Gratt. 712, a case strikingly like this in all its 
 features, testimony of this character seems to have been admitted 
 without objection, and so also in Cuddy v. Brown, 78 111. 415. In 
 Moffit v. Witherspoon, 10 Ired. 185 persons who claimed to be the 
 nephews and nieces of Mrs. Donahoe, in an ejectment suit brought 
 after her death to recover certain real estate belonging to her during 
 her life, were permitted to prove that she had declared, many years 
 before her death, that the mother of the plaintiff's was her only sister, 
 and no other proof of heirship than this seems to have been offered. 
 In Shields v. Boucher, i De G. & Sm. 40 (a case to which we have 
 not had access, but which is referred to at length in Whart. Ev. sec. 
 208, note 4), Sir Knight Bruce expressed the strong conviction that 
 in a controversy purely genealogical declarations made by a deceased 
 person, as to where he or his family came from, of what place his 
 father was designated, and what occupation he followed would be 
 admissible, and might be most material evidence for the purpose of 
 identifying and individualizing the person and family under discus- 
 sion. 
 
 Independently of these or of any authorities, we think ex necessi- 
 tate rei as a matter of common sense, that declarations such as were 
 offered here and under the circumstances here existing, should always 
 be received in evidence. They stand to some extent upon the footing 
 of declarations against interest, or of what Mr. Wharton calls "self- 
 disserving declarations." If they be not admitted, there must be in 
 many cases a failure of justice. No man who knew Charles Wise in 
 Virginia ever saw him here, and no man who knew him here ever 
 saw him in Virginia; and if we reject his own statements as to who 
 he was, and whence he came, these inquiries must remain forever 
 unanswered. If such be the rule of law, it must be impossible legally 
 to establish the identity of very many travellers who die among stran- 
 gers in distant lands, although in point of fact there may not be in anv 
 man's mind the slightest doubt as to who they were. 
 
 Reversed and remanded.
 
 256 CASKS ON EVIDENCE 
 
 MASONS v. FULLER. 
 45 Vt. Pp. (1872) 
 
 This was a complaint for bastardy, made by the said Vergina by 
 the name of Vergina Vine, dated in January, 1871, wherein she rep- 
 resented herself as a single woman. The case was entered in the 
 May term, 1871 and continued to the December term following, at 
 which term it was tried by jury upon the general issue. Redfield, J., 
 presiding. 
 
 Before the trial, John Mason, by leave of court, entered as a party 
 plaintiff, as the husband of said Vergina. The said Vergina testified 
 on cross-examination as follows : 
 
 "I was married to my first husband, Edward Vine, some fourteen 
 years ago, and lived with him nine years in Bakersfield. He then 
 went off, and I have not seen him since. He said he was going to 
 St. Albans, when he left. My husband died two years ago last March. 
 I was not with him at the. time of his death, or present at his burial, 
 and have no personal knowledge of his death; I only know it from 
 his folks telling me and writing me. They wrote me three letters 
 this winter, and his brother told my husband." 
 
 The defendant requested the court to charge that the said Vergina 
 having testified to a former marriage, it was necessary, in order to 
 entitle her to a verdict, that she would show by legal proof, the death 
 of her said husband, Edward Vine ; that her testimony did not amount 
 to legal proof, upon which the jury could find the fact of death. 
 
 But the court upon this point charged as follows : 
 
 "The question is made, whether the said Vergina, at the time of 
 conception and birth of the child, was a single woman. The only 
 testimony upon this point, is from her, and you have to say whether 
 this fact is, in your minds, established. When a woman comes into 
 court for trial, the law will not presume any marriage she will be 
 presumed to be single, in the absence of any evidence tending to 
 prove a marriage." 
 
 To the refusal to charge as requested, and to charge as given the 
 defendant excepted. 
 
 WHEELER, J. So far as the defendant asked the court to charge 
 that the plaintiff must show the death of her former husband, to 
 entitle her to a verdict in her favor, the request appears to have been 
 complied with. That part of the charge stated, in which the court 
 told the jury that the law would not presume any marriage, but would
 
 DECLARATIONS RELATING' TO PEDIGREE 257 
 
 presume a woman to be single, appears to have been stated with 
 reference to a case where there was no evidence upon the subject 
 of marriage one way or the other. Such a case would have been 
 very different from this one; and the remark appears to have been 
 made as an illustration merely, and not as a guide to the jury. Whether 
 sound or erroneous, the remark would not injure the defendant. The 
 only question left, as to this part of the case, is whether the testimony 
 of the plaintiff as to what her former husband's folks had told and 
 written her about his death, was competent evidence of it. "Hear- 
 say is good evidence to prove who is my grandfather, when he mar- 
 ried, what children he had, &c. ; of which it is not reasonable to 
 presume I have better evidence. So to prove my father, mother, 
 cousin, or other relation beyond the sea, dead; and the common repu- 
 tation and belief of it in the family gives credit to such evidence." 
 Buller's N. P. 294. Similar doctrine has been many times approved 
 of and applied in England, and in the federal and state courts in this 
 country. I Phillips' Ev. 269, Cowen & Hill's note, 97 ; Webb v. Rich- 
 ardson, 42 Vt. 465. This would seem to sustain the ruling of the 
 County Court in this respect. 
 
 Judgment affirmed. 
 
 SCHEIDEGGER et al. v. TERRELL. 
 149 Ala. jjtf. (1906) 
 
 Ejectment by Rudolph Scheidegger and others against Joshua D. 
 Terrell. From a judgment of nonsuit, plaintiffs appeal. Affirmed. 
 
 This is an action of ejectment (under the statute) for the recovery 
 of certain real estate, the plaintiffs claiming as the heirs of one Made- 
 line Kronenberg, wife of Edward Kronenberg. The point of con- 
 tention is whether or not said Madeline Kronenberg, wife of Edward 
 Kronenberg is identified as the same person as Madeline Ritter, who 
 left Switzerland years ago and came to the United States. The court 
 below excluded certain parts of certain depositions, a nonsuit was 
 taken, and this appeal thereon. 
 
 The contention of the appellant is that those parts of the depositions 
 which were suppressed should have been admitted, under the rules 
 of law, which permit hearsay testimony to a certain extent in mat- 
 ters of pedigree. The principles of law are few and well under-
 
 258 CASES ON EVIDENCE 
 
 stood on this question, to-wit : That, in matters of pedigree, the 
 general repute in the family may be testified to by a member of the 
 family; also that declarations by the deceased himself, and declara- 
 tions by persons who are shown by other evidence to be members 
 of the family, may be proven, provided such members are dead. 
 Such declarations by members of the family must be general repute 
 in the family, or on what said members have heard other members 
 of the family say. A declaration which merely expresses information 
 collected from persons not qualified to be declarants, or from other 
 sources than family tradition, or the statements of other members 
 of the family who knew the facts, is not admissible. It is also true 
 that, where a declaration of a member of the family is sought to be 
 proved, the declaration itself should be proved, and not the declara- 
 tion of the witness from it. I Elliott on Ev. sees. 336, 371 ; Stein v. 
 Bowman, 13 Pet. (U'. S.) 209, 10 L. Ed. 129; Chapman v. Chapman, 
 2 Conn. 347, 7 Am. Dec. 277; Jackson v. Browner, 18 Johns. (N. Y.) 
 37; Wise v. Wynn, 59 Miss. 588; 42 Am. Rep. 381 ; Young v. State 
 (Ore.) 59 Pac. 812, 47 L. R. A. 548 ; 16 Cyc. 1 130, 1228, 1229 ; 22 Ency. 
 Law, pp. 641, 642, 650; In re Hurlburt's Estate, 68 Vt. 366, 35 At. 
 77, 35 L. R. A. 794, 800; Rogers v. De Bardeleben Coal & Iron Co., 
 97 Ala. 154, 156, 12 So. 81. 
 
 The testimony of Frederick Scheidegger shows that he had no 
 personal knowledge at all of Magdalen Ritter, or of Madeline Kron- 
 enberg. While he states that his mother used to "speak of her to us 
 children," yet when he came to relate what his mother actually said, 
 it was simply that "her sister was in the United States and that she 
 "used to receive letters from her." There is no fact in his tes- 
 timony, no repute in the family and no declaration of any member of 
 the family, which tends to show that Magdalena Ritter and Madeline 
 Kronenberg were one and the same person. He states distinctly that 
 his knowledge of the fact that Madeline Kronenberg's maiden name 
 was Ritter and that she married Kronenberg, was from the documents 
 from Mobile in the English language, which has been translated to 
 him. Hence these parts of his testimony noted as "stricken" being 
 evidently derived from these sources, were properly suppressed. 
 
 The point of the third ground of objection to the testimony is not 
 that the person making the declarations, to-wit, the mother of the 
 witness, is not shown to be a member of the family of Madeline 
 Kronenberg, for, of course, that is the thing to be proved by the state- 
 ments, and it would be only necessary to show that the declarant was 
 a member of the family to which it is sought to attach Madeline Kron-
 
 DECLARATIONS RELATING TO PEDIGREE 259 
 
 enberg by her statements; but the point is that the "hearsay state- 
 ments" do not consist of "declarations" of such a person having a 
 knowledge of the facts. If the witness had testified that he had often 
 heard his mother say that she had a sister living in Mobile, Ala., whose 
 name was Madeline Kronenberg, and that her husband was named 
 Edward Kronenberg, and that they called her Madeline, in English 
 in place of Magdalena, as she was originally called, then that would 
 have been properly admitted as a statement of a member of the fam- 
 ily; but, as before shown, the witness does not testify to any such 
 statements, but only to his own inferences that Madeline Kronenberg 
 was "born Ritter," etc., because his mother said that she had a sister 
 in the United States and he had seen certain translations of English 
 documents from Mobile. 
 
 The judgment of the court is affirmed. 
 
 TYSON., C. J., and HARALSON and DENSON, JJ., concur. 
 
 GREENE v. ALMAND. 
 in Ga. 735. (1900) 
 
 COBB, J. "Pedigree, including descent, relationship, birth, mar- 
 riage, and death, may be proved by the declarations of deceased per- 
 sons related by blood or marriage." Civil Code, sec. 5177; Foster 
 v. Brooks, 6 Ga. 293. "Before such declarations, however, can be 
 admitted, the relationship of the declarant to the family must be 
 proved by other evidence than his declarations ; for it would be a 
 petitio principii to say that his declarations are receivable because he is 
 a member of the family, and he is a member of the family because 
 his declarations are receivable." i Wharton Ev. sec. 218. "The rela- 
 tionship of the declarant with the family must be established by some 
 proof other than the declaration itself." 2 Taylor, Ev. sec. 640. See 
 also American Notes to same volume, page 427; i Gr. Ev. ,(i6th ed.) 
 198; 18 Am. & Eng. Enc. L. (ist ed.) 260; Abbott's Trial Ev. (2nd 
 ed.) 117, sec. 36; Blackburn v. Crawfords, 70 U. S. 175. The only 
 assignment of error in the bill of exceptions which was argued here 
 complained of the rejection of evidence which was, under the prin- 
 ciples above referred to, clearly inadmissible; and therefore the judg- 
 ment is 
 
 Affirmed. All the Justices concurring.
 
 260 CASES ON EVIDENCE 
 
 ROLLINS v. WICKER. 
 154 N. C. 559. (1911) 
 
 WALKER, J. This is an action for the recovery of land. Plaintiff 
 claimed that she inherited the land from her father, Thomas Rollins, 
 and the sole question in the case is as to her legitimacy. Her father 
 and mother were married at the time of his death. The evidence as 
 to the time of the plaintiff's birth was conflicting. The jury found 
 that Thomas Rollins owned the land at the time of his death ; that 
 plaintiff is not his heir at law, and, therefore, is not the owner of the 
 land. There was a finding as to defendant's title, but that is not 
 material, as plaintiff must recover on the strength of her own title, 
 and cannot rely on the weakness of defendant's. 
 
 In order to show that plaintiff was the legitimate child of Thomas 
 and Rachel Rollins, the plaintiff proposed to prove by a witness 
 named Kelly that he was a juror in the trial of a case formerly 
 pending in Moore county, wherein the plaintiff in this case, but not 
 the defendant, was a party, and which involved the legitimacy of the 
 plaintiff, and that the jury found as a fact that the plaintiff was 
 the legitimate child of Thomas and Rachel Rollins. An objection to 
 this evidence was sustained, and the plaintiff excepted. The ruling 
 was correct. That was not the way to prove the fact, even if the 
 evidence were otherwise competent. The record itself is the primary 
 and only competent proof of its contents, unless it has been lost or 
 destroyed, and there is no suggestion that it had been. Secondary 
 evidence is admissible when the original cannot be produced. Varncr 
 v. Johnson, 112 N. C. 570; In re Thorp, 150 N. C. 487. "It may be 
 stated generally that the record, or, in proper cases, certified or duly 
 exemplified and authenticated copies thereof, should be produced to 
 show transactions in judicial proceedings, and, when a matter is 
 of record, parol evidence is not, ordinarily, admissible to show the 
 contents of the record." I Elliott on Evidence, sec. 212. 
 
 The plaintiff offered to prove by the same witness what was the 
 testimony of Joseph Buchanan (a deceased kinsman of the plaintiff) 
 in the trial of the other case as to plaintiff's legitimacy, and that it 
 tended to establish the fact. This evidence was properly excluded. 
 It does not appear that the declaration of the deceased relative was 
 made ante litem motam. This expression is not restricted to the date 
 of the commencement of the present suit, but to the beginning of the 
 controversy. In order to avoid the mischief which would otherwise
 
 DECLARATIONS RELATING TO PEDIGREE 261 
 
 result, "all ex parte declarations, even though made upon oath, re- 
 ferring to a date subsequent to the beginning of the controversy, are 
 rejected. This rule of evidence was familiar in the Roman law; but 
 the term Hs mota was there applied strictly to the commencement of 
 the action, and was not referred to an earlier period of the con- 
 troversy. But in our law the term Its is taken in the classical and 
 larger sense of controversy, and by Us mota is understood the com- 
 mencement of the controversy. The commencement of the contro- 
 versy has been further defined by Mr. Baron Anderson, in a case of 
 pedigree, to be 'the arising of that state of facts on which the claim is 
 founded, without anything more.' " I Greenleaf on Evidence, sec. 
 131. The value of this kind of evidence depends upon its being drawn 
 from an unbiased source, and it should emanate from those in a situ- 
 ation favorable to a knowledge of the truth, and, what is a very 
 important consideration, it should refer to a period "when this foun- 
 tain of evidence was not rendered turbid by agitation." Section 132. 
 In the same section a very apt illustration, applicable to this case, will 
 be found, for it is there said: "In this case (Freeman v. Phillips, 4 
 M. & S., at page 497), it was observed by one of the learned judges 
 that 'the distinction had been correctly taken that, where the Us 
 mota was on the very point, the declarations of persons would not be 
 evidence ; because you cannot be sure that in admitting the depositions 
 of witnesses, selected and brought forward on a particular side of the 
 question, who, embark, to a certain degree, with the feelings and 
 prejudices belonging to that particular side, you are drawing evidence 
 from perfectly unpolluted sources' ". 2 Wigmore on Ev. sees. 1482- 
 3; Westfeldt v. Adams, 131 N. C. 379. In our case it appears that a 
 controversy existed, as to the plaintiff's legitimacy, at the time of the 
 alleged declaration, when it is supposed that the mind of the declarant 
 was not evenly or nicely poised, but may have been leaning toward 
 one side, with the temptation to exceed or fall short of the truth. 
 The proposed testimony should be free from suspicion. 2 Wigmore, 
 sec. 1482 and notes. 
 
 The assigments of error cannot be sustained. 
 
 No error.
 
 262 CASES ON EVIDENCE 
 
 PEOPLE v. RATZ. 
 
 115 Cal. 132. (1896) 
 
 HENSHAW, J. The defendant was convicted of the crime of rape, 
 in having had carnal intercourse with a female child under the age 
 of fourteen years, and not his wife. The intercourse was admitted. 
 The age of the child was a question in dispute. It was conceded 
 that the intercourse was not had through force or violence, so that if, 
 at the time thereof, the child was over the age of fourteen years, the 
 crime of rape was not committed. 
 
 The child herself testified to her age, as well as to the date of the 
 intercourse. Her evidence went to show that, at the time when Ratz 
 carnally knew her, she was under the age of fourteen. The evidence 
 of the child was admissible. A person's age may be proved by his 
 own testimony, and the fact that knowledge of that age is derived 
 from the statements of the parents, or from family reputation, does 
 not render it inadmissible. (Hill v. Eldridge, 126 Mass. 234; Cherry 
 v. State, 68 Ala. 29 ; Bain v. State, 61 Ala. 75 ; Roscoe's Criminal Evi- 
 dence, 272.) The testimony of the mother of the child also went to 
 prove the fact that, at the date in question, she was under the age of 
 fourteen. 
 
 The mother, when on the witness stand, was shown a book, and 
 testified that it was hers, and that it was her family Bible; that it 
 contained the record of her family. This book contained, amongst 
 other entries, the name of the child and the date of her birth. The 
 mother testified that it was correct. Objection was made to the in- 
 troduction of the record, by the defendant, upon the ground that it 
 appeared that the record was in English ; that the mother did not 
 know how to read or write English, and could not tell whether or not 
 the record was correct. 
 
 The admissibility of the book did not depend upon proof of hand- 
 writing or authorship of the entries. It depended upon proof of the 
 fact that it was the family Bible, "which evidence was offered by the 
 testimony of the mother. As is well said in Hubbard v. Lees, L. 
 R. i Ex. 255 : "To require evidence of the handwriting or authorship 
 of the entries (in a family Bible) is to mistake the distinctive char- 
 acter of the evidence, for it derives its weight, not from the fact that 
 the entries are made by any particular person, but that, being in that
 
 DECLARATIONS RELATING TO PEDIGREE 263 
 
 place, they are to be taken as assented to by those in whose custody 
 the book has been." 
 
 Judgment and order appealed from are affirmed. 
 MCFARLAND, J., and TEMPLE, J., concurred. 
 
 RINGHOUSE v. KEEVER. 
 49 III. 470. (1869) 
 
 LAWRENCE, J. This was an action in ejectment brought by Maria 
 Keever, claiming as widow and heir of her former husband, Henry 
 Hardie. It is objected that the proof of the death was not sufficient. 
 The ordinary rule is that it is general reputation among the kindred 
 only of a deceased person that is admissible in proof of death, but that 
 rule has been sometimes relaxed, as in Scott's lessee v. Ratliffe, 5 Pet. 
 81. Where, as in the present case, the deceased left no kindred that 
 are known, the rule must be relaxed from necessity. 
 
 In this case, the depositions of two witnesses were taken, who lived 
 in New Orleans, and who were present at the marriage of Hardie in 
 that city, in 1845. They testify that he had but one child, who died, 
 and that he, also died of cholera in 1849. His death was announced 
 in the newspapers, and he was spoken of by his acquaintances as dead. 
 His widow subsequently married her present husband. 
 
 The instruction given for the plaintiff is not sufficiently qualified 
 as a rule of universal application, but in this case it worked no preju- 
 dice, as the evidence was competent and sufficient. In a population 
 as unstable as ours, and comprising so many persons whose kindred 
 are in distant lands, the refusal of all evidence of reputation in re- 
 gard to death, unless the reputation came from family relatives, would 
 sometimes render the proof of death impossible, though there might 
 exist no doubt of the fact, and thus defeat the ends of justice. 
 
 Judgment reversed.
 
 264 CASES ON EVIDENCE 
 
 WALL v. LUBBOCK. 
 52 Te.v. Civ. App. 408. (1908) 
 
 KEY, J. This is an action of trespass to try title. F. R. Lubbock 
 and others being plaintiffs and Q. A. Wall and his wife being de- 
 fendants in the court below. The land involved is a part of the John 
 S. Chiveral headright survey of 1280 acres, located in Sabine county. 
 
 The answer filed by the defendants embraced a general denial and 
 plea of not guilty and limitation of three, five and ten years. 
 
 The land was patented to John S. Chiveral in 1845 and the plaintiffs 
 proved the death of John S. Chiveral and that they were his heirs. 
 
 The defendants claimed the land under a chain of title alleged to 
 extend back to John S. Chiveral. The first deed in their chain of title 
 is dated June 7, 1846, and is executed by W. B. Frazier, purporting 
 to act as the agent and attorney for John S. Chiveral. The deed 
 referred to was not produced, but evidence was submitted tending to 
 prove its existence, loss and contents, and the jury, in responding to 
 special issues submitted to them, found that such deed was executed. 
 The plaintiffs introduced testimony tending to show the death of 
 John S. Chiveral prior to the execution of the deed referred to by 
 W. B. Frazier, as agent of Chiveral, and the jury found as a fact 
 that John S. Chiveral was dead at the time Frazier executed that 
 deed. 
 
 The first assignment of error challenges the correctness of the trial 
 court's ruling in permitting the plaintiff, F. R. Lubbock, to testify 
 concerning the death, and the time thereof, of J. S. Chiveral, and the 
 relationship of the plaintiffs to him, the contention being that the 
 testimony referred to was hearsay and not admissible. The witness 
 testified that his wife was a daughter of G. "H. Chiveral, and that 
 C. H. Chiveral was the son of John S. Chiveral. He also testified 
 that John S. Chiveral died in 1836, leaving two surviving children; 
 only one of whom is now alive. On cross-examination the witness 
 stated that at the time of testifying he was 56 years old, and that he 
 did not know John S. Chiveral. Being asked how he knew that 
 G. H. Chiveral was related to John S. Chiveral, he answered : "I 
 know that John S. Chiveral was the father of G. H. Chiveral from 
 family history." In response to another cross-interrogator, he said: 
 "When I answered direct interrogatory No. ten by saying that Jane 
 and G. H. Chiveral were the only heirs of John S. Chiveral, I spoke 
 from what I had been told by the family. I was told by the family.
 
 DECLARATIONS RELATING TO PEDIGREE 265 
 
 I was told by the family that they were the children of John S. 
 Chiveral of Sabine County Texas." It was also shown that the wit- 
 ness first formed the acquaintance of G. H. Chiveral in 1864 or 1865, 
 and afterwards married his daughter Elizabeth, who is one of the 
 plaintiffs in this suit. 
 
 It is well settled that matters of pedigree may be proved by hearsay 
 testimony, such as family history ; and it has also been held that other 
 facts not entirely matters of pedigree, may be so intimately connected 
 with pedigree as to permit of their proof by the same character of 
 testimony. (Byers v. Wallace, 87 Texas, 511.) The witness was a 
 member of the Chiveral family, and we think it was competent for 
 him to give testimony as to the family history, including the death 
 and time of death of John S. Chiveral, although he did not state that 
 he obtained his information from members of the family now de- 
 ceased. (Elliott on Evidence, sees. 360, 366, 371, 378; Wharton on 
 Ev. sec. 201; Jewell v. Jewell, i How. (U. S.) 219, n L. ed. 108; 
 Fulkerson v. Holmes, 117 U. S. 389, 29 L. ed. 915.) 
 
 John A. Morris, a witness for the plaintiffs, testified that he first 
 became acquainted with the family of John S. Chiveral about 1842 
 or 1843; that the family consisted of Mrs. Chiveral and a son and 
 daughter, that it was generally understood at the time in that com- 
 munity that John S. Chiveral was dead, and that Mrs. Chiveral was 
 recognized as a widow. This testimony was complained of as hearsay 
 and the objection overruled. While the testimony objected to was hear- 
 say, it seems to come within one of the exceptions to the rule which 
 excludes hearsay testimony, and we therefore overrule the second 
 assignment which complains of the ruling admitting that testimony, (i 
 Wharton on Evidence, sec. 223 ; Lessee of Scott v. Ratcliffe, 5 Peters, 
 81, 8 L. ed. 56; Primm v. Stewart, 7 Texas, 182.) 
 
 Affirmed. 
 
 YOUNG v. SHULENBERG. 
 165 N. Y. 385. (1901) 
 
 VANN, J. The complaint charges the defendant with unlawfully 
 entering upon the lands of the plaintiff and cutting down and carrying 
 away a large number of trees therefrom. Neither by his answer nor 
 evidence did the defendant claim the right to enter upon the land in
 
 266 CASKS ON EVIDENCE 
 
 question or to cut trees thereon, but he put at issue the entry by him- 
 self, as well as the title of the plaintiff. The land upon which the 
 tresspass was committed was virgin forest in the county of Fulton 
 that had never been so inclosed, cultivated or used as to constitute 
 an adverse possession. (Code Civ. Pro. sec. 370.) The plaintiff 
 proved a record title thereto, commencing in 1794, when letters patent 
 were granted by the state of New York, and extending through 
 various mesne conveyances until 1872 when the apparent title vested 
 in William Claflin, of whom in September, 1893, the plaintiff pur- 
 chased by a contract which imposed upon him the duty of paying 
 the annual taxes and gave him the privilege of cutting and carrying 
 away timber upon certain conditions. He cut 8,000 or 10,000 logs 
 every year on the tract and had such possession only as may be implied 
 from the foregoing facts. (Machin v. Geortner, 14 Wend, 239; 
 Hunter v. Starin, 26 Hun, 529.) 
 
 The attack made upon the title by the defendant is that there is no 
 legal evidence to show that Anne Ellice and six others, all residents 
 of England, who in July, 1817, conveyed 200,000 acres, including the 
 locus in quo, in consideration of ^20,000, were the widow and heirs 
 at law of Alexander Ellice, also a resident of England, who took title 
 from the patentee in 1795. It appeared, however, that the six deeds 
 constituting the chain of title from the state, had all been recorded, 
 and that they were all in the possession of Mr. Claflin, the last 
 grantee, who kept them together as muniments of his title. It further 
 appeared that the deed of 1817, which was acknowledged in London 
 before the minister of the United States to Great Britain, recited 
 that Alexander Ellice, of London, died intestate and seized of the said 
 premises, leaving the grantors as his widow and heirs at law. 
 
 Whether Anne Ellice was the widow and her co-grantors the heirs 
 at law of Alexander Ellice was a question of pedigree, which owing 
 to the difficulty of producing living witnesses to prove remote events, 
 is an exception to the rule excluding hearsay evidence. Pedigree is 
 the history of family descent, which is transmitted from one genera- 
 tion to another by both oral and written declarations, and unless 
 proved by hearsay evidence it cannot, in most instances, be proved 
 at all. Hence, declarations of deceased members of a family, made 
 ante litem motam, are received to prove family relationship, includ- 
 ing marriages, births and deaths, and the facts necessarily resulting 
 from those events. (Eisenlord v. Clum, 126 N. Y. 552; Jackson v. 
 Cooley, 8 Johns. 128; Jackson v. King, 5 Cow. 237; Jackson v. Rus- 
 sell, 4 Wend. 277; Greenleaf's Ev. (i4th ed.) sees. 103-4; Wharton's
 
 DECLARATIONS RELATING To PEDIGREE 267 
 
 Evidence (3rd ed.) sees. 201 et seq.; Rice on Ev. sec. 220.) Recitals 
 in an ancient deed, admissible in evidence without proof of contempo- 
 raneous possession, may be proved as against persons who are not 
 parties to it and who do not claim under it. (Greenleaf v. B. F. & 
 C. I. R. R. Co., 132 N. Y. 408; Fulkerson v. Holmes, 117 U. S. 389; 
 Deery v. Cray, 72 U. S. 795; Doe v. Davies, 10 A. & E. (N. R.) 
 314; 18 Am. & Eng. Encyc. 263, 266.) 
 
 Before the declarations can be received, however, as evidence of 
 pedigree, it must appear that the person making them was a mem- 
 ber of the family and that he is dead, incompetent, or beyond the 
 jurisdiction of the court. Therefore, before the declarations of Anne 
 Ellice, as contained in the recital of her deed, could be received in 
 evidence on the question of pedigree, it was necessary for the plaintiff 
 to show that she was a member of the family of Alexander Ellice, 
 and that she could not be produced or testify owing to one of the 
 contingencies named. While the law required that her relationship 
 to the Ellice family should be shown by evidence independent of her 
 own declarations, still, as was recently held in an important case, 
 "but slight proof of the relationship will be required, since the rela- 
 tionship of the declarant to the family might be as difficult to prove 
 as the very fact in controversy." (Fulkerson v. Holmes, 117 U. S. 
 
 389, 397-) 
 
 The proof of such relationship rested upon the identity of the 
 family name, the certificate of acknowledgment before the United 
 States minister, and the custody by the proper party of the deeds 
 showing the title in Alexander Ellice by conveyances running back 
 to and including the original patent. 
 
 We think the plaintiff, established a right to recover by evidence 
 which was competent under the circumstances of the case, and, after 
 examining all the exceptions, we affirm the judgment appealed from 
 with costs. 
 
 PARKER, C. J., BARTLETT, HAIGHT, MARTIN, CULLENT and WERNER, 
 JJ., concur. 
 
 Judgment affirmed.
 
 268 CASES ON EVIDENCE 
 
 LOUISVILLE & N. R. R. CO. v. KICE. 
 /op Ky. 786. (1901) 
 
 BURNHAM, J. The appellee instituted this action against appellant 
 to recover the value of a thoroughbred race horse alleged to have been 
 negligently killed by one of appellant's frrains. Appellant in its an- 
 swer admitted the . killing of the horse by its train, but denied that 
 it was guilty of any negligence, and alleged that the killing of appel- 
 lee's horse was unavoidable so far as it was concerned. Several 
 months after the institution of this suit appellee filed an amended peti- 
 tion, in which he alleges that the place where the horse was killed 
 was on the track of the defendant's road adjoining lands belonging 
 to, and occupied by, plaintiff; that he had not received compensation 
 for fencing his land along the road at that point; and asked that, if he 
 was not allowed the full value of the horse, he have judgment for one- 
 half of such amount. To the filing of this amended petition appel- 
 lant objected on the ground that a distinct and separate cause of action 
 was set up. Appellant's objections were overruled, and the amended 
 petition permitted to be filed. 
 
 Another ground of complaint is that the trial court permitted wit- 
 nesses for appellee to testify as to the pedigree of the horse killed, as 
 shown by the American stud books. Undoubtedly the pedigree of a 
 race horse constitutes an important element in determining its value, 
 as it is a matter of common knowledge that a much larger propor- 
 tion of thoroughbred horses are successful racers than horses not so 
 bred. It appears from the testimony that the stud books in question 
 are records carefully compiled by experts under the supervision of 
 the breeders of this class of horses, and that they have been so kept 
 for many years, and are universally accepted as conclusive evidence 
 upon this point by persons dealing in such animals. Section 1325 of 
 the Ken. Statutes provides severe penalties for furnishing false pedi- 
 grees of stock, and we are of the opinion that the court did not err 
 in permitting the witnesses to testify as to the pedigree of the animal 
 killed as shown by these records. 
 
 Judgment affirmed.
 
 DECLARATIONS RELATING TO PEDIGREE 269 
 
 SITLER v. GEHR. 
 105 Penn. St. 577. (1884) 
 
 Ejectment, brought May 22, 1882, by Baltzer Gehr against David 
 Sitler (tenant) Samuel H. Rothermel et al., heirs of Maria Rother- 
 mel, deceased, and George F. Miller and Amanda, his wife, in her 
 right, et al., devisees of Hannah Nicely, deceased; to recover an un- 
 divided one-third part of a messuage and tract of land, containing 
 231 acres, situate in Maxatawny township, Berks county. Plea, not 
 guilty. 
 
 Plaintiff called as a witness Solomon Gehr, a nephew of plaintiff, 
 who had married a daughter of John Gehr, deceased, who also was 
 a nephew of the plaintiff, and proposed to prove by the witness the 
 declarations by the said John Gehr, in his lifetime as to the relation- 
 ship of Baltzer Gehr, the plaintiff and Balser Gehr of Berks county. 
 
 Offer objected to as hearsay evidence ; that while hearsay testimony 
 is allowable to prove pedigree and relationship, it is only such hear- 
 say as is within the rules of evidence governing its admission, which 
 the present offer is not ; that before such declarations can be admitted, 
 it must be proved by evidence aliunde to the satisfaction of the court 
 that John Gehr was a member of this family of Balser Gehr of Berks 
 county. 
 
 PAXSON, J. The first five assignments of error may be considered 
 together. They raise the question of the admissibility of the declara- 
 tions of Anna Maria Gehr and John Gehr upon a question of pedi- 
 gree. The purpose of offering said declarations was to establish 
 relationship between the plaintiff and Balser Gehr, of Berks county. 
 The evidence was objected to because it was not shown aliunde that 
 the declarants were of the family of 'the Berks county Balser Gehr. 
 The evidence was admitted and bill sealed for the defendants. 
 
 The rules of evidence applicable to pedigree cases are: I. That 
 the statements must be made ante lit em motam. 2. Declarant must 
 be dead. And 3. But a prior condition to both these is, that it should 
 be proved by some source of evidence independent of the statement 
 itself, that the person making the statement is related to the family 
 about which he speaks : Smith v. Tebbitt, L. R. i P. & D., 354. 
 
 It was not denied that the first two conditions had been fulfilled. 
 Neither was it questioned that the declarants were shown by evidence 
 dehors the declaration to be related to the family of Joseph Gehr, 
 the ancestor of the plaintiff, but it was contended that the declarants
 
 270 CASES ON EVIDENCE 
 
 must be shown by evidence aliundc to be related to Balser Geehr, of 
 Berks county ; in other words, to the person last seised of the estate, 
 or his particular branch of the family. To state the question in an- 
 other form : the declarants were Anna Maria Gehr and John Gehr ; 
 the plaintiffs' ancestor was Joseph Gehr; the deceased ancestor was 
 Balser Gehr, of Berks county. It was not denied that the declarants 
 were of the family of Joseph Gehr, and it was attempted to show 
 by their declarations that the above named Joseph Gehr and Balser 
 Geehr were related to each. The question was, whether sufficient 
 ground had been laid for such declarations. 
 
 The plaintiffs in error contend, not only that the declarants must be 
 shown by evidence aliunde to be related to the family as to which the 
 declarations were made, but also that they must also be thus shown 
 to be related to the person who died seised. The first part of this 
 proposition is undoubtedly true under all the authorities ; the latter 
 portion of it is not so clear. I have carefully examined all the author- 
 ities cited on both sides upon this point, and any others to which our 
 attention was not called upon the argument, and although there is 
 some conflict in the cases the weight of authority seems to be that 
 while a declarant must be shown by evidence aliunde to belong 
 to the family, it does not appear to be necessary to show that he be- 
 longs to the same branch of it. In Vowles v. Young, 13 Vesey, 147, 
 it was held that the declarations of a deceased husband concerning 
 the descent or pedigree of his wife are admissible. And in Jewell 
 v. Jewell, i Howard, 219, that the declarations of a deceased hus- 
 band of one of the plaintiffs claiming as heir of her father, that his 
 wife was not married to her father, were admitted. 
 
 It would seem, however, that the declarations of a husband in regard 
 to his wife's family or of a wife in regard to her husband's rest sub- 
 stantially upon the same principles as those of a relation by blood 
 and these cases do not throw much light upon the question we are 
 considering. 
 
 Blackburn v. Crawfords, 3 Wall. 185, also cited by plaintiffs in 
 error, does not sustain their contention. In this case the question was. 
 whether Dr. Crawford had been married to Elizabeth Taylor. The 
 plaintiffs claimed to be his nieces and nephew. To prove this rela- 
 tionship they offered the declaration of one Sarah Evans, who was a 
 sister of Elizabeth Taylor. The evidence was held incompetent be- 
 cause she did not belong to the family. The question was, who were 
 Dr. Crawford's heirs. It was said by Mr. Justice Swayne/- in deliv- 
 ering the opinion of the court : "If it had been proved by independent
 
 DECLARATIONS RELATING TO PEDIGREE 271 
 
 testimony that Sarah Evans was related by blood to any branch of 
 the family of David Crawford, and her declaration had been offered 
 to prove the relationship of another person claiming or claimed to 
 belong also to that family, this case, Monkton v. Attorney-General, 2 
 Russ. & M. 157, would have been in point. But this declaration of 
 Sarah Evans offered to prove that her sister was connected by mar- 
 riage with a member of that family, was neither within the principle 
 nor the language of that authority." 
 
 The whole question is thus summed up by Mr. Wharton in his work 
 on Evidence, page 216: "Declarations as to a family in order to be 
 received must emanate from deceased persons connected with such 
 family by blood or marriage." The same rule is laid down in most 
 of the approved text books. See Phillips on Ev. sec. 275 ; Taylor 
 on Ev. 576. The last case to which I shall refer is that of Monkton 
 v. Attorney-General, 2 Rus. & M. 157, where it was said by Lord 
 Brougham : "I entirely agree that in order to admit hearsay evidence 
 in pedigree, you must by evidence dehors the declarations connect 
 the person making them with the family. But I cannot go the length 
 of holding that you must prove him to be connected with both branches 
 of the family, touching which his declaration is tendered. That he 
 is connected with the family is sufficient; and that connection once 
 proved, his declarations are then let in upon questions touching that 
 family; not declarations of details which would not be evidence but 
 declarations of the nature of pedigree ; that is to say, of who was 
 related to whom, by what links the relationship was made out, whether 
 it was a relationship of consanguinity or of affinity only when the par- 
 ties died, or whether they are actually dead ; everything in short, which 
 is strictly speaking, matter of pedigree, may be proved as matter 
 relating to the condition of the family by the declarations of deceased 
 persons, who by evidence dehors those declarations, have been previ- 
 ously connected with the family respecting which their declarations 
 are tendered." 
 
 The learned Judge below was satisfied and received the evidence. 
 We cannot say he was wrong. The plaintiff was a competent wit- 
 ness, made so by law, and his testimony, as to his relationship with 
 Balser Gehr, of Berks county, was properly received. It is true his 
 information was derived from his mother, and was to that extent 
 hearsay. But a large proportion of the knowledge which every in- 
 telligent man has is derived from hearsay. Indeed we scarcely realize 
 how little we actually know from our own observation and investi- 
 gation. We learn the truths of history, the secrets of science and our
 
 ?."j2, CASES ON EVIDENCE 
 
 knowledge of the world generally, from what we have read, or from 
 what others have told us. What does a man know of his deceased 
 ancestors but what he has learned from his immediate relatives? 
 How was the plaintiff who had never seen Balser Gehr of Berks 
 county, to know that the latter was his uncle except from his mother? 
 It is in just such cases that the strict .rules of evidence are relaxed 
 as regards hearsay. If it were otherwise pedigree could not be 
 proved at all in many cases, and in one sense it is primary not sec- 
 ondary evidence. . The law upon this point is clearly stated in i 
 Wharton's Ev. sec. 201 : "Pedigree from the nature of things, is 
 open to proof by hearsay in respect to all family incidents, as to 
 which no living witness can be found. If what has been handed 
 down in families cannot be in this way proved, pedigree could not, 
 in most cases, be proved at all. Nor is such tradition, in its best sense, 
 open to the objections applicable to hearsay. 
 
 We cannot say, therefore, that the plaintiff was an incompetent 
 witness to prove his relationship to the Balser Gehr, of Berks county, 
 nor that his testimony was incompetent from the fact that his knowl- 
 edge upon that subject was derived from his deceased mother. She 
 always told him that Balser Gehr was his uncle ; it was a part of their 
 family history; one of their family traditions, furnished by one who 
 had the means of knowledge and no possible motive to falsify, so far 
 as appears in the case. 
 
 Judgment affirmed. 
 
 VANTINE v. BUTLER. 
 240 Mo. 521. (1911) 
 
 WOODSON, J. This cause is in this court by appeal on the part 
 of the defendants, Mary Butler, Louititia Phelan and Mary Butler, 
 the younger, and Vincent D. Phelan, executors of the last will and 
 testament of John Butler, deceased, defendants in the above entitled 
 cause, from a decree and judgment of the Circuit Court of Boone 
 county, Missouri, in favor of the plaintiff establishing her right as 
 a pretermitted heir. 
 
 The sole ground assigned, by counsel for appellants, for a reversal 
 of the judgment is thus stated : "The court committed error in ad- 
 miting the testimony of certain witnesses as to the identity of Jane
 
 DECLARATIONS RELATING TO PEDIGREE 273 
 
 Butler's own declaration with no other proof, and also as to her 
 relation to John Butler for the same reason." 
 
 "The fact of the relationship of the declarant must be established 
 by evidence other than her own declaration before the declaration 
 became admissible," or to put it another way, "Not only is it neces- 
 sary in order that the declaration of a person afterwards deceased 
 should be admissible in cases of pedigree, that the declarant should 
 have been related to the family in question or connected with the same 
 by marriage, but this relationship must be established by some proof 
 other than the declaration itself/' Or further, the rules of evidence 
 governing statements of this kind are : 
 , i. The statement must be made ante lit em motam. 
 
 2. A prior condition to both of these is, that it should be proved 
 by some source of evidence independent of the statement itself, that 
 the person making the statement is related to the family of which 
 she speaks. 
 
 In support of that proposition we are cited to the following author- 
 ities: i Wharton on Evidence, p. 209; Elliot on Evidence, sec. 380 
 and 381; Wigmore on Evidence, sec. 1490; 16 Cyc. 1229; Kennedy's 
 Trial Evidence, p. 22; 2 Jones on Evidence, p. 712. 
 
 In brief, the position of counsel for appellant is this: That there 
 is no evidence whatever preserved in this record, which shows or 
 warranted the trial court in finding that the woman and child who 
 appeared in Paris, in October, 1863, and known as Jane Butler and 
 Lizzie Butler, were the wife and child of John Butler, late of Stur- 
 geon, Boone county, Missouri, or that Jane and Lizzie were their 
 true names, save and except in declarations of the former, to the 
 effect that such were their names, and that they bore those relations 
 to him. 
 
 Under the authorities cited, counsel insist that these declarations 
 were inadmissible in evidence for the reasons previously stated; and 
 that they should be stricken out by this court, the judgment reversed 
 and the bill dismissed, for the reason that when so stricken out, there 
 would remain no sufficient evidence to support the findings of the 
 court. 
 
 The clearest and soundest statement of the rule governing the ad- 
 mission of declarations of persons as to pedigree and relationship, is 
 stated in 16 Cyc. 1229, as follows: 
 
 "Notwithstanding an early tendency to regard intimate acquaintance 
 with the family as a sufficient basis for knowledge as to facts of 
 pedigree, and so to receive the declarations of family physicians,
 
 274 CASES ON EVIDENCE 
 
 intimate friends, persons living in the family, or servants and other 
 persons having adequate knowledge of facts of family genealogy or 
 opportunities for acquiring it, the rule is now settled that, both in 
 cases of reputation and of direct statements, the only competent de- 
 clarants are those related to the family; and that consequently the 
 declarations as to pedigree made by intimate friends, neighbors, or 
 even by persons living in the family, or by servants, however trust- 
 worthy or long employed in the family, are incompetent. 
 
 "A second condition of relevancy is that the declarant should be 
 disinterested to the extent of having no motive which can fairly be 
 assumed to be such as would induce him to state the fact otherwise 
 than as he understood it. The statement therefore must be shown 
 to have been made ante litem motam; a fortiori, before com- 
 mencement of a suit involving the issue to which the declaration 
 relates. It is not material, however, that a controversy has arisen 
 regarding a cognate matter, unless indeed it clearly foreshadows one 
 on the precise subject-matter of the declaration ; that a controversy, 
 since entirely abated, once existed ; or that a state of affairs is known 
 to exist out of which a Controversy may at any time arise. On the 
 other hand, the declaration is inadmissible if a controversy in fact 
 exists, although the declarant be ignorant of it, or it has not reached 
 the state of litigation. A declaration, made expressly with a view to 
 a probable future contest is admissible quantum valeat; but declara- 
 tions made in the process of collecting evidence to substantiate the 
 claim involved in a subsequent Us are incompetent. 
 
 "It is universally held that declarations in pedigree cases are not 
 admissible unless the declarant is dead." 
 
 Some of the States announce a more liberal rule; for instance the 
 Court of Appeals of California, in the case of In re Clark's Estate. 
 no Pac. 828, held that the declarations of the deceased father of 
 claimants to the estate of an intestate that the intestate was his sister, 
 made in the lifetime of the intestate, were admissible without extrinsic 
 preliminary proof of the relationship of the father to the intestate. 
 
 This same general principle seems to be supported by the following 
 authorities : 2 Wigmore on Ev. sec. 1491 ; In re Hartman's Estate, 
 107 Pac. (Cal.) 105; Overby v. Johnston, 42 Tex. Civ. 438; Fowler 
 v. Simpson, 79 Tex. 614 ; Sitler v. Gehr, 105 Pac. 577 ; Smith v. Smith, 
 140 Wis. 599; Hubatka v. Meyerhofer, 79 N. J. L. 264; Mann v. 
 Cavanaugh, no Ky. 776. 
 
 In our opinion, the former rule is the wiser and more sound of the 
 two, for the reason that if the preliminary proof of relationship is
 
 DECLARATIONS RELATING TO PEDIGREE 275 
 
 not required, great injustice might be done, or a gross fraud perpe- 
 trated by a designing person, by simply declaring that he or some 
 member of his family was related to a deceased person, who has no 
 opportunity to contradict the statement, or disprove the fact. 
 
 It should be borne in mind, that such evidence is purely hearsay, 
 unsanctioned by any form of oath, therefore no punishment could 
 be inflicted upon the declarant while living, for his prevarication, nor 
 successfully combatted in many cases after death. For this reason, 
 it seems to us, that a reasonable weight of preliminary proof of re- 
 lationship should be required before receiving the declarations of 
 such witnesses. In other words, all reasonable precautions should be 
 used to protect the fountain source of such evidence, which at best 
 is very unsatisfactory, from fraud and pollution. The degree of such 
 proof must of necessity depend largely upon the facts and circum- 
 stances of each particular case, and no hard and fast or unbending 
 iron rule can be laid down and enforced alike in all cases. 
 
 The following cases will somewhat illustrate the degree of such 
 proof that is required in a case: Fulkerson v. Holmes, 117 U. S. I. 
 c: 397; Vowles v. Young, 13 Ves. 147; Monkton v. Attorney-General, 
 2 Russ. & M. 157; Young v. Schullenberg, 165 N. Y. 385; In re 
 Bobb's Estate, 37 S. C. 19; Brown v. Lazarus, 5 Tex. Civ. 105, 81 ; 
 Fowler v. Simpson, supra; Louder v. Schluter, 78 Tex. 105, 22 Am. 
 & Eng. Ency. Law (2nd ed.) 644 and cases cited; Layton 'v. Kraft, 
 98 N. Y. S. 72. 
 
 So considering this case under the rule of the law thus enunciated, 
 were the declarations of Mrs. Jane Butler, regarding the relationship 
 she and Lizzie Butler, the respondent in this case bore to John Butler 
 of Sturgeon, Missouri, admissible in evidence? 
 
 In our opinion, that question should be answered in the affirmative, 
 for the reason that in our judgment this record abounds with such 
 preliminary proof, and is ample to satisfy even a more stringent rule 
 than that announced by the authorities before mentioned. 
 
 We, therefore, affirm the judgment. All concur.
 
 276 CASES ON EVIDENCE 
 
 CITIZENS' RAPID TRANSIT CO. v. DEW. 
 /oo Tenn. 318. (1897) 
 
 WILKES, ]. This is an action for negligently injuring and killing 
 a dog. It was commenced before a Justice of the Peace, and, on 
 appeal, was tried in the Circuit Court, before the court and a jury. 
 There have been two trials the first resulting in a mistrial, and the 
 second in a verdict and judgment for $250, and defendant, Rapid 
 Transit Company, has appealed and assigned many errors. 
 
 Much evidence is given in the case upon the question of the dog's 
 pedigree and ancestry. The objections are made that these matters 
 are attempted to be proven by general reputation, and this is char- 
 acterized as hearsay. But the question of pedigree and ancestry is 
 a matter of common or general reputation, whether the question con- 
 cerns horses, cattle, dogs, or men. The matter, from the very nature 
 of things depends upon reputation or common repute. It is shown 
 that certain books are kept, and in them is shown a registration of 
 pedigrees kept up for the information of the public, not only as to 
 horses, but also as to cattle and dogs. These are shown to be re- 
 ceived as satisfactory evidence of pedigree in the same manner and 
 upon the same idea as entries in family records of births, deaths, and 
 marriages are received with regard to the human family. 18 Am. 
 
 6 Eng. Encyc. L. 258; Flowers v. Haralson, 6 Yer. 494; Rogers v. 
 Park, 4 Hum. 480; Swink v. Frence, n Lea. 79; Morris v. Swaney, 
 
 7 Heis, 591 ; Ford v. Ford, 7 Hum. 92. It is true, that in family 
 records the entries in the books are usually made by the relatives 
 and friends of the person, but inasmuch as dogs have no relatives 
 competent to make entries for them, it is allowable for such entries 
 to be made by the owners, friends, and admirers of the dog. 
 
 Upon the general question as to the admissibility of evidence of 
 the dog's pedigree, and the qualities and performances of his an- 
 cestors, we think there can be no doubt that such evidence is com- 
 petent. It is certainly competent to show pedigree upon the question 
 of value of horses, cattle, and even sheep and swine their different 
 strains of blood, and especially as to horses and cows it is competent 
 to show the qualities of the sires and dams and more remote ancestry, 
 as these matters enter largely into the question of values. It is a 
 matter of common knowledge that the same questions enter in the 
 consideration of the value of dogs, not only such as are kept for 
 common use, such as guard dogs, shepherd dogs, Newfoundland dogs,
 
 DECLARATIONS AGAINST DECEASED 277 
 
 but also such as are kept for sporting purposes, such as grey, blood, 
 and fox hounds, bird dogs and others. There are high and low de- 
 grees among dogs as well as among men, and while the common 
 coon dog has his value, it is not the same as that of the trained 
 bird dog or the trained bloodhound. It is a matter of common knowl- 
 edge and observations that certain strains of blood among horses add 
 materially, if they do not entirely fix their values, and so among cows, 
 hogs and sheep, and even among chickens and turkeys. Different 
 strains of blood horses are valuable because it is found that for gen- 
 erations the achievements of horses of that strain have been note- 
 worthy upon the turf and elsewhere, and so with dogs these qualities, 
 as a matter of common observation, are much the same in the same 
 strain for generation after generation. We think there is no error 
 in admitting evidence upon these matters of pedigree, and the repu- 
 tation of this particular dog killed is shown to have had what in dog 
 circles, is regarded as "blue blood," and among these he belongs to 
 the inner circles of the four hundred, a member of the F. F. T. or 
 First Families of Tennessee. 
 
 Affirmed. 
 
 DECLARATIONS AGAINST INTEREST BY PERSONS SINCE DECEASED.'. 
 
 DEAN v. WILKERSON. 
 126 Ind. 338. (1890) 
 
 , J. This was an action by the appellee against the ap- 
 pellant on a promissory note executed by the appellant to the appellee. 
 The defense sought to be established in the Circuit Court was that 
 the note in suit was executed without any consideration. 
 
 The note was executed in renewal of two other notes executed 
 by the appellant to Thomas Wilkerson, the father of the appellee, 
 found in the possession of the appellee, but not endorsed to him. 
 
 It was contended by the appellant in the Circuit Court that the 
 notes, in renewal of which the note in suit was executed were the 
 property of Thomas Wilkerson, and for that reason the note in suit, 
 having been made payable to the appellee was without any considera- 
 tion. 
 
 1 Hughes on Evidence, p. 97.
 
 .78 CASES ON EVIDENCE 
 
 On the other hand it was contended by the appellee that the two 
 notes in renewal of which the note in suit was executed had been 
 given to him by Thomas Wilkerson, the father, in a distribution 
 among his children of the notes held by the father. 
 
 The evidence as to whether the appellee was the owner of the 
 two notes above mentioned was conflicting. We will not undertake 
 to weigh the evidence. The objection, therefore, that the verdict of 
 the jury is not supported by the evidence cannot be sustained. 
 
 Finally, it is contended by the appellant that the court erred in 
 admitting the evidence of Alonzo G. Smith, Lafayette Wilkerson and 
 Charles D. Butler. 
 
 The evidence of these witnesses consisted of declarations made by 
 Thomas Wilkerson, father of the appellee, who departed this life 
 before the trial of the cause, to the effect that he had made a gift to 
 the appellee of the notes in consideration of which the note in suit 
 was executed. 
 
 These declarations were made in the absence of the appellant, and 
 as Thomas Wilkerson was not a party to the suit it is contended that 
 his declarations constituted hearsay evidence, and that they were not, 
 for that reason, admissible. 
 
 It is to be observed that Thomas Wilkerson was dead and could not 
 be produced in court as a witness on behalf of the appellee. The 
 declarations introduced in evidence were against the interests of 
 Thomas Wilkerson, and related to a fact about which he possessed 
 competent knowledge. This constitutes one of the exceptions to the 
 general rule upon the subject of hearsay evidence. I Greenleaf Ev., 
 section 147; Royse v. Learning, 72 Ind. 182. 
 
 Mr. Greenleaf, vol. i, sec. 148, in discussing the admissibility of this 
 class of evidence, says : "The ground upon which this evidence is 
 received, is the extreme improbability of its falsehood. The regard 
 which men usually pay to their own interests is deemed a sufficient 
 security, both that the declarations were not made under any mis- 
 take of fact, or want of information on the part of the declarant, 
 if he had the requisite means of knowledge, and that the matter de- 
 clared is true." 
 
 We cannot presume that Thomas Wilkerson did not possess knowl- 
 edge as to whether he made a gift to his son James of the notes, con- 
 stituting the consideration of the note in suit; nor can we presume 
 he would declare he had parted with his title unless such declaration 
 was true. In our opinion the court did not err in admitting this evi- 
 dence.
 
 DECLARATIONS AGAINST DECEASED 279 
 
 There is no error in the record for which the judgment should be 
 reversed. 
 
 Judgment affirmed. 
 
 KEESLING, Treas. et al. v. POWELL. 
 149 Ind. 372. (1897) 
 
 McCABE, J. The appellee sued the appellants, treasurer, auditor, 
 and commissioners "of Cass county, to enjoin the sale of a certain 
 described lot or piece of real estate in Logansport, in said county, for 
 the alleged delinquent taxes, and to cancel said tax as the same stands 
 charged on the duplicate, on the ground that the same had been paid. 
 A trial of the issues joined and resulted in a finding and judgment 
 for the plaintiff, over defendant's motion for a new trial. 
 
 The refusal of a new trial is questioned by the assignment of errors, 
 that being the only question presented by the appeal. The grounds 
 of the motion for a new trial are that the finding is contrary to law 
 and the evidence, and not supported by sufficient evidence, and error 
 in the admission of certain evidence. 
 
 The evidence, the admission of which is complained of, was the 
 testimony of the plaintiff, who being about to purchase the lot in ques- 
 tion, inquired of the deputy treasurer, one William H. Forrest, 
 whether said taxes were paid or not. And it is further objected that 
 the public cannot be estopped by the declarations of its officials re- 
 specting the public revenues. But it is a mistake to suppose that the 
 object of the testimony was to estop anybody. The issue on trial was 
 whether the tax in question had been paid. There was no attempt 
 to defeat the collection of the tax on any other ground than that it 
 had been actually paid. 
 
 The evidence shows that the deceased deputy treasurer whose dec- 
 larations were put in evidence had the requisite means of knowing 
 whether the matter declared was true. It also appears that it would 
 be against the interest of the deputy treasurer, who practically per- 
 formed all the duties of the county treasurer, to admit or declare 
 that these taxes had been paid if they in fact had not. It might result 
 in making the treasurer liable on his bond for the same, and the 
 deputy liable to the treasurer, if in fact they had been paid to the 
 deputy treasurer. In Royse, Exr. v. Learning, 72 Ind., at p. 184,
 
 280 CASKS ON EVIDENCE 
 
 Woods, J. speaking for the court, said: "If the action of the court 
 in admitting this testimony can be upheld, it must be on the ground 
 that the declarations in question are secondary evidence, receivable 
 only because of the death of the person who made them. Upon this 
 subject, the following language is found in I Greenleaf Evidence, sec. 
 147; 'This class embraces not only entries in books, but all other 
 declarations or statements of facts, whether verbal or in writing, and 
 whether they were made at the time of the fact declared or at a 
 subsequent day. But, to render them admissible, it must appear that 
 the declarant is deceased; that he possessed competent knowledge 
 of the facts, or that it was his duty to know them ; that the declara- 
 tions were at variance with his interest. When these circumstances 
 concur, the evidence is received, leaving its weight and value to be 
 determined by other considerations.' " And in Dean v. Wilkerson, 
 126 Ind. 340, Coffey, J., speaking for the court, said "It is to be 
 observed that Thomas Wilkerson was dead and could not be pro- 
 duced in court as a witness in behalf of the appellee. The declara- 
 tions introduced in evidence were against the interests of Thomas 
 Wilkerson, and related to a fact about which he possessed competent 
 knowledge. This constitutes one of the exceptions to the general 
 rule upon the subject of hearsay evidence. I Greenleaf Ev. sec. 147; 
 Royse exr. v. Learning, 72 Ind. 182. 
 
 Following these decisions, as we do, there was no error in admit- 
 ting the declarations of the deceased deputy treasurer in evidence. 
 
 The Circuit Court did not err in overruling the appellants' motion 
 for a new trial. 
 
 Judgment affirmed. 
 
 COUNTY OF MAHASKA v. INGALLS, Ex'r. 
 16 Iowa 81. (1864) 
 
 This action was brought against the executor of John H. Shoe- 
 maker, deceased, and the sureties on his official bond as treasurer. 
 
 The cause was, by consent, referred to three referees "for trial of 
 the facts involved in the issues (made) by the pleadings." 
 
 The referees in their report, find, that from the commencement of 
 Shoemaker's term until his death, he was a defaulter in the sum 
 of $3,415.44. They further find "that there was a default on the
 
 DECLARATIONS AGAINST DECEASED 281 
 
 part of Shoemaker on or about the 2Oth of August, 1858, in the 
 sum of $2,700. That we have no means of determining from the 
 evidence when the remainder of the defalcation took place, whether 
 between the 2Oth of August, 1858, and the execution of the defend- 
 ant's bond, or subsequent to the execution of said bond. We do not 
 know affirmatively that there was any defalcation after the execu- 
 tion of defendant's bond, nor do we find negatively that there was not 
 any." 
 
 On the trial before the referees, plaintiff raised certain questions 
 relating to the admission of testimony, which are set out in the opin- 
 ion; and in the District Court made these the basis of a motion to 
 set aside the report, which was overruled and exceptions taken by the 
 plaintiff. 
 
 On the report, the court rendered judgment in favor of the plaintiff 
 for $715.44 (being the amount of the whole deficit less the $2,700 
 which occurred before the bond in suit was executed), with inter- 
 est from the date of the report. From this judgment both parties 
 appeal. 
 
 DILLON, J. Against the plaintiff's objection, the witness was per- 
 mitted to testify as follows: 
 
 "Mr. Shoemaker told me that there was over $2,000 in the summer 
 of 1858, that he was behind as treasurer of the county, and he wanted 
 an arrangement made by which I should pay it. I agreed to fix it up, 
 if Moreland would secure me. I afterward saw Moreland, and he 
 agreed to do so, but never done it, and the arrangement was not per- 
 fected. This conversation was about August 20, 1858." 
 
 Against the plaintiff's objection, likewise, one Coolbaugh was per- 
 mitted to testify, "That the said John H. Shoemaker, in the summer 
 of 1858, stated in the presence of Coolbaugh that he, the said Shoe- 
 maker, was then behind with the county of Mahaska, in the sum of 
 about $2,700." 
 
 The materiality and decisive importance of this testimony are ap- 
 parent from the statement of the case above given, and from the 
 report of the referees and the judgment of the court thereon; and 
 whether this cause shall be affirmed or reversed, depends solely upon 
 the admissibility in law of this evidence. 
 
 The inquiry, then, as to the state of Shoemaker's accounts, at and 
 before the time the bond in suit was executed, was one of indispens- 
 able importance. It may be inferred from the report of the referees, 
 that his official books and papers threw no light on this subject. 
 
 In this exigency, the sureties offered the testimony of which the
 
 282 CASES ON EVIDENCE 
 
 plaintiff now complains. This testimony consisted of the verbal ad- 
 missions of their principal on two separate occasions, and to two 
 different persons, prior to the execution of the bond in suit, that he 
 was behind, as treasurer of the county, in the sum of about $2,700. 
 And here it is material to be noted, that these declarations, or more 
 properly speaking, admissions, are distinctly and unequivocably 
 stamped with the following marked features : 
 
 i st. They were made against the pecuniary interest of the de- 
 clarant, for they were of such a nature so circumstantial and precise, 
 as to constitute in an action against him by the plaintiff, the founda- 
 tion and evidence of a legal liability to that extent. 
 
 2nd. They involved, moreover, the admission of conduct on his 
 part, which would render him, if known, infamous in the eyes of 
 the public, and criminal in the eyes of the law; for the penal statutes 
 of the State declare, that every officer who shall unlawfully "take, 
 convert, invest, use, loan, or fail to account for, any portion of the 
 public money entrusted to him, shall be imprisoned in the penitentiary, 
 fined in a sum equal to the amount embezzled, and be also disqualified 
 from holding any office under the laws or constitution of the State. 
 Rev. sec. 4243. 
 
 3rd. They were not only made ante litem motam, but were made 
 long prior to the execution of the bond in suit, and consequently 
 without any reference to the controversy which has since arisen. 
 
 4th. The declarant was dead at the time these admissions of his 
 were offered and received as evidence in an action between third 
 parties, viz., between the county and his sureties. 
 
 Such were the circumstances and nature \ of these admissions, and 
 now the question recurs : Were they competent and legal evidence ? 
 
 If these same facts had appeared by written entries or statements, 
 the deceased party being in a position to know the facts, and the facts 
 being undeniably adverse to his interest, there is no question as to 
 their being receivable in evidence. All the authorities would here 
 agree. 
 
 In the case at bar the declarations were verbal and the question 
 yet remains to be considered whether verbal admissions stand upon 
 the same footing with written ones. 
 
 Our survey and examination of this subject may be thus summed 
 up. This species of evidence being somewhat anomalous in its char- 
 acter, and standing on the ultima thule of competent testimony, is 
 not highly favored by the courts, and the tendency is rather to re- 
 strict than to enlarge the right to receive it, or at least to require the
 
 DECLARATIONS AGAINST DECEASED 283 
 
 evidence to be brought clearly within all the conditions requisite for 
 its reception. From the unbroken current of English and the de- 
 cided preponderance of American authority, we think the present state 
 of the law is, that verbal declarations are receivable, when accom- 
 panied by the following prerequisites : ist : The declarant must be 
 dead, to this we believe the English cases make no exception. Mere 
 absence from the jurisdiction will not answer. Brewster v. Doane, 
 
 2 Hill (N. Y.) 537, and cases; Moore v. Andrews, 5 Port. Ala. 107. 
 Although by the course of decisions in some of the states, with ref- 
 erence to written entries, etc., absence might be possibly treated as 
 equivalent to death. See i G'reenl. Ev. sec. 163, and note; 8 Watts, 
 77; i Smith, L. Cas. 340 (top) ; as to insanity, Union Bank v. Knapp, 
 
 3 Pick. 96. As, in the case at bar, the declarant was deceased, we 
 need not decide whether death is, in all cases, an indispensable con- 
 dition. We need only say that probably the courts would not be in- 
 clined to relax the rule so as to dispense with this condition, unless 
 it might be in the case of confirmed insanity. 
 
 2nd. The next prerequisite is, that the declaration must have been 
 against the interest of the declarant at the time, and that interest must 
 be a pecuniary one. That it would have subjected the party to penal 
 consequences is not sufficient, although this would add to the weight 
 of the testimony. (Davis v. Lloyd, i C. K. 275; n Cl. & Fin. 85). 
 The conflict of the declaration with the pecuniary interest of the party 
 must be clear and undoubted, as this is the main ground upon which 
 the admissibility of this species of evidence rests. 
 
 3rd. The declaration must be of a fact or facts in relation to a 
 matter concerning which the declarant was immediately and per- 
 sonally cognizable, n M. & W. 773. As the evidence is admitted 
 because the declaration is against interest, it is not indispensable that 
 it should accompany an act, but if not so accompanied, it very greatly 
 depreciates its value. Phillipps Ev. vol. i, 310; i Greenl. Ev. sec. 
 147; Ivat v. Finch, i Taunt. 141; White v. Choteau, i E. D. Smith, 
 493, and cases, supra. 
 
 4th. In addition, the court should under the circumstances of the 
 particular case, be satisfied that there was no probable motive to 
 falsify the fact declared; as where the declaration is made ante litem 
 motam, or at a period, so remote as to preclude all suspicion that it 
 was manufactured for the occasion. Gilchrist v. Martin, i Bailey Eq. 
 492, and cases, supra. 
 
 When all of these conditions are met, the evidence is received for
 
 284 CASES ON EVIDENCE 
 
 what it is worth, and its weight and value depend upon the circum- 
 stances of the particular case. 
 
 Judgment affirmed. 
 
 HUMES v. O'BRYAN & WASHINGTON. 
 74 Ala. 64. (1883) 
 
 This action was brought by O'Bryart & Washington, partners doing 
 business in the city of Nashville, Tennessee, against L. R. Glover and 
 Milton Humes, as partners doing business under the firm name of 
 Glover & Humes; and Glover having died, the suit was prosecuted 
 to judgment against Humes alone, as surviving partner. The action 
 was commenced on the 22nd September, 1873, and was founded on 
 an account for goods sold and delivered by plaintiffs, during the year 
 1872, to said Glover & Humes, amounting to about $750. The com- 
 plaint contained the common counts only. The defendant Humes 
 pleaded the general issue, "in short by consent," and two special 
 pleas, denying his liability as a partner in the alleged firm of Glover 
 & Humes, and denying that the account was contracted by him or by 
 any one authorized to bind him; and the cause was tried on issue 
 joined on these several pleas. 
 
 Geo. S. Gordon, whose deposition was taken by the defendant, thus 
 testified: "I heard L. R. Glover speak in reference to the business 
 relations between himself and the defendant (Humes). He stated, 
 emphatically and repeatedly, that the partnership or business con- 
 nection between them had never been for anything but planting pur- 
 poses only, and that for debts contracted by him (Glover) Humes 
 was not liable, and knew nothing about them when they were con- 
 tracted. He further said, that there were written articles of agree- 
 ment between himself and Humes, which he did not have, and the 
 substance of which he could not recollect, except that they related 
 solely to planting and the planting business, and never at any time 
 related to anything else; that the only occasion when he heard their 
 content read, was when they were read in Humes' office to Ledbetter. 
 Glover further disowned any knowledge of the telegrams, until these 
 suits were instituted." The witness further stated that these dec- 
 larations were made by Glover in tht office of Humes & Gordon, no 
 person but the three being present, and that they were made with
 
 DECLARATIONS AGAINST DECEASED 285 
 
 special reference to the liability of Humes on the account here sued 
 on. The plaintiffs objected to the interrogatories calling for these 
 declarations, and on their motion, the court excluded the entire depo- 
 sition; to which ruling the defendant excepted. 
 
 SOMERVILLE, J. It is an established rule of evidence, that while, in 
 ordinary cases, the mere declarations of a person as to a particular 
 fact are not evidence of that fact, being regarded as hearsay; yet 
 declarations made by a person which are at variance with his pecun- 
 iary interest, are admissible in evidence of their own truth, under 
 certain circumstances. These conditions are, that the declarant pos- 
 sessed competent knowledge of the facts and is deceased at the time 
 his declarations are proposed to be proved. The absence of any 
 motive of a pecuniary nature which would tempt him to falsehood, 
 creates a strong intrinsic probability of the truth of his declaration; 
 and it is, therefore, admitted as secondary evidence, after the death 
 of the declarant, being the best which the nature of the case will, 
 under the peculiar circumstances, permit. I Greenl. Ev. sec. 147; 
 Starkies' Ev. (Shar.) 64; Higham v. Ridgway, 2 Smith's Lead. Cases, 
 183; i Whart. Ev. sec. 226 and following. The weight and value of 
 such evidence depends, of course, upon many considerations of a 
 variable character. Raines v. Raines, 30 Ala. 425. 
 
 We are of the opinion that the declaration of Glover, testified to 
 by witness Gordon in his deposition, comes within the class of dec- 
 larations against interest, under the principle above announced. 
 Glover's declaration was, that the appellant, Humes, was never his 
 partner, except in the planting business ; and this statement appears 
 to have been made with special reference to the pecuniary liability of 
 the parties on the claim which is the basis of the present suit. The 
 death of Glover was proved, and it was shown furthermore, that 
 there were no assets of the alleged mercantile partnership of Glover 
 & Humes, the reputed firm, as such, being regarded as insolvent at 
 the time of Glover's declaration. This fact, it must be noticed, is of 
 vital importance as affecting the question of interest. In the absence 
 of the fact of insolvency, it is manifest that the converse proposition 
 that Humes was a partner of the declarant would be a declaration 
 against his interest. This is so because, if true, it would entitle, 
 Humes to a half interest in the partnership assets belonging to the 
 alleged firm of Glover & Humes. The assertion, therefore, that 
 Humes was not a partner, having been made at a time when the 
 partnership business had failed, it was a declaration exonerating him 
 from a pecuniary liability for the partnership debts, and, if true,
 
 285 CASES ON EVIDENCE 
 
 to this extent doubled the ultimate amount of Glover's liability, by 
 destroying his right of recourse against Humes for any portion of the 
 debts due by the reputed firm. 2, Wharton Ev. sec. 1200. 
 
 Reversed and remanded. 
 
 MASSEE-FELTON LUMBER COMPANY v. SIRMANS. 
 122 Ga. 297. (1905) 
 
 COBB, J. Sirmans applied for an injunction to restrain the Massee- 
 Felton Lumber Company from felling the timber on a described tract 
 of land. The judge granted the injunction, and the defendant ex- 
 cepted. 
 
 The right of the plaintiff to an injunction depends upon whether 
 he has shown that he is the owner of the land and that the threatened 
 damage would be irreparable. 
 
 The evidence relied upon to establish the existence of a tax execu- 
 tion and the fact of a levy was an entry made by the sheriff in a 
 private memorandum book kept by him during his lifetime, which 
 was found among his papers after his death and produced at the 
 trial as coming from the custody of his family. This entry was in 
 the following words : "Georgia, Berrien County. Record of sale of 
 land for 1871 and 1872 and 1873. Sold on the first Tuesday in 
 April, 1871, lot No. 313 in the roth District of said county as the 
 property of T. F. Hampton, to satisfy a tax fi. fa. issued by the tax- 
 collector of said county; said land was knocked off to John C. Sir- 
 mans, he being the highest and best bidder, at $10.50, and the money 
 applied to said tax fi. fa. Thomas D. Futch, Sheriff, B. C." 
 
 If this memorandum was admissible in evidence, it established the 
 existence of the tax execution as the foundation of the sale which is 
 referred to in the sheriff's deed. If this entry was admissible at all, 
 it was admissible under that principle of the law which admits in 
 evidence declarations of a person since deceased, against his interest 
 and not made with a view to pending litigation. Civil Code, sec. 5181. 
 This section of the code is a mere codification of a well-settled prin- 
 ciple in the law. While such evidence is hearsay, it is admitted as 
 one of the exceptions to the rule against hearsay evidence, on the 
 ground of the extreme improbability of its falsity. Field v. Boynton, 
 33 Ga. 239; Ellwell v. Mtg. Co., 101 Ga. 496 (3) ; Ga. R. Co. v. Fitz-
 
 DECORATIONS AGAINST DECEASED 287 
 
 gerald, 108 Ga. 509. To render such an entry or declaration admis- 
 sible it must appear that the declarant is dead, that he possessed com- 
 petent knowledge of the facts, or that it was his duty to know them, 
 and that the declaration was at variance with his interest. I Gr. 
 Ev. (i6th ed.) sec. 147. But when the declaration contains that 
 which is against the interest of the declarant and also that which is 
 in his favor, its admissibility has been doubted. The settled rule 
 seems, however, now to be that the statements in the declaration 
 should be balanced, and if those in favor of interest are equal to or 
 preponderate over those that are against the declaration should not 
 be admitted, but that if those against interest preponderate over those 
 that are in favor of the interest the declarations are admissible, i Gr. 
 Ev. (i6th ed.) sec. 157. 
 
 But in any case where the declaration is admissible it is admissible 
 as proof of all the facts therein stated, both the main fact and any 
 collateral fact connected therewith/ The leading case in reference 
 to this matter is Higham v. Ridgway, 10 East, 109, in which an entry 
 of services rendered as a man midwife, followed by the entry, "paid 
 25th Oct. 1768," was admitted to show the date of the child's birth. 
 See also i Gr. Ev. (i6th ed.) sec. 152. The declaration by the sher- 
 iff that he had sold the land under a tax execution was certainly 
 a declaration against his interest, because by an admission of this 
 fact he laid himself liable to all the consequences which would result 
 to a levying officer selling the property of another when he had no 
 authority to make such sale. In the entry he also charged himself 
 with the amount of the purchaser's bid, but he also discharged himself 
 by a statement that he applied it to the payment of the tax. Upon 
 the balancing of the statements set forth in the declaration it would 
 seem that the balance preponderated against his interest, the only 
 statement in his interest being that he had appropriated the money in 
 the way the law required, and this would be of little benefit to him in 
 the event he was sought to be held liable on account of want of 
 authority to make the sale, or for any irregularity therein for which 
 persons interested in the property would have a right to hold him 
 responsible. We think that, under the rule stated, this entry was prop- 
 erly admitted in evidence, and that when admitted it established the 
 existence of the tax execution. 
 
 Judgment affirmed. All the Justices concur.
 
 288 CASES ON EVIDENCE 
 
 KEESLING v. POWELL. 
 149 Ind. 372. (1897) 
 
 McCABE, J. The appellee sued the appellants, treasurer, auditor, 
 and commissioners of Cass county, to enjoin the sale of a certain 
 described lot or piece of real estate in Logansport, in said county, 
 for alleged delinquent taxes, and to cancel said tax as the same stands 
 charged in the duplicate, on the ground that the same had been paid. 
 A trial of the issues joined resulted in a finding and judgment for the 
 plaintiff, over defendant's motion for a new trial. 
 
 The refusal of a new trial is questioned by the assignment of errors, 
 that being the only question presented by the appeal. The grounds 
 of the motion for a new trial are that the finding is contrary to law 
 and the evidence, and not supported by sufficient evidence, and error 
 in the admission of certain evidence. 
 
 The evidence, the admission of which is complained of, was the 
 testimony of the plaintiff, who, being about to purchase the lot in 
 question, inquired of the deputy treasurer, one William H. Forest, 
 whether said taxes had been paid, and he answered that they had. 
 This evidence of the mere declaration of the deputy treasurer, it is 
 claimed, was mere hearsay, and not admissible. But it is conceded 
 that at the time of the admission of the testimony of the plaintiff, 
 detailing the declaration of deputy treasurer Forrest, that the de- 
 clarant, Forrest, was dead. It is also objected that it was no part of 
 the duty of the treasurer to tell people whether taxes were paid or 
 not. And it is further objected that the public cannot be estopped 
 by the declaration of its officials respecting the public revenues. But 
 it is a mistake to suppose that the object of the testimony was to 
 estop anybody. The issue on trial was whether the tax in question 
 had been paid. There was no attempt to defeat the collection of the 
 tax on any other ground than that it had been actually paid. 
 
 The evidence shows that the deceased deputy treasurer whose 
 declarations were put in evidence had the requisite means of know- 
 ing whether the matter declared was true. It also appears that it 
 would be against the interest of the deputy treasurer, who prac- 
 tically performed all the duties of the county treasurer, to admit 
 or declare that these taxes had been paid if they in fact had not. 
 It might result in making the treasurer liable on his bond for the 
 same, and the deputy liable to the treasurer, if in fact they had been 
 paid to the deputy treasurer. In Royse, Exr. v. Leaning, 72 Ind. at
 
 DECLARATIONS AGAINST DECEASED 289 
 
 p. 184, Woods, J., speaking for the court, said: "If the action of the 
 court in admitting this testimony can be upheld, it must be on the 
 ground that the declarations in question were secondary evidence, 
 receivable only because of the death of the person who made them. 
 Upon this subject the following language is found in i Greenleaf 
 Evidence, section 147 : 'This class embraces not only entries in books, 
 but all other declarations or statements of facts, whether verbal or 
 in writing, and whether they were made at the time of the fact de- 
 clared or at a subsequent day. But, to render them admissible, it 
 must appear that the declarant is deceased; that he possessed compe- 
 tent knowledge of the facts, or that it was his duty to know them ; 
 and that the declarations were at variance with his interest. When 
 these circumstances concur, the evidence is received, leaving its weight 
 and value to be determined by other consideration.' " And in Dean v. 
 Wilkerson, 126 Ind. at p. 340, Coffey, J., speaking for the court, 
 said: "It is to be observed that Thomas Wilkerson was dead and 
 could not be produced in court as a witness on behalf of the appellee. 
 The declarations introduced in evidence were against the interests 
 of Thomas Wilkerson, and related to a fact about which he possessed 
 competent knowledge. This constitutes one of the exceptions to the 
 general rule upon the subject of hearsay evidence. I Greenleaf Ev., 
 section 147; Royse, Exr. v. Leaning, 72 Ind. 182. 
 
 "Mr. Greenleaf, vol. i, section 148, in discussing the admissibility 
 of this class of evidence, says: 'The ground upon which this evi- 
 dence is received, is the extreme improbability of its falsehood. The 
 regard which men usually pay to their own interests is deemed a 
 sufficient security, both that the declarations were not made under 
 any mistake of fact, or want of information on the part of the de- 
 clarant, if he had the requisite means of knowledge, and that the 
 matter declared is true.'" 
 
 Following these decisions, as we do, there was no error in ad- 
 mitting the declarations of the deceased deputy treasurer in evidence. 
 
 The Circuit Court did not err in overruling the appellant's motion 
 for a new trial. 
 
 Judgment affirmed.
 
 290 CASES ON EVIDENCE 
 
 HUMES v. O'BRYAN & WASHINGTON. 
 74 Ala. 64. (1883) 
 
 This action was brought by O'Bryan & Washington, partners doing 
 business in the city of Nashville. Tennessee, against L. R. Glover and 
 Milton Humes, as partners doing business under the firm name of 
 Glover & Humes ; and Glover having died, the suit was prosecuted to 
 judgment against Humes alone, as surviving partner. The action 
 was commenced on the 22d September, 1873, and was founded on an 
 account for goods sold and delivered by plaintiffs, during the year 
 1872, to said Glover & Humes, amounting to about $750. The com- 
 plaint contained the common counts only. The defendant Humes 
 pleaded the general issue, "in short by consent," and two special 
 pleas, denying his liability as a partner in the alleged firm of Glover 
 & Humes, and denying that the account was contracted by him, or 
 by any one authorized to bind him; and the cause was tried on issue 
 joined on these several pleas. 
 
 Geo. S. Gordon, whose deposition was taken by the defendant, 
 thus testified : "I heard L. R. Glover speak in reference to the busi- 
 ness relations between himself and the defendant (Humes). He 
 stated, emphatically and repeatedly, that the partnership or business 
 connection between them had never been for anything but planting 
 purposes only, and that for debts contracted by him (Glover) Humes 
 was not liable, and knew nothing about them when they were con- 
 tracted. He further said, that there were written articles of agree- 
 ment between himself and Humes, which he did not have, and the 
 substance of which he could not recollect, except that they related 
 solely to planting and the planting business, and never at any time 
 related to anything else; that the only occasion when he heard their 
 contents read, was when they were read in Humes' office to Ledbetter. 
 Glover further disowned any knowledge of the telegrams, until these 
 suits were instituted." The witness further stated, that these dec- 
 larations were made by Glover in the office of Humes & Gordon, 
 no person but the three being present, and that they were made with 
 special reference to the liability of Humes on the account here sued 
 on. The plaintiffs objected to the interrogatories calling for these 
 declarations, and, on their motion, the court excluded the entire depo- 
 sition; to which ruling the defendant excepted. 
 
 SOMERVIU.E, J. It is an established rule of evidence, that while, 
 in ordinary cases, the mere declarations of a person as to a particu-
 
 DECLARATIONS AGAINST DECEASED 291 
 
 lar fact are not evidence of that fact, being regarded as hearsay; yet 
 declarations made by a person which are at variance with his pecun- 
 iary or proprietary interest, are admissible in evidence of their own 
 truth, under certain circumstances. These conditions are, that the 
 declarant possessed competent knowledge of the facts, and is de- 
 ceased at the time his declarations are proposed to be proved. The 
 absence of any motive of a pecuniary nature, which would tempt him 
 to falsehood, creates a strong and intrinsic probability of the truth 
 of his declaration; and it is, therefore, admitted as a secondary evi- 
 dence, after the death of the declarant, being the best which the 
 nature of the case will, under the peculiar circumstances, permit, i 
 Greenl. Ev. sec. 147; Starkie's Ev. (Shar.) 64; Higham v. Ridgway, 
 2 Smith's Lead. Cases, 183 ; I Whart. Ev. sec. 226, et seq. The weight 
 and value of such evidence depends, of course, upon many consid- 
 erations of a variable character. Raines v. Raines, 30 Ala. 425. 
 
 We are of the opinion that the declaration of Glover, testified to 
 by the witness Gordon in his deposition, comes within the class of 
 declarations against interest, under the principle above announced. 
 Glover's declaration was that the appellant, Humes, was never his 
 partner, except in the planting business ; and this statement appears 
 to have been made with special reference to the pecuniary liability 
 of the parties on the claim which is the basis of the present suit. The 
 death of Glover was proved, and it was shown, furthermore, that 
 there were no assets of the alleged mercantile partnership of Glover 
 & Humes, the reputed firm, as such, being regarded as insolvent at 
 the time of Glover's declaration. This fact, it must be noticed, is of 
 vital importance as affecting the question of interest. In the absence 
 of the fact of insolvency, it is manifest that the converse proposi- 
 tion that Humes was a partner of the declarant would be a dec- 
 laration against his interest. This is so because, if true, it would en- 
 title Humes to a half interest in the partnership assets belonging to 
 the alleged firm of Glover & Humes. The assertion, therefore, that 
 Humes was not a partner, having been made at a time when the 
 partnership business had failed, it was a declaration exonerating him 
 from a pecuniary liability for the partnership debts, and, if true, to 
 this extent doubled the ultimate amount of Glover's liability, by 
 destroying his right of recourse against Humes for any portion of 
 the debts due by the reputed firm. 2 Whart. Ev. sec. 1200. 
 
 Reversed and remanded.
 
 292 CASES ON EVIDENCE 
 
 CURRIER v. GALE. 
 80 Massachusetts 504. (1860) 
 
 Action of Tort for breaking and entering a close in Ambury. An-, 
 swer, soil and freehold in the defendant's wife. Trial and verdict 
 for the plaintiff in the Superior Court in Essex at September term, 
 1859, before Morton, J., who reported the case to this court, under 
 St. 1859, c. 196, sec. 32. The facts are stated in the opinion. 
 
 DEWEY, J. It is conceded that Molly Barnard was the legal owner 
 of the premises in 1799, and that the plaintiff as her sole heir at 
 law holds her interest, unless it has been acquired by some third party, 
 by conveyance or otherwise. Such transfer of title was attempted to 
 be shown by a mortgage to David Currier, and a levy of execution in 
 favor of Ebenezer Moseley against said Currier ; but that title was 
 found not valid by the jury, under proper instructions from the court, 
 upon which no question is now open. This finding of the jury brings 
 the case to the single question of the rejection of the evidence offered 
 by the defendant to sustain a title acquired by adverse possession. 
 
 The title by adverse possession was alleged to have been acquired 
 by Jacob R. Currier, who received a deed from Moseley, the judg- 
 ment creditor of David Currier, on the 4th of April, 1823, after his 
 levy of execution. The defendant, who was introduced as a witness 
 on the trial, after testifying that one Webster occupied the premises 
 from about 1825 for a period of twelve or fifteen years, was asked 
 "What Webster had said during the time of his occupation, in regard 
 to his occupancy, for the purpose of showing that he occupied as 
 tenant to Jacob R. Currier, and adversely to the plaintiff." A similar 
 inquiry was proposed as to the declaration of one Bartlett, who 
 subsequently occupied the premises, and for the like purpose. The 
 court rejected the evidence. 
 
 The defendant insists that it was competent, under the general 
 rule of admitting the declarations of a party in possession, adverse 
 to his own interest. Such declarations have in various forms and 
 under different circumstances been deemed admissible. The principle 
 upon which they are held admissible is not very clearly settled. 
 When the declaration has been accompanied with an act pointing out 
 some monument or existing mark of boundary, it has been allowed. 
 So also as evidence against the party making the declaration, and all 
 persons in privity with them, or claiming under him, it is competent. 
 But the adjudicated cases go somewhat further, and hold that his
 
 DECLARATIONS AGAINST DECEASED 293 
 
 declaration in disparagement of his apparent title, as indicated by 
 his possession, may be used as evidence that his occupation was an 
 occupation under another person, and thus make his possession to 
 avail in favor of the person stated by him to be his landlord. Thus 
 in Peaceable v. Watson, 4 Taunt. 16, it was held, that the declarations 
 of a deceased occupant of land, stating under whom he occupied as 
 tenant, were admissible Mansfield, C. J. saying: "Possession is 
 prima facie evidence of seisin in fee simple; the declaration of the 
 possessor that he is tenant to another makes most strongly therefore 
 against his own interest, and consequently is admissible." Davies v. 
 Pierce, 2 T. R. 53, is an authority to the same point. The case of 
 Marcy y. Stone, 8 Cush. 4, is directly to the same effect. If these 
 declarations were offered as the declarations of deceased persons, 
 while occupying the premises, they would have been therefore admis- 
 sible. 
 
 On the other hand, if they were offered as the declarations of per- 
 sons now alive, they ought to be rejected. In i Phil. Ev. (4th Amer. 
 ed.) 304, it is said that the declaration of a living person, however 
 much against his interest, cannot be received unless in case of a 
 party to the suit, or a person identified in interest. In Barrows v. 
 White, 4 B. & C. 328, Littledale, J. says: "It is a general rule that, 
 when a person is living and can be called as a witness, his declara- 
 tion made at another time cannot be received as evidence; thus the 
 declarations of a tenant at the time of his holding, or of a steward, 
 cannot be admitted unless they are dead." The case of Spargo v. 
 Brown, 9 B. & C. 935, is to the same effect. In Phillips v. Cole, 10 
 Ad. & El. 106, it was said : "The declarations of third persons alive, 
 in the absence of any community of interest, are not to be received 
 to effect the title and interest of other persons merely because they 
 are against the interest of those who make them. The general rule 
 of law, that the living witness is to be examined on oath, is not sub- 
 ject to any exception so wide." 
 
 In .Daggett v. Shaw, 5 Met. 228, Bartlett v. Emerson, 7 Gray, 174 
 and Ware v. Brookhouse, 7 Gray, 456, the rule is assumed to be 
 that the admission of such declarations is confined to the declarations 
 of persons who were deceased at the time of the trial. 
 
 As the rejection of the proposed evidence seems to have been upon 
 the general ground of the incompetency of all declarations of tenants, 
 and not restricted to the declarations of living persons, the court are 
 of opinion that the verdict must be set aside and a new trial had,
 
 294 CASES ON EVIDENCE 
 
 applying the rule of law as above stated to the declarations of any 
 tenant, that may be offered in evidence. 
 
 New trial ordered. 
 
 DEAN v. WILKERSON. 
 126 Ind. 338. (1890) 
 
 CoFFEY, J. This was an action by the appellee against the appel- 
 lant on a promissory note executed by the appellant to the appellee. 
 The defense sought to be established in the Circuit Court was that 
 the note in suit was executed without any consideration. 
 
 The note was executed in renewal of two other notes executed by 
 the appellant to Thomas Wilkerson, the father of the appellee, found 
 in the possession of appellee, but not endorsed to him. 
 
 It was contended by the appellant in the Circuit Court that the 
 notes, in renewal of which the note in suit was executed, were the 
 property of Thomas Wilkerson, and for that reason the note in suit, 
 having been made payable to the appellee, was without any consid- 
 eration. 
 
 On the other hand it was contended by the appellee, that the two 
 notes in renewal of which the note in suit was executed had been 
 given to him by Thomas Wilkerson, the father, in a distribution 
 among his children of the notes held by the father. 
 
 The evidence as to whether the appellee was the owner of the two 
 notes above mentioned was conflicting. We will not undertake to 
 weigh the evidence. The objection, therefore, that the verdict of the 
 jury is not supported by the evidence cannot be sustained. 
 
 Finally, it is contended by the appellant that the court erred in 
 admitting the evidence of Alonzo G. Smith, Lafayette Wilkerson and 
 Charles D. Butler. 
 
 The evidence of these witnesses consisted of declarations made 
 by Thomas Wilkerson, father of the appellee, who departed this 
 life before the trial of the cause, to the effect that he had made a 
 gift to the appellee of the notes, in consideration of which the note 
 in suit was executed. 
 
 These declarations were made in the absence of the appellant, and 
 as Thomas Wilkerson was not a party to the suit it is contended
 
 DECLARATIONS AGAINST DECEASED 295 
 
 that his declarations constituted hearsay evidence, and that they were 
 not, for that reason, admissible. 
 
 It is to be observed that Thomas Wilkerson was dead and could 
 not be produced in court as a witness on behalf of the appellee. The 
 declarations introduced in evidence were against the interests of 
 Thomas Wilkerson, and related to a fact about which he possessed 
 competent knowledge. This constitutes one of the exceptions to the 
 general rule upon the subject of hearsay evidence. I Greenleaf Ev., 
 section 147 ; Royse v. Learning, 72 Ind. 182. 
 
 Mr. Greenleaf, vol. I. section 148, in discussing the admissibility 
 of this class of evidence, says : "The ground upon which this evi- 
 dence is received, is the extreme improbability of its falsehood. The 
 regard which men usually pay to their own interest is deemed a 
 sufficient security, both that the declarations were not made under 
 any mistake of fact, or want of information on the part of the 
 declarant, if he had the requisite means of knowledge, and that the 
 matter declared is true." 
 
 We cannot presume that Thomas Wilkerson did not possess knowl- 
 edge as to whether he made a gift to his son, James, of the notes, 
 constituting the consideration of the note in suit ; nor can we presume 
 he would declare he had parted with his title unless such declaration 
 was true. In our opinion the court did not err in admitting his evi- 
 dence. 
 
 There is no error in the record for which the judgment should be 
 reversed. 
 
 Judgment affirmed. 
 
 CURRIER v. GALE. 
 80 Mass. 504. (1860) 
 
 Action of tort for breaking and entering a close in Amesbury. An- 
 swer soil and freehold in the defendant's wife. Trial and verdict 
 for the plaintiff in the Superior Court in Essex at September term, 
 1859, before Morton, J., who reported the case to this court, under 
 St. 1859, c. 196, sec. 32. The facts are stated in the opinion. 
 
 DEWEY, J. It is conceded that Molly Barnard was the legal owner 
 of the premises in 1799, and that the plaintiff as her sole heir at law 
 holds her interest, unless it has been acquired by some third party,
 
 296 CASES ON EVIDENCE 
 
 by conveyance or otherwise. Such transfer of title was attempted 
 to be shown by a mortgage to David Currier ; but that title was found 
 not valid by the jury, under proper instructions from the court, upon 
 which no question is now open. This finding of the jury brings the 
 case to the single question of the rejection of the evidence offered 
 by the defendant to sustain a title acquired by adverse possession. 
 
 The title by adverse possession was alleged to have been acquired 
 by Jacob R. Currier, who received a deed from Mosely, the judgment 
 creditor of David Currier, on the 4th of April, 1823, after his levy 
 of execution. The defendant, who was introduced as a witness on 
 the trial, after testifying that one Webster occupied the premises 
 from about 1825 for a period of twelve or fifteen years, was asked 
 "what Webster had said during the time of his occupation in regard 
 to his occupancy for the purpose of showing that he occupied as ten- 
 ant to Jacob R. Currier, and adversely to the plaintiff." A similar 
 inquiry was proposed as to the declarations of one Bartlett, who sub- 
 sequently occupied the premises, and for the like purpose. The court 
 rejected the evidence. 
 
 The defendant insists that it was competent, under the general 
 rule of admitting the declarations of a party in possession, adverse 
 to his own interest. Such declarations have in various forms and 
 under different circumstances been deemed admissible. The principle 
 upon which they are held admissible is not very clearly settled. When 
 the declaration has been accompanied with an act pointing out some 
 monument or existing mark of boundary it has been allowed. So also 
 as evidence against the party making the declaration, and all persons 
 in privity with him, or claiming under him, it is competent. But the 
 adjudicated cases go somewhat further, and hold that his declaration 
 in disparagement of his apparent title, as indicated by his possession, 
 may be used as evidence that his occupation was an occupation under 
 another person, and thus make his possession to avail in favor of the 
 person stated by him to be his landlord. Thus in Peaceable v. Wat- 
 son, 4 Taunton 16, it was held, that the declarations of a deceased 
 occupant of land stating under whom he occupied as tenant, were 
 admissible Mansfield, C. J., saying: "Possession is prima facie evi- 
 dence of seisin in fee simple; the declaration of the possessor that 
 he is tenant to another makes most strongly therefore against his own 
 interest, and consequently is admissible." Davies v. Pierce, 2 T. R. 
 53, is an authority to the same point. The case of Marcy v. Stone, 
 8 Cush. 4, is directly to the same effect. If these declarations were
 
 DECLARATIONS AGAINST DECEASED 297 
 
 offered as the declarations of deceased persons, while occupying the 
 premises, they would have been therefore admissible. 
 
 On the other hand, if they were offered as the declarations of persons 
 now alive, they ought to be rejected. In L. Phil. Ev. (4th Amer. ed.) 
 304 it is said that the declaration of a living person, however much 
 against his interest, cannot be received unless in the case of a party 
 to the suit, or a person identified in interest. In Barrows v. White, 
 4 B. & C. 328, Littledale, J., says : "It is a general rule that, when a 
 person is living and can be called as a witness, his declaration made 
 at another time cannot be received as evidence; thus the declarations 
 of a tenant at the time of his holding or of a steward, cannot be ad- 
 mitted unless they are dead." The case of Spargo v. Brown, 9 B. & 
 C- 935, is to the same effect. In Phillips v. Cole, 10 Ad. & El. 106, 
 it was said : "The declarations of third persons alive, in the absence 
 of any community of interest, are not to be received to affect the title 
 and interest of other persons merely because they are against the 
 interest of those who make them. The general rule of law, that the 
 living witness is to be examined on oath, is not subject to any excep- 
 tion so wide." 
 
 In Daggett v. Shaw, 5 Met. 228, Bartlett v. Emerson, 7 Gray, 174 
 and Ware v. Brookhouse, 7 Gray, 456, the rule is assumed to be that 
 the admission of such declarations is confined to the declarations of 
 persons who were deceased at the time of the trial. 
 
 As the rejection of the proposed evidence seems to have been 
 upon the general ground of the incompetency of all declarations of 
 tenants, and not restricted to the declarations of living persons, the 
 court are of opinion- that the verdict must be set aside, and a new trial 
 had, applying the rule of law as above stated to the declarations of 
 any tenant, that may be offered in evidence. 
 
 New trial ordered. 
 
 THE COUNTY OF MAHASKA v. INGALLS. 
 16 Iowa 81. (1864) 
 
 This action was brought against the executor of John H. Shoe- 
 make, deceased, and the sureties on his official bond as treasurer. 
 
 The cause was, by consent, referred to three referees "for trial of 
 the facts involved in the issues (made) by the pleadings."
 
 298 CASES ON EVIDENCE 
 
 The referees in their report, find, that from the commencement of 
 Shoemake's term until his death, he was a defaulter in the sum of 
 $3,415.44. They further find "that there was a default on the part 
 of Shoemake on or about the 2Oth of August, 1858, in the sum of 
 $2,700. That we have no means of determining from the evidence 
 when the remainder of the defalcation took place, whether between 
 the 2Oth of August, 1858, and the execution of said bond, nor whether 
 the money constituting the said defalcation or any part thereof was 
 in the hands of Shoemake at the time of the execution of said bond. 
 
 We do not know affirmatively that there was any defalcation after 
 the execution of defendants' bond, nor do we find negatively that 
 there was not any/' 
 
 On the trial before the referees, plaintiff raised certain questions 
 relating to the admission of testimpny, which are set out in the opin- 
 ion; and in the District Court made these the basis of a motion to set 
 aside the report, which was overruled and exceptions taken by the 
 plaintiff. 
 
 On the report, the court rendered judgment in favor of the plain- 
 tiff for $715.44 (being the amount of the whole deficit less the $2,700 
 which occurred before the bond in suit was executed), with interest 
 from the date of the report. From this judgment both parties appeal. 
 
 BILLION, J. Against the plaintiff's objection, the witness was per- 
 mitted to testify as follows : "Mr. Shoemake told me that there was 
 over $2,000 in the summer of 1858, that he was behind as treasurer 
 of the county, and he wanted an arrangement made by which I should 
 pay it. I agreed to fix it up, if Moreland would secure me. 
 
 I afterward saw Moreland, and he agreed to do so, but never done 
 it, and the arrangement was not perfected. This conversation was 
 about August 2Oth, 1858." 
 
 Against the plaintiff's objection, likewise, one Coolbaugh was per- 
 mitted to testify, "That the said John H. Shoemake, in the summer 
 of 1858, stated in the presence of Coolbaugh that he, the said Shoe- 
 make, was then behind with the county of Mahaska, in the sum of 
 about $2,700." , 
 
 The materiality and decisive importance of this testimony are ap- 
 parent from the statement of the case above given, and from the 
 report of the referees, and the judgment of the court thereon; and 
 whether this cause shall be affirmed or reversed, depends solely upon 
 the admissibility in law of this evidence. 
 
 The inquiry, then, as to the state of Shoemake's accounts, at and 
 before the time the bond in suit was executed, was one of indispens-
 
 DECLARATIONS AGAINST DECEASED 299 
 
 able importance. It may be inferred from the report of the referees, 
 that his official books and papers threw no light upon this subject. In 
 this exigency, the sureties offered the testimony of which the plaintiff 
 now complains. This testimony consisted of the 'verbal admissions 
 of their principal on two separate occasions, and to two different 
 persons, prior to the execution of the bond in suit, that he was behind, 
 as treasurer of the county, in the sum of about $2,700. And here 
 it is material to be noted, that these declarations, or more properly 
 speaking, admissions, are distinctly and unequivocally stamped with 
 the following marked features : 
 
 ist. They were made against the pecuniary interest of the de- 
 clarant, for they were of such a nature, so circumstantial and precise, 
 as to constitute in an action against him by the plaintiff, the foundation 
 and evidence of a legal liability to that extent. 
 
 2d. They involved, moreover, the admission of conduct on his part, 
 which would render him, if known, infamous in the eyes of the public, 
 and criminal in the eyes of the law ; for the penal statutes of the 
 State declare, that every officer who shall unlawfully "take, convert, 
 invest, use, loan, or fail to account for, any portion of the public 
 money entrusted to him, shall be imprisoned in the penitentiary, fined 
 in a sum equal to the amount embezzled, and be also disqualified from 
 holding any office under the laws or constitution of the State." Rev. 
 
 4243. 
 
 3d. They were not only made ante lit em mo tarn, but were made 
 long prior to the execution of the bond in suit, and consequently with- 
 out any reference to the controversy which has since arisen. 
 
 4th. The declarant was dead at the time these admissions of his 
 were offered and received as evidence in an action between third 
 parties, viz., between the county and his sureties. 
 
 Such were the circumstances and nature of these admissions, and 
 now the question recurs : Were they competent and legal evidence ? 
 
 If these same facts had appeared by written entries or statements, 
 the deceased party being in a position to know the facts, and the 
 facts being undeniably adverse to his interest, there is no question as 
 to their being receivable in evidence. All the authorities would here 
 agree. 
 
 In the case at bar the declarations were verbal and the question yet 
 remains to be considered whether verbal admissions stand upon the 
 same footing as written ones. 
 
 Our examination and survey of this subject may be thus summed 
 up. This species of evidence being somewhat anomalous in its char-
 
 300 CASES ON EVIDENCE 
 
 acter, and standing on the ultima thuJc of competent testimony, is not 
 highly favored by the courts, and the tendency is rather to restrict 
 than to enlarge the right to receive it, or at least to require the evi- 
 dence to be brought clearly within all the conditions requisite for 
 its reception. From the unbroken current of English and the decided 
 preponderance of American authority, we think the present state of 
 the law is, that verbal declarations are receivable, when accompanied 
 by the following prerequisites: ist. The declarant must be dead. 
 To this we believe the English cases make no exception. More 
 absence from the jurisdiction will not answer. Brewster v. Doane, 
 
 2 Hill (N. N.), 537, and cases; Moore v. Andrews, 5 Port. Ala. 107. 
 Although by the course of decisions in some of the States, with 
 
 reference to written entries, etc., absence might possibly be treated 
 as equivalent to death. See I Greenl. Ev., 163, and note; 8 Watts. 
 77; I Smith, L. Cas., 340 (top) ; as to insanity, Union Bank v. Knapp, 
 
 3 Pick. 96. As, in the case at bar, the declarant was deceased, we 
 need not decide whether death is, in all cases, an indispensable con- 
 dition. We need only say, that probably the courts would not be in- 
 clined to relax the rule so as to dispense with this condition, unless it 
 might be in the case of confirmed insanity. 
 
 2d. The next prerequisite is, that the declaration must have been 
 against the interest of the declarant at the time, and that interest must 
 be a pecuniary one. That it would have subjected the party to penal 
 consequences is not sufficient, although this would add to the weight 
 of the testimony. (Davis v. Lloyd, I C. & K. 275; n Cl. & Fin. 85.) 
 The conflict of the declaration with the pecuniary interest of the 
 party must be clear and undoubted, as this is the main ground upon 
 which the admissibility ef this species of evidence rests. 
 
 3d. The declaration must be a fact or facts in relation to a matter 
 concerning which the declarant was immediately .and personally cog- 
 nizable, ii M. & W. 773. As the evidence is admitted because the 
 declaration is against interest, it is not indispensable that it should 
 accompany an act, but if not so accompanied it very greatly depre- 
 ciates its value. Phillipps Ev., vol. i, p. 310; I Greenl. Ev., 147; 
 Ivat v. Finch, i Taunt. 141 ; White v. Choteau, i E. D. Smith, 493, 
 and cases, supra. 
 
 4th. In addition, the court should, under the circumstances of the 
 particular case, be satisfied that there was no probable motive to 
 falsify the fact declared; as where the declaration is made ante lit em 
 motam, or at a period so remote as to preclude all suspicion that it
 
 PUBLIC AND GENERAL INTERESTS 301 
 
 was manufactured for the occasion. Gilchrist v. Martin, I Bailey 
 Eq., 492, and cases, supra. 
 
 When all of these conditions are met, the evidence is received for 
 what it is worth, and its weight and value depend upon the circum- 
 stances of the particular case. 
 
 Judgment affirmed. 
 
 DECLARATIONS RELATING TO PUBLIC AND GENERAL INTERESTS.! 
 
 ENFIELD v. WOODS. 
 212 Mass. 547. (1912) 
 
 Bill in Equity, filed in the Superior Court on June 9, 1908, by the 
 town of Enfield against Caroline D. Woods, the sole devisee under 
 the will of her late husband Cyrus F. Woods, to enjoin the defendant 
 from removing a soldiers' monument from a parcel of land of about 
 three quarters of an acre known as the "Common" alleged to belong 
 to the plaintiff and to have been acquired by an open, adverse and 
 uninterrupted possession and use and occupation by the plaintiff of 
 more than ninety years. 
 
 The answer alleged ownership of the land by the defendant. 
 
 LORING, T. This case is before us on an appeal from a decree in 
 favor of the plaintiff after all but one of the defendant's exceptions 
 to the master's report had been overruled, and after a plea to the 
 jurisdiction also had been overruled. 
 
 The bill is brought by the town of Enfield as owner of the fee in a 
 lot of land known as the "Common," to enjoin the defendant (who 
 claimed to own the land) from removing from it a soldier's monu- 
 ment erected pursuant to a vote of the town. 
 
 The exception sustained by the Superior Court. was to the finding 
 of the master "that the town did acquire by parol gift title to said 
 'Common' including the land in dispute, and at a time before the year 
 1814." 
 
 The next question or questions submitted to the court by the master 
 concern the admission of the testimony of one Bestor and one Har- 
 wood. Bestor was allowed to testify against the defendant's objection 
 
 i Hughes on Evidence, p. 78.
 
 3<D2 CASES ON EVIDENCE 
 
 that he was seventy-eight years old and had lived in Enfield all his 
 life; that his grandmother, one of the old settlers of the town, came 
 there in 1802 and died in 1857; and that "he had heard his grand- 
 mother and the rest of the old people talk about it and say that 
 Robert Field gave the common and burying ground to the town of 
 Greenwich." Harwood was allowed to testify that his father, who 
 died in 1908 at the age of seventy-eight, told him "that his (the wit- 
 ness's grandfather said that Robert Field gave this piece of land to 
 the South Parish of Greenwich for a common." 
 
 We assume on the report that there was no evidence that the dec- 
 larations made by Harwood's grandfather and those made by Bestor's 
 grandmother and "the rest of the old people" (referred to in his tes- 
 timony) were made "upon the personal knowledge of the declarants." 
 For that reason the testimony cannot be taken to have been admitted 
 under R. L. c. 175, sec. 66. 
 
 These declarations, being declarations upon a matter of general 
 if not of public interest, are within one of the exceptions to the rule 
 excluding hearsay evidence so far as the subject matter of them is 
 concerned; as to this see Hall v. Mayo, 97 Mass. 416, 418; Boston 
 Water Power Co. v. Hanlon, 132 Mass. 483, 484. 
 
 It is generally laid down that evidence to be admissible under this 
 exception to the rule against hearsay must be evidence of a general 
 or common reputation as to the existence or non-existence of the mat- 
 ter of public or general interest. See for example Starkie on Evidence 
 (loth Am. ed.) 47-49; I Phillips on Evidence (6th ed.) 236; I Green- 
 leaf on Evidence (5th ed.) sec. 128; Wigmore on Evidence, sees. 
 1584-5. The statement of the rule heretofore made in our decisions 
 might raise the question whether reputation evidence in this connec- 
 tion means anything more than evidence which is reputed to be the 
 fact as distinguished from evidence which is known by the declarant 
 to be the fact and so to include the individual assertion of a deceased 
 person not made on personal knowledge. See Gray, J., in Hall v. 
 Mayo, ubi supra, and Devens, J., in Boston Water Power Co. v. Han- 
 lon, ubi supra. 
 
 We do not find it necessary to pass upon that question here. For 
 if this exception is limited to cases where there was a general or 
 common reputation, we are of opinion that it would be going too far 
 to limit the exception to cases where the declarant stated that there 
 was a general reputation. Since it is not possible to determine by a 
 preliminary examination whether there was or was not a general
 
 PUBUC AND GENERAL INTERESTS 303 
 
 reputation, we are of opinion that testimony by a witness that he had 
 heard the fact "from old persons" now deceased is competent evidence 
 of a general or common reputation. Bestor's testimony therefore was 
 competent so far as this matter is concerned. And see Wigmore on 
 Evidence, sec. 1584. If it is competent to prove a general or com- 
 mon reputation by the declaration of one person that he had heard 
 the fact from old persons now deceased, it is equally competent tc 
 prove a general or common reputation by putting in evidence the dec- 
 larations of many persons where each declarant heard of the fact 
 from one person only. Where all the residents of the place in ques- 
 tion are severally shown to have made the statement, a general or com- 
 mon reputation is made out in proof. In like manner a general or 
 common reputation where many although not all are shown to have 
 made individual assertions of the fact. We are therefore of opinion 
 that Harwood's testimony, in connection with Bestor's was admis- 
 sible so far as this consideration is concerned. 
 
 It has been said that evidence, to be admissible under this exception 
 to the rule against hearsay, must be evidence of the general right and 
 not of particular facts. Starkie on Evidence (10 Am. ed.) 49. I 
 Phillips on Evidence (6th ed.) 638. The Queen v. Bliss, 7 A. E. 550. 
 But as it is pointed out in Wigmore on Evidence, sec. 1585, the more 
 correct statement of this limitation of the exception here in question 
 is that the declarations to be admissible must be declarations of the 
 public or general right and not of the particular exercise of it. It is 
 no objection to Bestor's and Harwood's testimony that the declara- 
 tions testified to by them dealt with the particular fact that the com- 
 mon right began in a parol gift made by Robert Field, for whom the 
 plaintiff town was named. 
 
 Decree affirmed. 
 
 SOUTH-WEST SCHOOL DISTRICT v. WILLIAMS. 
 48 Conn. 505. (1881) 
 
 Civil action to recover for an entry into and injury to a school- 
 house belonging to the plaintiffs; brought originally before a justice 
 of the peace and by appeal to the Superior Court in Tolland county, 
 and there tried to the jury before Harvey, J. Verdict for the plain- 
 tiffs and motion for a new trial by the defendants.
 
 304 CASES ON EVIDENCE 
 
 LOOM is, J. The complaint alleges a malicious injury by the de- 
 fendants to the school-house and furniture therein belonging to the 
 plaintiffs. The defendants' answer denies the ownership of the plain- 
 tiffs, and alleges that the school-house belonged to Ruth A. Williams 
 one of the defendants. 
 
 The counsel for the defendants called upon Ruth A. Williams, one 
 of the defendants, as a witness, and for the purpose of proving the 
 time when the school-house was erected by the plaintiffs, asked her 
 "Did your mother or great-grandmother tell you when the school- 
 house was built before or after the death of Joseph Webster?" 
 which, upon the plaintiffs' objection, was excluded by the court. 
 
 The pbjection was not to the fact which is conceded to have been 
 material but only to the mode of proving it, namely, by the declara- 
 tions of the witness's mother and great-grandmother. 
 
 In support of the claim that the evidence was admissible the de- 
 fendants invoke the benefit of an exception to the general rule exclud- 
 ing hearsay evidence upon the ground that the matter in question was 
 of public and general interest. 
 
 As included within this exception the authorities mention boundaries 
 of counties, towns and other territorial divisions, rights of common, 
 claims of highways and ferries, and in this and some other states the 
 boundaries of lands of individuals. But no such fact as the one now 
 in question has ever been mentioned as proper to be included in this 
 class. 
 
 The fallacy on the part of the defendants seems to be in assuming 
 that because a school-house is a public building for a public purpose, 
 the precise date of its erection must also be matter of public or gen- 
 eral interest to be proved by traditionary evidence; and therefore one 
 of the defendants attempts, by repeating the unsworn statement of 
 her deceased mother or grandmother as to a date, to change this 
 public matter of a school-house into her own private property. 
 
 And this well illustrates the danger of extending the exception so 
 as to embrace particular facts and dates. In this case there was doubt- 
 less other and better evidence to be found in the records of the school 
 district or from living witnesses. But however this may have been, a 
 reference to the reason for admitting traditionary evidence in public 
 matters will show that particular dates like this ought not to be in- 
 cluded. The law does not dispense with the sanction of an oath and 
 the test of cross-examination as a prerequisite for the admission of 
 verbal testimony, unless it discovers in the nature of the case some 
 other sanction or test deemed equivalent for ascertaining the truth.
 
 PUBLIC AND GENERAL INTERESTS 305 
 
 The matters included in the class under consideration are such 
 that many persons are deemed cognizant of them and interested in 
 their truth, so that there is neither the ability nor the temptation to 
 misrepresent that exists in other cases; and the matters are presum- 
 ably the subject of frequent discussion and criticism, which accom- 
 plishes in a manner the purpose of a cross-examination, while the 
 persons whose declarations are offered in evidence must have been 
 in a situation to know the truth. After passing such an ordeal it is 
 reasonably safe to accept the result as established fact. But if the 
 fact to be proved is a particular date, though connected incidentally 
 with a public matter, it is easy to see that it could not stand out as a 
 salient fact for contemporaneous criticism and discussion so as to 
 furnish any guaranty for its correctness ; so that the general rule ex- 
 cluding hearsay evidence applies in full force. The human memory 
 is proverbially treacherous even in regard to very recent dates, and 
 little reliance can be placed on the sworn testimony of living wit- 
 nesses in such matters, unless they are able to associate with date 
 some more striking fact. 
 
 The ruling of the court excluding the evidence is vindicated not 
 only by the reasons we have given, but also by decided cases which 
 are so similar to the case at bar as to be identical in principle. 
 
 In Frazer v. Hunter, 5 Cranch C. C. 470, it was held that when 
 the question is upon a disputed boundary line the court will not permit 
 hearsay evidence to be given that a particular object, such as a spring, 
 was in the land of one of the parties. 
 
 In Ireland v. Powell, Peake's Evidence, 14, where the question was 
 whether a turnpike was erected within or out of the limits of the town 
 of Wem, Mr. Justice Chambre permitted the plaintiff, who contended 
 that it was within the town, to give evidence of general reputation 
 that the town extended to a close called the Townsend Piece, and 
 that old people since deceased had said that such was the boundary 
 of the town; but he would not suffer it to be proved that those per- 
 sons had said that there were formerly houses where none then stood, 
 observing that this was evidence of a particular fact and not of gen- 
 eral reputation. See also Cooke v. Banks, 2 Car. & P., 478; Weeks 
 v. Sparke, I Maule & Selw. 687. And in I Swift's Digest, 766, it is 
 said that the tradition of a particular fact is not admissible. 
 
 A new trial is not advised. 
 
 In this opinion the other judges concurred.
 
 306 CASES ON EVIDENCE 
 
 CADWALADER v. PRICE. 
 in Md. 310. (1909) 
 
 BOYD., C. J. This is an appeal from a judgment rendered in favor 
 of the defendant (appellee) in an action of ejectment instituted in 
 Harford county and removed for trial to the Superior Court of Balti- 
 more City. The land sued for is described in the declaration by 
 courses and distances, and contains one-half acre, more or less. 
 
 The parcel of land claimed by defendant as the landing is less than 
 half an acre, and while most of the witnesses did not know the bound- 
 aries of it except as pointed out in 1883 by Jackson Dorney, there 
 was unquestionable evidence tending to show that there was a parcel 
 of land known as King's Creek. 
 
 He went upon the land in 1883 and pointed out to a number of 
 persons, who were witnesses in this case, the lines of King's Creek 
 Landing telling them that a line between two stones which were 
 then there (and the places where they stood were located on the 
 plat by the surveyor) was the western boundary, and a marsh from 
 the north stone to King's Creek was the northern boundary and 
 King's Creek was the eastern and southern boundaries. There ought 
 no longer to be any question in Maryland about the right to prove 
 private boundaries by the declarations of deceased persons, subject, 
 of course, to certain well recognized limitations. If such evidence 
 were excluded, on the ground that it was hearsay, it would be impos- 
 sible, in portions of the State where there is still controversy over 
 boundary lines, to establish the corners and lines of ancient tracts. It 
 is said in Dorsey on Ejectment, 57-58: "It may be asked, how can 
 a witness be called to identify a boundary made in 1680? The law 
 does not require this. It is generally true that hearsay is not evidence ; 
 yet from necessity there are certain exceptions. The inquiries of a 
 jury are directed to identify a boundary, and it may be proved by 
 traditional evidence. The rules of evidence permit a witness to refer 
 to the declarations of a deceased person who was on the survey. 
 As in consanguinity, so boundaries may be proved by hearsay evi- 
 dence; but the declarations of living witnesses cannot be received, nor 
 the declarations of a person interested in establishing the fact." 
 
 It was held by the Provincial Court in Howell v. Tilden, i H. & 
 McH. 84 that: "Traditional evidence of what an ancestor of the 
 plaintiff, who was seized of the lands in question fifty years ago, 
 at that time did say concerning the bounds of those lands, ought
 
 307 
 
 be given in evidence to the jury, and the weight of it left to 
 the jury." Redding v. McCubbin, i H. & McH. 368, is to the same 
 effect In Ridgely v. Ogle, 4 H. & McH. 123, it was held that: "A 
 plat returned in an ancient ejectment is admissible in evidence upon 
 the same principle that hearsay evidence is allowed to prove bound- 
 aries." See also Scott v. Ollabaugh, 3 H. & McH. 511, and Snavely 
 v. McPherson, 5 H. & J. 150. In Hall v. Gittings, 2 H. & J. 121, 
 the declarations of a former holder of the adjoining lands as to the 
 bounds of the land in dispute were held competent and admissible 
 in evidence, it not appearing to the court by the plots that he was 
 interested in establishing the truth of the facts related by him to 
 the witnesses. See also Bladen v. Cockey, I H. & McH. 232; Weems 
 v. Disney, 4 H. & McH. 156. Other cases might be cited, but they 
 cannot be found either in the notes in Dorsey on Ejectment or in Mr. 
 Brantly's Annotated Edition of the early cases. Although in the 
 later decisions of this court the question may not have been passed 
 on, it is because the rule has been too generally recognized to admit of 
 controversy. An examination of the records in some of the latter 
 cases will doubtless show that such testimony has been received, and 
 the writer of this opinion knows that in the many actions of ejectment 
 and trespass quare clausam freglt which have arisen in Western Mary- 
 land it has been the unquestioned practice to prove boundaries by 
 traditional evidence. 
 
 The general rule in this country is thus stated in 4 Am. & Eng. 
 Ency. of L. 851: "Declarations of deceased persons are admissible 
 in evidence in questions relating both to public and private boundary 
 lines, provided they were made ante litem motam and by a person 
 who had peculiar means of information, and who had no interest 
 in the matter at issue at the time they were made." In 5 Cyc. 956, 
 it is said : "Hearsay evidence as to boundaries is admissible when 
 there has been so great a lapse of time as to render it difficult to prove 
 the original boundary lines by the existence of the primitive land- 
 marks," and on page 957, "Reputation or tradition is very generally 
 held to be admissible in evidence to prove an ancient boundary, 
 whether public or private, although in England and a few of the 
 United States its admissibility to prove a private boundary is limited 
 to cases where it is shown that such boundary is co-incident with a 
 public or quasi-public one. Such reputation or tradition must, how- 
 ever, be ascertained as to the subject-matter as direct evidence would 
 be, and it is not admissible to contradict evidence of record; and in
 
 308 CASKS ON EVIDENCE 
 
 all cases proof of ancient boundaries by common reputation must 
 have reference to a time ante litcin motaui." 
 
 In this case the declarations of Jackson Dbrney were made at a 
 time he had no interest in making them, before any controversy about 
 the land in question had arisen, when he was pointing out the bound- 
 aries and he had died some years before the trial. He was the 
 former owner and occupant of the farm and landing and hence was 
 familiar with the facts. 
 
 Judgment affirmed, the appellant to pay the costs above and below. 
 
 HATHAWAY v. GOSLANT. 
 77 Vt. 199. (1904) 
 
 Trespass or cutting and drawing away trees from plaintiff's land. 
 Plea, the general issue. Trial by jury at September Term 1903. 
 Washington county, Haselton, J., presiding. Verdict and judgment 
 for the plaintiff. The defendant excepted. 
 
 The evidence on both sides showed that the plaintiff's farm is 
 bounded on the east by the town of Marshfield, on the south by land 
 of Fred Lamberton, on the north by land of Henry Dow. 
 
 The exceptions state that : "There was no controversy regarding 
 any line of the plaintiff's land, or of Dow's, except the line between 
 Dow and the plaintiff. That line was in controversy. The plaintiff 
 claimed that it went northerly of the line claimed by Dow. The 
 points of controversy on the Marshfield town line were six rods apart, 
 between Dow and the plaintiff. The dispute was as to the timber 
 cut between those two lines. 
 
 The plaintiff's evidence tended to show that a certain ash tree, 
 which was one in question, was a line tree between his. farm and 
 Dow's while the defendant's evidence tended to show that this tree 
 was on Dow's land, a few feet from the line that Dow claimed to; 
 and that he purchased the tree of Dow. The evidence also tended to 
 show that the plaintiff's father owned the land in question for many 
 years, and until his death in 1886. The plaintiff was called as a wit- 
 ness, and the following questions and answers were admitted, against 
 the objection and exception of the defendant: "Q. Now, speaking 
 about this ash tree, I ask if at some time your father told you that 
 was the line between his land and the land which is called the Dow
 
 PUBLIC AND GENERAL INTERESTS 309 
 
 land in this trial? A. Yes, sir. Q. And when was this? A. 
 A year or two before he died in 1886. He died in 1886, and I mean 
 a year or two before that." The plaintiff had previously testified 
 that there never was, to his knowledge, any dispute as to this line up 
 to the time of the cutting of the timber in question in 1901. In the 
 court below, the objection to this evidence was general, and in this 
 court, the only reasons urged by the defendant why the evidence 
 should have been excluded are, that the first question was leading, 
 and that "the subject-matter of the examination as inquired about 
 was not admissible." It does not appear that the defendant objected 
 to the question because it was leading, nor that the court did not 
 allow the question to be answered as a matter of discretion; and 
 for these reasons the objection that the question was leading is not 
 sustained. The objection, that "the subject-matter of the examination 
 as inquired about was not admissible," presents no question respect- 
 ing the qualification of the plaintiff's father to speak upon the subject 
 of the line in question; and we have only to consider whether the 
 subject-matter was a proper subject of inquiry. The admissibility of 
 declarations to show boundaries has been considered by this court in 
 several reported cases, and while the holdings have not been entirely 
 uniform, as will be seen from an examination of the cases of Wood 
 v. Willard, 36 Vt. 82; Turner Falls Lumber Co. v. Burns, 71 Vt. 
 354; Evarts v. Young, 52 Vt. 329; Childs v. Kingsbury, -46 Vt. 47, 
 and Powers v. Sibley, 41 Vt. 288, we think the better reasoning is 
 found in those cases where it is held that declarations similar to those 
 in question are admissible; and we hold that the questions which were 
 objected to related to a proper subject of inquiry. In Wood v. Wil- 
 lard, 37 Vt. 377, it is held, that the declarations of deceased persons 
 who had actual knowledge as to the location of a disputed boundary, 
 or, who, from their connection with the property itself, or their situ- 
 ation and experience in regard to such boundaries and the surveys 
 thereof, had peculiar means of knowledge of the same, made at a 
 time when they had no interest to misrepresent, and made when upon 
 or in the immediate vicinity of the boundary referred to, and point- 
 ing it out, are admissible evidence as to the location of such boundary, 
 when, from lapse of time, there can be no reasonable probability that 
 evidence can be obtained from those who had actual knowledge on 
 the subject. But this rule has been somewhat modified by subsequent 
 holdings. Thus, in Powers v. Sibley before cited, it is held, that it 
 is not necessary that the declarant be upon or in the immediate vicin- 
 ity of the boundary in dispute, and pointing it out, in order to make
 
 310 CASES ON EVIDENCE 
 
 his declaration admissible. In this case the declaration was held 
 admissible, notwithstanding it did not accompany and give character 
 to any act affecting the declarant's title. In Childs v. Kingsbury and 
 Turner Falls Lumber Co. v. Burns before cited, it is held, that the 
 rule that the declarant must have no interest to misrepresent does 
 not require that he be wholly disinterested in the subject. In both 
 of these cases it is held, that the fact that the declarant is the owner 
 of the land at the time the declaration is made does not show that he 
 is interested to misrepresent; and that declarations made by such 
 owners of land, who have since deceased, are admissible. In Wood 
 v. Willare, 36 Vt. 82, it is said, that there are cases where a party may 
 prove his own declarations, or those of a former owner, in his own 
 chain of title, where they accompany an act, or a possession, as giving 
 it explanation and character; and in Evarts v. Young, before cited, 
 it is said that a party is not allowed to show his own declarations, or 
 the declarations of those through whom he claims title, in his own 
 favor, unless such declarations accompany and give character to some 
 act affecting his title, and so become a part of the res gestae. The 
 rule thus stated is a rule of general application, and allows declara- 
 tions to be shown when they accompany and give character to acts, 
 as a part of the res gestae, when the act itself is admissible as evi- 
 dence; and declarations respecting boundaries may be made under 
 circumstances that bring them within this rule, but their admission 
 is not controlled by it. The rule which permits a party to show the 
 declarations of a person who has deceased, respecting boundaries, 
 is an exception to the rule that excludes hearsay evidence; and under 
 it, such declarations may be received as evidence, notwithstanding 
 they are not a part of the res gestae, and their admission is not de- 
 pendent on whether they accompany and give character to some act 
 affecting the declarant's title. Wood v. Willard, 37 Vt. 377. 
 
 Judgment affirmed.
 
 PUBLIC AND ANCIENT DOCUMENTS 311 
 
 PUBLIC AND ANCIENT DOCUMENTS.! 
 
 LINDSAY v. CITY OF CHICAGO. 
 115 III. 120. (1885) 
 
 CRAIG, J. This is an appeal from a judgment of the County Court 
 of Cook County, confirming a special assessment. What purports 
 to be a copy of the ordinance is attached to the petition. It was es- 
 sential for the city, in order to obtain a judgment or confirmation, to 
 aver and prove that an ordinance authorizing the improvement had 
 been passed. 
 
 But it is contended that the evidence before the court established 
 the existence of an ordinance, while on the other hand it is contended 
 that the passage of an ordinance could only be established by the pro- 
 duction of the journal containing the proceedings of the city council, 
 and that the journal must show that the yeas and nays were taken, 
 and that a majority of the members elected voted for the ordinance 
 on the call of the yeas and nays. 
 
 It is too plain to admit of argument, that where the ordinances of 
 a town or city have been printed in book or pamphlet form, pur- 
 porting to be published by authority of the board of trustees or city 
 council, the book shall be received as evidence of the passage of the 
 ordinance, because this is the plain language of the statute. But 
 a book of ordinances was not put in evidence. The petitioner, in lieu 
 of the book, put in evidence a certified copy, attested by the clerk, 
 under the seal of the corporation. This, in our opinion, proved 
 the passage of the ordinance as effectually as the fact would have 
 been proven had a printed book of ordinances been admitted. The 
 language found in the first part of section 4, "All ordinances, and 
 the date of publication, may be proven by the certificate of the clerk, 
 under the seal of the corporation," will admit of no other construc- 
 tion. It is said this means that you may thus prove the contents of 
 an ordinance. But such is not the language of the act. The legisla- 
 ture no doubt intended, by the use of this language, that a certified 
 copy of an ordinance, under the seal of the corporation, made by the 
 clerk of the council, should have the same force and effect, as evi- 
 dence, as a printed book of ordinances, which, in express terms, is 
 
 Hughes on Evidence, pp. 83 and 91.
 
 312 CASES ON EVIDENCE 
 
 made evidence of the passage and publication of an ordinance. 
 
 The judgment of the County Court will be affirmed. 
 
 BOSTON WATER POWER CO. v. JAMES HANLON. 
 132 Mass. 483. (1882) 
 
 Writ of entry to recover a parcel of land in Brookline. Plea, nul 
 disseisin. At the trial in the Superior Court, before Colburn, J. the 
 jury returned a verdict for the tenant; and the demandant alleged 
 exceptions to the exclusion of certain evidence, the nature of which 
 appears in the opinion. 
 
 DEVENS, J. The finding of the judge who presided at the trial that 
 the plottings for plans and the field notes of Mather Withington, a 
 surveyor long since deceased, did not appear to have been made by 
 the authority or procurement of the grantors of either party to this 
 action, cannot be here reviewed. Walker v. Curtis, 116 Mass. 98, 
 they did not come from the custody of either party to this action, 
 but from that of the administratrix of Withington. The demandant 
 contends that they were admissible for the purpose of showing the 
 true location of a creek which was the boundary line of the mill cor- 
 poration under whom the demandant claimed, and thus its relation 
 to what was known as the Punch-Bowl Road, in the same way that 
 ancient maps, plans and deeds between strangers are held admissible. 
 Sparkhawk v. Bullard, I Met. 95. Morris v. Callanan, 105 Mass. 129. 
 Drury v. Midland Railroad, 127 Mass. 571. 
 
 The evidence of such ancient documents is admitted upon the 
 ground that, although between strangers, they are of such a character 
 as usually accompany transfers of title or acts of possession, and 
 purport to form a part of actual transactions referring to coexisting 
 subjects by which their truth can be tested, and there is deemed to 
 be a presumption that they are not fabricated. But plottings for 
 plans and field notes are memoranda only, which may never have 
 been acted on. They are preparations for a transaction which may 
 never have taken place. The fact that they are so full that plans 
 could be made from them is not important; they still lack the ele- 
 ment which makes plans admissible. 
 
 Nor are they admissible as the declarations of a person deceased. 
 The rule which permits the introduction of reputation of tradition,
 
 PUBUC AND ANCIENT DOCUMENTS 313 
 
 or declarations of persons deceased, as to matters of public or general 
 interest, does not extend to questions of private boundary. Hall v. 
 Mayo, 97 Mass. 416. 
 
 As we are of opinion that the plottings and field notes were rightly 
 rejected, which was the only question argued before us, the entry 
 must be 
 
 Exceptions overruled. 
 
 LAWRENCE v. TENNANT. 
 64N.H. 53 2. 
 
 Trespass, qu. cl. for cutting down and carrying away trees growing 
 on the plaintiff's land in Epsom. Facts found by a referee. The 
 defendants justified under one Steele, who was the owner of two 
 "Home" lots lying adjacent to the plaintiff's land in the "Gore" so- 
 called. The question was as to the true location of the line between 
 the Home lots and the Gore, that being the line between the plaintiff's 
 land and that of Steele. The plaintiff was shown a plan which was 
 marked "plot of the town of Epsom, taken on a scale of 100 rods 
 to an inch July 2, 1800, D. L. Morril," and testified, "That plan 
 was given to my father by Dr. Sam Morril, brother of Gov. Morril, 
 who made it. We gave it to Nathan Griffin," Upon cross-examina- 
 tion he testified, "Father told me Dr. Morril gave it to him. I saw 
 this plan when father was plowing, when I was a young man; am 
 now sixty-nine years old. When I first saw it, it was at our house. 
 Nathan Griffin told me father gave it to him. Father used to have it 
 in his surveying tools. Father was a surveyor. Can't tell how long 
 from first time to last time I saw it in father's possession. Father 
 lived where I lived. He lived there till he died. Father died about 
 1858." 
 
 George W. Lane, a surveyor, was shown this plan, and testified, 
 "I have seen Morril plan.. I have had it, and handed it to one of 
 plaintiff's counsel. I had it of Mr. John Dolbear, of Epsom, who 
 wrote History of Epsom for County History. I have had this plan 
 before this ; the first time I went to survey these premises I had this 
 plan with Master Nathan Griffin, an old surveyor; had it in 1884 - 
 October, I think." Upon this evidence, and subject to exception the 
 plan was ruled in.
 
 314 CASES ON EVIDENCE 
 
 BLODGETT, J. The true rule as to receiving documents, ancient 
 or otherwise, in evidence is conceived to be this: The party offering 
 the paper must make out a pritna facie case for its inspection ; he must 
 show that the paper is apparently as he contends. If he wholly fail 
 to do this, the court should reject the paper; but if there be a reason- 
 able probability established that the paper is what it purports to be, 
 the question then becomes one for the jury, and the paper ought to 
 go before them with proper instructions. 
 
 The real question affecting the consideration of such documents 
 with the tribunal before which they are offered is, whether they are 
 genuine, and contain a true statement of what they purport to con- 
 tain. If found to possess these requisites there is no reason why they 
 may not be read in evidence. Gibson v. Poor, 21 N. H. 446. In this 
 case both of these requisites appear. An inspection of the plan leaves 
 no doubt that it is an ancient and much worn document, and, taken 
 in connection with the reported evidence, establishes a reasonable 
 probability that it is what it is marked and purports to be, namely, 
 "A plot of the town of Epsom, taken on a scale of one hundred rods 
 to an inch in the year 1800, by D. L. Morril." 
 
 The antiquity and genuineness of the plan thus appearing, it was of 
 course admissible if made by public authority; and if not so made, 
 it was none the less admissible, there having been preliminary evidence 
 of its correctness. Other grounds of admissibility need not be con- 
 sidered. 
 
 Judgment for the plaintiff on the report. 
 
 WHITMAN v. HENEBERRY. 
 75 ///. 109. (1874) 
 
 By CRAIG, J. This was an action of ejectment, brought by Mathew 
 Henneberry in the Circuit Court of Marshall county, against appel- 
 lants to recover a certain quarter section of land in Marshall county. 
 The venue of the cause was changed to Peoria county, where a trial 
 was had before a jury, which resulted in a verdict in favor of ap- 
 pellee. The court overruled a motion for a new trial, and rendered 
 judgment upon the verdict. 
 
 The patent, the original deed from Clark to Eldred, and the deed
 
 PUBLIC AND ANCIENT DOCUMENTS 315 
 
 from Hodges to Henneberry, were all burned in the office of Burns 
 & Barnes, in Lacon, on the i6th day of April, 1871. 
 
 The deed from Clark to Eldred was not acknowledged as required 
 by law in force at the time it was executed. It was however, allowed 
 to be read in evidence by the court as an ancient deed, and in this, 
 it is insisted by the appellants, the court erred, for the reason, as it 
 is claimed, the proper foundation was not laid to permit the instru- 
 ment to be read as an ancient deed. 
 
 Deeds that are more than thirty years old are called ancient deeds, 
 and they are admitted in evidence without proof of execution; but 
 before this can be done, it must appear that the instrument comes 
 from such custody as to show a reasonable presumption of its genu- 
 ineness, and facts and circumstances must be proven which will 
 establish the fact that the instrument has been in existence the length 
 of time indicated by its date. 
 
 It is difficult to lay down a general rule as to the character of 
 proof necessary to be given; but where the deed comes from the 
 proper custody and facts and circumstances are proven to the court 
 from which it may be reasonably inferred that the deed has had an 
 existence for over thirty years, such ought to be sufficient, where it 
 is entirely free from any just ground of suspicion. 
 
 The deed was shown to be in existence for a period of over fifty 
 years, and shown to be in custody of Eldred and his heirs who were 
 claiming to own the land under it, and paying the taxes from year to 
 year. 
 
 We are aware of no act that could have been done by Eldred or his 
 heirs that would have entitled them, or their grantee," to a more favor- 
 able consideration in a court of justice in regard to the deed, unless 
 they had taken actual possession of the land under the deed, which in 
 law they were not bound to do in order to be entitled to read it in 
 evidence as an ancient deed. 
 
 Judgment affirmed. 
 
 GIBSON v. POOR. 
 21 N. H. 441. (1850) 
 
 Trespass, for breaking and entering the close of the plaintiffs, in 
 Goffstown, and carrying away a quantity of their wood and timber. 
 Plea the general issue.
 
 316 CASES ON EVIDENCE 
 
 The jury returned a verdict for the defendant, and the plaintiffs 
 moved to set the same aside and for a new trial, for supposed error 
 in the rulings of the court. And the questions arising upon said 
 motion were transferred to this court for decision. 
 
 EASTMAN, J. It is believed to be a well settled principle, that lines, 
 monuments, and boundaries which are established and undisputed, 
 although not immediately connected with the land in controversy, are 
 nevertheless proper and competent evidence to be considered by a 
 jury, where they tend to elucidate the subject in dispute. The man- 
 ner in which the lands of this country were originally surveyed and 
 occupied, has rendered such kind of evidence oftentimes the most 
 satisfactory in ascertaining the true line between .adjoining lots, or 
 the line adopted and recognized as true by the original settlers. Mr. 
 Greenleaf, in his work on evidence, remarks, that by far the greatest 
 portion of our territory was originally surveyed in large masses or 
 tracts, owned either by the State, or by the United States, or by one 
 or a company of proprietors ; under whose authority these tracts were 
 again surveyed and divided into lots suitable for single farms, by 
 lines crossing the whole tract and serving as the common boundary 
 of very many farm lots lying on each side of it. So that it is hardly 
 possible to prove the original boundaries of one farm without affect- 
 ing the common boundary of many, i Greenleaf. Ev. sec. 145, note. 
 These remarks apply in their full force to the original survey of lands 
 in this State. Proprietors of tracts and townships held their meetings, 
 appointed their surveyors, run out their lands, made plans and maps 
 of the same, drew their rights and made conveyances when deemed 
 necessary. These records and plans are the source of most of the 
 titles to real estate within our limits; and when properly verified are 
 always received in evidence in all matters to which they refer. Such 
 is the constant practice of the courts in this State, and such is also 
 the general practice of most other jurisdictions. Records of original 
 proprietors, their plans and maps, the location of lands by the ancient 
 settlers, and all evidence, whether documentary or parol, which bears 
 upon the point at issue and is not inadmissible upon general prin- 
 ciples, is received in cases of disputed boundary. In Smith v. Perwitt, 
 2 A. K. Marsh. (Ky.) Rep. 158, it is said that boundary may be 
 proved by every kind of evidence which is admissible to establish 
 any other fact; and, where the boundary is ancient, even reputation 
 is admissible. To the same effect are Taylor v. Rowe et al. 4 Hawks, 
 116; Smith v. Norvells, 2 Littell, 159; Ralston v. Miller, 3 Rand. 44. 
 In some respects courts have gone farther in breaking over established
 
 PUBLIC AND ANCIENT DOCUMENTS 317 
 
 principles of evidence upon this subject than upon almost any othen. 
 Hence hearsay, not amounting to tradition or general reputation, but 
 from a single individual, is received upon this subject. Some courts 
 confine this description of evidence to boundaries of parishes and such 
 tracts as are of general and public interest, while others admit it in 
 all controversies, whether pertaining to public or private rights. The 
 English rule confines it to matters of public and general interest, and 
 the same rule is adopted in some of the United States ; while in other 
 states the evidence is freely admitted without regard to the nature or 
 character of the tract in dispute, or the parties interested therein. 
 Among the numerous authorities bearing upon this matter may be 
 enumerated, Boardman v. Read, 6 Peters, 341 ; Buchanan v. Moore, 
 10 Serg. & Rawle. 281; McDonald v. McCall, 10 Johns. 377; Spear 
 v. Gate, 3 McCord, 227; Wooster v. Butler, 13 Conn. 309; Weems 
 v. Disney, 4 Har. & McH. 158. In this State the rule is, that state- 
 ments of deceased individuals who from their situation had the means 
 of knowledge and no interest to misrepresent, are admissible. Shep- 
 herd v. Thompson, 4 N. H. Rep. 213. The practice under this decision 
 has been, not to limit the evidence to subjects of general interest, but 
 to extend it to all matters of boundary, whether pertaining to public 
 tracts or private rights. 
 
 The evidence in regard to the plan found in possession of Gilchrist, 
 was also competent to be considered. Had this plan been produced 
 from among the records of the town-clerk, having been received by 
 him from his predecessor in office, there would probably have been 
 no question made respecting it ; for notwithstanding it is without date, 
 yet being ancient, and made by Patten and the records showing that 
 Patten with another was appointed to survey the town into lots, the 
 whole current of authorities sustains its admissibility. Chapman v. 
 Cowlan, 13 East. 10; i Phil. Ev. 418; Ib. 481 ; 4 Esp. i ; 6 Dow. 202; 
 Hewlet v. Larroway, 3 Johns. Ca. 283 ; i Green. Ev. sec. 142. 
 
 The reason why it is required that an ancient document shall be 
 produced from the proper depository is, that thereby credit is given 
 to its genuineness. Were it not for its antiquity, and the presumption 
 that consequently arises that evidence of its execution cannot be 
 obtained, it would have to be proved. It is not that any one particu- 
 lar place of deposit can have mqre virtue in it than another, or make 
 that true which is false, but the fact of its coming from the natural 
 and proper place tends to remove presumptions of fraud and 
 strengthens the belief in its genuineness. It may be false, and so 
 shown, notwithstanding the presumptions in its favor. If found
 
 318 CASKS ON EVIDENCE 
 
 where it would not properly and naturally be, its absence from the 
 proper place must be satisfactorily accounted for; but that being done 
 and all suspicion against its genuineness removed, we can discover 
 no reason why it may not be read in evidence. The real question 
 which is to affect its consideration with the jury is, whether the in- 
 strument offered is genuine, and contains a true statement of what 
 it purports to. In The Bishop of Meath v. Marquis of Winchester, 2 
 Bing. 183, Tindal, C. J., speaking of ancient documents, holds this 
 language. "It is not necessary that they should be found in the best 
 and most proper place of deposit. If documents continued in such 
 custody, there never would be any question as to their authenticity; 
 but it is when documents are found in other than their proper place 
 of deposit, that the investigation commences whether it was reason- 
 able and natural under the circumstances in the particular case, to 
 expect that they should have been in the place where they are actually 
 found ; for it is obvious, that 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 
 being more so, some less; and in those cases the proposition to be 
 determined is, whether the actual custody is so reasonably and prob- 
 ably accounted for, that it impresses the mind with the conviction, 
 that the instrument found in such custody must be genuine." Some 
 authorities hold, that the antiquity of the document is alone sufficient 
 to entitle it to be read, and that the other circumstances only go to 
 its effect in evidence. 2 Poth. Ob. App. XVI. sec. 5, p. 149. See also 
 Jackson v. Larroway, Johns. Ca. 283; Doe v. Burdett, 4 Ad. & El. I. 
 
 Judgment on the verdict. 
 
 BERTRAM v. WITHERSPOON'S, Admr. 
 138 Ky. 116. (1910) 
 
 HOBSON, J. Carrol Markham died a resident of Warren county 
 on February 22, 1881, the owner of certain real estate. He left 
 surviving him two daughters, Alice Witherspoon, the wife of Thomas 
 Witherspoon, and Sadie Markham, now Sadie Bertram. Mrs. Wither- 
 spoon died about the year 1888, leaving surviving her a son Porter 
 Witherspoon. After her death, her husband married a second time, 
 and by his second wife had two sons. He and his second wife died
 
 PUBLIC AND ANCIENT DOCUMENTS 319 
 
 about 10 years later. Porter Witherspoon died February 4, 1904, 
 and this controversy has arisen between his aunt, Sadie Bertram, 
 and his two half-brothers, the children of his father by his second 
 marriage, as to who inherited from his mother, and she inherited from 
 her father, Carroll Markham. 
 
 The case turns purely on a question of fact, and on such matters 
 we give some weight to the judgment of the chancellor, and do not 
 disturb his finding where the evidence is conflicting, and on the whole 
 case the mind is left in doubt. The aunt introduced five or six wit- 
 nesses, who knew the family, and fixed the age of Porter by refer- 
 ence to the ages of their own children or other circumstances testifying 
 that he was born in April, 1883. On the other hand, the plaintiff 
 introduced several persons, who had equal means of knowing and 
 fixed the birth of the child in about the same way testifying that he 
 was born in April, 1882. The numerical preponderance of the testi- 
 mony is with Mrs. Bertram, but the following facts support the con- 
 clusion of the chancellor : Porter himself said on different occasions 
 that he was born in April, 1882. In April, 1903, he settled with his 
 guardian, and took charge of his property. None of his relatives 
 at that time raised any question that he was not of age. On the con- 
 trary, Mrs. Bertram then told the tenant who was living on the land 
 that Porter was of age, and that the tenant should pay the rent to 
 him. In addition to this, the family Bible is produced, which shows 
 that he was born in April, 1882; and, while the handwriting of the 
 entry is not shown to be that of his father, the fact that there was 
 this entry in the family Bible is some evidence, it not appearing who 
 made it, for it clearly appears that it was in the Bible at his father's 
 death, and long before there was any question raised about his age. 
 He was the only child born in the family, and so this was the only 
 birth entered in the Bible. In cases of this sort, where all the par- 
 ties are dead, the entry in the family Bible may be considered without 
 proof of the handwriting, when it is shown to be an ancient entry, 
 made before there was any motive for putting a false entry in the 
 Bible. The Bible was taken from his father's house after his death, 
 and it then had this entry. Nobody is living now who would reason- 
 ably know who made the entry, as Thomas Witherspoon and his two 
 wives are dead, and the two sons by the second marriage were too 
 young to know anything about such matters. A family Bible is the 
 book in which such entries are usually made, and when the Bible 
 is produced with the entry in it when it came from the possession of 
 Thomas Witherspoon, it may properly be considered as evidence. In
 
 320 CASES ON EVIDENCE 
 
 addition to this the school census for a number' of years is produced, 
 and these all show that Porter was born in April, 1882. The school 
 census is a public record, parents are required to give in the ages of 
 their children. These reports were made during the life of Thomas 
 Witherspoon, and are better evidence now of the date of Porter's 
 birth than the recollection of witnesses as to a date more than 25 
 years ago. In addition to this we think the facts that Porter himself 
 always understood that April 20, 1882, was the date of his birth, that 
 Mrs. Bertram, herself seems to have so understood when the tenant 
 asked her about it, and that there was no controversy about his age 
 until after his death, are entitled to no little weight. 
 
 Judgment affirmed. 
 
 UNION CENTRAL LIFE INS. CO. v. POLLARD. 
 94 Va. 146. (1896) 
 
 This was a proceeding by notice on an insurance policy on the life 
 of Augustus M. Broach. The beneficiary in the policy, the plaintiff 
 in the court below, was Dollie E. Pollard, his daughter. There was a 
 verdict and judgment for the plaintiff for the sum of four thousand 
 dollars, the amount of the policy, subject to a credit for two hundred 
 and seven dollars and twelve cents, as of May i, 1893, beiag the 
 amount of the last premium due on the policy which had been ten- 
 dered in due time to the company, but refused by it. The defense 
 relied on was that the assured had fraudulently represented him- 
 self as being a year younger than he really was, and that he was 
 diseased and failed to disclose it. On the same day on which the 
 policy in suit was issued the assured made three applications for in- 
 surance on his life for his different daughters, in each of which, as 
 well as the application on which the policy in suit was issued, he 
 gave as the date of his birth May 8, 1839. In a written application 
 to the Valley Mutual Life Association ef Virginia, dated December 12, 
 1882, by which he applied for a policy for the benefit of his wife and 
 children, he gave as the date of his birth May 8, 1838. What was 
 called the family bible was introduced to show his age, and in the 
 records of births his name and others appear in the handwriting of 
 a stranger, and the date of his birth is given as May 8, 1838. The 
 bible itself was published some years later but it was shown that it
 
 ACCOUNT BOOK ENTRIES 321 
 
 was the bible kept in the family as the family bible, accessible to all 
 the family, and contained the dates of the births and deaths of the 
 family. Objection was made to the introduction of the foregoing 
 entries, but was overruled, and exception taken by the plaintiff. 
 
 BUCHANAN, J. The defendant in making its defense sought to 
 show that one or more of the material statements made by the in- 
 sured in his application were false and fraudulent. To do this it 
 offered in evidence the family bible of the insured, and read to the 
 jury an entry which tended to prove that he was born on the 8th 
 day of May, 1838, instead of May 8, 1839, as stated in his applica- 
 tion for the policy sued on. Although it appeared that the entry read 
 to the jury as to the date of his birth was made by a person who was 
 not a member of his family, it was admissible evidence, and tended 
 to prove the date of the birth of the insured. The admissibility of 
 an entry in a family bible does not depend upon the handwriting or 
 authorship of the entry, but upon the fact that it is in the family 
 bible. It is of the nature of a record, and, being produced from the 
 proper custody, is itself evidence. The reason why it is admissible, 
 although the handwriting be unknown or made by others than the 
 family, is simply because the bible being in the family, where all 
 have access to it, the presumption is that the entry would not be per- 
 mitted to remain if the whole family did not adopt it, and thereby 
 give authenticity to' it. Monkton v. Attorney General, n Eng. Chy. 
 R. at pages 162-3 (Russ & Mylne) ; Hubbard v. Lees, i Law Rep. 
 (Court of Ex.) 255, 258; i Taylor on Ev. sec. 650; i Greenleaf on 
 Ev. sees. 104, 105. 
 
 Reversed on another ground. 
 
 ACCOUNT BOOK ENTRIES.i 
 
 VEITHS v. HAGGE. 
 8 Iowa 163. (1859) 
 
 This was an action upon a promissory note for $1,050, commenced 
 by attachment. 
 
 The defendant, in order to p/ove the accounts against the plaintiff, 
 produced in evidence his books of account, having first introduced 
 the necessary preliminary evidence in verification of said books; and 
 
 i Hughes on Evidence, p. 104.
 
 322 CASES ON EVIDENCE 
 
 also called as a witness one Heinrich Jensen, who testified that he 
 was empoyed as a clerk in the store of defendant, from the first of 
 March, 1855, to the first of March, 1856 and that plaintiff, during 
 that time, was a customer at said store, and was in the habit of bor- 
 rowing sums of money from defendant, which were charged to him 
 on the said books of account. The bill of exceptions then recites, 
 that the defendant offered no evidence independent of said books, 
 in support of the specific items of the cash charged against the plain- 
 tiff in the accounts ; and that the plaintiff offered no independent 
 evidence on his part to prove any payments made by him to the 
 defendant, but relied, in order to establish the same, on the credits 
 given to him for such payments, upon the accounts offered in set-off, 
 and the said books of account. 
 
 STOCKTON, J. Upon the question of the admissibility of the party's 
 book of entries for the purpose, and the extent to which it is allow- 
 able to prove by them the cash items in an account, the rule varies 
 in the different states. In Massachusetts, Maine and New Hamp- 
 shire, money charges may be proved by them to the extent of $6.66, 
 but not beyond. Union Bank v. Knapp, 3 Pick. 109; Burns v. Fay, 
 14 id. 12; Prince v. Smith, 4 Mass. 455; Wetherell v. Swan, 32 Maine, 
 247; Richardson v. Emery, 3 Foster, 220; Bassett v. Spofford, n 
 N. H. 169. 
 
 In Pennsylvania, the book of original entries, *made by the party, 
 and verified by his oath, is competent evidence of goods sold and 
 delivered, and work done, and of the price, but not of money lent or 
 paid. Ducoign v. Schreppel, I Yates, 347. 
 
 In South Carolina, the book of the party is evidence to prove the 
 delivery of articles sold, or work done, and nothing more. St. Phil- 
 lip's Church v. White, 2 McMullen, 312. 
 
 In Delaware, by statutory regulation, in an action for articles sold 
 and delivered, and other matters properly chargeable in an account, 
 the oath of a plaintiff, together with a book regularly and fairly kept, 
 are declared to be sufficient in all cases to charge a defendant. Halls 
 Revised Laws, 89. But the courts have held that cash is not a matter 
 properly chargeable in account. Smith v. M'Beath, cited in Harring- 
 ton, 346. 
 
 In New York, in Case v. Potter, 8 Johnson, 211, the question of 
 admissibility was not decided; but it was said by the court, that al- 
 though a shop book might be admitted in a case of a sale and delivery, 
 yet the usage "can never apply to a charge for cash lent, but only to 
 the regular entries of the party in the usual course of his business."
 
 ACCOUNT BOOK ENTRIES 323 
 
 In Vossbing v. Thayer, 12 Johns. 461 the court say: that "books of 
 account are not evidence of money lent, because such transactions are 
 not, in the usual course of business, matters of book account." 
 
 In Illinois, the rule in New York has been adopted, and it is held, 
 that upon the necessary and usual preliminary proof being made, in 
 case of open account, composed of many items, the plaintiff's book 
 of accounts is admissible; but that this does not apply to an action 
 for money lent, as that is not usually the subject of a charge in ac- 
 count a note being generally taken. Boyer v. Sweet, 3 Scam. 120. 
 
 We think the general rule is clearly established by these authorities, 
 that a charge for "money paid," or "money lent," cannot be proved 
 by a party's book of accounts ; that such transactions are not usually 
 the subject of a charge in account; and that charges of that nature are 
 not such as are made in the ordinary course of business by one party 
 against another. 
 
 It may be safely affirmed that the general rule in the business trans- 
 actions of men is, that the person lending or paying money usually 
 takes a note or receipt. As is said, however, by Hitchcock, J., in 
 Crane v. Sperar, 8 Ham. 494 an individual might be engaged in a 
 business that would seem to justify such charges as where one's 
 ordinary business may be said to consist in receiving money on de- 
 posit and paying it out for others. When such fact is shown, the 
 book may be proper evidence of the payment of money. This would 
 not, however, apply to the case of a party engaged in the mere busi- 
 ness of keeping a retail store, whose customers purchase goods of 
 him on credit, which are charged to them in a running account. Loan- 
 ing, or paying out money to his customers, is no part of such a per- 
 son's business. They would not ordinarily expect to find themselves 
 charged in their accounts with sums of money lent or paid. 
 
 Judgment reversed. 
 
 YOUNG v. JONES. 
 8 Iowa 220. (1859) 
 
 The plaintiff sued the defendant, claiming the sum of $164.50, and 
 averring that at the special instance and request of defendant, he 
 worked for him ninety-four days, and defendant promised to pay
 
 324 CASES ON EVIDENCE 
 
 him therefor $1.75 per day, which he now refuses, &c. The defend- 
 ant answered, denying that the plaintiff worked ninety-four days, as 
 alleged ; denying that he owed the plaintiff $164.50 as alleged, or any 
 part thereof; and denying that he undertook and promised to pay 
 plaintiff $1.75 per day for his work. There was also a plea of pay- 
 ment and of set-off. 
 
 The defendant proposed to prove his set-off by his books of ac- 
 count and in the language of the bill of exceptions, "in the regular 
 manner, as provided by law, qualified the same, and that each and all 
 the items in defendant's set-off were charged in defendant's book of 
 accounts." Thereupon the book was permitted to go to the jury as 
 evidence. The set-off contained items of money paid to plaintiff, 
 amounting to thirty-five dollars one item of twenty dollars and three 
 of five dollars each. The court charged the jury, that the "items 
 of the set-off for money paid, could not be proved by the book of ac- 
 counts; and that the book was not, of itself, evidence of the fact 
 of money paid to plaintiff, as charged therein, and contained in de- 
 fendant's set-off. To this ruling of the court, the defendant excepted. 
 
 STOCKTON, J. Books of account are competent evidence, when the 
 charges they contain are made in the ordinary course of business. 
 This fact is to be determined by the jury, from the charges them- 
 selves, and from the rules of law applicable to the business transac- 
 tions of men. One of these rules is, that the loan, or payment of 
 money, is not ordinarily the subject of a charge in book account; 
 and that the charge not being such as is made in the ordinary course 
 of business, by one party against another, cannot be proved by the 
 account book. To render the account book competent to prove the 
 payment of money, the party offering it must show that he is en- 
 gaged in a business to justify such charges; as, to illustrate, in the 
 business of banking, or of receiving money on deposit, and paying 
 it out for others. If the payment of loans of money paid, were made 
 in the ordinary course of business, he may justly claim the right to 
 prove them by his books, but not otherwise. 
 
 The rule that the books are inadmissible to prove the loan or payment 
 of money, has been so far departed from in some of the New Eng- 
 land states, as to allow the proof by the book of original entries, of 
 the payment of money not exceeding forty shillings, or six dollars 
 and sixty-six cents ($6.66). Bassett v. Spofford, n N. H. 169; 
 Burns v. Fay, 14 Pick. 12; Union Bank v. Knapp, 3 id. 109; Prince 
 v. Smith, 4 Mass. 455; Wetherell v. Swan, 32 Me. 247; Richardson 
 v. Emery, 3 Foster, 220.
 
 ACCOUNT BOOK ENTRIES 325 
 
 The exception may have some show of necessity, if not of principle, 
 to support it. Our statute, however, has made no such distinction, 
 as that small sums of money may be proved by a party's books of 
 account, but that large sums shall not be so proved. If allowed at 
 all, the privilege must be strictly guarded, and only admitted in cases 
 where the jury may be of opinion, that the party is without any other 
 proof; and that there has been such a course of continuous dealing 
 between the parties, as that small sums of money passed between them 
 in the ordinary course of business, and became the legitimate subject 
 of a charge in book account, by one against the other. If they should 
 so judge, we think they should be at liberty to allow the same. 
 
 Judgment reversed on another ground. 
 
 CUMMINGS v. NICHOLS. 
 13 N. H. 420. (1843) 
 
 Assumpsit upon an account annexed to the writ. The defendant 
 had instituted an action against the plaintiff, founded on his account, 
 and by agreement of the parties both actions were submitted to the 
 jury at the same time. 
 
 Upon the trial, the plaintiff offered his book of accounts, with his 
 oath, in support of the charges in the account. 
 
 The defendant objected to the admission of the book as evidence 
 to the jury, but the objection was overruled. 
 
 PARKER, J. There is no particular form in which the book of a 
 party must be kept, in order to its admission as evidence, in support 
 of his account. But it must be kept in such a mode as to show, of 
 itself, a charge against the adverse party, and the nature of that 
 charge, so that the book, in connection with the party's oath that the 
 book is his original book of entries, that the charges are in his hand- 
 writing, that they were made at the time they purport to have been 
 made, and at or near the times of the delivery of the articles, or the 
 performance of the services, will show the nature of the claim, with- 
 out further evidence from the party to interpret the meaning of arbi- 
 trary characters, the signification of which is known only to himself. 
 It may be in such characters as are in common use by persons of a 
 particular trade or profession, and which would not readily be under-
 
 326 CASES ON EVIDENCE 
 
 stood by persons not conversant with the subject matter; and in such 
 case, evidence of other persons may be admitted, to explain the mean- 
 ing usually attached to characters of that description. But in ordi- 
 nary cases, the suppletory evidence of the party, in support of his 
 book, goes no further than to the particulars above specified. 3 N. H. 
 Rep. 157, Eastman v. Moulton. 
 
 To be admissible, the entries should be made at or near the time of 
 the transaction, and the oath of the party must verify that fact. No 
 particular limit is fixed beyond which the entry cannot be made. The 
 court must judge whether the circumstances of the case bring it within 
 the rule. But it is clear that the entries must not be memoranda made 
 from the memory of things which have long since passed. 
 
 The entries must have been made at the time they purport to have 
 been made. This implies that there must be dates, so far, at least, 
 that the court may see that the case comes within the rule. But it is 
 not necessary that the precise day of the month should be affixed 
 to the charge in all cases. To require this would exclude the books 
 of many individuals. The book has been admitted when only the 
 month has been specified, it appearing to be regular in other respects. 
 
 The charges must be specific and particular; but in this respect 
 some latitude is allowed, depending upon the nature of the case. See 
 II N. H. 167, Bassett v. Spofford. In a charge for work and labor, 
 continuing from day to day, for several days, it is not necessary to set 
 down a charge for each day by itself. But a brick-layer's charge for 
 "190 days work," and a physician's charge of "13 dollars for medi- 
 cine and attendance in curing the hooping-cough" have been rejected 
 as too general and indefinite. It has been said that this is a matter 
 which must reside very much in the discretion of the judge, to be 
 exercised according to the nature of the subject, and its susceptibility 
 of being precisely charged. See the cases collected. . 2 Cowen & 
 Hill's Phil. Ev. 699; Greenl. Ev. 141. If the charge be for labor, 
 r.nd it be a continuing service for three or four days, there seems 
 to be no very cogent reason why it may not form the subject matter 
 of a single charge. On the other hand, if it continue for months, 
 there is no reason, if the party relies upon his book, why he should 
 not make his charges from week to week, or in other limited terms. 
 
 Upon the principles thus stated, it is apparent that some of the 
 charges in the plaintiff's account are not such as can be substantiated 
 by his book and suppletory oath. Not having the original book be- 
 fore us, we have merely laid down general rules applicable to* the 
 case. Something may depend upon its appearance.
 
 ACCOUNT BOOK ENTRIES 327 
 
 The rule does not extend so far as to authorize the use of his book, 
 by a party, to curtail or defend the claims of other parties against 
 him. 
 
 It is not a sufficient objection to the introduction of the book and 
 oath as evidence, that the subject-matter of the entry may have been 
 done, delivered, or received, under a special contract. Such entries 
 are proof of the use of anything hired and returned, respecting which 
 there is often a special contract for time and price. 
 
 New trial granted on another ground. 
 
 CHATEAUGAY IRON CO. v. BLAKE. 
 
 / 
 187 U. S. 476. (1891) 
 
 BREWER, J. After stating the case, delivered the opinion of the 
 court. 
 
 The question in this case is whether or not the plaintiff fully per- 
 formed his contract of March 26, 1886. 
 
 The first matter we notice is the alleged error in the testimony of 
 Charles S. Brown, who from certain account books which he pre- 
 sented, was permitted to testify as to the actual working of the plant 
 between October 18 and November 7, giving in that testimony the 
 actual hours the plant was working, the number of tons crushed, the 
 hours of delay, and the causes therefor. This witness was sent by 
 Mr. Blake to superintend the erection of the plant, to watch its work- 
 ings when completed and to make any needed repairs, improvements 
 or changes. At his suggestion, after the plant commenced work, the 
 defendant's superintendent directed the foremen of the mill to keep 
 these books. The foremen, of whom there were four, generally made 
 the entries on the books, though sometimes Brown did the writing at 
 their dictation. The entries were made daily; at least, that was the 
 intention and the general practice. The amount of ore crushed, as 
 disclosed by these books, corresponded within a few tons with the 
 amount testified to by the officers of the defendant company. Brown, 
 himself, was present at the mill most of the time during the day, and 
 had a general knowledge of the accuracy of these entries so far as 
 respects the work during that time. We think the testimony was com- 
 petent. The books were kept by the direction of the defendant's 
 superintendent, and the entries made by its foremen. They were
 
 328 CASES ON EVIDENCE 
 
 intended to be, and in fact generally were, contemporaneous with the 
 matters stated; and their substantial accuracy is corroborated by the 
 personal knowledge of the witness, and the near coincidence of the 
 general result with that vouched for by the defendant. They may 
 not have been account books of the defendant, in the technical sense 
 of the term, such as are generally admissible against a party, but 
 they were memoranda made under the direction of the defendant 
 for the purpose of preserving a record of certain facts, and under 
 such circumstances as are worthy of a measure of credence as against 
 it 
 
 Affirmed. 
 
 ROBINSON v. SMITH. 
 in Mo. 205. (1892) 
 
 McFARLANE, J. Plaintiffs are bankers and sued the defendant 
 before a justice of the peace for an alleged overdraft of $50. 
 
 The case was taken by appeal to the Circuit Court when upon a 
 trial the defendant recovered judgment, and plaintiffs appealed to the 
 Kansas City Court of Appeals. 
 
 Upon a hearing in that court, Smith, P. J., wrote an opinion, re- 
 versing the judgment of the Circuit Court, and the appeal was cer- 
 tified to this court, the opinion being deemed in conflict with decisions 
 of the St. Louis Court of Appeals. 
 
 At the trial of the case plaintiffs offered to introduce in evidence 
 their ledger, cash book and balance book kept in the transaction of 
 their business as bankers, and showing the transaction with the de- 
 fendant, and offered to prove that they were accurately kept, and 
 that the entries were made and the books written up each day from 
 the checks of the customers and tickets of the teller, and that the 
 books were balanced each day to verify their accuracy. These offers 
 were refused and the books excluded. This ruling of the court is 
 the only error assigned here. 
 
 Judge Smith in his opinion says: "Upon the long and well-recog- 
 nized rule that the book entries, made by a party himself, or by his 
 clerk, in the usual course of his business, being contemporaneous with 
 the fact, and part of the res gestae, are admissible in evidence, I think 
 the offer of evidence made by the plaintiffs should not have been
 
 ACCOUNT BOOK ENTRIES 329 
 
 rejected." Since this opinion the whole question has been care- 
 fully considered by this court, the decisions in this state reviewed, 
 and in an elaborate opinion by Black, J., the same conclusion was 
 reached as that arrived at by the Court of Appeals. Anchor Milling 
 Co. v. Walsh, 108 Mo. 277. 
 
 The court committed error in refusing to admit in evidence the 
 books offered. Judgment of Kansas City Court of Appeals affirmed. 
 
 All concur. 
 
 KEITH et al. v. KIBBE. 
 10 Cush. (Mass.) 55. (1852) 
 
 Assumpsit for the price of a quantity of timber sold by the plaintiffs 
 to the defendant. The trial was before Mellen, J. in the court of 
 common pleas and the defendant admitted the delivery by the plain- 
 tiffs of the timber sued for, and that it was used in a dwelling-house 
 erecting for him, but contended that the same was sold to one Rollins, 
 a contractor, who had agreed to furnish the materials and build said 
 house. The plaintiffs called their clerk, who produced their books of 
 account, and swore to the entries therein made by himself, charging 
 said timber to the defendant. The defendant objected to these entries 
 as incompetent evidence of the fact to whom the credif was orig- 
 inally given, but the presiding judge admitted the evidence. The ver- 
 dict was for the plaintiffs, and the defendant excepted. The case was 
 argued in this court, as of the September term, 1851. 
 
 BY THE COURT. The day-book of the plaintiffs was not competent 
 for the purpose for which it was allowed to be introduced. The con- 
 troversy was not as to the items or time of delivery of the timber. 
 It was conceded that the amount was furnished by the plaintiffs, and 
 was used in building the defendants house. But the defendant denied 
 that he was the purchaser, and insisted that the same was sold by the 
 plaintiffs to one Rollins, the contractor for building the house. It 
 was a mere question as to the party who was the debtor to the plain- 
 tiffs for these articles. And in this aspect of the question the 
 plaintiffs could not properly be allowed to introduce their own charges 
 for the timber made against the defendant as the debtor, to aid in 
 sustaining their case. The case of Ball v. Gates, 12 Met. 491, cited 
 by the plaintiffs, differs materially from the present, as there was
 
 330 CASES ON EVIDENCE 
 
 other evidence relied upon to charge the defendant as the debtor, and 
 the book was offered to show merely the items delivered. 
 
 Exceptions sustained; verdict set aside. 
 
 ANCHOR MILLING CO. v. WALSH. 
 
 108 Mo. 277. (i8pi) 
 
 
 
 BLACK, J. This was an action to recover over payments alleged 
 to have been made by the plaintiff to the defendant. A trial was had 
 before a jury, which resulted in a verdict and judgment for the 
 defendant. The St. Louis Court of Appeals, to which the cause was 
 appealed, reversed the judgment and remanded the cause for error 
 in the instructions. That court, however, sustained the ruling of the 
 trial court in excluding a shipping book offered in evidence by the 
 plaintiff. On this question one of the judges deemed the opinion 
 contrary to Smith v. Beattie, 57 Mo. 281, and for this reason the cause 
 was then certified to this court. 
 
 Defendant had a contract with plaintiff whereby he was to receive 
 a specified price for hauling wheat and flour to the mill and a speci- 
 fied price per barrel and sack for hauling flour and other mill products 
 from the mill to different points in St. Louis and East St. Louis. 
 Books were kept at the plaintiff's warehouse, which was about a block 
 distant from the mill, showing the wheat and flour received and ship- 
 ments made, and these books disclosed the amount of hauling done 
 by the defendant. A Mr. Timmons, who was one of the plaintiff's 
 clerks at the warehouse, made up a statement on a slip of paper at 
 the end of each week, showing the amount due the defendant. The 
 plaintiff's cashier at the mill paid the defendant the amount due as 
 disclosed by these statements. The business proceeded in this way 
 from the first to the latter part of 1883, when the plaintiff caused the 
 books to be examined and concluded that payments had been made 
 to defendant largely in excess of what he had earned. Timmons and 
 defendant left the employ of the plaintiff, and a criminal prosecution 
 and this suit followed. 
 
 The shipping book, offered in evidence by the plaintiff and excluded 
 by the court, was made up and kept in the following manner : Orders 
 were sent from the office at the mill to the warehouse to send desig-
 
 ACCOUNT BOOK ENTRIES 331 
 
 nated amounts of flour, etc., to designated places. The orders were 
 then entered in the shipping book by Timmons, the shipping clerk 
 or by Mr. Warren, who had a general supervision over all the busi- 
 ness at the warehouse. The orders were then copied into a small 
 handbook for the use of the foreman, who delivered the articles to 
 defendant's teamsters, made a note of the fact and returned the book 
 to the clerk, who made entries on the shipping book, showing, among 
 other things, the delivery of the article to the defendant. Mr. Warren 
 says he always compared the orders with the book when made up, and 
 then returned the orders to the mill office; that he knew the flour 
 and other mill products were delivered to defendant from the infor- 
 mation received from the small book, and some cases from personal 
 observation. These returned orders were lost or destroyed. Tim- 
 mons, the shipping clerk, was not called as a witness. With this 
 preliminary proof the plaintiff offered in evidence the shipping book, 
 but the court excluded it. 
 
 Since a party may testify in his own favor, it must be conceded 
 that he, as well as his clerk or bookkeeper, may refresh his memory 
 from entries made by him or under his eye, and then testify as to the 
 fact with his memory thus refreshed. Now in cases of an account 
 composed of many items, all this means nothing more than reading 
 the book in evidence. This we all know from daily experience in 
 the trial courts. It is out of all reason to say that a merchant or his 
 clerks can recall each item of the account, and a fair-minded witness 
 will generally decline the attempt. Account books are admitted in 
 evidence for the person by whom they are kept when the entries 
 are made at the time or nearly so of doing the principal fact, because 
 entries made under such circumstances constitute a part of the res 
 gestae. An entry thus made is more than a mere declaration of the 
 party. It is a verbal act following the principal fact in the orderly 
 conduct of business. Such is certainly the custom and course of 
 business at the present day. We, therefore, conclude that an account 
 book of original entries, fair on its face, and shown to have been 
 kept in its usual course of business, is evidence, even in favor of 
 the party by whom they are kept. It follows that the shipping book 
 should have been received in evidence. 
 
 As the Court of Appeals reversed the judgment and remanded the 
 cause for other errors, the judgment of that court is affirmed. 
 BARCLAY, J., absent, the other judges concur.
 
 332 CASES ON EVIDENCE 
 
 RICHARDSON v. EMERY et al. 
 23 Vt. 220. 
 
 Assumpsit on an account annexed to the writ. 
 
 The plaintiff testified that he was engaged in buying lots of wood 
 and selling them out again; that in some of this business he was in 
 partnership with Mr. Sawyer, and that he did a small business on 
 his own account; that he kept different books, like that produced, 
 for different lots of wood; that this book contained an account of 
 the wood sold the defendants, and of the Colt lot, bought by him 
 and Sawyer; that he kept a separate memorandum book for each lot 
 of wood; that these different books taken together would contain a 
 history of his business. He offered to produce all these books, and 
 also a book into which he said these accounts were carried in August, 
 1848. There was nothing in the book that showed of whom the plain- 
 tiff had the wood charged to the defendants, or to what lot it belonged. 
 
 The jury found a verdict for the defendant, Emery, which the 
 plaintiff moved to set aside for the ruling of the court rejecting his 
 book. 
 
 GILCHRIST, C. J. The ruling of the court, in this case, rejecting 
 the book was correct. There is no principle on which such extremely 
 loose papers as those offered by the plaintiff are admissible in evi- 
 dence, as a book of accounts. They do not possess that intrinsic 
 evidence of their truth, without which the admission of account 
 books is extremely dangerous to the cause of justice. 
 
 In the first place, the charges in the hand-writing of the party 
 must appear in such a state that they may be presumed to have been 
 his daily minutes of his transactions and business. Eastman v. Moul- 
 ton, 3 N. H. 156. The papers offered to substantiate this claim are 
 confessedly not such minutes. The plaintiff was engaged in buying 
 and selling lots of wood, and he kept different books for the different 
 lots. He did not keep one book of original entries on which his 
 daily charges were made, so as to afford some security against in- 
 terpolations, but the matters relating to each transaction were sepa- 
 rately recorded. It would be much easier to manufacture a book 
 containing the plaintiff's statement of a single transaction, than a 
 regular account book containing the minutes of his business from day 
 to day. 
 
 The charges, with the single exception of that against the defend- 
 ants, purport to be only for money received and for money paid. This
 
 ACCOUNT BOOK ENTRIES 333 
 
 does not accord with our experience of the nature of daily transac- 
 tions between man and man. Ordinarily business does not consist 
 so exclusively of such subjects, and this is a matter proper to be con- 
 sidered in connection with others, in determining whether the book 
 can be considered a daily record of business transactions. We cannot 
 presume that the business of the plaintiff was so entirely of this 
 character. 
 
 Judgment for the defendant. 
 
 CORR v. SELLERS. 
 100 Pa. St. 160. (1882) 
 
 Assumpsit, by William Sellers & Co. against Bernard Corr to re- 
 cover the price of certain repairs to a brick machine. 
 
 On the trial before Thayer, P. J., plaintiffs called their sales clerk, 
 by whom their sales book or book of original entry was identified 
 wherein was contained the following charge: 
 
 "B. Corr, Dr." 
 
 "July I3th, 1880. To repairing brick machine, $1,932.76." 
 
 Plaintiffs then offered the book in evidence. Objected to by the 
 defendant because the charge was a lumping charge, and did not par- 
 ticularize what the repairing consisted of, and because it was im- 
 possible for the defendant to know from said charge what amount 
 of material had been furnished or work or labor done in making said 
 repairs, or whether the price was a reasonable and proper charge. 
 Objection overruled. Evidence admitted. Exception. 
 
 Verdict and judgment for the plaintiffs, whereupon the defendant 
 took this writ, assigning for error the admission in evidence of the 
 above book entry. 
 
 MERCUR, J. The specifications of error present a single question. 
 That is, whether the book of original entries was admissible for the 
 purpose offered? It was admitted under objection, to prove the fol- 
 lowing item: 
 
 "B. Corr, Dr." : 
 
 "July I3th 1880. To repairing brick machine $1,932.76." 
 
 The first objection made to its admission was "because it was a lump- 
 ing charge and did not particularize what the repairing consisted of, 
 and it was impossible for the defendant to know from the said charge,
 
 334 CASES ON EVIDENCE 
 
 what amount of materials had been furnished or work or labor done 
 in making the repairs, or whether the price was a reasonable and 
 proper charge. 
 
 The general rule is well established, that books of original entries, 
 properly proved, are evidence of work and labor performed, and of 
 goods sold and delivered. Yet to this general rule several exceptions 
 have been recognized. Among them that the invoice-book of an 
 agent is not evidence of the sale and delivery of goods : Cooper v. 
 Morrel, 4 Yeates 341. Nor of goods to be delivered at a future 
 day: Rheem v. Snodgrass, 2 Grant 379. Nor of work done, in an 
 action for part performance under a special contract: Alexander v. 
 Hoffman, 5 W. & S. 382; Eshleman v. Harnish, 26 P. F. Smith, 97. 
 Nor of the sale of a horse not in the course of the parties' business: 
 Shoemaker v. Kellog, I Jones 310. Books of original entry were 
 formerly received in evidence from necessity. Where the transaction 
 from its nature admits of more satisfactory proof, they should not be 
 received. Id. Now, since the parties are competent witnesses in their 
 own behalf, great care should be taken that there be no enlargement 
 of the rule. 
 
 In several of the states by statute, books are competent evidence 
 to prove an account not exceeding a sum specified. We have no 
 statute on the subject, and so far as I am aware, this court has 
 never stated any specific sum to be in excess of the amount which 
 may thus be proved. This may arise from the fact that a book has 
 never been offered in evidence here to prove an item of very large 
 amount. We will not now designate the maximum sum for which a 
 book may be received in evidence. We think, however, there must 
 be some limit. Much more depends on the nature and character of 
 the subject-matter of tKe item, and on the evidence outside of the 
 book, which naturally exists to prove the item. In Leighton v. Man- 
 son, 14 Maine, 208, the book of original entries was held incompetent 
 to prove an account of two charges for beef, bearing date the same 
 day, one for 355 pounds, the other for 360 pounds. The exclusion 
 appears to have been sustained by reason of the articles having been 
 of such bulk and weight that they were not delivered without as- 
 sistance, and therefore, better evidence than the book was attainable. 
 In Thomas v.- Doyott, I Nott & McCord, 186, it was declared that 
 this species of evidence ought not to be allowed, where it is in the 
 power of the party to produce other evidence. Hence, in Pelzer v. 
 Cranston, 2 McCord, 328, it was held that a school-master's books, 
 though regularly kept, were not evidence to prove his account, as he
 
 ACCOUNT BOOK ENTRIES 335 
 
 must have had many witnesses at command, and the evidence of his 
 books was, therefore, not necessary. 
 
 The rejection of the book to prove the sale of the horse, in Shoe- 
 maker v. Kellog, supra, appears to have been ruled chiefly on the 
 ground that from the nature of the transaction, there must have ex- 
 isted other and better evidence of the sale. 
 
 The charges must be reasonably specific and particular. This is the 
 more necessary, inasmuch, as when received, the books are prima facie 
 evidence, both of the item charged, and the price and value carried 
 out : Ducoign v. Schreppel, I Yeates 347 ; Baumgardner v. Burnham, 
 12 Morris 88. A general charge for work and labor of a mechanic, 
 without any specification but that of time cannot be supported by 
 evidence of an entry on the book. Therefore, a bricklayer's charge of 
 "190 days work" was rejected: Lynch's Adm'rs v. Petriel Nott & 
 McCord 130. So a charge of "13 dollars for medicine and attendance 
 on one of the general's daughters, in curing the whooping cough," 
 was rejected as too indefinite: Hughes v. Hampton, 2 Const. Rep. 
 (O. S.) 745. An item in an account of "seven gold watches, 
 $308," was held insufficient : Bustin v. Rogers, 1 1 Cush. 346. 
 
 In the present case the objection was special and specific. It was 
 to the lumping form of the charge. There was nothing therein to 
 indicate the number of days, weeks or months of labor, claimed to 
 have been performed on the machine, nor the price charged for any 
 of them ; nothing to show the kind, quantity, or value of the materials 
 furnished, nor the price charged therefor. No item is given whereby 
 the value of anything which entered into the repairs can be ascer- 
 tained, and its correctness be tested. What share or proportion of 
 the aggregate sum charged is for work or what for materials if any, 
 is not stated! A lumping charge of nearly two thousand dollars was 
 thrown into the jury box, and the opposite party, without proof and 
 without information as to the items of which it was composed, re- 
 quired to defend against it. 
 
 We think the learned judge erred in admitting his book entry as 
 evidence to charge the plaintiff in error with the amount thereof. The 
 error was not cured by the character of the evidence afterward given ; 
 something more specific is necessary to prove the claim, 
 
 Judgment reversed and a venire facias de novo awarded.
 
 336 CASES ON EVIDENCE 
 
 WELLS v. HAYS. 
 93 S. C. 167. (1912) 
 
 HYDRICK, J. This action was brought to recover the balance due 
 on a due bill for $1,138.53, dated March 29, 1904, and given to plain- 
 tiff by R. M. Hays & Brother, a mercantile firm composed of R. M. 
 and A. G. Hays, both of whom died before the commencement of the 
 action. The action was brought against defendant alone, because she 
 assumed payment of the due bill. 
 
 Plaintiff admits one payment of $200.00 which was credited on the 
 due bill. Defendant pleads four others, which, with that admitted, 
 aggregate $964.67, leaving a balance of only $319.00 for which amount 
 the jury found a verdict for plaintiff. From the judgment entered 
 on the verdict, the plaintiff appealed. 
 
 Three of the alleged payments, including the one admitted by plain- 
 tiff, were checks of R. M. Hays & Brother, payable to the order 
 of J. W. Wells the husband of the plaintiff and endorsed by him. 
 There was nothing on the checks to indicate for what purpose they 
 were given; but there was a memorandum on the stub of each in 
 the check book, and also in the cash book of R. M. Hays & Brother, 
 to the effect that they were intended as payments to Mrs. Wells. 
 One of the checks was payable to the order of W. J. Snead Lumber 
 Company, and there was a similar memorandum on the check stub 
 and in the cash book. One of the payments alleged was an item 
 of $150.00 charged on the cash book to Mrs. Wells as cash paid to 
 her. In the ledger account of plaintiff on the firm books, she is cred- 
 ited with $1,138.53, as of the date of the due bill, and debited with 
 the several amounts claimed by the defendant as payments thereon, 
 at the respective dates thereof. These amounts were carried on the 
 ledger by the bookkeeper from the check stubs and the cash book. 
 
 The question upon which the appeal must turn is: Did the court 
 err in admitting the books of account of R. M. Hays & Brother and 
 their check book stubs, containing the memoranda thereon, as evi- 
 dence of the alleged payments to the plaintiff. The decisions of this 
 court clearly answer that question in the affirmative. 
 
 From time immemorial, the books of merchants, shopkeepers, 
 tradesmen, and others whose business or occupation necessitates the 
 keeping of books, have been admitted in the courts of this State to 
 prove accounts for goods sold and delivered, services rendered, work 
 and labor done, and materials furnished; but this court has uniformly
 
 ACCOUNT BOOK ENTRIES 337 
 
 held that books of account or private memoranda are inadmissible for 
 the purpose of proving special contracts, such as are not shown by 
 or to be inferred from the entries alone, regularly and properly made 
 in the usual course of business in books of one of the classes above 
 mentioned. 
 
 As a rule, the authorities are against the admission of books of 
 account as evidence to prove such cash transactions as money loaned 
 or payments made on notes, bonds or other obligations. Williams v. 
 Gregg, 2 Strob. Eq. 315; Wigmore, sec. 1539; 9 A. & Enc. L. (2nd) 
 930-1; Lewis v. England, 2 L. R. A. (N. S.) 401, and note. To this 
 general rule, some authorities make an exception of bank books kept 
 in the usual course of business, and account books generally where 
 the cash items appear in the general course of accounts as part of the 
 ordinary transactions between the parties. Lever v. Lever, 2 Hill 
 Ch. 158; Sinclair v. Price, Ib. 160. There may be other exceptions 
 to the rule; but as this case does not fall within any of them, we ex- 
 press no opinion as to what exceptions may be made to the general 
 rule, or what circumstances of necessity would warrant the making 
 of them. The point decided does not conflict with the well settled 
 rule that such entries or memoranda may be referred to by the per- 
 son who made them for the purpose of refreshing his memory, and 
 thereby enabling him to testify to the transactions so recorded, if he 
 is otherwise competent. 
 
 Reversed. 
 
 PRATT v. WHITE. 
 132 Mass. 477. (1882) 
 
 Contract upon an account annexed for goods sold and delivered to 
 the defendant by the plaintiff's intestate. Answer, a general denial. 
 
 At the trial in the Superior Court, before Putnam, J., the plaintiff 
 offered in evidence the book of original entries kept by his intestate, 
 with his own oath and that of the intestate's clerk. The defendant; 
 objected to its admissibility, on the ground that no measure, weight 
 or quantity was given in connection with the several items charged. 
 The judge ruled that this did not make the book incompetent evi- 
 dence to be submitted to the jury and admitted it.
 
 338 CASES ON EVIDENCE; 
 
 The jury returned a verdict for the plaintiff; and the defendant 
 alleged exceptions of which the book was made a part. 
 
 DEVENS, J. The admission of the books of account of a party to 
 prove items of work done and goods delivered, when supported by 
 his own oath, or, if he is deceased, that of his administrator or execu- 
 tor, has long been permitted in this State, and under various restric- 
 tions, some created by statute, in all the States of the Union. It has 
 been sanctioned as an exception to the general rule of law as it for- 
 merly existed, that a party should not be a witness in his own case, 
 and from supposed necessity, in order to prevent a failure of justice, 
 that he shall be allowed to produce the record of his daily transactions, 
 to many of which, on account of their variety and minuteness, it can- 
 not be expected there will be witnesses. 
 
 It is for the court to decide upon the admissibility of the book 
 offered, although the weight to be given to it afterwards must be 
 largely a question for the jury in connection with its appearance, the 
 manner in which it is kept, and the other evidence in the case. It must 
 appear to have been honestly kept, and not intentionally erased or 
 altered, and to have been the record of the daily business of the party, 
 made for the purpose of establishing a charge against another. Neces- 
 sarily, regard is to be had to the education of the party, his methods 
 and knowledge of business, &c., in deciding this question. Cogswell 
 v. Dolliver, 2 Mass. 217. Prince v. Smith, 4 Mass. 454. 
 
 The decision of the court to admit the book is final and conclusive, 
 unless from its character, or from that which was sought to be proved 
 by it, it could not have been admitted even if it met those tests. Al- 
 though somewhat irregularly made part of the exceptions to be ex- 
 amined by the court, the book has not been produced by the defendant 
 for our inspection. It appears that measure, weight and quantity 
 were not given in connection with the items of goods charged, but 
 for this reason we are not prepared to say that it was inadmissible. 
 If the book contain the record of the party, daily transactions made 
 for the purpose of a charge, it may be admitted, even if deficient in 
 many respects. It does not follow that, before a plaintiff can fairly 
 ask a verdict, he may not be compelled to supply deficiencies in the 
 evidence his book affords. This bill of exceptions does not show 
 that other evidence was not introduced. 
 
 A time book which has only the name of the party and marks under 
 particular dates has been admitted. Mathes v. Robinson, 8 Met. 269. 
 Upon the same principle, marks on a shingle or upon a notched stick 
 have been admitted. Kendall v. Field, 14 Maine, 30. I Greenl. Ev.
 
 ACCOUNT BOOK ENTRIES 339 
 
 sees. 1 18, 1 19. Yet, without additional evidence, these would afford but 
 incomplete proof of a claim. In Hooper v. Taylor, 39 Maine, 224, 
 a book similar to the one here in question in omitting the weight and 
 quantity of articles was admitted with but little discussion. 
 
 There would seem to be no reason why a delivery of specific articles 
 might not be shown by a book of accounts, even if more evidence 
 were needed to show the amount which the plaintiff was entitled to 
 recover. It is easy to imagine many facts in connection with which 
 such charges might be very important. We have no reason to sup- 
 pose more weight was given to them than that to which they were 
 fairly entitled, and we must presume that the book was submitted to 
 the jury under all proper instructions. 
 
 Exceptions overruled. 
 
 SMITH v. RENTZ. 
 131 N. Y. 169. 
 
 ANDREWS, J. The action was brought to recover moneys advanced 
 to and paid out by the plaintiff's testator for the defendant. The 
 complaint alleges that from 1882 to 1887 the testator was the banker 
 and general business agent for the defendant, and that during said years 
 the defendant from time to time deposited moneys with the testator and 
 the latter, as requested by the defendant, from her funds in his hands, 
 and when these were insufficient, from his own, paid her different 
 sums in cash, and also paid taxes and tradesmen's bills for which 
 she was liable, and that there was a balance due the testator on ac- 
 count of such payment of $3,744.75, which the plaintiff claimed to 
 recover. The answer contained a general denial and interposed 
 special defenses. On the trial the plaintiff offered in evidence the 
 ledger kept by the testator containing the items of the alleged ac- 
 count. It was admitted against the objection of the defendant. Evi- 
 dence was given on the part of the plaintiff independently of the 
 ledger, tending to establish many of the items of the account, but a 
 considerable number of the items for which recovery was had are 
 supported by the ledger alone. If the ledger was improperly ad- 
 mitted in evidence the judgment must be reversed. 
 
 The production of books and papers on notice is the voluntary act 
 of the party. If he refuses, it may, as is claimed, authorize the other
 
 340 CASES ON EVIDENCE 
 
 party to give secondary evidence of their contents, when the party 
 having possession cannot then answer by producing them. But if 
 they contain facts favorable to the other side, they ought to be dis- 
 closed, and if production is refused, the party refusing may justly 
 incur the danger of having secondary proof given of their contents. 
 The claim is also made that the books were competent as original 
 evidence of the entries, under the rule making books of account in 
 certain cases evidence in favor of the party keeping them. We think 
 there is no foundation for this contention. The rule which prevails 
 in this state (adopted, it is said, from the law of Holland), that 
 the books of a tradesman, or other person engaged in business, con- 
 taining items of account, kept in the ordinary course of book accounts, 
 are admissible in favor of the person keeping them, against the party 
 against whom the charges are made after certain preliminary facts 
 are shown, has no application to the case of books or entries relating 
 to cash items or dealings between the parties. This qualification of 
 the rule was recognized in the earliest decisions in this state and has 
 been maintained by the courts with general uniformity. (Vosburgh 
 v. Thayer, 12 Johns. 461.) It stands upon clear reason. The rule 
 admitting account-books of a party in his own favor in any case, was 
 a departure from the ordinary rules of evidence. It was founded 
 upon a supposed necessity and was intended for cases of small traders 
 who kept no clerks and was confined to transaction in the ordinary 
 course of buying and selling or the rendition of services. In these 
 cases some protection against fraudulent entries is afforded in the 
 publicity which to a greater or less extent attends the manual transfer 
 of tangible articles of property, or the rendition of services, and the 
 knowledge which third persons may have of the transactions to 
 which the entries relate. 
 
 But the same necessity does not exist in respect to cash transactions. 
 They are usually evidenced by notes, or writing, or vouchers, in the 
 hands of the party paying or advancing the money. Moreover, en- 
 tries of cash transactions may be fabricated with much greater safety 
 and with less chance of the fraud being discovered than entries of 
 goods sold or delivered, or of services rendered. It would be unwise 
 to extend the operation of the rule admitting a party's books in evi- 
 dence, beyond its present limits, as would be the case, we think, if 
 the books containing cash dealings were held to be competent. Parties 
 are now competent witnesses in their own behalf. A resort to books 
 of account is thereby rendered unnecessary in the majority of cases. 
 
 We think the ledger was erroneously admitted in evidence, and
 
 ACCOUNT BOOK ENTRIES 341 
 
 the judgment below should, therefore, be reversed and a new trial 
 ordered. 
 
 SMITH v. SMITH. 
 163 N. Y. 168 (1900) 
 
 GRAY, J. The plaintiff sought to recover a balance due for coal 
 sold and delivered by him to the defendant. He recovered judgment, 
 upon a trial before a referee, and that judgment has been unani- 
 mously affirmed by the Appellate Division. Upon his appeal to this 
 court, the defendant assigns as error a ruling of the referee, under 
 which the plaintiff's books of account were admitted in evidence. 
 
 Upon the trial, the plaintiff testified to having had business trans- 
 actions with the defendant, in the sale of coal to him, for some time 
 past; that his books of account contained a correct statement of the 
 coal sold and delivered within the dates in question and that he, per- 
 sonally, delivered nearly all the coal covered by the account. He tes- 
 tified that his wife kept his books and made the entries therein from 
 memoranda furnished by him, as made after the delivery of the coal. 
 She, also, testified to making the entries in that manner and that they 
 were correctly made. There was evidence on his part, also, to the 
 effect that a copy of the account in the books had been acknowledged 
 by the defendant, with an offer to settle upon some rectification being 
 made. A witness for the plaintiff testified that he had settled with 
 him by his books for eight or ten years and always had found the 
 books correct. Being cross-examined as to that, he said: "I knew 
 the accounts were correct simply because I had confidence in him 
 and paid what he asked. That is all the reason I had for saying 
 they were correct because I had confidence in him. I relied on his 
 honesty and not on my recollection as to the amount of coal I 
 ordered." Another witness testified for the plaintiff that he was a 
 bookkeeper for a firm that purchased coal from the plaintiff on credit 
 and that he had "settled with him according to his books and accord- 
 ing to our own four or five times," and "always found them to be 
 correct." 
 
 Upon this evidence the books of account were offered by the plain- 
 tiff and the objection to their admission was placed "on the ground 
 that they are incompetent; a proper foundation not having been laid
 
 342 CASKS ON EVIDENCE 
 
 for their being admitted as evidence." The objection was overruled 
 and the defendant excepted. The question is thus presented whether, 
 in the evidence which preceded, a foundation had been laid for the 
 admission of the books according to the requirements of a rule of 
 evidence which should be regarded as established since its formula- 
 tion in the case of Vosburgh v. Thayer (12 Johns. 461). It was 
 held in that case that books of account ought not to be admitted 
 in evidence, "unless a foundaion is first laid for their admission, by 
 proving that the party had no clerk, that some of the articles charged 
 have been delivered, that the books produced are the account books 
 of the party, and that he keeps fair and honest accounts, and this by 
 those who have dealt and settled with him." The rule, as thus laid 
 down, has been since accepted as correct. (Matter of McGoldrick 
 v. Traphagen, 88 N. Y. 334 ; Tomlinson v. Borst, 30 Barb. 42 ; Dooley 
 v. Moan, 57 Hun 535.) Under these restrictions account books 
 become evidence for the consideration of the tribunal, with which 
 the determination of the issues rests. As evidence, which is manufac- 
 tured by the party, they should be received with caution; but that 
 is an objection which goes to the weight of the evidence and not to 
 its admissibility, which is to be determined solely with reference to 
 the foundation which has been laid for it. 
 
 Their admission in evidence is, of course, not authoritative as to 
 their contents; for the conclusion as to their credit will depend upon 
 their appearance, the manner of their keeping and the character of 
 him who offers them. Although the rule under discussion wa*s estab- 
 lished at a time when parties to an action were not allowed to be wit- 
 nesses, the subsequent legislation, which removed that disqualification 
 and authorized parties to testify in their own behalf, has not deprived 
 them of the right to introduce their books of account in evidence. 
 (Tomlinson v. Borst, supra; Stroud v. Tilton, 3 Keyes 139.) The 
 rule may, still, be an important one in the administration of justice 
 in cases where the party kept no clerk able to testify to the truth of 
 the entries in his books and where, unless they are admitted, great 
 inconvenience and a denial of justice may follow. 
 
 The conditions precedent to the admissibility of the plaintiff's books 
 of account were sufficiently complied with, within the requirements 
 of the rule in Vosburgh's case. The plaintiff had sworn that he per- 
 sonally delivered nearly all the coal charged and that the books which 
 were produced contained his accounts. That he had no clerk was 
 manifest from his testimony. In fact, the appellant does not claim 
 that the plaintiff did have a clerk and of course, the plaintiff's wife
 
 ACCOUNT BOOK ENTRIES 343 
 
 cannot be claimed to be a clerk, within the meaning of the rule. The 
 clerk so intended means one who had something to do with him, and 
 had knowledge generally of the business of his employer and would 
 be enabled to testify upon the subject of the goods sold. (Matter of 
 McGoldrick v. Traphagen, supra.) 
 
 The plaintiff had affirmatively shown, not only that his wife kept 
 books for him but that it was he who either delivered the coal or 
 superintended its delivery. The evidence was sufficient to negative 
 the idea that he kept a clerk who could testify, by reason of his em- 
 ployment, to the correctness of the account of goods sold and deliv- 
 ered. The remaining requirement, that proof should be made that 
 the plaintiff kept fair and honest books, was sufficiently met in the 
 evidence of the two witnesses, which has been mentioned. The evi- 
 dence went to establish, not only the character of the plaintiff for 
 honesty, but that in a course of business extending over several years 
 the witnesses had always found his books to be correct. In the one 
 case, the witness paid his bills relying upon the plaintiff's honesty and 
 not upon his recollection as to the amount of coal ordered; in the 
 other case, the witness had settled the plaintiff's bill against his em- 
 ployers according to his books and according to their own books, and 
 had always found the plaintiff's books to be correct. Such evidence 
 should be, and is quite sufficient to discharge the burden resting upon 
 the plaintiff with respect to that item of the .proof required by the 
 rule. 
 
 The judgment should be affirmed, with costs. 
 
 PARKER, Ch. J., O'BRIEN, HAIGHT, LANDON and WERNER, JJ., con- 
 cur ; CUI.LEN, J. not sitting. 
 
 Judgment affirmed. 
 
 RILEY v. BOEHM. 
 167 Mass. 183. (1896) 
 
 Contract, for money had and received. Trial in the Superior Court, 
 before Bishop, J., who allowed a bill of exceptions, in substance as 
 follows : 
 
 In April, 1894, the plaintiff, who was a retail liquor dealer in Fall 
 River, borrowed $400 from the defendant, and gave therefor his 
 promissory note payable three months after date at the B. M. C.
 
 344 CASES ON EVIDENCE 
 
 Durfee Safe Deposit and Trust Company. The note was discounted 
 by the defendant at the First National Bank and at its maturity, July 
 23, 1894, was paid at the B. M. C. Durfee Safe Deposit and Trust 
 Company, where the plaintiff had a deposit, by charging it up to the 
 plaintiff's account. The two banks did business in the same rooms 
 and over the same counters, in Fall River. 
 
 The plaintiff testified that on July 18, 1894, a few days before the 
 note matured, he gave the defendant $400 in cash to pay the note, 
 which was then, as both knew, in the bank ; that the defendant agreed 
 to take the note out of the bank; that at the same time he gave the 
 defendant a check for $735 as full payment for liquors sold to date; 
 that the defendant did not take up the note; and that the plaintiff took 
 a receipt for the $735 but not for the $400. This action was brought 
 to recover the latter sum. 
 
 MORTON, J. The mere fact that an entry in a book is made con- 
 temporaneously with the transaction which it purports to record does 
 not of itself entitle it to admission as a piece of substantive evidence. 
 It must also appear to have been made in the regular course of busi- 
 ness, under such circumstances as to import its trustworthiness. Dono- 
 van v. Boston & Maine Railroad, 158 Mass. 450. 
 
 It is for the presiding justice to say, in the first instance, whether 
 the record is of such a character, and his decision will not be inter- 
 fered with unless clearly wrong. Cogswell v. Dolliver, 2 Mass. 217, 
 222. Hawks v. Charlemont, no Mass. no. Commonwealth v. Coe, 
 115 Mass. 481, 504, 505. Commonwealth v. Morgan, 159, 159 Mass. 
 375. i Greenl. Ev. sec. 118, note I. In the present case the entry 
 which was relied on was contained in a small book, such as is usually 
 carried in a vest or side pocket, and was used for making memoranda 
 in regard to any matter which for any reason the defendant desired 
 to note. We cannot say that the court was not justified in holding 
 that the character of the book gave it no standing. Moreover, the 
 book was offered, not as containing an entry relating to the cash in 
 question, but as showing from the absence of an entry that the money 
 was not paid as the plaintiff said that it was. That is, the argument 
 was, that if the defendant had received the money he would have 
 entered it in the book, and because there was no entry he did not 
 receive it. This was inadmissible. Morse v. Potter, 4 Gray, 292. 
 
 Exceptions overruled.
 
 ACCOUNT BOOK ENTRIES 345 
 
 WHITLEY GROCERY COMPANY v. ROACH. 
 115 Ga. 918. (1902) 
 
 FISH, J. Roach, as trustee for Bagley, a bankrupt, sued the 
 Whitley Grocery Company and the Bank of Southwestern Georgia, 
 to recover certain personalty, or its value, which plaintiff alleged that 
 Bagle, while insolvent, for the purpose of paying his past due indebt- 
 edness to defendants, and with the intention, then known to them of 
 giving them a preference over his other creditors, had transferred to 
 defendants within four months prior to the filing of the petition in 
 bankruptcy against him. Upon the trial a verdict was rendered for 
 the plaintiff against the Whitley Grocery Company; it moved for a 
 new trial, which being refused, it excepted. 
 
 Two stocks of merchandise located, at the time of the transfer, 
 in Sumter county, were portions of the property for which the action 
 was brought. The value of this merchandise and the exact date on 
 which it was transferred by Bagler were important questions in the 
 trial of the case. It appeared that Bagley sold the merchandise to 
 Clegg, an agent of the Whitley Grocery Company, and that Clegg 
 afterwards sold it to "The Cash Store" at Cardele. Defendants, for 
 the purpose of showing the date it was made and the value of 
 the merchandise, offered in evidence an inventory of the goods, pur- 
 porting to have been made by Hearn, one of the partners who owned 
 "The Cash Store," and Home and Collins, two clerks therein, after 
 the sale by Clegg to "The Cash Store." This inventory was offered 
 in connection with the testimony of Hearn and Home; Collins not 
 being introduced as a witness. It was excluded by the court, and 
 this ruling was complained of in the motion for a new trial. There 
 was no merit in the complaint. Hearn, on cross-examination, in 
 reference to the inventory, testified as follows : "Mr. Home and 
 Mr. Collins made all these entries in this book. This is the book. 
 That 'A. G. S.' is the cost mark. 'Leo Washington' was the cost 
 mark. Mr. Home wrote this. The book was written by Mr. Home 
 and Mr. Jim Collins; there is where Mr. Collins wrote (indicating). 
 I didn't do any of the writing, I called it out; they put it down as 
 I called it out, did it under my directions part of the time. Mr. 
 Home or I made that entry. (Examining entry) Mr. Home made 
 it. I am swearing to that because I saw it when it was done." 
 Home testified, as to the inventory: "I know something about the 
 invoice presented in book; it is the invoice of the Bagley stock, that
 
 346 CASES ON EVIDENCE 
 
 is, so much as was received at The Cash Store; that is the invoice 
 that was taken at The Cash Store, checked up what we received. 
 That is a correct invoice. This submitted to me is in my handwriting, 
 and it is correct; it is all right." Hearn and Home both swore, in 
 a general way, that the inventory was correct, but it is evident that 
 they could not know of this of their own knowledge. Hearn's tes- 
 timony that it was made by himself, Home, and Collins, in the man- 
 ner set forth in his evidence, was not controverted, so we take it 
 as true that the inventory was prepared in that way. Hearn made 
 none of the entries; he simply called items for Home or Collins to 
 enter. What items he called and who entered them, Home of Col- 
 lins, did not appear. Home and Collins also called items, and the 
 one entered those called by the other, but such items were not iden- 
 tified, and it did not appear that Hearn had any knowledge whatever 
 of them. Nor was it shown that Home had any knowledge of the 
 items called by Hearn and entered by Collins. The inventory as a 
 whole was, therefore, not admissible as a memorandum upon the 
 testimony of Hearn or Home, or their joint testimony, because 
 neither of them aided in the preparation of all of it, and it could 
 not possibly represent their respective recollections of the items called 
 and the entries made about which they, respectively, had no knowl- 
 edge at the time the inventory was prepared. Moreover, the portion 
 of the inventory made up of the items called by Collins and entered 
 by Home would seem in the absence of Collins's testimony as to their 
 correctness, to be hearsay. It was held in Phenix Insurance Co. v. 
 Hart, 112 Ga. 765 (4), that: "Before a memorandum made for 
 the purpose of preserving a record of a given fact or transaction can, 
 in any event, be admitted in evidence as original testimony, it must 
 affirmatively appear that it was made by the witness in connection 
 with whose testimony it is offered, and that testimony must show 
 absolutely the genuineness and correctness of the memorandum." 
 Judgment affirmed. All the Justices concurring, except Lewis, ] ., 
 Absent.
 
 ACCOUNT BOOK ENTRIES 347 
 
 HERRIOTT v. KERSEY, 
 dp Iowa in. (1886) 
 
 The petition contains four counts, and the plaintiff seeks to recover 
 rent under an express contract on an account for money received, 
 and for the use and occupation of certain premises. There was a 
 denial of the allegations of the petition and a counter claim pleaded 
 by the defendant. Trial by jury, judgment for plaintiff, and defend- 
 ant appeals. 
 
 SEEVERS, J. Certain books, purporting to be plaintiff's books of 
 original entry, and identified as such, were introduced in evidence, 
 and it is insisted that the books contained numerous charges, which 
 were not made by either of the witnesses who testified in relation 
 to the books. We understand that the entries were made by four 
 persons, three of whom were witnesses and gave the requisite statu- 
 tory evidence in relation thereto; and the court said, as to the entries 
 made by the fourth person, Atkinson, that the books could not be 
 introduced to prove the charges made by him. To our minds, it is 
 perfectly clear that the point made by counsel is not well taken. 
 
 Affirmed. 
 
 SCHLICHTER v. WHYTE. 
 74 N. J. Hq. 839. (1908) 
 
 , J. This is a suit for an accounting between former part- 
 ners. 
 
 The fifth exception is that the master charged the defendant with 
 items of cash shown on the ledgers without other proof. 
 
 The point made by appellant, is, in substance, that the ledgers were 
 not available as evidence without the day books or other books of orig- 
 inal entry. The proof shows that the parties as partners kept partner- 
 ship books by paid bookkeepers, and that these books consisted of 
 memorandum day books called "blotters" and "ledgers." The blotters 
 seem to have disappeared. The ledgers were fully identified as those 
 of the partnership. 
 
 Counsel rely upon the cases in our reports, holding that as between 
 tradesmen and their debtors the books of account of original entry
 
 348 CASES ON EVIDENCE 
 
 are admissible, but that other books, in which these original entries 
 are posted are admissible only as supplementary to the books of orig- 
 inal entry, so that the whole of the account should appear, and that 
 the ledgers without the books of original entry are not admissible. 
 Bonnell v. Mawha, 37 N. J. Law, 198; Rumsey v. New York and 
 New Jersey Telephone Co., 49 N. J. Law 322 ; Diament v. Colk>ty, 66 
 N. J. Law 295. 
 
 These decisions undoubtedly indicate the law of this State on that 
 subject, but in our view are not applicable to this case. The parties 
 here were partners, so that each partner was an agent for all the 
 others as to partnership transactions. So also the bookkeepers em- 
 ployed by them from time to time were agents for every partner as 
 against the others, and, therefore, entry in the ledgers by a bookkeeper 
 in the course of his employment constituting a charge against one 
 partner in favor of the others, amounted to an admission by the 
 partner against whom it was charged. In this view of the case the 
 ledgers were properly admitted. 
 
 The decree appealed from will be affirmed. 
 
 SWAN v. THURMAN. 
 112 Mich. 416. 
 
 Assumpsit by Thomas Swan against Charles Thurman for goods 
 sold and delivered. From a judgment for plaintiff, defendant brings 
 error. Reversed. 
 
 HOOKER, J. The defendant appeals from a judgment against him 
 in an action of assumpsit, alleging two errors : 
 
 1. That plaintiff's books of account were improperly admitted in 
 evidence. 
 
 2. That the plaintiff had assigned his claim to another as security, 
 and has no authority to sue for and collect it upon his own account 
 and in his own name. 
 
 The latter contention is based upon a chattel mortgage which cov- 
 ered the plaintiff's stock and included his accounts. In addition to 
 the usual provisions of chattel mortgages, this mortgage contained 
 the following, viz. : 
 
 "It is agreed that until default be made by the mortgagor in one 
 or more of the conditions above recited, or proceedings are taken to
 
 ACCOUNT BOOK ENTRIES 349 
 
 foreclose this mortgage, the mortgagor may possess, sell, and use said 
 mortgaged property in the regular course of retail business, but not 
 for any other purpose." 
 
 The evidence in support of the plaintiff's account consisted of the 
 testimony of the bookkeeper, who stated that he kept the books of 
 the plaintiff which contained the accounts. It appeared conclusively 
 that the bookkeeper had no personal knowledge of the sale and 
 delivery of the goods ; all that he knew about their delivery being 
 obtained from slips handed to him daily by the waiters, who took the 
 orders and delivered the articles. It is sometimes proper to admit 
 books of account as evidence of the acts of those who keep them, 
 where the entries are contemporaneous with the acts recorded; but 
 where the book is as in this case the record of the acts of others, 
 not within the personal knowledge of the bookkeeper, but made up 
 by him from the statements of others, such book is hearsay. From 
 the earliest cases, the admission of entries by third persons has pro- 
 ceeded upon the theory that such person had personal knowledge of 
 the fact stated in the entry. Such was the case in the leading case oi 
 Price v. Earl; Torrington, I Salk. 285, where though the entry was 
 made by one who did not deliver the goods, it was made in the 
 presence of and was signed by the drayman who did, and it was 
 treated as the entry of the drayman, and admitted after his death. 
 In Smith v. Blakely, L. R. 2 Q. B. 326, Blackburn, J., says of the 
 English authorities. 
 
 "The rule to be collected from all the cases is that it is an essen- 
 tial fact to render such entry admissible, that not only it should be 
 made in the due discharge of the business about which the person 
 is employed, but the duty must be to do the very thing to which the 
 entry relates, and then to make a record of it." 
 
 In Welsh v. Barrett, 15 Mass. 380, Parker, C. J., said: 
 
 "But what a man has actually done, and committed to writing, 
 when under obligation to do the act, it being in the course of the 
 business he has undertaken, and he being dead, there seems to be no 
 danger in submitting to the consideration of the jury." 
 
 See, also, Nicholls v. Webb, 8 Wheat. 326; Livingston v. Tyler, 14 
 Conn. 493. 
 
 The general subject is exhaustively discussed in a note to Price 
 v. Earl of Torrington, i Smith Lead. Cas. 344, but we find nothing 
 consistent with the proposition that entries made by a third person, 
 living or dead, may be introduced to prove facts regarding which it 
 is shown that he had no personal knowledge at the time the entries
 
 35O CASES ON EVIDENCE 
 
 were made. It was necessary in this case to make further proof, 
 before it could be said that these books made a prima facie case. 
 
 In Jackson v. Evans, 8 Mich. 476, the defendant was charged with 
 brick which were delivered by plaintiff's teamsters. One witness 
 counted the brick when loaded, and kept account of them in a tally 
 book or slate, until evening or the next day, when he reported the 
 number to the plaintiff, but made no entries nor charges in plaintiff's 
 books. It was held that these .were not original entries. But the 
 court held that, before the books could be introduced, it was neces- 
 sary to call the teamsters, and, while they might not be able to re- 
 member how many bricks they delivered to the defendant, they might 
 remember that all loaded for him were delivered, which "would be 
 a very important link in the chain of circumstances to prove a sale 
 and delivery of the articles charged." The court said: "The team- 
 sters, can prove the delivery. Evans proves the number loaded and 
 hauled away, and that he reported them to the defendant (in error), 
 who entered them in his books. This makes up the res gestae." 
 
 We are of the opinion that the books were not admissible without 
 further proof, and that the defendant was entitled to a directed ver- 
 dict. 
 
 The judgment is reversed, and a new trial ordered. 
 
 The other Justices concurred. 
 
 CHISHOLM v. THE BEAMAN MACHINE CO. 
 
 AND 
 CHISHOLM v. OSWALD KUTSCHE. 
 
 160 III. 101. (1896) 
 
 MAGRUDER, J. These cases were tried by agreement before a judge 
 of the Superior Court of Cook County without a jury. No proposi- 
 tions were submitted by either side to the trial court to be held as 
 law in the decision of the case. There is, therefore, no question 
 before us for our consideration, except the question hereafter men- 
 tioned as to the correctness of the ruling of the trial court in the 
 admission of certain evidence. 
 
 Upon the trial below, the plaintiffs were permitted to introduce 
 in evidence the books of account of the Beaman Machine Com- 
 pany over the objection of the defendants, to which ruling exception 
 was duly taken.
 
 ACCOUNT BOOK ENTRIES 351 
 
 I 
 
 The evidence shows the following mode of keeping account of the 
 time spent in work upon the machines: Each workman at the end 
 of each day made out a time check or slip in his own handwriting, 
 slating therein the number of the piece he had worked upon and the 
 number of hours he had worked thereon during the day ; at the close of 
 day he dropped this time-slip into a locked box, arranged like a letter- 
 box, in the tool-room of the shop; the next morning the foreman of 
 the shop took these time-slips out of the box, checked them over, 
 went to see the workman who made the slip if anything was wrong 
 about it, marked the slips, "approved," which were found to be cor- 
 rect, and then turned them over to the bookkeeper in the usual way ; 
 the bookkeeper on the same day, or the following day, made a trans- 
 cript of these tickets or time-slips into a book called the time book, 
 the entries therein showing the number of the piece of machinery 
 worked upon, the name of the workman and the amount of the time. 
 During the time when the work was done upon these brick machines 
 from the early part of May, 1890, to the early part of December, 
 1890, the entries in the time-book were made by two bookkeepers. 
 When the books were introduced, these bookkeepers were placed upon 
 the stand and swore, that the entries in the time-book were correct; 
 that such entries were a correct transcript of the tickets, and for the 
 work done in the shop, as shown by the tickets ; that the entries were 
 made from the tickets made out by the men in the shop, and generally 
 handed to the bookkeeper by the foreman the next morning; that the 
 tickets were examined by the bookkeepers, and when any errors were 
 found, they were corrected by the foreman and the bookeeper before 
 the entries were made in the books. 
 
 The foremen, who had charge of the workmen during the progress 
 of the work upon the machines, and who examined and approved of 
 the tickets or time-slips, were also put upon the stand, and swore to 
 their signatures upon the time-slips ; that they had looked them over, 
 and had superintended the men, and had had charge of their work; 
 that the tickets, turned in for the work, as signed and approved by 
 them, were correct, and correctly represented the time; and that the 
 work specified on the tickets was done. 
 
 We think, that the books were properly admitted in evidence in 
 connection with proof of the facts and circumstances already detailed. 
 Their mere admission was not a determination of the weight to which 
 they were entitled as evidence, and it was the privilege of the appel- 
 lants to attack their reliability by any legitimate testimony tending to 
 show their incorrectness.
 
 352 CASES ON EVIDENCE; 
 
 The entries in the account book, or book of original entries, may be 
 proved by the clerk who made them if he is alive and can be pro- 
 duced. In order to make the book admissible, it is necessary that the 
 entries therein should have been made in the ordinary course of busi- 
 ness by a person whose duty it was to make them and that they 
 should have been made contemporaneously with the doing of the 
 work, for which the charges are made, so as to form a part of the 
 res gestae. 
 
 Where the clerk, who makes the entries, has no knowledge of their 
 correctness, but makes them as the items furnished by another, it is 
 essential that the party furnishing the items should testify to their 
 correctness, or that satisfactory proof thereof such as the transac- 
 tions are reasonably susceptible of from other sources should be 
 produced. (House v. Beak, supra.) 
 
 Where there is original evidence that laborers were employed, and 
 that their time was correctly reported by persons having personal 
 knowledge of the facts, and that these reports were made in the ordi- 
 nary course of business, and in accordance with the duty of the per- 
 sons making them, and in point of time were contemporaneous with 
 the transactions to which the reports related; and where this original 
 evidence is combined with proof by the person receiving the reports 
 that he correctly entered them as reported in the time-book in the 
 usual course of his business and duty, the entries so made are admis- 
 sible as evidence to show the amount of work done. (Mayor of New 
 York v. Second Avenue Railroad Co., 102 N. Y. 572; In re McGold- 
 rick v. Traphagen, 88 id. 334; Little Rock Granite Co. v. Dallas 
 County, 66 Fed. Rep. 522; Redlich v. Bauerlee, 98 111. 134. 
 
 Judgment affirmed. 
 
 ARCHITECTS & BUILDERS v. STEWART. 
 68 W. Va. 507. (1911) 
 
 MILLER, Judge. The court below sustained defendant's demurrer 
 to plaintiff's evidence, and entered judgment thereon for demurrant. 
 Defendant offered no evidence except her own to the effect as execu- 
 trix she had found among decedent's papers no account of memoran- 
 dum showing any indebtedness to plaintiff. On cross-examination,
 
 ACCOUNT BOOK ENTRIES 353 
 
 however she admitted, that as far as she knew decedent kept no regu- 
 lar books of account with individuals. 
 
 The action was asstimpsit, plaintiff demanding of decedent's estate, 
 a balance alleged to be due it on account growing out of contracts to 
 build certain houses, barns, &c. 
 
 Plaintiff offered as witnesses to prove the account Miss Dickey, 
 its bookkeeper and stenographer, and also McNulty, its president and 
 general manager. Miss Dickey proved that she was the bookkeeper 
 and stenographer of plaintiff during the time covered by the account 
 sued for; that she kept the books of plaintiff and made entries in the 
 account against decedent in the regular course of business, and that 
 decedent in his lifetime was indebted to plaintiff in the sum of 
 $415.54, the balance sued for. In connection with her testimony, the 
 ledger, the book of original entry, was also offered and admitted in 
 evidence. The witness also testified that she had seen the contract 
 between plaintiff and decedent to do the work covered by the account ; 
 that she had made up the book statements of the account against de- 
 cedent in his lifetime, and mailed them to him, and that if he had 
 ever disputed the account it had not come to her knowledge. On ' 
 cross-examination, however, the witness admitted that she had no 
 personal knowledge of the correctness of the several items in the 
 account, except that she had kept them on file as they had been turned 
 in to her and that she had made the entries from information given 
 her by McNulty, and by one Wine, who she describes as partner and 
 foreman. 
 
 McNulty was offered as a witness to supplement the testimony of 
 the bookkeeper, but defendant objecting thereto, his eridence was ex- 
 cluded so far as it related to personal transactions with decedent in 
 his lifetime, as incompetent because of interest. 
 
 The only question presented for decision is, did the court below err 
 in its judgment on the demurrer to the evidence? Plaintiff did prove 
 by McNulty, also by Taylor, who had been president and manager, 
 that Miss Dickey was bookkeeper, and that it was customary for all 
 items of business to be turned into the office and to be kept by her; 
 and by McNulty, on cross-examination, defendant proved that after 
 the item, to check $375.00, charged in the account, he had in his own 
 handwriting, about the time of the entry by Miss Dickey written the 
 words "money loaned." On re-direct examination the check with 
 indorsements was, without objection, admitted in evidence. 
 
 By her demurrer to the evidence defendant has apparently staked 
 her defense upon the proposition that the evidence of Miss Dickey
 
 354 CASES ON EVIDENCE 
 
 was lacking in the essential requisite of personal knowledge of the 
 transactions, entered by her, to render her testimony in connection 
 with the books legal and competent evidence as against defendant of 
 the truth of such entries. The general rule undoubtedly is, as stated 
 in Vinal v. Oilman, 21 W. Va. 301, that to render such entries legal 
 and competent evidence, the book of account must be (i) a book 
 of original entry; (2) the entry co-temporaneous, or practically so, 
 with the transaction; (3) it must be made in the regular course of 
 one's business or employment, and (4) the entrant must have had 
 personal knowledge of the transaction. See also I Elliott on Ev. sec. 
 455, et seq.; 17 Cyc. 391, et seq. 
 
 It is not claimed the plaintiff's evidence was lacking in any of these 
 requisites, except the fourth. Did this want of personal knowledge 
 on the part of Miss Dickey, under all the facts and circumstances dis- 
 closed by the record, justify the judgment of the court on the demur- 
 rer to the evidence? 
 
 Can the case we have here be brought within any recognized ex- 
 ception to or limitation upon the general rule? 2 Wigmore on Ev. 
 sec. 1530, referring to sec. 1522, for a discussion of the circumstantial 
 guarantee of trustworthiness, contains a full discussion of the subject 
 of these exceptions and limitations, too long for quotation, but to 
 which reference is made for the learning on the subject. He there 
 shows, by reference to the judicial decisions, some of which have al- 
 ready been cited by us, how in the event either the entrant with or 
 without personal knowledge of the transaction, or the one with such 
 personal knowledge and on whose information, oral or written, the 
 entry was made, or both, be dead or unavailable as witnesses, the 
 entry having been shown to have been made in the usual course of 
 business and according to an established custom of conducting the 
 business, the element of personal knowlege is thereby supplied, ren- 
 dering the entry available as legal evidence, on principles of neces- 
 sity, or inconvenience in obtaining the witnesses. "The conclusion 
 is, then," says this writer, "that where an entry is made by one per- 
 son in the regular course of business, recording an oral or written 
 report, made to him by one or more other persons in the regular 
 course of business, of a transaction lying in the personal knowledge 
 of the latter, there is no objection to receiving that entry under the 
 present exception, provided the practical inconvenience of producing 
 on the stand the numerous persons thus concerned would in the par- 
 ticular case outweigh the probable utility of doing so." And as a 
 reason for recognizing and applying the exception where applicable,
 
 ACCOUNT BOOK ENTRIES 355 
 
 this writer says : "Why should not this conclusion be accepted by 
 the courts? Such entries are dealt with in that way in the most 
 important undertakings of mercantile and industrial life. They are 
 the ultimate basis of calculation, investment, and general confidence 
 in every business enterprise; nor does the practical impossibility of 
 obtaining constantly and permanently the verification of every em- 
 ployee affect the trust that is given to such books. It would seem that 
 expedient which the entire commercial world recognizes as safe 
 could be sanctioned, and not discredited, by courts of justice. When 
 it is a mere question of whether provisional confidence can be placed 
 in a certain class of statements, there cannot profitably and sensibly 
 be one rule for the business world and another for the court room. 
 The merchant and the manufacturer must not be turned away remedi- 
 less because methods in which the entire community places a just con- 
 fidence are a little difficult to reconcile with technical judicial scruples 
 on the part of the same persons who as attorneys have already employed 
 and relied upon the same methods. In short, courts must here cease 
 to be pedantic and endeavor to be practical." The writer follows 
 this statement of the principle by quotations from and citations in 
 foot notes of numerous judicial decisions sanctioning and applying 
 the principle. It is wholly unnecessary to do more than refer to this 
 discussion of the subject by that writer. In Insurance Co. v. Sea- 
 board Air Line Ry., supra, the North Carolina court quotes at length 
 and approvingly from this section in Wigmore, in support of the 
 conclusions reached in that case. 
 
 We think the principle of the exception sound, and supported by 
 reason and judicial authority, and that it is one which ought to be 
 recognized and applied in this case. Otherwise plaintiff, because of 
 the death of decedent, and the objection to and the unavailability be- 
 cause of interest of the evidence of living witnesses must lose what 
 we must assume is a meritorious debt and claim against decedent's 
 estate. 
 
 For the reasons given we are of opinion that plaintiff made a 
 printa facie case entitling it to a submission of its evidence to the 
 jury, and that the court below erred, as a matter of law, in sustaining 
 the demurrer of the defendant thereto, and entering judgment for 
 thereon. 
 
 Reversed and judgment rendered.
 
 356 CASES ON EVIDENCE; 
 
 F. DOHMEN CO. (Limited) v. NIAGARA FIRE INS. CO. 
 96 Wis. 38. (1897) 
 
 This is an action on a fire insurance policy issued on the 3Oth day 
 of June, 1892, for the term of one year, insuring plaintiff's property, 
 described therein, to the amount of $2,500. Such property consisted 
 of a wholesale stock of drugs, medicines, paints, and other mer- 
 chandise kept by plaintiff in its wholesale establishment in the city of 
 Milwaukee. The policy was one of several by which insurance was 
 carried on such property to the amount of $65,500. On the 28th day 
 of October, 1892, such property was partially destroyed by fire. Plain- 
 tiff claimed to have suffered damages on such property by such fire 
 in a sum in excess of $57,000. This action was brought to recover 
 the proportionate share of such loss represented by the policy in 
 question. The complaint is in the usual form. Defendant answered, 
 putting in issue the amount of the loss, and alleging that the policy 
 contained a provision rendering it void in case of any fraud or false 
 swearing on the part of plaintiff, and that plaintiff had been guilty 
 thereof. 
 
 MARSHALL, J. It is further contended that the judgment should be 
 reversed for error in allowing Fred Dohmen, Sr., and Henry Dohmen 
 to testify from the corporation account books respecting the amount 
 of goods on hand at the time of the fire. This is the evidence spe- 
 cially referred to in the preceding paragraph. Fred Dohmen, Sr., tes- 
 tified without objection to the amount of goods on hand as shown by 
 the inventory of February, 1891, and also testified to the correctness 
 of such inventory. With that as a starting point, and without verify- 
 ing the correctness of the account books in any way, he was allowed 
 against objection, to testify to the amount of purchases from the 
 time such inventory was made up to the time of the fire, also as to 
 the amount of sales during such period, as recorded in such books. 
 The value of the goods when the fire occurred was then determined 
 by adding to the amount as shown by such inventory the amount of 
 the subsequent purchases and deducting therefrom the sale as shown 
 by the books ; then adding to the result the percentage of profit which 
 the witness Fred Dohmen, Sr., said the plaintiff averaged to make 
 in the business. Thus the question is clearly presented of whether 
 the amount of stock on hand at the time of the fire, under the ci-~ 
 cumstances, could properly be established by testimony given of the 
 contents of the books by a person who did not keep them, was not
 
 ACCOUNT BOOK ENTRIES 357 
 
 able to verify their correctness in any way, and without such correct- 
 ness being verified in any manner, or the books being in evidence. 
 That question must be answered in the negative. No authority has 
 been brought to our attention, either by respondent's counsel or other- 
 wise, that justifies the admission of such evidence. 
 
 Just how to proceed in such a case is by no means free from diffi- 
 culty. In a large business, obviously it is impossible to produce wit- 
 nesses to testify of their personal knowledge respecting the amount 
 of stock on hand, or to the purchases and sales which may have oc- 
 curred during a long period of time. The bookkeeper cannot ordi- 
 narily be expected to testify to more than that the entries made by him 
 are correct, according to the facts as reported to him in the regular 
 course of business. Such information must necessarily come to him 
 from a variety of sources ; and to verify the same, except in the most 
 important transactions, in a large business, would be utterly impossible. 
 There is a surprising dearth of authority on the question, considering 
 the frequency with which the difficulty must be met in adjusting 
 losses under similar circumstances. The general principles of the law 
 of evidence applicable to the subject properly understood, will fur- 
 nish a safe guide. One of the most familiar rules is that the best 
 evidence the nature of the case is susceptible of must be produced, 
 i Greenl. Ev. sec. 82. From the very nature of the case, the only 
 evidence of a definite character that could be produced was such as 
 could be given by the aid of the books. The stock of goods that 
 existed, according to the inventory of February, 1891, had been added 
 to in the regular course of business for over a year and a half, and 
 the whole had been reduced by daily sales during that time. The mul- 
 titude of transactions during such period, of goods taken in and sent 
 out, could not be established by evidence from the mouths of wit-- 
 nesses. The only evidence that existed was locked up in the books. 
 Such being the case, upon such books being reasonably verified as 
 correct records of the daily transactions in the business as such 
 transactions were regularly reported to the office to be recorded in 
 such books, with proof that the books were relied upon by the plain- 
 tiff solely as a repository of the facts in regard to the business, and 
 that they were uniformly found to be correctly kept, a witness who 
 had occasion to refer to them from time to time, and had thereby, 
 and through a general knowledge of the business, been con- 
 vinced of their correctness, might properly testify, by their aid, to 
 their contents as facts, without having personal knowledge of such 
 facts independent of the books, and without ever having had any
 
 358 CASES ON EVIDENCE 
 
 other knowledge of all the individual transactions than such as one 
 might be reasonably expected to have by generally overseeing a busi- 
 ness. Such evidence would not be conclusive by any means, but 
 would constitute evidence bearing on the question in suit proper to be 
 submitted to the jury with all the other evidence in the case. 
 
 Here there was no proper foundation laid for the use of the books. 
 They were merely produced as the books of account kept in the busi- 
 ness, and, without any verification whatever, the witnesses were al- 
 lowed to testify respecting their contents. There is no rule with which 
 we are familiar that warranted the admission of the evidence under 
 the circumstances. It was prejudicial error, for which the judgment 
 must be reversed. 
 
 BY THE COURT. The judgment of the Superior Court is reversed 
 and the cause remanded for a new trial. 
 
 RAILWAY COMPANY v. HENDERSON. 
 57 Ark. 402. (1893) 
 
 Action by Henderson & Jelks against the St. Louis Iron Mountain 
 & Southern Railway Company. The complaint substantially alleged 
 that plaintiffs purchased, at Auvergne, in Jackson county, Arkansas, 
 13 head of Jersey cattle; that their vendor, J. T. Henderson, con- 
 tracted with the Batesville & Brinkley Railway Company to trans- 
 port the cattle from Auvergne to Searcy in White county, Arkansas ; 
 that the latter company furnished a car, which it had obtained from 
 defendant railway company, for the purpose of transporting the cat- 
 tle; that the car so furnished was at the time infected with the 
 germs of Texas or Southern cattle fever; that said infection was 
 produced by the droppings of diseased cattle which had been trans- 
 ported therein, and that defendant had negligently permitted such 
 droppings to remain in the car until it had become infected with the 
 germs of the cattle fever; that, by reason of said infected condition 
 of the car, plaintiffs' cattle became infected with the fever, and in a 
 short time after their arrival at Searcy nine of them took sick and 
 died. 
 
 The jury returned a verdict for $900. A motion for a new trial 
 was overruled, and defendant appealed. 
 
 , J. We have carefully examined all the evidence con-
 
 ACCOUNT BOOK ENTRIES 359 
 
 tained in this record, and our conclusion is that it admits of no 
 theory on which we can hold it sufficient to support the verdict. 
 
 As the cause must be remanded for further proceedings, it is 
 necessary to notice some of the questions arising in the course of the 
 trial. 
 
 In connection with other circumstances which were in evidence, 
 the record produced by the witness, Hubbard, showing the movement 
 of cars at Diaz station during the year 1889, would have tended to 
 prove that Missouri Pacific Car No. 6335, in which the plaintiffs' 
 stock were shipped, had not been recently used in the carriage of 
 other cattle. The statement of Hubbard is not very explicit; but 
 we take it to mean that the entries in the record are in the hand- 
 writing of Clayton, the absent witness, and that they were made in 
 the performance of his duties as agent 'of the company. If such was 
 the nature of the entries, and they were contemporaneous with the 
 facts recorded, and there was no reason to question their fairness, 
 we think they were admissible on being properly authenticated. Mr. 
 Greenleaf places the admissibility of such entries on the ground that 
 they are part of the res gestae, and he treats them as original evi- 
 dence which may be received independently of the testimony of the 
 person making them. They must, however, be authenticated by his 
 oath if he is living and his testimony can be procured. If he is 
 dead, or is out of the jurisdiction of the court, or cannot be found, 
 they may be admitted on proof of his handwriting, i Greenleaf EY. 
 sees. 115, 120; I Whart. Ev. sees. 238, 240, 250, 678, 683, 688; Welsh 
 v. Barrett, 15 Mass. 380; Bartholomew v. Farwell, 41 Conn. 230; 
 Price v. Earl of Torrington, i Smith's Leading Cases (8th ed.) 563, 
 575 ; Sneed v. State, 47 Ark. 180 and cases cited. But it is incum- 
 bent on the party offering entries of this kind, unauthenticated by 
 the oath of the person who made them, to show, as a prerequisite to 
 their admission, that such person cannot be produced as a witness ; 
 and when he is living, some discretion must be allowed to the trial 
 court in deciding whether proof offered as preliminary to the intro- 
 duction of the entries is sufficient to admit them as in the case of the 
 witness' death. Sneed v. State, 47 Ark. 180, 185. The bill of ex- 
 ceptions does not inform us that the statement made by defendant's 
 counsel as to their inability to secure the testimony of Clayton was 
 received as evidence; and if that statement be disregarded, it does 
 not appear that it was error to exclude Clayton's entries, with no 
 proof before the court that he could not be found, except that Hub-
 
 360 CASES ON EVIDENCE 
 
 bard swore that his place of residence was unknown, without stating 
 whether any effort had been made to ascertain it. 
 
 Reversed on another ground. 
 
 CONTINENTAL NATIONAL BANK v. FIRST NATIONAL 
 
 BANK. 
 
 108 Tcnn. 374. (1901) 
 
 WILKES, J. The bill in this case seeks to hold the First National 
 Bank of Nashville liable to the Continental National Bank of Mem- 
 phis for about $30,000. 
 
 The ground of liability as claimed is, that the Nashville Bank 
 in its own interest, and for its own benefit, falsely and fraudulently 
 represented to the Memphis Bank that certain parties on paper pre- 
 sented to it for discount were good and solvent, when, as a matter of 
 fact, they were insolvent, and the Memphis Bank in consequence, 
 lost the greater part of the money loaned. 
 
 It is said it was error to introduce the books of the bank in evi- 
 dence. They were produced and identified by the cashier. It is said 
 the defendants should have gone further and shown by the party who 
 made the entries that they were correct. 
 
 The books were introduced to show the state of accounts between 
 the Nashville Bank and Duncan, Gaines & Morrow, the object being 
 to show by the course of dealing between the bank and these parties 
 that the bank was treating and dealing with them as solvent, reliable 
 customers. 
 
 It has been held that where it becomes material, either for or 
 against a corporation, and as against a stranger, or as between two 
 strangers, to prove what was done by the corporation, its books and 
 records are admissible in evidence, and they are the best evidence. 
 6 Thomp' Corporations, sec. 7734. 
 
 We think it not necessary that the bookkeeper who made the 
 entries should be examined as to their correctness. 
 
 At most, he could only testify that the entries made by him are 
 true entries of transactions reported to him by others. In other 
 words, he could only testify that he wrote down what others told 
 him. The court knows, as a matter of common information, that 
 there are many persons in the employ of banks, and each has his
 
 ACCOUNT BOOK ENTRIES 361 
 
 Different department, and each transaction passes through the hands 
 of several it may be of many persons. We take a deposit, for 
 instance. It goes into the hands of the receiving teller, thence into 
 the hands of a journal clerk, thence to the individual bookkeeper, or 
 such other officials as perform the functions of these officers. When 
 it reaches the hands of the bookkeeper, who makes the final entry, 
 which stands as the true statement between the bank and depositor, 
 it has gone through the hands of a dozen parties, perhaps, and the 
 last party only records what comes to him through so many hands, 
 and knows nothing, it may be of the actual transaction. It would 
 seem that the cashier, whose function it is to overlook all transactions 
 at the counter, and over the books, and test each transaction through 
 all its stages, should be the person most competent to produce the 
 books and vouch for their accuracy. 
 
 We do not think there is any reversible erro.r in this assignment. 
 
 Looking at the case as a whole, it is evident that before complain- 
 ant can recover, it must show that it was fraudulently misled by the 
 defendant to make the loan it did. 
 
 Upon the whole case we think the complainants have wholly failed 
 to make out a case of fraud upon the part of the Nashville Bank, and 
 to establish any ground of liability against it, and the decree of the 
 Court of Chancery Appeals is affirmed. 
 
 THE CHICAGO & ALTON R. R. CO. v. THE AMERICAN 
 STRAWBOARD CO. 
 
 ipo ///. 268. (ipoi) 
 
 PER CURIAM. For the purpose of establishing the quantity of 
 straw destroyed by the fire, appellee, in addition to much oral evi- 
 dence, was permitted against the objection of appellant, to introduce 
 eighteen instruments of writing called "stack sheets." It is urged 
 these instruments were not competent to be received in evidence. 
 
 It appeared from the testimony the appellee company, in the regu- 
 lar course of transacting the business in which it was engaged, placed 
 the straw which it owned in large stacks ; that each stack was given 
 a number, and that a sheet called a "stack sheet," was kept for each 
 stack as the mode adopted, in the regular course of its business by 
 the appellee company, of keeping an inventory of the amount of straw
 
 362 CASES ON EVIDENCE 
 
 on hand. The purpose they were intended to serve was to correctly 
 advise the appellee company of the amount of stock or straw which 
 it had on hand. The information contained in the stack sheets was 
 to aid the appellee company in the proper transaction of its own busi- 
 ness, and were intended to be accurate, for the company could have 
 no purpose or intent to deceive itself. On the contrary, the controlling 
 motive in the preparation of the stack sheets was to accurately and 
 truthfully set down the facts as they existed. Such stack sheets 
 were made up from scale tickets and memoranda kept by the person 
 who did the weighing at the scales where the straw was weighed 
 and received into the company's possession, and the parties who 
 transcribed the weights from such scale tickets and memoranda were 
 produced in court as witnesses, and each testified, for himself, that 
 the transcription by him made was correctly made in each instance. 
 The parties who transcribed the weights from the scale tickets to the 
 stack sheets were the persons who weighed the straw as received 
 and made the scale tickets, and each testified, for himself, that the 
 weights were correctly taken and correctly set down on the scale 
 tickets. It appeared that the scale tickets showing the weight of the 
 straw as received in car-load lots, or in wagon loads, as the case 
 might be, had been lost or destroyed; that it was not the custom of 
 the appellee company to preserve them after they had been transcribed 
 onto the stack sheets. The contention of counsel for the appellant 
 company is, that these scale tickets constituted the original entries 
 as to the transactions, and that the copies therefrom, as shown on the 
 stack sheets, were not admissible in evidence. 
 
 Without deciding whether, in the adjustment of accounts between 
 the appellee company and those from whom the straw was purchased, 
 these scale tickets should be regarded as the original entries, it is 
 quite clear that so far as they were connected with the preparation 
 of the stack sheets as a means of keeping an account or inventory of 
 stock on hand, they were but memoranda, and the stack sheets here 
 shown to have been prepared from them were admissible as original 
 documents, as tending to show the number of tons of straw in each 
 stack. Upon this point the following remarks in the opinion of the 
 Appellate Court are adopted as expressing the views of this court: 
 "These stack sheets were, in effect, inventories of the quantities of 
 straw in the several stacks destroyed, and the testimony of Yost, 
 Van Horn and Sager, when all considered, shows they were correct 
 inventories and correctly made up from the original notations, and 
 that the latter had been lost or destroyed. It is only by such testi-
 
 ACCOUNT BOOK ENTRIES 363 
 
 mony the quantities of goods destroyed by fire can usually be proved, 
 for no witness can carry such numerous details in his memory. 
 When the persons who made such statements testify they made them 
 correctly, the papers so made are admissible in evidence. In Insur- 
 ance Co. v. Weides, 14 Wall. 375, the owners of a stock of goods 
 destroyed by fire proved they took a correct inventory at a certain 
 date; that the inventory was reduced to writing in an inventory book; 
 that the prices or values were correctly footed therein; that the foot- 
 ings were correctly copied upon the fly-leaf of an exhausted ledger 
 and afterwards transferred to the fly-leaf of a new ledger; that the 
 inventory and exhausted ledger had been destroyed and that none of 
 the witnesses could remember the amount of the inventory or foot- 
 ings. It was held the entry of the footings on the fly-leaf of the new 
 ledger was competent evidence in connection with the oral testimony. 
 It was there said that it had been many times decided that such 
 papers, accompanied by such proof, are receivable in evidence." 
 
 Judgment affirmed. 
 
 PEOPLE'S NATIONAL BANK OF MIDDLETON v. RHOADES. 
 po All. Rep. 409 (Del.) (1913) 
 
 Action of assumpsit (No. 81, May Term, 1912) on the common 
 counts with bill of particulars filed, to recover from the defendant, 
 a depositor in the plaintiff bank, overdrafts amounting to $1,457.43. 
 
 At the trial the checks and notes drawn by the defendant on his 
 account in the plaintiff bank and paid by it were admitted in evidence 
 by agreement. The plaintiff offered the individual journal No. 14, 
 containing the debits and credits of all the depositors in the bank, 
 covering the year 1906, and counsel stated that he wished to prove 
 the entry of November 28, 1906, leaving the entry of the first check 
 in the series, paid by the plaintiff, previously admitted in evidence; 
 the purpose of the testimony being to show the state of the defend- 
 ant's account in the bank. 
 
 Mr. Handy objected on the ground that such testimony would be 
 testimony of a cash item in a book account to charge the defendant, 
 which would be contrary to the provision of the statutes of this state. 
 Revised Code 1852, amended to 1893, p. 799, c. 107. 
 
 Riot, J. The statute of this state (Revised Code 1852, amended
 
 364 CASES ON EVIDENCE 
 
 in 1803, p. 799, c. 107, sec. n), in respect to a book of original 
 entries, regularly and fairly kept, shall, together with the oath, or 
 affirmation, of the plaintiff, be admitted in evidence to charge the 
 defendant with the sums therein contained for goods sold and deliv- 
 ered, and other matters properly chargeable in an account. Cash 
 items are not properly so chargeable." 
 
 While there can be no doubt, and it has often been decided by the 
 court, that in a merchandise business cash items are not such items 
 as are properly chargeable in a book account, yet we think when the 
 business is one of banking, where the commodity dealt in between 
 the depositor and the bank virtually is cash, then it does constitute 
 an item properly chargeable in a book account. It comes within the 
 provision of that part of the statute which permits "other matters 
 properly chargeable in an account"" to be admitted in evidence, and 
 it does not fall within the inhibition that "cash items are not prop- 
 erly so chargeable." We are of the opinion, as between a bank and a 
 depositor, that a book of original entries regularly and fairly kept, 
 containing cash items of the account of the depositor with the bank, 
 may, under the provisions of the statute, be admitted in evidence to 
 charge the depositor with the items. We overrule the objection and 
 admit the book in evidence. 
 
 Notes. The rules of evidence pertaining to account-book entries and 
 entries made in the regular course of business have some features in com- 
 ,mon, but they are not at all synonymous. They are closely allied in prin- 
 ciple and probably are traceable to a common origin, but their historical 
 development has been quite different. Moreover, the rule of evidence per- 
 taining to the former had its origin nearly a century before the rule per- 
 taining to the latter. And both of these rules, as previously stated in a 
 foot-note, originated before the rule against hearsay. 
 
 Account-book entries are inadmissible in a suit between strangers, 
 whereas entries made in the regular course of business are admissible. 
 
 The historical development of the rule relating to account-book entries 
 has been quite different In this country from that which has obtained in 
 England.
 
 DECLARATIONS IN COURSE OF BUSINESS 365 
 
 DECLARATIONS IN REGULAR COURSE OF BUSINESS.i 
 
 MAYOR OF N. Y. v. SECOND AVE. R. R. CO. 
 102 N. Y. 572. (1886) 
 
 This action was brought to recover damages for an alleged breach 
 of contract. 
 
 Defendant, having obtained permission to lay its railroad with a 
 double track over portions of certain streets in the city of New York, 
 entered into a contract with the city by which it covenanted among 
 other things "that the said company shall pave the streets in and 
 about the rails in a permanent manner and keep the same in repair 
 to the entire satisfaction of the street commissioner." Defendant 
 failed to keep one of the streets covered by the contract in repair. 
 Notice of the condition of the street and that if it did not within 
 thirty days thereafter repair the same, the department of public 
 works would make the necessary repairs and defendant would be 
 held responsible for the expense was served upon the defendant. It 
 having failed to comply with the notice, the work was done by the de- 
 partment and the expense thereof plaintiff claimed to recover herein. 
 
 ANDREWS, J. There was no evidence showing that the charge for 
 labor in the account of the city was excessive, or that more laborers 
 or materials were provided than were reasonably required. We are 
 of opinion, therefore, that the direction of the verdict for the sum 
 actually expended by the city, in making the repairs, was not error. 
 
 A more serious question is raised by exceptions to the admission 
 in evidence of a time-book kept by one John B. Wilt, and of a writ- 
 ten memorandum or account made by him, offered to prove the 
 number of days' work performed and the quantity of material used. 
 Wilt was a foreman, in the employ of the department of public works, 
 and had general charge of the repairs in question. Under him were 
 two gang foremen, or head pavers, Patrick Madden and Charles 
 Coughlan, each having charge of a separate gang of about ten men 
 employed on the work. Wilt kept a time-book, in which was entered 
 the name of each man employed. He visited the work twice a day, 
 in the morning and afternoon, remaining from a few minutes to 
 half an hour each time, and he testified that while there he checked 
 on the time-book the time of each man, as reported to him by tfie 
 
 Ifughes on Evidence, p. 117.
 
 366 CASES ON EVIDENCE 
 
 gang foremen. He also testified that he marked the men's names as 
 he saw them, and that he knew their faces. The gang foremen did 
 not see the entries made by Wilt, but they testified that they cor- 
 rectly reported to him each day the names of the men who worked, 
 and if any did not work full time, they reported that fact also. Upon 
 this proof, the trial judge admitted the time-bopk in evidence, against 
 the objection of the defendant. The trial judge also admitted in 
 evidence, under like objection a written memorandum or account, 
 in the handwriting of Wilt, of materials used. Wilt testified that the 
 entries in the account were made from daily information furnished 
 by the gang foremen, on the occasions of his visiting the work and 
 that he correctly entered the amounts as reported. It does not appear 
 that he had any personal knowledge of the matters to which the 
 entries related. The gang foremen were called as witnesses in sup- 
 port of the account. Neither of them saw the entries, and on the 
 trial neither claimed to have any present recollection of the specific 
 amounts so reported by them. Madden testified that he reported the 
 correct amounts to Wilt, and it is inferable from his evidence that 
 when the reports were made, he had personal knowledge of the facts 
 reported. Coughlan also testified in general terms that he reported 
 the items correctly. But on further examination it appeared that his 
 reports to Wilt of the stone delivered at the work, were made upon 
 information derived by him from the carmen who drew the stone, 
 and who counted them, and who reported the count to Coughlan, 
 who in turn reported to Wilt. Coughlan saw the carmen dump the 
 stone, but he did not verify the count, but appears to have assumed 
 its correctness. The carmen who delivered the stone were not called 
 as witnesses. 
 
 The exception to the admission of the time-book presents a ques- 
 tion of considerable practical importance. The ultimate fact sought 
 to be proved on this branch of the case, was the number of day's 
 labor performed in making the repairs. The time-book was not ad- 
 missible as a memorandum of facts known to Wilt and verified by 
 him. His observation of the men at work was casual, and it cannot 
 be inferred that he had personal knowledge of the amount of labor 
 performed. His knowledge, from personal observation, was mani- 
 festly incomplete, and the time-book was made up, mainly, at least, 
 from the reports of the gang foremen. The time-book was clearly not 
 admissible upon the testimony either of the gang foremen, or of Wilt, 
 separately considered. The gang foremen knew the facts they re- 
 ported to Wilt, to be true, but they did not see the entries made, and
 
 DECLARATIONS IN COURSE of BUSINESS 
 
 could not verify their correctness. Wilt did not make the entries 
 upon his own knowledge of the facts, but from the reports of the gang 
 foremen. Standing upon his testimony, alone, the entries were mere 
 hearsay. But combining the testimony of Wilt and the gang fore- 
 men there was, first, original evidence that laborers were employed, 
 and that their time was correctly reported by the persons who had 
 personal knowledge of the facts, and that their reports were made in 
 the ordinary course of business and in accordance with the duty of 
 the persons making them, and in point of time were contempora- 
 neous with the transactions, to which the reports related; and second, 
 evidence by the person who received the reports, that he correctly 
 entered them as reported, in the time-book, in the usual course of his 
 business and duty. It is objected that this evidence taken together, 
 is incompetent to prove the ultimate fact, and amounts to nothing 
 more than hearsay. If the witnesses are believed, there can be but 
 little moral doubt that the book is a true record of the actual fact. 
 There could be no doubt whatever, except one arising from infirmity 
 of memory, or mistake, or fraud. The gang foremen may by mis- 
 take or fraud, have misreported to Wilt, and Wilt may either inten- 
 tionally or unintentionally have made entries not in accordance with 
 the reports of the gang foremen. But the possibility of mistake or 
 fraud on the part of witnesses, exists in all cases and in respect to 
 any kind of oral evidence. The question arises, must a material, 
 utimate fact be proved by the evidence of a witness who knew the 
 fact and can recall it, or, who, having no personal recollection of the 
 fact at the time of his examination as a witness, testifies that he 
 made, or saw made an entry of the fact at the time, or recently there- 
 after, which on being produced, he can verify as the entry he made 
 or saw, and that he knew the entry to be true when made, or may 
 such ultimate fact be proved by showing by a witness that he knew 
 the facts in relation to the matter which is the subject of investigation, 
 and communicated them to another at the time, but had forgotten 
 them, and supplementing this testimony by that of the persons receiv- 
 ing the communication to the effect that he entered at the time, the 
 facts communicated and by the production of the book or memoran- 
 dum in which the entries were made. The admissibility of memo- 
 randa of the first class is well settled. They are admitted in con- 
 nection with, and as auxiliary to the oral evidence of the witness and 
 this whether the witness, on seeing the entries, recalls the facts, or 
 can only verify the entries as a true record made or seen by him at,
 
 368 CASES ON EVIDENCE 
 
 or soon after the transaction to which it relates. (Halsey v. Sinse- 
 baugh, 15 N. Y. 485; Guy v. Mead, 22 id. 462.) 
 
 The other branch of the inquiry has not been very distinctly adju- 
 dicated in this State, although the admissibility of entries made under 
 circumstances like those in this case was apparently approved in 
 Payne v. Hodge (71 N. Y. 598). We are of opinion that the rule as 
 to the admissibility of memoranda may properly be extended so as 
 to embrace the case before us. The case is of an account kept in 
 the ordinary course of business, of laborers employed in the prose- 
 cution of work, based upon daily reports of foremen who had charge 
 of the men, and who, in accordance with their duty, reported the time 
 to another subordinate of the same common master, but of a higher 
 grade, who, in time, also in accordance with his duty, entered the 
 time as reported. We think entries so made, with the evidence of the 
 foremen that they made true reports, and of the person who made 
 the entries that he correctly entered them, are admissible. It is sub- 
 stantially by this method of accounts, that business transactions in 
 numerous cases are authenticated, and business could not be carried 
 on and accounts kept in many cases, without great inconvenience, 
 unless this method of keeping and proving accounts is sanctioned. 
 In a business where many laborers- are employed, the accounts must, 
 in most cases, of necessity, be kept by a person not personally cog- 
 nizant of the facts, and from reports mad by others. The person 
 in charge of the laborers knows the fact, but he may not have the 
 skill or for other reasons, it may be inconvenient that he should keep 
 the account. It may be assumed that a system of accounts based 
 upon substantially the same methods as the accounts in this case, is 
 in accordance with the usages of business. In admitting an account 
 verified, as was the account here, there is little danger of mistake, 
 and the admission of such an account as legal evidence is often 
 necessary to prevent a failure of justice. We are of opinion, how- 
 ever, that it is a proper qualification of the rule admitting such evi- 
 dence, that the account must have been made in the ordinary course 
 of business, and that it should not be extended so as to admit a mere 
 private memorandum, not made in pursuance of any duty owing by 
 the person making it, or when made upon information derived from 
 another who made the communication casually and voluntarily, and 
 not under the sanction of duty or other obligation. The case before 
 us is within the qualification suggested. In Peck v. Valentine (94 
 N. Y. 569), the memorandum there admitted was not an original 
 memorandum, but a copy of a private memorandum made by an em-
 
 DECLARATIONS IN COURSE OF BUSINESS 369 
 
 ploye of the plaintiff for his own purposes, and not in the course of 
 his duty, or in the ordinary course of business. The original memo- 
 randum was delivered by the one who made it, to the plaintiff, who 
 lost it, but testified that the paper .produced and received in evidence 
 was a copy. The person who made the original memorandum was 
 unable to verify the copy. The court held that the copy was im- 
 properly admitted in evidence. The decision in Peck v. Valentine 
 rests upon quite different facts from those in this case. 
 
 In respect to the admission of the account of material, we think 
 that part of the account based upon the reports of Madden was 
 admissible on the same ground upon which we have justified the 
 admission of the time-book. Madden, in substance testified that he 
 knew the facts and properly reported them, and Wilt testified that 
 he entered them as reported. The part of the account of materials, 
 the items of which were furnished by Coughlan, was not strictly 
 admissible. Coughlan does not appear to have had personal knowl- 
 edge of the quantity of stone delivered on his part of the work, but 
 took the count of the carman, and his reports to Wilt were based 
 upon the reports of the carman to him. The carman was not called, 
 and the evidence of Wilt and Coughlan was mere hearsay. If the 
 attention of the court had been called by the defendant to this part of 
 the account, and the objection had been specifically taken to the 
 items entered upon the reports of Coughlan, the objection would, we 
 think, have been valid. But the objection was a general objection 
 to the whole account. It was clearly admissible as to the items re- 
 ported by Madden, and, we think the general objection and exception 
 is not available to raise the question as to the admissibility of the 
 items entered on the report of Coughlan, independently of the others. 
 The whole amount of materials embraced in the recovery was small, 
 and, we think, no injustice will be done by affirming the judgment. 
 
 The judgment should therefore be affirmed. 
 
 All concur. 
 
 Judgment affirmed.
 
 370 CASES ON EVIDENCE 
 
 FIREMEN'S INS. CO. et al. v. SEABOARD AIR LINE RY. 
 50 S. . 452 (N. C.). (1905) 
 
 Plaintiffs alleged that on the igth day of October, 1902, certain 
 cotton, upon which plaintiff companies had issued policies of insur- 
 ance was burned by the negligence of the defendant's agents and serv- 
 ants; that, by reason of the destruction of said cotton, plaintiffs were 
 compelled to pay the value thereof; that the owners of said cotton 
 transferred and assigned to the plaintiffs all rights of action which 
 they had against the defendant company for the negligent burning 
 thereof. Defendants denied the material allegations in the complaint. 
 The parties went to trial upon the following issues: "i. Was the 
 property of the Hamlet Ice Company insured by the plaintiffs, as 
 alleged in the complaint at the time it was burned? Answer. "No." 
 (2) Was the said property burned by the negligence of the defendant 
 company, as alleged in the complaint? Answer. "No." From a 
 judgment upon the verdict the plaintiffs appealed. 
 
 CONNOR, J. (after stating the facts). In the trial of this cause 
 it became material to show at what time the defendant's wrecking 
 train No. 371 reached Hamlet, the station on defendant's road at 
 which the cotton was burned. Defendant introduced one C. Lane, 
 who testified that he was employed by the defendant road as train 
 dispatcher to keep a record of the arrival and departure of all trains 
 at all telegraph stations, that the record was made and kept on the 
 train sheet; at the time trains arrived at and left stations, the oper- 
 ator at such station notified the dispatcher, who immediately re- 
 corded the time on the sheet as it was reported to him; that such 
 sheet constituted a record of the arrival and departure of all trains; 
 that he governed the movements of trains by such record of the 
 arrival and departure of trains; that on the I9th of October, 1902, 
 the ofikal report was sent him, and that he immediately recorded 
 thereon the time of the arrival of the extra tram, which was the 
 wrecking train at Hamlet of that date; and that he had the record 
 before him. The defendant then offered the record in evidence, for 
 the purpose of showing the time of the arrival of the wrecking train 
 at Hamlet, which witness McDonald testified was taken charge of 
 by shifting engine No. 371 on its arrival. (Objection.) The court 
 ruled that the witness could refresh his recollection by an inspection 
 of the record, enabling him to speak touching his own acts at the 
 time with regard to the matter under inquiry, which at that time
 
 DECLARATIONS IN COURSE OF BUSINESS 371 
 
 ruled out the declaration which any other agent of the company made 
 to him at the time, by wire or otherwise. The witness stated that 
 he could not state of his own personal knowledge the time at which 
 the wrecking train arrived at Hamlet.' The court admitted the rec- 
 ord in evidence, showed the entries made to him by wire from the 
 agent of the defendant at Hamlet as to the arrival and departure of 
 said wrecking train, to which the plaintiff duly excepted. Defendant 
 also introduced one J. W. Hunt, who testified that he was employed 
 by defendant company as conductor, and that as such he ran wreck- 
 ing train on October 19, 1902, from Raleigh to Hamlet ; that it arrived 
 at Hamlet at 12:37 p - M - Witness is then shown a book which he 
 identifies as a register showing the time of arrival, which he says is 
 kept at Hamlet; that it was his duty to register the arrival of the 
 train, and that he did register it on that day. He identifies the entry 
 in his own handwriting: "Extra train. Time arrival, 12:37 p - M -" 
 Signed by him and also by engineman. This last recqrd was offered 
 by defendant in corrobo ration of witness Hunt, and the court ad- 
 mitted it for that purpose, so instructing the jury. 
 
 It is contended by the plaintiffs that the "train sheets" are not 
 admissible, because, while containing entries made by the train dis- 
 patcher in the usual course of business, he had no personal knowledge 
 of the truth of the statements recorded ; that he simply recorded 
 information derived from the operator at Hamlet, a hundred or more 
 miles from Raleigh. This, they say, is but hearsay. The defendant, 
 on the other hand contends that the entry made by the train dis- 
 patcher, although based upon information derived from the operator, 
 by reason of the circumstances under and the manner in which the 
 information was communicated, is surrounded by all possible safe- 
 guards against error, uncertainty, or falsehood, and therefore comes 
 within the exception to the general rule excluding hearsay evidence. 
 The question is of first impression in this state. We have given it 
 careful and anxious consideration, desiring to make no departure 
 from the well-settled principles of the law of evidence or the decisions 
 of this court, at the same time recognizing and keeping in view the 
 duty of the court to make diligent effort to find in those general 
 principles such safe and reasonable adaptability that in the changing 
 conditions of social, commercial, and industrial life there may be no 
 wide divergence in the decisions from the standards by which men 
 are guided and controlled in important practical affairs. 
 
 Among the exceptions to the general rule we find "entries and 
 declarations of third parties made in the regular course of duties or
 
 372 CASES ON EVIDENCE 
 
 business." Such entries are of two kinds : First, tho^e made by the 
 entrant respecting a transaction conducted by or matter known to 
 him personally, in which no other person has taken any part. Second, 
 those, made by the entrant upon information communicated to him 
 by some other person acting in the line of his duty to make report 
 to him. The entries made by the train dispatcher fall within this 
 rule. It is undoubtedly the general rule that, if the entrant and the 
 person making the report upon which the entry is made are both 
 living and available, they should be produced to testify to the truth 
 of the subject-matter of the entry; that if one be dead or unavailable 
 that is, insane or beyond the process of the court the entry may be 
 introduced upon the testimony as to its authenticity of the living, 
 available person. Can the entry be admitted when, as in the case 
 before us, the entrant is living, and the person upon whose report 
 the entry is made is not produced nor his absence accounted for? 
 
 An examination of the decided cases discovers a conflict of author- 
 ity. Prof. Wigmore suggests that when an entry is made in the 
 usual course of business, based upon reports made by one whose 
 duty it is to make such report, but who is not required to make and 
 keep any record of the transaction, the entry so made is admissible 
 upon the ground of necessity, growing out of the fact that it is not 
 to be expected that the person making such report would remember 
 the fact reported, and that he is therefore unavailable in a legal 
 sense. It is not to be expected that an operator, who reports to the 
 despatcher the time of arrival and departure of a number of trains 
 daily, could undertake to testify from memory the hour and minute 
 of each arrival or departure. He has no duty imposed upon him to 
 do so. If he did undertake to testify, as in this case, three years 
 after the event, but little credence would be attached to his testimony. 
 For practical purposes, he is as essentially unavailable as if dead or 
 insane. We are of the opinion that, applying either test, trustworthi- 
 ness or necessity, the entries made on the trains' sheets were ad- 
 missible. 
 
 Affirmed.
 
 DECLARATIONS PART OF RES GESTAE 373 
 
 DECLARATIONS FORMING PART OF OR RELATING TO THE 
 RES GESTAE.i 
 
 COMMONWEALTH v. TREFETHEN. 
 157 Mass. 180. (1892) 
 
 Indictment, in four counts, for the murder of Deltena J. Davis, 
 on December 23, 1891, by drowning. 
 
 At the trial in the Superior Court, before Mason, C. J., and Blod- 
 gett and Hammond, JJ., the jury returned a verdict of guilty of 
 murder in the first degree against the defendant, Trefethen, and a 
 verdict of not guilty for the defendant Smith; and Trefethen alleged 
 exceptions. 
 
 FIELD, C. J. The principal exception is to the refusal of the 
 court to admit the testimony of Sarah L. Hubert. The exceptions 
 recite : 
 
 "Sarah L. Hubert, as witness called in behalf of the defendant, 
 testified that her business, which she advertised in the newspapers, 
 was that of a trance medium; that on December 22, 1891, in the 
 forenoon, after ten o'clock, a young woman called at her place of 
 business in Boston for consultation. There was sufficient evidence 
 to go to the jury of her identification as Deltena J. Davis. Upon ob- 
 jection being made to the testimony of this witness, counsel for the 
 defendant stated to the court, aside from the jury, that they offered 
 to prove by this witness that, at the interview on December 22, the 
 young woman aforesaid stated to the witness that she was five months 
 pregnant with child, and had come to consult as to what to do, and 
 added later in the interview that she was going to drown herself. 
 The court refused to admit the testimony, and the defendants duly 
 excepted. 
 
 When evidence of declarations of any person is offered for the 
 purpose of showing the state of mind or intention of that person at 
 the time the declarations were made, the declarations undoubtedly 
 "may be so remote in point of time, or so altered in import by sub- 
 sequent change in the circumstances of the maker, as to be wholly 
 immaterial, and wisely to be rejected by the judge." Shailer v. Bum- 
 stead, 99 Mass. 112, 120. 
 
 In the case at bar, the evidence offered was that the declaration 
 of the deceased was made the day before her death, and was made 
 in a conversation concerning her pregnancy, which continued until 
 
 iHughes on Evidence, pp. 123 and 134.
 
 374 CASES ON EVIDENCE 
 
 her death. The declaration, therefore, was not made at a time remote 
 from the time of her death, and there had been no change of circum- 
 stances which made it inapplicable to the condition of the deceased 
 at the time of her death. It was clearly competent for the jury to 
 find from the evidence recited in the exceptions, that, if Deltena J. 
 Davis had an intention to commit suicide on December 22, she con- 
 tinued to have the same intention December 23. If the evidence in 
 its nature was admissible, the court, on the facts stated, could not 
 exclude it on the ground that, from the lapse of time or change of 
 circumstances, it had ceased to be material. 
 
 The fundamental proposition is, that an intention in the mind of 
 a person can only be shown by some external manifestation, which 
 must be some look or appearance of the face or body, or some act 
 or speech; and that proof of either or all of these for the sole pur- 
 pose of showing state of mind or intention of the person is proof of 
 a fact from which the state of mind or intention may be inferred. 
 
 On principle, therefore, we think it clear that, when evidence of 
 the declarations of a person is introduced solely for the purpose of 
 showing what the state of mind or intention of that person was at 
 the time the declarations were made, the declarations are to be 
 regarded as acts from which the state of mind or intention may be 
 inferred in the same manner as from the appearance of the person 
 or his behavior, or his actions generally. In the present case the 
 declaration, evidence of which was offered, contained nothing in the 
 nature of narrative, and was significant only as showing the state of 
 mind or intention of the deceased. 
 
 Verdict against Trefethen set aside. 
 
 WHELAN v. LYNCH. 
 60 N. Y. 469. (1875) 
 
 Appeal from order of the General Term of the Supreme Court in 
 the first judicial department, reversing a judgment in favor of plain- 
 tiff, entered on a verdict, and reversing an order denying a motion for 
 a new trial. 
 
 This action was brought against defendant as survivor of the firm 
 of Smyth & Lynch, to recover the value of a quantity of wool con- 
 signed by plaintiff to that firm for sale.
 
 DECLARATIONS PART OF RES GESTAE 375 
 
 Upon the trial plaintiff offered, and the court received in evidence, 
 under objection for the purpose of proving market value, the files 
 of a newspaper sty-led the "Shipping and Commercial Lists Price 
 Current," which purported to give the prices of different grades of 
 wool. 
 
 MILLER, J. The court, upon the trial of this action, charged the 
 jury, that if the plaintiff was entitled to recover at all, he would be 
 entitled to the highest price which wool of the description had reached 
 in the market between October 24th, 1864, and the time when the 
 action was commenced, and the defendant duly excepted to the 
 charge. 
 
 Independent of the charge, the court was also in error, I think, 
 in admitting the Shipping and Price Current List as evidence of the 
 value of the wool, without some proof showing how or in what man- 
 ner it was made up; where the information is contained was obtained, 
 or whether the quotations of prices made were derived from actual 
 sales, or otherwise. It is not plain how, a newspaper, containing 
 the price current of merchandise, of itself, and aside from any ex- 
 planation as to the authority from which it was obtained, can be made 
 legitimate evidence of the facts stated. The accuracy and correctness 
 of such publications depend entirely upon the sources from which the 
 information is derived. Mere quotations from other newspapers, or 
 information obtained from those who have not the means of procur- 
 ing it, would be entitled to little if any weight. The credit to be given 
 to such testimony must be governed by extrinsic evidence, and cannot 
 be determined by the newspaper itself without some proof of knowl- 
 edge of the mode in which the list was made out. As there was no 
 such testimony, the evidence was entirely incompetent, and should not 
 have been received. The authorities cited to sustain the ruling of the 
 judge in regard to the admission of this evidence, do not include any 
 such case. 
 
 In Lush v. Druse (4 Wend. 314), the witness who testified as to 
 the market price, had inquired of merchants dealing in the article, 
 and examined their books ; thus giving the source of his knowledge. 
 In Terry v. McNiel (58 Barb. 241), it does not appear in what form 
 the question was presented, or whether any preliminary evidence had 
 been introduced to show the accuracy of the newspaper quotations. 
 In Cliquot's Champagne (3 Wallace 117), it appeared that the price 
 current was procured directly from dealers in the article and was 
 verified by testimony which tended to show its accuracy. The objec-
 
 376 CASES ON EVIDENCE 
 
 tions made to the evidence were sufficient, and its admissibility can- 
 not be upheld within these cases cited. 
 
 Without examining the -other questions for the errors stated, the 
 order of the General Term must be affirmed, and, in pursuance of 
 the stipulation of the plaintiff's attorneys, judgment absolute ordered 
 for the defendant with costs. 
 
 All concur; CHURCH, C. J., and FOLGER, J., in result. 
 
 Order affirmed and judgment accordingly. 
 
 WRIGHT v. STATE. 
 88 Md. 705. (1898) 
 
 BOYD, J. The appellant was convicted of murder in the first degree 
 in the Circuit Court for Talbot county, to which county the case was 
 removed from Kent county where the homicide occurred. Although 
 the record sets out at some length the proceedings in the cause, there 
 is but one question presented by it, and that is the ruling of the court 
 below on an objection made by the State to the offer to prove by one 
 Joseph Johnson a statement made to him by the prisoner shortly after 
 the shooting of the deceased, William Newcomb. It is contended on 
 behalf of the appellant that the statement was made under such cir- 
 cumstances and at such a time as to be part of the res gestae and 
 that is denied by the State. The record does not disclose what the 
 statement was, but the court refused to admit it. 
 
 No inflexible rule can be adopted as to what lapse of time between 
 the commission of an act and a declaration made, should exclude the 
 declaration as not being a part of the res gestae. Each case must de- 
 pend upon its own facts and circumstances. The act or declaration 
 sought to be proven must, however, be so connected with the trans- 
 action as to be a part of it and great care should be exercised by the 
 courts to prevent abuse of the rule that admits in evidence, under 
 proper conditions, the unsworn statement of an accuser or an accused 
 in his own favor. They should be certain that such statements are 
 not the result of premeditation, design or effort to inculpate another or 
 to excuse one's self. In 21 Ency. of Law, in, the rule is thus stated : 
 "Acts or declarations unconsciously associated with and relative to 
 the principal act charged as an offense against the accused from its 
 inception to its consummation and final completion are admissible as
 
 DECLARATIONS PART OF RES GESTAE 377 
 
 part of the res gestae; but declarations made after all actions on the 
 part of the wrongdoer, actual or constructive, has ceased, or declara- 
 tions made before the commission of the offense and entirely dis- 
 connected therewith, are not part of the res gestae and should not be 
 admitted." Mr. Wharton in his work on Criminal Evidence, section 
 262 says : "Res gestae are events speaking for themselves, through 
 the instinctive words and acts of participants, not the words and acts 
 of participants when narrating the events. What is done or said by 
 participants, under the immediate spur of a transaction becomes thus 
 part of the transaction, because it is then the transaction that thus 
 speaks." 
 
 In this case we find that immediately after the shooting, the pris- 
 oner ran out of the store where it took place, and then as soon as 
 the witness Johnson satisfied himself that Newcomb was dead, he 
 became frightened and also ran out of the store, and as he did so 
 the prisoner was under a tree near the store "hollering and whoop- 
 ing." The witness went into a lot behind a house on the opposite 
 side of the road and says he remained there about a minute and a half 
 and then gave this account of what took place: "When I was in the 
 lot I was out 'of sight of the prisoner ; I staid in the lot until I got 
 over my scare or excitement, and thought it over, and thought I had 
 better go to the festival at the church (which was nearby), and tell 
 the people there about the shooting; when I came out of the lot and 
 talked with the prisoner Wright ; it was I suppose not over five 
 minutes after the shooting, it was not long; I was in the lot about a 
 minute and a half; when I came out the prisoner had stopped 'hol- 
 lering and whooping; he was by himself; he was about twenty-five 
 or thirty yards from me when I came out -of the lot and I went 
 straight up to him and had a talk with him (the prisoner) about the 
 shooting of Newcomb, when the prisoner made a statement to witness 
 about the shooting." 
 
 Thus we see that the witness had time to get over his "scare or 
 excitement" and to think the matter over. The prisoner had then 
 stopped "hollering and whooping" and according to his own testi- 
 mony he was going to the festival. He had been on the stand before 
 Johnson was called and after stating he was drunk and that he did 
 not know when the shooting occurred and did not see Newcomb that 
 night, that he knew of, said, "Joe Johnson first told me that I had 
 shot Newcomb; I told him I was sorry; I do not know whether he 
 told me at the festival or along the road as I was going to the festival 
 at the church" ; Johnson said he supposed it was not over five minutes
 
 378 OSES ON EVIDENCE 
 
 after the shooting when he talked with the prisoner, but however 
 that may have been both Johnson and the prisoner evidently had time 
 for reflection and what was then said between them could only have 
 been a narrative of the events and was not a part of the transaction 
 itself. The prisoner had run out of the store immediately after the 
 shooting, had stopped outside "hollering and whooping," but had 
 been there long enough to stop that noise and, if he is to be believed, 
 he was either at the church festival or on the way there when he 
 had the conversation with Johnson. Evidence of what he then said 
 was clearly not admissible as part of the res gcstae. It would be a 
 most dangerous practice to admit in evidence a statement made by 
 the prisoner under such circumstances as those disclosed by this rec- 
 ord, and one that cannot be sanctioned by this State even if there 
 be any authority for it elsewhere, as contended by the appellant. 
 There being no other exception, the judgment must be affirmed. 
 
 Judgment affirmed. 
 
 SMITH v. N. B. SOCIETY. 
 123 N. F. 85. (1890) 
 
 FINCH, J. The facts of this case are unusual and extraordinary. 
 In answer to the plaintiff's demand for the sum payable by the de- 
 fendant's policy of Irfe insurance the company took upon itself the 
 difficult burden of proving that the assured perpetrated a deliberate 
 fraud, planned upon a broad scale, and accomplished by taking his 
 own life; that his efforts to achieve success failing, and a future of 
 poverty and debt seeming to await him, he determined to secure a 
 large insurance upon his life, appropriate it to the payment of his 
 creditors and the comfort and support of his relatives, and reach the 
 result by suicide. The difficult burden was successfully borne, as 
 the verdict of the jury has determined, and the sole inquiry now is 
 whether the scope and range of the evidence admitted, showing the 
 acts and declarations of the assured, transcended the lawful limit or 
 violated the rules of evidence. 
 
 The plaintiff was a creditor of the assured, and stands in the case 
 as the assignee of the policy from the date of its transfer to him. 
 He describes, as a witness, the manner of its acquisition. Tyler owed 
 him about $10,000, and upon demand of payment proposed to secure
 
 DECLARATIONS PART OF RES GESTAE 379 
 
 the debt by an insurance upon his life. The plaintiff assented. The 
 conversation was in December, 1885, and in pursuance of the agree- 
 ment made, the policy now sued on was executed in June of the next 
 year. By its terms the defendant constituted Tyler a "benefit mem- 
 ber" of the "society," and agreed "to pay Fred H. Smith, creditor, if 
 living, if not, to the heirs at law of said member" the sum insured. 
 The plaintiff, having thus become the owner of the policy, objected 
 on the trial to proof of the acts and declarations of Tyler as incom- 
 petent to affect or destroy the policy transferred. The General Term 
 questioned his right, considered as an assignment carrying a vested 
 interest, and rely upon section 18 of the Laws of 1883, under which 
 the defendant company was organized: That section attaches the 
 beneficial interest to the membership, and permits the member to 
 change the payee or beneficiary of the insurance without the latter's 
 consent. Where the right of the payee has no other foundation than 
 the bare intent of the member, revocable at any moment, there can 
 be no vested interest in the named beneficiary any more than in the 
 legatee of a will before it takes effect. But the statute does not 
 prevent a contract between the parties by force of which a vested 
 interest does pass, in which respect the present case differs from Hel- 
 lenberg v. Dist. No. I of I. O. of B. B. (94 N. Y. 580). There the 
 designation was in the nature of an inchoate or unexecuted gift, re- 
 vocable at any moment by the donor, and remaining wholly within 
 his control. Here the transfer was a collateral security for an exist- 
 ing debt, and the fact brought to the knowledge of the defendant 
 company which explicitly promised to pay the plaintiff in his character 
 as creditor. 
 
 Granting, however, that such was the relation of the parties, we 
 are still of opinion that no material error is shown by the record, 
 since all the evidence to which objection was made came fairly within 
 the res gestae and the rule permitting proof of the actual transaction 
 involved in the issue. The limitations upon that rule are easily stated, 
 but often difficult in their application. Those limitations were well 
 described in Tilson v. Terwilliger (56 N. Y. 277). 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 facts which they are intended to explain, and they 
 must harmonize with those facts as to form one transaction. That 
 transaction, the thing done, the fact put in issue, was the fraud, which 
 evidently was not a simple, but a compound and continuous fact, pro- 
 ceeding to its result by consecutive steps and separate acts, having
 
 380 CASES ON EVIDENCE 
 
 necessarily an origin, a progress and an ultimate result, involving not 
 only the intent of the assured, but also his sanity, without which 
 the responsible intent could not exist. This fraud, therefore, could be 
 studied and proved all along the line; and in all its stages, from 
 origin to culmination, formed part of the issue to be investigated. 
 If in such a case declarations are excluded which are merely nar- 
 rative of a past transaction, the residue so far as pertinent to the 
 issue, will generally, and with few exceptions, be admissible in evi- 
 dence. 
 
 It is thus not difficult to decide that the proof of applications by 
 Tyler to thirty-six different insurance companies, by which he secured 
 $282,000 of insurance upon his life, and his letters and telegrams to 
 relatives and friends written and sent as steps or agencies in the 
 consummation of his purpose, and indicating a sane and deliberate 
 intent to consummate the fraud, which for more than a year had 
 been in preparation, by a final act of suicide, were all admissible. 
 But some of the evidence was more remote and approached so near 
 the outside boundaries of the res gestae as to require a specific and 
 particular examination. 
 
 The defendant was allowed to prove by Henry A. Bowen that, in 
 the summer of 1885, he went, at the request of Tyler, to the latter's 
 friends to raise money for him; that he failed to accomplish the pur- 
 pose; that, on his return, he had a conversation with Tyler in which 
 he informed him of that failure, in reply to which Tyler said he 
 was a man who must have money, and if he couldn't raise it he would 
 commit suicide. This was a few months before the process of in- 
 suring began, and tended to show two things, both of which were 
 pertinent to the issue. It indicated an existing motive for the fraud 
 in the want of money and the failure to obtain it, and the origin and 
 occasion of the alleged suicidal intent. The declaration accompanied 
 and characterized an act which was itself admissible in evidence, for 
 that act indicated the then desperate character of Tyler's financial 
 situation, and the declaration explained the operation and effect of 
 the fact upon his mind, its force and strength as a motive to the 
 fraud, and the presence of a thought or contemplation of suicide in 
 a contingency which did in fact occur. The evidence serves to indi- 
 cate the origin 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 in Lutkin as to the easiest mode of producing death. 
 These inquiries were rather acts than declarations, and show the
 
 DECLARATIONS PART OF RES GESTAE 381 
 
 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 T rested, but in con- 
 nection with inquiries about insurance and with an endeavor to get 
 into a benefit society connected with the hat trade. The witness added 
 Tyler's declaration that he intended to put a large insurance upon his 
 life and make the boys happy. 
 
 These acts and declarations all occurred before the plaintiff took 
 his policy as collateral, and when they affected no one but Tyler 
 himself. They intended to show the origin and progress of the fraud- 
 ulent intent, the manner of its growth and the motive from which it 
 sprung. They indicate a sane and deliberate purpose moving steadily 
 to its result, and constitute a part of the history of the fraud. They 
 were contemporaneous 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 con- 
 tinuously maintain. They show the motive of the fraud and mark its 
 progress, and harmonize completely with all which afterward oc- 
 curred as to constitute, with that, elements of the single transaction, 
 the fraudulent conduct which raised the issue presented by the de- 
 fense. And so I think the proof came fairly within the rule relating 
 to the res gestae, and did not transcend its limits. 
 
 Some of this evidence was restricted upon the ground that death 
 by suicide was no defense under the terms of the policy. That is 
 true; but the defense was fraud, and suicide the ultimate 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 purpose of fraud. 
 
 We think no error was committed in the admission of the evidence 
 upon which the jury acted, and that, after due consideration of the 
 exceptions taken to the charge, the case was fairly submitted for 
 determination upon its facts. 
 
 The judgment should be affirmed with consts. 
 
 All concur, except ANDREWS, J., not voting. 
 
 Judgment affirmed.
 
 382 CASES ON EVIDENCE 
 
 COMMONWEALTH v. VAN HORN. 
 188 Pa. St. 143. (1898) 
 
 Argued May 30, 1898. Appeal, No. 162, Jan. T., 1898, by defendant, 
 from judgment of O. & T. Lackawanna Co., Oct. T., 1897, No. 20, 
 on verdict of guilty of murder in the first degree. Before Sterrett, 
 C. J., Green, McCollum, Mitchell, Dean and Fell, JJ. Affirmed. 
 
 Mr. Jones, Do you remember the day that Mrs. Westcott's throat 
 was cut? A. Yes, sir. Q. Did you see her that day, did you 
 see her with her throat cut? A. Yes, sir. Q. Go on and tell the 
 court and jury when you first saw her and all about it. A. It was 
 about 8 o'clock in the evening when I was playing a game of hoop- 
 a-hoy and ran by the Nay-Aug barn and I fell and hurt my knee, 
 and I started walking by when I seen Mrs. Westcott come out of 
 the cellar and Mr. Van Horn after her, and I seen Mr. Van Horn 
 jump the fence, and I hear like the sound of wire ; and she ran around 
 and went in the house and went upstairs and come down the front, 
 right x away; she wasn't half a minute; and as soon as she seen me, 
 I ran right in the gate and she says, 'George Van Horn did it,' and 
 she said, 'Frankie, get a doctor/ " 
 
 Counsel for the defendant moved to have the answer stricken out 
 as it was not included in the offer, alleging that he did not have an 
 opportunity to object to it, and he asked to have it stricken out. 
 
 By the Court: That is you object to the declaration made by 
 Mrs. Westcott. 
 
 Mr. Thayer: Yes, sir. 
 
 By the Court: I will consider it now as though it had been made 
 under the offer. I will hear you upon the motion. 
 
 Mr. Wedemant : I understand that it is not part of the res gestae, 
 and I object to it. We think it is not evidence and we ask to have 
 the answer stricken out. 
 
 By the Court: Beddingfield's case was decided by Chief Justice 
 Cockburn trying a case at nisi prius, and was the subject of consid- 
 erable comment at the time. The whole narrative of the case and of 
 its surroundings, and the cross-examination which it evoked, are to 
 be found in the i4th and I5th volumes of the American Law Review. 
 A review of the case is there made by Prof. Thayer, of the law school 
 of the Harvard University, himself a very eminent authority upon 
 the subject of evidence. The result of that review is to call in 
 question the soundness of that decision. The eminent judge by whom
 
 DECLARATIONS PART OF RES GESTAE 383 
 
 it is made, even the manner of the making of his rulings, is criticized 
 because, without any objection on the part of the defendant's counsel, 
 evidently having some idea of what there was in the case, he stopped 
 a witness of his own motion and excluded the evidence without fur- 
 ther discussion. It does not seem to me that this is the law. The 
 common mind certainly accepts a declaration of that kind under the 
 circumstances as carrying the highest character of evidence; it is 
 not only made at the time by the person having the best information, 
 but is strongly persuasive of the truth, and it requires the exercise 
 of a good deal of legal learning and acumen to keep it out? It does 
 not seem to me that the argument upon which it is excluded cor- 
 rectly states the law, and I am justified in that conclusion by the 
 decision of our Supreme Court to which the district attorney has 
 referred me in Com. v. Werntz, 161 Pa. 591. It is true that in that 
 case the question arose a little differently; there the defendant sought 
 to put in those declarations to show that he was not the one who did 
 the deed, but that some one else was ; but at the same time the reason- 
 ing upon which the Supreme Court says that this was evidence fully 
 established it as evidence, not only to exculpate one but to inculpate 
 another, and that is what is sought to be introduced here. Following 
 that authority and what I believe to be the weight of authority in 
 this country, notwithstanding Beddingfield's case and the cases cited 
 by counsel for the defendant from the Supreme Court of California 
 and Indiana, I will overrule the motion. 
 
 Opinion by MR. JUSTICE GREEN; October 17, 1898 : 
 Twenty- fourth and twenty-fifth assignments: these relate to the 
 declarations of the deceased when she was seen just after coming 
 from the cellar, with her throat cut and profusely bleeding. The 
 declarations in question were made by the deceased immediately after 
 she came from the cellar and while the blood was gushing in great 
 quantities from the cut which had just been made across her throat. 
 She was in the act of fleeing from pursuit at the instant when the 
 declarations were made. They were a part of the same transaction. 
 In point of time the declarations immediately followed the cutting, 
 and in point of- distance the declarations and the cutting were on the 
 same premises. There could scarcely be any greater propinquity of 
 both time and place. There cannot be a moment's doubt that the 
 declarations were the spontaneous utterances springing out of the 
 transaction itself. We are clearly of opinion that they were com- 
 petent evidence as part of the res gestae. 
 
 All the foregoing comments are directly applicable to the present
 
 384 CASES ON EVIDENCE 
 
 case. The declaration made to Frank Gehrens, was as follows: he 
 testified: "It was about 8 o'clock in the evening when I was playing 
 a game of hoop-a-hoy, and ran by the Nay-Aug barn; and I fell 
 and hurt my knee ; and I started walking by, when I seen Mrs. Wesr- 
 cott come out of the cellar, and Mr. Van Horn after her; and I seen 
 Mr. Van Horn jump the fence. I seen him jump the fence and I 
 heard like the sound of wire, and she ran around and went in the 
 house and went upstairs and came down the front right away; she 
 wasn't half a minute and she came out; as soon as she see me, I ran 
 right in the gate and she says: 'George Van Horn did it;' and she 
 said, 'Frankie, get the doctor/ and I ran after Dr. Burnett." The 
 declaration made to Mrs. Fetterhoff was, "that her throat was cut 
 that she had been murdered, and that George Van Horn had done 
 it." This was made at the moment she was in the house, as testified 
 by Gehrens. When it is considered that these declarations were made 
 as quickly as they could be made after the occurrence, to the persons 
 to whom they were made, in an immediately succeeding order of 
 events, by the person best qualified to know, and most deeply inter- 
 ested, and in such circumstances as to preclude all idea of premedita- 
 tion or design, it is manifest that they come exactly within the ruling 
 in the Werntz case and the reasoning there expressed. 
 
 Judgment affirmed. 
 
 KEYS v. CITY OF CEDAR FALLS. 
 107 la. 509. 
 
 Action at law to recover damages for injuries sustained by plaintiff 
 resulting from a fall into an excavation in one of the streets in defend- 
 ant city. Trial to a jury and verdict for plaintiff for four thousand five 
 hundred dollars, which was reduced by the court to the sum of three 
 thousand dollars, and defendant appeals. Affirmed. 
 
 DEEMER, J. When the plaintiff came back to the mill, which was 
 immediately after his fall, he dropped into a chair, and was sitting there, 
 when one Lemmers, an employe at the mill, discovered him. His hat 
 and coat were covered with dirt, and he had a frightened appearance. 
 Lemmers asked what was the matter, and plaintiff thereupon responded 
 that he had fallen into an excavation and was hurt. Plaintiff, on his 
 examination, was also permitted to testify that, within three minutes
 
 DECLARATIONS PART OF RES GESTAIS 385 
 
 from the time the accident occurred, he told Lemmers and a man by 
 the name of Hanson about what had occurred. All this evidence was 
 objected to, but the objections were overruled. It may be that plaintiff's 
 evidence as to his having told these persons about his having been hurt 
 was irrelevant and immaterial, but, if so, it was without prejudice, for 
 he did no more than say that he told them. Evidence as to what he said 
 to them was not given by the plaintiff. The testimony of Lemmers, if 
 admissible at all, was proper, as part of the res gestae. Appellant 
 claims that what plaintiff said was a narrative or statement made after 
 the main transaction was ended, and was therefore inadmissible. It is 
 often difficult to determine when a statement or declaration is a part of 
 the res gestae. The rule we have heretofore announced is that, if they 
 are near enough in point of time with the principal transaction to 
 clearly appear to be spontaneous, unpremeditated, and free from sin- 
 ister motives, and afford a reliable explanation of the principal transac- 
 tion, they are admissible in evidence. State v. Jones, 64 Iowa, 349; 
 McMurrin v. Rigby, 80 Iowa 322 ; State v. Driscoll, 72 Iowa 583 ; Frink 
 v. Coe, 4 G. Greene 555. See, also, Insurance Co. v. Mosely, 8 Wall. 
 397; Keyser v. Railway Co., 66 Mich. 390 (33 N. W. Rep. 867). We 
 think the declaration made by plaintiff was so connected in point of time 
 and with the main transaction, and came so spontaneously, that it was 
 admissible as part of the res gestae. The evidence was clearly compe- 
 tent, as explanatory of plaintiff's appearance as there was no time for 
 him to have invented a false statement. Plaintiff was also permitted to 
 testify, over defendant's objections, that he was compelled to sell out 
 his business because his physical condition was such that he was not 
 able to conduct it. The mere fact that he sold his business was probably 
 immaterial to any inquiry in the case. But the fact that he was unable to 
 attend to his business by reason of his injuries was very material. The 
 statement as to why he sold was but another way of saying that he 
 was unable to carry on or conduct the business in which he was engaged 
 before he received his injuries, and we think it was proper. In any 
 event, the error was without prejudice. Wade v. Leroy, 20 How. 34; 
 Kinney v. Crocker, 18 Wis. 80; Smay v. Etnire, 99 Iowa 149. 
 No prejudicial error appears, and the judgment is 
 
 Affirmed.
 
 386 CASES ON EVIDENCE 
 
 SIEBERT v. vSTATE. 
 143 III. 577. (1892) 
 
 Defendants were convicted of murder. 
 
 CRAIG, J. The next point relied upon by the defendants to reverse 
 the judgment is, that the court erred in refusing to allow the defendants 
 to prove that the deceased, at different times within a year of his death 
 and prior to his last sickness which resulted in his death, made threats 
 that he intended to take his own life, that he intended to commit sui- 
 cide. It will be observed that the declarations offered as evidence were 
 not a part of the res gestae, or accompanied by any act of the deceased 
 which they might characterize or explain, but were mere naked declara- 
 tions offered as original evidence. It is conceded in the argument, and 
 fully established by the evidence that the deceased came to his death 
 from arsenical poisoning, and while it is true that it was a question for 
 the jury to determine, from the evidence, whether the deceased came 
 to his death from poison administered by the defendants, or adminis- 
 tered by himself or some other person, yet that question was one which 
 must, like all other issues involved in the trial of a legal proceeding, be 
 settled by legal and competent evidence introduced by the respective 
 parties. 
 
 Judgment affirmed. 
 
 C. & E. I. R. R. CO. v. CHANCELLOR. 
 165 III 438. (1897) 
 
 This action was brought by appellee, as administrator of the estate of 
 Josephine H. Johnson, deceased, to recover damages from appellant for 
 causing the death of appellee's intestate. The declaration contains two 
 counts. 
 
 To the declaration the general issue was filed, and upon a trial by jury 
 a verdict was returned for appellee in the sum of $5000. The trial 
 court entered judgment on this verdict, . which judgment, on appeal to 
 the Appellate Court for the First District, was affirmed. Whereupon 
 this appeal was prosecuted to this court. 
 
 PHILLIPS, J. The principal error assigned by appellant, and relied 
 on as a reason for reversal of this judgment, is on the admission of
 
 DECLARATIONS PART OF RES GESTAE 387 
 
 improper evidence by the trial court. Over the objection of appellant 
 a witness, Mrs. Laura Stangnan, was permitted to testify for appellee 
 that she was at the house of Mrs. Johnson between seven and eight 
 o'clock on the morning in question, and that Mrs. Johnson was getting 
 ready to go to the city to get a dress, and that she said she was going 
 on the nine o'clock train because that would take her near to Siegel & 
 Cooper's. At the time this was said she was getting her children ready 
 to go to school. The sole object of this evidence was to show that the 
 decedent intended to become a passenger on appellant's train. This 
 became a material fact in the case, for the reason that if Mrs. Johnson 
 sustained the relation of a passenger at the time of the accident, then 
 appellant was bound to exercise the highest reasonable and practicable 
 degree of care for her safety. (Chicago & Alton R. R. Co. v. Pillsbury, 
 123 111. 9; Chicago & Alton R. Co. v. Arnol, 144 id. 261.) If she did 
 not sustain the relation of a passenger or intended passenger, then only 
 ordinary care was required of appellant. It thus became an important 
 question of fact to be determined whether the decedent sustained the 
 relation of an intended passenger on appellant's train. 
 
 The evidence of Mrs. Stangnan, above cited, as to the acts and decla- 
 rations of decedent, an hour before the accident, was practically all that 
 was relied on by appellee to show her relation as a passenger. To con- 
 trovert this, it was shown by the only persons in charge of appellant's 
 ticket office that she purchased no ticket and that morning, and after 
 her death those who took immediate charge of her effects found no 
 ticket and only a few pennies in money in her purse ; also, that during 
 the thirty minutes she had been at appellant's station one regular passen- 
 ger train had departed for Chicago and one in the other direction. The 
 question for consideration is, whether this evidence was part of the 
 res gestae. If so, it was properly admitted by the trial court, and if not 
 it was error. 
 
 Courts have not 'always found it without difficulty of determination 
 as to whether or not particular acts or declarations were so nearly con- 
 temporaneous or co-incident with the act itself as to become part of the 
 res gestae. The rule is thus laid down by Greenleaf : "Declarations, to 
 become a part of the res gestae, must have been made at the time of the 
 act done which they are supposed to characterize, and have been well 
 calculated to unfold the nature and quality of the fact which they were 
 intended to explain, and so to harmonize them as obviously to constitute 
 one transaction." Greenl. on Ev. Sec. 108, note i. 
 
 Where the evidence shows the party is about to start on a journey, 
 from common experience we know it is usual and natural that something
 
 388 CASES ON EVIDENCE 
 
 i 
 
 is said by the party relating to the departure, and of a character in- 
 dicative or explanatory. For such declarations to be admissible in evi- 
 dence as part of the res gestae they must be made in connection with an 
 act proven, as in the case above <:ited. The rule is, that the res gestae 
 generally remains with the locus in quo, and it does not follow the 
 parties after the principal act is completed. The authorities to which 
 we are cited in argument are principally those in which the declarations 
 sought to be considered were made after the act or injury with which 
 they are attempted to be connected. The rule is, in determining whether 
 or not declarations made before or after the principal act are to be 
 considered as part of the res gestae, lapse of time is taken into consid- 
 eration, and such declarations made after the principal act will not be. 
 considered as part of the res gestae if there is any change from the place 
 pf the occurrence of the principal act or in the condition of the parties. 
 The evident reason of the rule is, that in such event an opportunity for 
 fabrication might be given or testimony might be manufactured by in- 
 terested parties. Whether or not such act or declarations will be so 
 considered must depend upon the circumstances of each case. The real 
 test is, whether the principal act and the declarations sought to be con- 
 sidered as part of the res gestae are separated from each other by suca 
 a lapse of time as to render it probable that the parties are speaking 
 from designing purposes rather than instinctive impulse. It can be 
 stated as the general rule, that anything said or done before the prin- 
 cipal act occurred or was within the contemplation of the parties cannot 
 be regarded as part of the res gestae, although only separate by the 
 least possible span of time, unless it tends to explain and unfold the 
 principal act by the undesigned act or declaration of the party, for the 
 reason that such declaration or act could not be said to throw any light 
 upon the motives of the parties. A person desiring to commit suicide 
 might an hour before the act, declare that he intended to become a 
 passenger upon a train, when, as a matter of fact, no such intention 
 existed in his mind, but the only intention there existing might be to 
 go to a passenger station where trains were passing, for the purpose of 
 taking his own life. Such declaration, therefore, made an hour or any 
 other space of time previous to the act of departure, itself would afford 
 no light upon his intention, and could not be considered as evidence 
 unless immediately connected with the act of departure. In the case at 
 bar, at the time the declarations which were sought to be admitted as 
 evidence were made, the decedent was getting her children ready for 
 school and performing her ordinary household duties, and while so 
 doing she declared an intention of going to the city of Chicago This
 
 DECLARATIONS PART OF RES GESTAE 389 
 
 declaration was not connected with the act of departure itself, and was 
 not admissible. To admit such declaration as constituting a part of the 
 res gestae would, on the same principle, hold admissible a like declara- 
 tion made a day or a week before. Such declaration therefore, made to 
 the witness Stangnan, was not competent as part of the res gestae, and 
 t was error to admit it. 
 
 Reversed and remanded. 
 
 CONNECTICUT MUTUAL LIFE INS. CO. v. HILLMON. 
 145 U. S. (1891) 
 
 On July 13, 1880, Sallie E. Hillmon, a citizen of Kansas, brought 
 an action against the Mutual Life Insurance Company, a corporation 
 of New York on a policy of insurance dated December 10, 1878, on 
 the life of her husband John W. Hillmon, in the sum of $10,000, 
 payable to her within sixty days after notice and proof of his death. 
 On the same day the plaintiff brought two other actions, the one 
 against the New York Life Insurance Company, a corporation of 
 New York, on two similar policies of life insurance, dated respectively 
 November 30, 1878, and December 10, 1878, for the sum of $5,000 
 each; and the other against the Connecticut Mutual Life Insurance 
 Company, a corporation of Connecticut, on a similar policy, dated 
 March 4, 1879, for the sum of $5,000. 
 
 In each case, the declaration alleged that Hillmon died on March 
 17, 1879, during the continuance of the policy, but that the defendant, 
 though duly notified of the fact, had refused to pay the amount 
 of the policy, or any part thereof; and the answer denied the death 
 of Hillmon, and alleged that he, before November 30, 1878, con- 
 spired to defraud the defendant, procured the issue of all the policies, 
 and afterwards, in March and April, 1879, falsely pretended and 
 represented that Hillmon was dead, and that a dead body which they 
 had procured was his, whereas in reality he was alive and in hiding. 
 The defendants introduced testimony that Frederick Adolph Walters 
 left his home at Fort Madison in the State of Iowa in March, 1878, 
 and was afterwards in Kansas in 1878, and in January and February, 
 1879; that during that time his family frequently received letters 
 from him, the last of which was written from Wichita; and that he
 
 390 CASES ON EVIDENCE 
 
 had not been heard from since March, 1879. The defendants also 
 offeree! the following evidence: 
 
 Elizabeth Rieffenach testified that she was a sister of Frederick 
 Adolph Walters, and lived at Fort Madison ; and thereupon, as shown 
 by the bill of exceptions, the following proceedings took place: 
 
 "Witness further testified that she had received a letter written 
 from Wichita, Kansas, about the 4th or 5th day of March, 1879, by her 
 brother Frederick Adolph; that the letter was dated at Wichita, and 
 was in the handwriting of her brother; that she had searched for 
 the letter, but could not find the same, it being lost; that she remem- 
 bered and could state the contents of the letter. 
 
 "Thereupon the defendants' counsel asked the question: 'State 
 the contents of the letter.' To which the plaintiff objected, on the 
 ground that the same is incompetent, irrelevant, and hearsay. The 
 objection was sustained and the defendants duly excepted. The 
 following is the letter as stated by the witness: 
 
 "Wichita, Kansas, 
 
 March 4th or 5th I don't know 1879. 
 
 Dear sister and all : I now in my usual style drop you a few lines 
 to let you know that I expect to leave Wichita on or about March 
 the 5th, with a certain Mr. Hillmon, a sheep-trader, for Colorado 
 or parts unknown to me. I expect to see the country now. News 
 are of no interest to you, as you are not acquainted here. I will 
 close with compliments to all inquiring friends. 
 Love to all. 
 
 "I am truly your brother, 
 
 FRED. ADOLPH WALTERS." 
 
 Alvina D. Kasten testified that she was twenty-one years of age 
 and resided in Fort Madison; that she was engaged to be married 
 to Frederick Adolph Walters ; that she last saw him on March 24, 
 1878, at Fort Madison; that he left there at that time, and had not 
 returned ; that she corresponded regularly with him, and received a 
 letter about every two weeks until March 3, 1879, which was the 
 last time she received a letter from him ; that this letter was dated 
 at Wichita, March i, 1879, and was addressed to her at Fort Madi- 
 son, and the envelope was postmarked "Wichita, Kansas, March 2, 
 1879;" and that she had never heard from or seen him since that 
 time. 
 
 Defendants put in evidence the envelope with the postmark and 
 address; and thereupon offered to read the letter in evidence. The
 
 DECLARATIONS PART of RES GESTAE 391 
 
 plaintiff objected to the reading of the letter, the court sustained the 
 objection, and the defendants excepted. 
 
 This letter was dated "Wichita, March i, 1879, was signed by 
 Walters, and began as follows : 
 
 "Dearest Alvina: Your kind and ever welcome letter was received 
 yesterday afternoon about an hour before I left Emporia. I will stay 
 here until the fore part of next week, and then will leave here to 
 see part of the country that I never expected to see when I left 
 home, as I am going with a man by the name of Hillmon, who 
 intends to start a sheep ranch, and as he promised me more wages 
 than I could make at anything else I concluded to take it, for a while 
 at least until I strike something better. There is so many folks in 
 this country that have got the Leadville fever, and if I could not 
 of got the situation that I have now I would have went there myself ; 
 but as it is at present I get to see the best portion of Kansas, Indian 
 Territory, Colorado, and Mexico. The route that we intend to take 
 would cost a man to travel from $150 to $200, but it will not cost 
 me a cent, besides, I get good wages. I will drop you a letter oc- 
 casionally until I get settled down; then I want you to answer it." 
 
 MR. JUSTICE GRAY delivered the opinion of the court. 
 
 There is, however, one question of evidence so important, so fully 
 argued at the bar, and so likely to arise upon another trial, that it 
 is proper to express an opinion upon it. 
 
 This question is of the admissibility of the letters written by 
 Walters on the first days of March, 1879, which were offered in evi- 
 dence by the defendants, and excluded by the court. In order to 
 determine the competency of these letters, it is important to consider 
 the state of the case when they were offered to be read. 
 
 The matter chiefly contested at the trial was the death of John W. 
 Hillmon, the insured ; and that depended upon the question whether 
 the body found at Crooked Creek on the night of March 18, 1879, 
 was .his body, or the body of one Walters. 
 
 Much conflicting evidence had been introduced as to the identity 
 of the body. The plaintiff had also introduced evidence that Hill- 
 mon and one Brown left Wichita in Kansas in or about March 5, 
 1879, an d traveled together through Southern Kansas in search of 
 a site for a cattle ranch, and that on the night of March 18, while 
 they were in camp at Crooked Creek, Hillmon was accidentally killed, 
 and that his body was taken thence and buried. The defendants had 
 introduced evidence, without objection, that Walters left his home 
 and his betrothed in Iowa, in March, 1878, and was afterwards in
 
 39 2 CASES ON EVIDENCE 
 
 Kansas until March, 1879; tnat during that time he corresponded 
 regularly with his family and his betrothed; that the last letters 
 received from him were one received by his betrothed on March 3, 
 and postmarked at Wichita March 2, and one received by his sister 
 about March 4 or 5, and dated at Wichita a day or two before; and 
 that he had not been heard from since. 
 
 The evidence that Walters was at Wichita on or before March 5, 
 and had not been heard from since, together with the evidence to 
 identify as his the body found at Crooked Creek on March 18, tended 
 to show that he went from Wichita to Crooked Creek between those 
 dates. Evidence that just before March 5 he had the intention of 
 leaving Wichita with Hillmon would tend to corroborate the evidence 
 already admitted, and to show that he went from Wichita to Crooked 
 Creek with Hillmon. Letters from him to his family and betrothed 
 were the natural, if not the only attainable evidence of his intention. 
 
 The position, taken at the bar, that the letters were competent 
 evidence within the rule stated in Nicholls v. Webb, 8 Wheat. 326, 
 337, as memoranda made in the ordinary course of business, cannot 
 be maintained, for they were clearly not such. 
 
 But upon another ground suggested they should have been ad- 
 mitted. A man's sate of mind or feeling can only be manifested to 
 others by countenance, 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 warrant the 
 admission of declarations of the intention. But whenever the inten- 
 tion is of itself a distinct and material fact in a chain of circumstances, 
 it may be proved by contemporaneous oral or written declarations 
 of the party. 
 
 The existence of a particular intention in a certain person at a 
 certain time being a material fact to be proved, evidence that he 
 expressed that intention at that time is as direct evidence of the fact, 
 as his own testimony that he then had that intention would be. After 
 his death there can hardly be any other way of proving it; and while 
 he is still alive, his own memory of his state of mind at a former 
 time is no more likely to be clear and true than a bystander's recol- 
 lection of what he then said, and is less trustworthy than letters writ- 
 ten by him at the very time and under circumstances precluding a 
 suspicion of misrepresentation.
 
 DECLARATIONS PART OF RES GESTAE 393 
 
 The letters in question were competent, not as narratives of facts 
 communicated to the writer by others, nor yet as proof that he actu- 
 ally 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 going, and of going with Hillmon, which made 
 it more probable both that he did go and that he went with Hillmon, 
 than if there had been no proof of such intention. In view of the 
 mass of conflicting testimony introduced upon the question whether 
 it was the body of Walters that was found in Hillmon's camp, this 
 evidence might properly influence the jury in determining that ques- 
 tion. 
 
 Judgment rei'ersed, and case remanded to the Circuit Court, with di- 
 rections to set aside the verdict and to order a new trial. 
 
 ROESNER v. DARRAH. 
 65 Kan. 599. (1902) 
 
 DosTER, C. J. This was an action for damages for alienating the 
 affections of a wife and for her seduction. A verdict and judgment 
 were rendered for defendant. The errors claimed are the admission 
 and the rejection of evidence and the giving of instructions. As to 
 the latter, exceptions were not preserved; hence, the instructions can- 
 not be reviewed. 
 
 The plaintiff offered his own testimony as to the defendant's visits 
 to his home, as to his wife's apparent change of attitude and feeling 
 toward him after she became acquainted with defendant, and as to 
 statements made to him by defendant concerning the latter's conduct 
 with the wife. All this was rejected, on the ground that the plaintiff, 
 as the husband, was incompetent to testify to matters involving his 
 wife, notwithstanding the latter was not a party to the case. The 
 defendant below, the defendant in error here, places a literal con- 
 struction on section 323 of the civil code (Gen. Stat. 1901, sec. 4771), 
 which reads: "The following persons shall be incompetent to tes- 
 tify: * * * Third, husband and wife, for or against each other," 
 etc. He says that this statute does not merely disqualify husbands 
 and wives from testifying for or against each others' claims to the 
 subject-matter in litigation, but disqualifies them as well from tes- 
 tifying to each others' personal character, conduct, status, or other
 
 394 CASES ON EVIDENCE 
 
 matter in interest, whether they be parties to the litigation or not, 
 and whether the judgment rendered would put the character, conduct, 
 status or matter in interest in the category of res judicata or not. 
 In other words, the contention is that, inasmuch as the litigation in- 
 volved the subject of the wife's fidelity to the husband, and inasmuch 
 as she, though not a party litigant, was incompetent to testify for or 
 against him, he, though a party, was equally incompetent to testify 
 against her. 
 
 This contention derives support from some of the decisions, a prin- 
 cipal one of which is Cornelius v. Hamby, 150 Pa. St. 359, 24 At. 
 515. It was there held, in a case of the character of this one, that a 
 husband was incompetent to testify to the adultery of his wife, al- 
 though she was not a party to the suit. That holding was made under 
 a statute like ours. It may be that the decision was satisfactorily 
 reasoned, so far as that one statute was concerned, but in this state 
 we have in addition to such a statute, another one of material sig- 
 nificance. Section 319 of the civil code (Gen. Stat. 1901 sec. 4767) 
 reads : "No person shall be disqualified as a witness in any civil 
 action or proceeding by reason of his interest in the event of the 
 same, as a party or otherwise," etc. 
 
 This statute abrogates the common-law rule of disqualification to 
 testify because of interest, and except as limited by other statutes 
 in pari materia makes every person competent to give evidence in 
 any case. The limitation contained in the third subdivision of sec- 
 tion 323 of the civil code, supra, does not apply in such a case as this. 
 That applies only to prohibit a husband or wife, when not a party 
 to the suit, from testifying for or against the other one who is a 
 party ; not to prohibit the one who is a party from testifying for or 
 against the other one who is not. This statement of the general rule 
 is not intended, of course, to be inclusive of those exceptions which 
 the statute itself makes, and which exist in that part of it not quoted 
 above. 
 
 The language of the opinion in Higbee v. McMillan, 18 Kan. 133, 
 while not having relation to a state of facts identical with those in 
 this case, nevertheless declares a principle applicable to the general 
 question, and definitely and positively settles the rule against the 
 contention of the defendant in error. See, also, Van Fleet v. Stout, 
 44 Kan. 523, 24 Pac. 960. In thus holding the husband competent 
 to testify against his wife, it must not be assumed that he can testify 
 to transactions or communications had with her, Such character of
 
 DECLARATIONS PART OF RES GESTAE 395 
 
 testimony is forbidden by the last clause of the third subdivision of 
 said section 323. 
 
 The plaintiff offered witnesses to prove the declarations of the wife 
 as to the state of her feelings toward both her husband and the defend- 
 ant. Some of these offered declarations were made at times before 
 the alleged seduction, and some were made afterward. They were 
 all excluded. A question may exist as to the admissibility of such 
 declarations if made subsequently to the guilty intimacy, but we think 
 none can reasonably exist as to declarations made antecedently to it. 
 The general rule is that, when the inquiry involves the existence of a 
 bodily or mental state, the declarations of the party, when under the 
 influence of the physical or mental feeling in question and disclosing 
 his subjection to it, are not hearsay, but original evidence. (Greenl. 
 Ev. sec. 102.) This rule applies in actions of the character of this 
 one. (Gilchrist v. Bale, 8 Watts. (Pa.), 355; 340 Am. Dec. 469; 
 Edgell v. Francis, 66 Mich. 303, 33 N. W. 501.) 
 
 Other claims of error are made, some of which are subsidiary to, 
 and connected with, those above discussed and therefore need not be 
 specially noticed. Others, however, are of a different character, but 
 will not be dwelt upon. It was not error to permit the defendant 
 to testify to his motive in inviting plaintiff's wife to visit at his home. 
 It was, however, error to admit evidence of declarations made by 
 plaintiff's wife, that she had to work hard and get no credit for it, 
 and that she was homesick and intended returning to the place from 
 where she came. Declarations of such character do not disclose a 
 mental state forming a pertinent subject of inquiry, and, therefore, 
 are governed by a different rule. It was also error to admit evidence 
 of plaintiff's requiring his wife to assist in the breeding of animals, 
 and to permit witnesses to detail conversations with plaintiff about 
 lawsuits in Nebraska, and about his being subjected to the visits or 
 threats of "whitecaps" in Missouri. These topics were irrelevant to 
 the meritorious subject of inquiry, and would naturally tend to preju- 
 dice the plaintiff's cause before the jury. 
 The judgment of the court below is reversed and a new trial ordered. 
 
 All the Justices concurring.
 
 396 CASES ON EVIDENCE 
 
 IN RE DANIEL BURNS' WILL. 
 121 N. C. (1897) 
 
 FAIRCLOTH, J. The issue was devisavit vel non. Daniel Burns, 
 aged 75 or 80 years, died in 1893, leaving eight children him surviv- 
 ing. He also left a last will, dated in 1889, in which he devised 
 and bequeathed his entire property to his son, Phil. F. Burns. 
 
 Numerous witnesses were examined at the trial, the evidence of 
 some of them tending to prove sanity, and that of others to prove 
 insanity. The evidence consisted of the opinion of witnesses, the 
 conduct and language of the testator at different times, from a time 
 recently before the date of the will running back to about the close 
 of the late war, when he received a severe blow on his head. 
 
 It is not denied that declarations of the testator made at the time 
 of signing the will are competent. They are a part of the res gestae. 
 i Thomas Coke 761, 763, 763^ The declarations and conduct of the 
 testator, both before and after he signed the will, are competent as 
 to the condition of his mind at the time he signed it. They are the 
 pointers of the controlling fact involved in the issue to be submitted 
 to the judgment and discretion of the jury as rational men. These 
 acts and declarations are not received as a part of the res gestae but 
 whether made long before or after making the will is immaterial as 
 to their competency. They are circumstances uttered by one having 
 an interest, going to the jury with such weight and credit as that 
 tribunal may give them, whose province it is to try the facts and 
 also to pass upon the truth of these circumstances. 
 
 Error. 
 
 'MONTGOMERY, J., dissents. 
 
 LANE v. MOORE. 
 757 Mass. (1890) 
 
 Tort, by the administrator of the estate of Nathan W. Fellows, for 
 the conversion of a promissory note. 
 
 C. ALLEN, J. The only question argued is as to the competency 
 of the declarations made by the plaintiff's intestate after the time of 
 the alleged gift to the defendant. Where the mental condition of a 

 
 DECLARATIONS PART OF RES GESTAE 397 
 
 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 evidence if sufficiently near in point of time, 
 and if they appear to have any tendency to show what that mental 
 condition was. The question has usually arisen in cases involving the 
 validity of wills, but the principle is the same where the validity of a 
 gift is questioned, and where responsiblity for crime is to be deter- 
 mined. Thailer v. Bumstead, 99 Mass. 112, 122, 123. Lewis v. 
 Mason, 109 Mass. 169. May v. Bradlee, 127 Mass. 414, 420. Potter 
 v. Baldwin, 133 Mass. 427, 429. Whitney v. Wheeler, 116 Mass. 490. 
 Commonwealth v. Pomeroy, ii7*Mass. 143, 148. Commonwealth v. 
 Damon, 136 Mass. 441, 448. So where the question was whether a 
 testator by cancelling a will intended to revive a former will, it was 
 considered that his subsequent declarations were competent for the pur- 
 pose of showing what his intention was. Pickens v. Davis, 134 Mass. 
 252, 257, 258, and cases there cited. In all such cases, the evidence 
 is received merely for the purpose of throwing light upon the state 
 of mind of the person at the time in question, and not as tending to 
 establish the truth of any facts which may have been stated by him. 
 
 There are certain proper limitations to the admissibility of such evi- 
 dence. One is, that the matters testified of should be sufficiently near 
 in point of time, so that the testimony may be of value in determining 
 the question which is directly in issue. Another proper limitation is, 
 that the testimony should appear to have some natural bearing upon 
 the mental condition of the person, or his intention at the particular 
 time which is immediately involved in the issue. 
 
 In the present case, it is impossible to say that the judge has mis- 
 applied any rule of law. There was enough evidence of an impair- 
 ment of the mental faculties of the plaintiff's intestate, before and at 
 the time of the alleged gift to the defendant, to warrant the introduc- 
 tion of evidence as to his condition afterwards. 
 
 Exceptions overruled. 
 
 ELMER v. FESSENDEN. 
 151 Mass. 359. (1890) 
 
 Tort for slander. The declaration alleged that the defendant, who 
 was a physician, falsely informed certain employees of the plaintiff,
 
 398 CASES ON EVIDENCE 
 
 who was a manufacturer of whip-snaps from silk thread, that the silk 
 thread which was furnished them by the plaintiff, and which they were 
 compelled to manipulate in their work, contained arsenic, as a result of 
 which information they ceased to work for the plaintiff; and that 
 the plaintiff had suffered in the loss of their services certain specified 
 damage in his business. The answer contained a general denial, and 
 also alleged that whatever words were spoken were privileged. Trial 
 was in the Superior Court before Barker, J. who allowed a bill of 
 exceptions in substance as follows: 
 
 "The plaintiff introduced evidence tending to show that he was, 
 during 1887, a manufacturer of whip-snaps from silk thread in Ash- 
 field, which thread his employees there resident were compelled to 
 manipulate; and that in the month of June, 1887, the defendant, who 
 was a physician in that town, had circulated the report that he had 
 sent some of the silk thread used in the manufacture to the state 
 board of health for analysis, and received from that board a report 
 that it contained arsenic in sufficient quantities to be dangerous to the 
 employees using it in the way they did. The witness who testified 
 to these facts had also testified that he was, and had been from March, 
 1887, the agent of the plaintiff who superintended this business, and 
 he was permitted on the assurance of the plaintiff's counsel that 
 he expected to prove later that certain of the employees, for the loss 
 of whose services damages were specified in the declaration, had 
 stopped work by reason of the statement of the defendant to them 
 above referred to relative to the report of the board of health to 
 testify that these employees stopped work on the nth day of June, 
 1887, f r some time. The plaintiff then, to prove the reason why they 
 stopped work, asked the witness whether they gave any reason for 
 stopping work. This question was excluded by the court. The 
 plaintiff afterwards asked, 'What, if anything, did they say as the 
 reason for stopping?' This question the court also excluded." 
 
 Afterwards the plaintiff called as a witness Anna M. Brackett, of 
 Ashfiekl, who testified that she was, in June, 1887 in the employment 
 of the plaintiff; and that in the first part of that month she stopped 
 making as many whip-snaps as before because she heard there was 
 poison in the silk. She was then asked by the plaintiff from whom 
 she heard this, and she said she could not remember. Thereupon the 
 plaintiff's counsel, after stating to the judge that the plaintiff could 
 not identify the person repeating this report to her, or produce any 
 further evidence that it originated from the defendant, except evi- 
 dence that the defendant had circulated identical statements, and that
 
 DECLARATIONS PART OF RES GESTAE 399 
 
 the informant of the witness stated to her that the report came from 
 the defendant, further inquired of her, "What was the report which 
 you heard in June, 1887, which caused you, as you have testified, to 
 make a less number of whip-snaps?" This question the judges ex- 
 cluded. The further question was then asked her by the plaintiff, 
 "From whom was the report stated to you to have come, if from any 
 one?" This question, the judge also excluded. 
 
 There was evidence tending to show that the question whether 
 there was arsenic in the silk had been a matter of discussion among , 
 the plaintiff's employees and in the community in Ashfield since the 
 preceding February; that several of the employees had received medi- 
 cal advice that there was arsenic in it, but their work had not fallen 
 off before June i ; and that in fact there was no arsenic in the silk. 
 
 The jury returned a verdict for the defendant; and the plaintiff 
 alleged exceptions. 
 
 HOLMES, J. It was a part of the plaintiff's case that the cause of 
 his workmen leaving his employment was the defendant's false story. 
 If, as may be assumed, the excluded testimony would have shown that 
 the workmen when they left gave as their reason to the superintendent 
 that the defendant had told them that the board of health reported 
 arsenic in the silk, the evidence was admissible to show that their 
 belief in the presence of poison was their reason in fact. Lund v. 
 Tyngsborough, 9 Cush. 36, 41, 43. Aveson v. Kinnaird, 6 East 188, 
 193. Hadley v. Carter, 8 N. H. 40, 43. United States v. Penn, 13 
 Bankr. Reg. 464, 467. We cannot follow the ruling at nisi prius in 
 Tilk v. Parsons, 2 C. & P. 201, that the testimony of the persons 
 concerned is the only evidence to prove their motives. We rather 
 agree with Mr. Starkie, that such declarations made with no apparent 
 motive for misstatements may be better evidence of the maker's 
 state of mind at the time, than the subsequent testimony of the same 
 persons. Stark. Ev. (loth Am. ed.) 89. 
 
 As a rule such declarations are not evidence of the past facts which 
 they may recite. The cases in which they have been admitted to 
 prove the cause of a wound or injury, when the declarations were 
 made at the time, or immediately after the event, if not exceptions 
 to the general rule, at least mark the limit of admissibility. Com- 
 monwealth v. Hackett, 2 Allen 136, 140. Commonwealth v. M'Pike, 
 3 Cush. 181, 184. Insurance Co. v. Mosely, 8 Wall. 397. The ex- 
 cluded testimony was not competent to prove that the defendant did 
 tell the workmen the story. As to that, it was mere hearsay, and 
 was not within the scope of the special reasons which led to the de-
 
 40O CASES ON EVIDENCE 
 
 cisions last cited. Roose v. Boston Loan Co., 132 Mass. 439. 
 Chapin v. Marlborotigh, 9 Gray 244. Bacon v. Charlton, 7 Cush. 581, 
 586. Aveson v. Kinnaird, 6 East 188. People v. Thornton, 74 Calif. 
 482, 486. It is admitted, however, that there was independent tes- 
 timony that the defendant spoke to the workmen, and therefore the 
 exceptions must be sustained. 
 
 Exceptions sustained. 
 
 INNESS v. RAILROAD CO. 
 168 Mass. 432. (1897) 
 
 Tort, under Pub. Sts. c. 112, sec. 212, for causing the death of the 
 plaintiff's intestate, as passenger, by the gross negligence of the de- 
 fendant's servants. Trial in the Superior Court, before Maynard, J., 
 who, at the close of the evidence, directed the jury to return a verdict 
 for the defendant; and the plaintiff alleged exceptions, the nature of 
 which appears in the opinion. 
 
 HOLMES, J. There was evidence that the intestate had just gone 
 up the steps and reached the platform of a car, when the train of 
 which the car was a part, and which had been delayed by snow, was 
 run into by a later train, and he was thrown off and killed. The ques- 
 tion argued is whether there was any evidence that he was a passenger 
 at the time. The train upon which, according to the evidence men- 
 tioned, he had just entered, was bound for Boston, his destination. 
 It was at rest, and of course, if he had reached the platform on his 
 way into the car he had got far enough to have the right of a pas- 
 senger, so far as his position is concerned. But it is urged that his 
 general practice was to travel by a street railway, and that, on the 
 evidence properly admitted, it is as likely that he was crossing the 
 platform on his way to the electric cars as that he intended to go 
 by steam. It also is argued that, as it does not appear that he had 
 a ticket or the money to pay for one, it does not appear that he had 
 the rights of a passenger whatever his intent. 
 
 At the time of the accident, no electric cars were running because 
 of a snow storm. There was testimony that the street railway could 
 be seen from the intestate's house, and that less than a quarter of an 
 hour before the accident the intestate looked out in the way he al- 
 ways did to see if the electric cars were there, and then left in a
 
 DECLARATIONS PART OF RES GESTAE 401 
 
 hurry saying that he was going to take the train, as there were no 
 electric cars running. The admission of this statement was excepted 
 to, but was proper. If either his intent or his belief that no electric 
 cars were running was material, his statement at a moment when he 
 had no interest to make evidence was admissible to show the state 
 of his mind, within the established exception to the rule against hear- 
 say. Commonwealth v. Trefethern, 157 Mass. 180. Clearly his be- 
 lief, especially when shown to have been correct, was material, as it 
 would have the taking of the steam cars for its natural consequence, 
 and so would show the probable intent with which he got upon them. 
 His intent so shortly before the act to be interpreted, being in accord 
 with what was to be expected from his belief, also was admissible, 
 and might have been presumed to continue, as indeed it might have 
 been found to exist without direct evidence. 
 
 Exceptions sustained. 
 
 CHICAGO & ALTON R. R. CO v. MAHON AND HUNT. 
 42 III. 158. (1866) 
 
 This was an action of trespass on the case, brought in the court 
 below by Mahan & Hunt against the Chicago and Alton Railroad 
 Company, in which the plaintiffs recovered. The defendant took this 
 appeal. The opinion of the court contains a statement of the case. 
 
 LAWRENCE, J. This action was brought by Mahan & Hunt against 
 the railway company to recover the value of goods destroyed by fire 
 communicated from the locomotive. One of the questions made upon 
 the trial was whether the goods belonged tp Mahan & Hunt, or to 
 Hunt singly. In order to prove the joint ownership, the plaintiffs 
 were permitted to introduce in evidence the declarations of the plain- 
 tiffs as to their partnership. The defendants then offered the record 
 of a suit brought by Hunt alone against the company to recover the 
 value of these goods. The evidence was not admitted. This was 
 error. The record was proper evidence as against Hunt, and in re- 
 buttal of his declarations as to the fact of partnership. It was an 
 admission by Hunt that there was no partnership, or claim by him 
 that he was the sole owner of the goods, and, although this could not 
 prejudice the rights of Mahan, if he was really a partner, yet it was 
 competent evidence to go to the jury, on this issue, so far as the
 
 402 CASES ON EVIDENCE 
 
 plaintiffs had been permitted to prove the declarations of Hunt, in 
 their own favor. If the plaintiffs could prove the declarations of 
 Hunt to the effect that there was a partnership, the defendant should 
 certainly be permitted to prove his declarations that there was not. 
 
 Judgment reversed. 
 
 ILLINOIS CENTRAL R. R. CO. v. SUTTON. 
 42 III. 438. (1866) 
 
 This was an action of trespass on the case, instituted by the appel- 
 lee, in the court below, against the appellant, as a common carrier, 
 for the ejecting of the appellee, who was a passenger, from the cars 
 of the appellant. 
 
 Damages claimed $10,000. Plea, the general issue. 
 
 At the October Term, 1866, of the Champaign Circuit Court, the 
 cause was tried before a jury, who found the defendant guilty, and 
 assessed the plaintiff's damages at $470, besides the costs of suit. A 
 motion for a new trial was made, which the court overruled, and there- 
 upon rendered judgment upon the verdict. Whereupon the defendant 
 prayed an appeal to this court. The points in the case upon which 
 error is assigned are fully stated in the opinion of the court. 
 
 LAWRENCE, J. This case, in its essential features, is like that of 
 the Chicago & Alton R. R. Co. v. Flagg, decided at the present term. 
 We held, in that case, when a railway company carries passengers 
 in a car attached to a freight train, and adopts a regulation requiring 
 tickets to be purchased before entering the train, and a passenger 
 disregards the rule, he can only be expelled from the train at a regu- 
 lar station. It is urged that this provision of the statute, forbidding 
 passengers to be elsewhere expelled applies only to the case of refusal 
 to pay the fare and not to a violation of any other reasonable rule. 
 But the willful neglect to buy a ticket at the time and place required 
 by the rules, and the refusal to pay the fare, are substantially the 
 same offense against the rights of the road, and the former can be 
 visited by no heavier penalty than the latter. But in this case, as in 
 the other above referred to, there was no satisfactory proof that the 
 plaintiff was cognizant of the rule, and he offered to pay his fare 
 to the conductor, who refused to receive it, and compelled him to leave 
 the train at some distance from a station. He was. indeed, informed
 
 DECLARATIONS PART OF RES GKSTAE 403 
 
 of the rule just before the train started, and then sought to buy a 
 ticket, but the office was closed. Under these circumstances he was 
 clearly entitled to his action. 
 
 Plaintiff claims to have been suffering from disease, and that it 
 was aggravated by the walk incident to his expulsion from the cars. 
 To prove this, a physician was examined, who testified he visited the 
 plaintiff and found him suffering much pain ; that he had been attend- 
 ing him for two years, and had cautioned him against severe exercise, 
 and that the plaintiff informed him that his present condition was 
 caused by overexertion in walking. The defendant moved the court 
 to exclude so much of this evidence as related to what the plaintiff 
 said of the cause of his condition. This the court refused to do, and 
 in this decision there is error. A physician, when asked to give his 
 opinion as to the cause of a patient's condition at a particular time, 
 must necessarily, in forming his opinion, be, to some extent, guided 
 by what the sick person may have told him, in detailing his pains 
 and sufferings. This is unavoidable, and not only the opinion of the 
 expert founded in part upon such data, is receivable in evidence, but 
 he may state what his patient said, in describing his bodily condition, 
 if said under circumstances which free it from all suspicion of being 
 spoken with reference to future litigation, and give it the character 
 of res gestae. But to permit a party to prove what he himself stated 
 to his physician, not in regard to the character of his malady, but 
 in reference to its specific cause, when that is one of the issues 
 before the jury, would be carrying an acknowledged departure from 
 the ordinary rules of evidence, having its origin in necessity, to a 
 most dangerous extent. State of Vermont v. Davidson, 30 Vt. 377. 
 
 The propriety of enforcing this rule in the present case is manifest 
 from a careful consideration of the evidence. The physician was 
 asked as to his professional opinion of the cause of the plaintiff's 
 illness. This opinion he gives nowhere in his testimony, but, instead 
 thereof, he states that the plaintiff said his sickness was caused by 
 over-exercise in walking. True, the physician says he had cautioned 
 the plaintiff against over-exercise in walking, and that walking would 
 injure him, but he does not give his professional opinion, that the ill- 
 ness, which confined the plaintiff for several weeks, was due spe- 
 cifically to that cause, although that impression is allowed to be made 
 upon the minds of the jury. It seems to us not impossible the physi- 
 cian may have been unwilling to state, as his own belief, that the 
 plaintiff's long confinement was due to the walk taken by him after 
 having been expelled from the railway train. That expulsion occurred
 
 404 CASES ON EVIDENCE 
 
 only between one and two miles from the station. It appears in the 
 testimony that plaintiff "was walking about the premises," while wait- 
 ing for the train at the station. He was engaged in the tin and hard- 
 ware business, and two of his witnesses swear his time was worth 
 fifty dollars per day. If that was true he must have been leading a 
 life of great activity. We can well see, therefore, that the physician 
 may have been in doubt as to whether the walk of that day caused 
 his illness, and whether in doubt or not he should not have been per- 
 mitted, against the objection of the defendant, to give the jury the 
 statement of the plaintiff in lieu of his own professional opinion. It 
 is urged by counsel for appellee, that the fact of his having been 
 obliged to walk from one to two miles is proved by other witnesses. 
 That is true, but the question was, whether his illness was attributable 
 to that walk, and on that point the only direct evidence in the record 
 was the statement of the plaintiff himself. Perhaps the jury would 
 have presumed this from the fact, that the illness immediately fol- 
 lowed the walk, and from the statement of the physician, that the 
 plaintiff had for a long time been suffering from a disease which 
 would be aggravated by severe exercise. But we cannot tell how far 
 the jury may have been influenced in fixing the damages by this state- 
 ment of the plaintiff, given to them through the physician, and, as 
 it was illegal evidence, we must reverse the judgment, and remand 
 the cause for another trial. 
 
 Judgment reversed. 
 
 STATE OF VERMONT v. DAVIDSON. 
 > (1858) 
 
 Indictment in three counts for highway robbery, and assault with 
 intent to rob, and assault with intent to kill, respectively, upon the 
 person of Michael Baldwin. 
 
 The jury returned a general verdict of guilty. 
 
 REDFIELD, Ch. J. The first question is in regard to the admis- 
 sion of the statement of Baldwin, at the time he was first discovered 
 by the witnesses. 
 
 It is well settled that the declarations of a party, injured when no 
 one is present, are not evidence to show the manner in which the 
 injury occurred however nearly contemporaneous with the occurrence.
 
 DECLARATIONS PART OF Res GESTAE 405 
 
 Such declarations do not tend to characterize the transaction, and are, 
 by consequence, no part of it, and cannot be admitted as such. This 
 has been decided in this State with reference to injuries upon the 
 highway when no one was present who could be a witness. 
 
 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 gestae. 
 
 Hence it clearly would not have been competent to show that 
 Baldwin said, when first discovered, that he had been robbed, or that 
 he had been robbed by the respondent, although undoubtedly such a 
 statement would have some effect in convincing the jury that such 
 was the fact. But it is merely hearsay, and depends for its force 
 wholly upon the veracity of the speaker and the circumstances under 
 which it was uttered. And it does not tend to characterize any act of 
 the party speaking. 
 
 The testimony objected to in the present case was simply an inquiry 
 in other words, if the witnesses had seen the respondent, and it is 
 relied upon as equivalent to a declaration that Davidson had robbed 
 him. It is indeed of less force than that, and is clearly inadmissible, 
 upon the question of proving the corpus delicti towards proving which 
 it seems to have gone to the jury. 
 
 Can this be received as part of the res gestae, which means, as part 
 of the transaction? Of what transaction, it may be inquired? The 
 transaction of the robbery, upon the theory of the government, was 
 fully completed some time before this declaration was made. There 
 was no transaction then in progress, of which this declaration could 
 form a part, unless it was the pursuit of the respondent by Baldwin. 
 And it is difficult to see how that had any tendency to show that a 
 robbery had been committed, however it might bear upon the ques- 
 tion whether the respondent was the party whose agency had produced 
 the injury, whatever it was. There seems to have been no great 
 question that the respondent was the only party who had been with 
 Baldwin after he was last seen a few rods east of the point where 
 he was then found. And if the injuries of Baldwin were not acci- 
 dental, of which there seems no great probability, from the testimony 
 detailed, it may be said there was not much question that the re- 
 spondent had some agency in their production. But we do not per- 
 ceive that the fact that Baldwin was pursuing the respondent tended 
 to show that the case was one of robbery rather than of conflict.
 
 406 CASES ON EVIDENCE 
 
 Baldwin would have been about as likely to pursue him in the one 
 case as the other. 
 
 The mere fact of pursuit is not then competent evidence to prove 
 the robbery, to which end it was suffered to go to the jury, notwith- 
 standing the remonstrances of the respondent's counsel. 
 
 For so long as it is supposable that the injury may have happened 
 by accident or possibly by other hands, the mere pursuit may have 
 been to overtake the respondent as a friend to gain relief. The pur- 
 suit of the respondent by Baldwin, being then consistent with more 
 than one theory of the production of the injury, the fact does not 
 tend to prove the case charged in the indictment. The corpus delicti 
 must be assumed to be .proved before the pursuit becomes of any im- 
 portance, and, the testimony having been objected to, and no instruc- 
 tion being given as to its effect, it possibly might have been viewed 
 by the jury as possessing some intrinsic importance, from the mere 
 fact that it was ruled in, notwithstanding objection, which otherwise 
 it would not have had in their minds. And as it went into the case 
 and was left to the jury as tending to prove the corpus delicti, it is 
 impossible to maintain its competency. And we do not decide that it 
 had any legal tendency to identify the guilty party. But if it were 
 confined to that point and that were the only difficulty, I could, I 
 think, make it a circumstance of some slight weight, and legitimately 
 entitled to be considered if left to the jury upon that point only. 
 
 Verdict set aside and new trial granted. 
 
 LAKE STREET EL. R. R. CO. v. SHAW. 
 203 III. 39. (1903) 
 
 This is an action on the case, brought by the appellee in the Circuit 
 Court of Cook county against the appellant, to recover damages for 
 a personal injury alleged to have been sustained by her in conse- 
 quence of the negligence of the appellant. 
 
 The appellant filed the general issue, and upon the trial the jury 
 returned a verdict in favor of appellee for $5,000, upon which verdict, 
 after overruling a motion for a new trial, the court rendered judg- 
 ment, which judgment was affirmed by the Appellate Court for the 
 First District, and -a further appeal has been prosecuted to this court. 
 
 HAND, J. It is first contended that the court erred in declining to
 
 DECLARATIONS PART OF RES GESTAE 407 
 
 take the case from the jury upon the motion of the appellant, made at 
 the close of all the evidence, on the ground that there was a variance 
 between the proof and the declaration. 
 
 It is further contended that the court erred in admitting improper 
 evidence on behalf of appellee. Alary T. Fitzgerald, a servant of 
 appellee, was called as a witness. After stating she saw appellee upon 
 the evening on which she was injured, she was asked : "What did 
 you notice about her?" to which she replied: "I saw that her knee 
 was bruised, the right knee and the hip. She complained of a pain 
 in her right hip that way, and her face;" and after stating that the 
 appellee was confined to her bed for five weeks, she was asked, 
 "What did you notice about her during the five weeks?" to which 
 she replied, "She complained of pain very much all the time." The 
 appellant moved to strike out of the answer to the first question 
 the words "she complained of pain in the right hip," and the entire 
 answer to ttye second question, but the court denied the motion and 
 allowed both answers as given to stand. There was a conflict in the 
 evidence as to the extent and character of the injury sustained by 
 appellee. The appellee claimed she sustained a severe injury to the 
 right hip, while two physicians (one her family physician) who saw 
 her on the evening after the injury, testified that it was her left side 
 that was injured and that her right hip was not injured, but that 
 her right hip was subsequently injured by a fall upon the sidewalk. 
 To permit the witness Fitzgerald to testify that "she complained of 
 pain in her right hip," and "she complained of pain very much all the 
 time," was in effect, to permit the witness to give hearsay evidence 
 and the appellee to make evidence for herself (Illinois Central Rail- 
 road Co. v. Sutton, 42 111. 438; West Chicago Street Railroad Co. v. 
 Carr, 170 id. 478; West Chicago Street Railroad Co. v. Kennelly, id. 
 508; Springfield Consolidated Railway Co. v. Hoefner, 175 id. 634) ; 
 and in view of the conflicting evidence was reversible error. In 
 Springfield Consolidated Railway Co. v. Hoeffner, supra, it was said 
 (p. 643) referring to the Carr and Kennelly cases: "The rule laid 
 down in these cases is, that declarations as to the pain and suffering 
 of the injured party, when made by such party, are only competent 
 if made at the time of the injury, so as to constitute a part of the res 
 gesta, or when made to a physician during treatment." 
 
 Reversed and remanded.
 
 408 CASES ON EVIDENCE 
 
 ROOSA v. BOSTON LOAN CO. 
 132 Mass. 439. (1882) 
 
 Tort for assault and battery. At the trial in the Superior Court, 
 before Brigham, C. J., the jury returned a verdict for the plaintiff; 
 and the defendant alleged exceptions, which appear in the opinion. 
 
 ENDICOTT, J. When the bodily or mental feelings of a party are 
 to be proved, his exclamations or expressions indicating present pain 
 or malady are competent evidence; and in Bacon v. Charlton & Cusli. 
 581, 586, where this rule is stated, it was said by the court: "Such 
 evidence, however, is not to be extended beyond the necessity on which 
 the rule is founded. Anything in the nature of narration or state- 
 ment is to be carefully excluded, and the testimony is to be confined 
 strictly to such complaints, exclamations and expressions as usually 
 and naturally accompany, and furnish evidence of, a present existing 
 pain or malady." The opinion closes with this precaution: "These 
 remarks as to the limitation of the rules are not intended to apply 
 to the statements made by a patient to a medical man, to which 
 a different rule may be applicable." 
 
 In Chapin v. Marlborough, 9 Gray 244, it was held, on the author- 
 ity of Bacon v. Charlton, that a physician could not testify to a state- 
 ment made by the plaintiff, that his leg had been struck by a horse. 
 And in Barber v. Merriam, n Allen 322, the question arose, whether 
 the plaintiff's statements to her physician, made after the suit was 
 brought, as to the character and seat of her injuries and sensations, 
 were competent. The only point decided was, that such statements 
 to her medical adviser, as to the character and seat of her injuries and 
 sensations, were admissible. Aveson v. Kinnaird, 6 East 188, 195, 
 and the Gardner Peerage Case, 78, 172, 175, are cited as authorities, 
 where the statements of a patient to a physician of symptoms and 
 complaints are held to be competent evidence. 
 
 In Illinois Central Railroad v. Sutton, 42 111. 438, the plaintiff 
 was ejected from a train. He contended that he had been suffering 
 from disease, and that it was aggravated by the walk which he was 
 obliged to take by reason of his expulsion. His physician testified as 
 to his condition, and also that he was informed by the plaintiff that 
 his present condition was caused by over-exertion in walking. The 
 court held that the statements of a patient to a physician of his 
 pain and suffering, and in regard to his bodily condition, are com- 
 petent to enable him to form an opinion as to the extent and nature
 
 DECLARATIONS PART OF RES GESTAE 409 
 
 of his injuries; but that it was not competent for the physician to 
 testify to the plaintiff's statements as to the specific cause of the 
 injury, that being one of the issues before the jury. 
 
 The facts in that case, as in Chapin v. Maryborough, are similar 
 to those recited in this bill of exceptions. The plaintiff here testified 
 that she was struck in the stomach by the defendant's servant. The 
 physician in answer to the question, "What did the plaintiff tell you 
 about her condition? replied, "She stated that she had received a blow 
 in the stomach." It would clearly have been competent for a physi- 
 cian, after having testified to the condition of the plaintiff, and to 
 the complaints and symptoms of pain and suffering stated by her, 
 to have given his opinion that they were such as might have been 
 expected to follow the infliction of a severe blow. Such evidence 
 was admitted without objection. But it was not competent for the 
 physician to testify to her statement that she had received a blow in 
 the stomach. 
 
 While a witness, not an expert, can testify only to such exclama- 
 tions and complaints as indicate present existing pain and suffering, 
 a physician may testify to a statement or narrative given by his patient 
 in relation to his condition, symptoms, sensations, and feelings, both 
 past and present. In both cases these declarations are admitted 
 from necessity, because in this way only can the bodily condition 
 of the party, who is the subject of the injury, and who seeks to 
 obtain damages, be ascertained. But the necessity does not extend to 
 declarations by the party as to the cause of the injury, which is the 
 principal subject-matter of inquiry, and which may be proved by other 
 evidence. 
 
 Exceptions sustained. 
 
 A. T. & S. F. R. R. CO. v. JOHNS. 
 36 Kan. 769 (1887) 
 
 Action brought by Mary Johns against The Atchison, Topeka & 
 Santa Fe Railroad Company, to recover damages for injuries re- 
 ceived by her while standing on the railroad company's station plat- 
 form at Severy, in Greenwood county, by reason of being struck and 
 thrown down by the company's servants in removing a trunk from
 
 4io CASES ON EVIDENCE 
 
 the platform to the baggage-car of a train then standing at the 
 station. The general verdict of the jury read as follows : 
 
 "We the jury in the above-entitled cause, do find for the plaintiff, 
 and we assess her damages at the sum of four thousand dollars." 
 
 VALENTINE, J. The first question to be considered in this court is, 
 whether the plaintiff below introduced sufficient evidence to authorize 
 the jury to find in her favor with reference to every essential fact 
 constituting her cause of action. 
 
 The plaintiff in error, defendant below, also claims that the court 
 below committed material error in permitting the following evidence 
 to be introduced, to wit: Mrs. M. D. Thatcher was permitted to tes- 
 tify, over the objections of the defendant, among other things, as 
 follows : 
 
 "Well, I only know what Mrs. Johns has told me of her suffering, 
 and I have been called in there as a neighbor. She complained of 
 the misery in her side, and she told me that she suffered a great 
 deal with a numbness and a tingling sensation in her left side, I be- 
 lieve it was ; and the other evening I was called over there, and she 
 told me that she was suffering now a great deal with that feeling, 
 and also a depression about her heart, she said, in her left side, and she 
 had sent for the physician, I believe, that evening; and that was some 
 of the symptoms, I believe, that she had; of some kind of depression 
 about her heart, a smothering, I think. * * * Mrs Johns has 
 complained of her limb and her foot to me." 
 
 Joseph H. Pitzer was permitted to testify, over the objection of 
 the defendant, among other things, as follows : 
 
 "Q. Now, Mr. Pitzer, state to the jury what facts you may know 
 with reference to her condition, with reference to her suffering and 
 bodily pain and mental distress. A. I don't know anything, only 
 what she has told me herself. 
 
 "Q. What have you heard her say about it? Of what has she 
 complained? A. She has told me frequently that she has suffered. 
 She complained of her head and leg, having a great misery in it. 
 She complained of misery in her side and hip." 
 
 On cross-examination he testified, among other things as follows : 
 
 "Q. All you know about her suffering and pains since the injury, 
 is what she has told you, is it not, Mr. Pitzer? A. That is all, sir." 
 
 We think it is well settled that it is incompetent to prove the dec- 
 larations of an injured party, or of a party suffering from some cause, 
 made after the injury has happened or after the cause of his suffer- 
 ing has occurred, with regard to the facts of the injury or the cause
 
 DECLARATIONS PART OF RES GESTAE 411 
 
 of his suffering. (Roosa v. Boston Loan Co., 132 Mass. 43; Mor- 
 rissey v. Ingham, in id. 63; I. C. R. R. Co. v. Sutton, 42 111. 438; 
 Collins v. Waters, 54 id. 485; Denton v. The State, i Swan. (Tenn.) 
 279; Spatz v. Lyons, 55 Barb. 476.) And even proof of the declara- 
 tion of a party, with regard to past suffering or pain, or past condi- 
 tions of body or mind, fs not competent. (G. R. & I. Rid. Co. v. 
 Huntly, 38 Mich. 537 ; Lush v. McDaniel, 13 Ired. 485 ; Reed v. N. 
 Y. C. Railroad Co., 45 N. Y. 574; Rogers v. Grain, 30 Tex. 284; 
 Chapin v. Inhabitants of Marlborough, 75 Mass. 244; Rowell v. City 
 of Lowell, 77 id. 420; Emerson v. Lowell Gas Light Co., 88 id. 146; 
 Inhag. of Ashland v. Inhab. of Marlbor., 99 id. 48 ; Ins. Co. v. Mosely, 
 75 U. S. 397, 405-) 
 
 There are probably no authorities opposed to these propositions, 
 and yet there are authorities which seem almost to oppose the last 
 one, especially where the declarations are made to a physician or 
 surgeon while he is examining the party as a patient. (Quaife v. 
 C. & N. W. Ry. Co., 48 Wis. 513; same case, 33 Am. Rep. 821; 
 Barger v. Merriam, 93 Mass. 322; Fay v. Harlan, 128 id. 244; Gray 
 v. McLaughlin, 26 Iowa 279; Matteson v. N. Y. C. R. R. Co., 35 
 N. Y. 487; L. N. A. & C. Rly. v. Falvey, 104 Ind. 409; same case, 
 23 Am. & Eng. Rid. Cases, 522; same case, 22 Cent. L. J. 322.) 
 Declarations, however of a party with regard to a present and existing 
 pain or suffering, or with regard to the present condition of the body 
 or mind may generally be shown by any person who has heard them. 
 (Ins. Co. v. Mosely, 75 U. S. 397; Hatch v. Fuller, 131 Mass. 574; 
 Denton v. State, i Swan. (Tenn.) 279; I. C. R. R. Co. v. Sutton, 
 42 111. 438; Collins v. Waters, 54 id. 485; L. N. A. & C. Rid. Co. v. 
 Falvey, 104 Ind. 409; same case, 23 Am. & Eng. Rid. Cases, 522; 
 same case, 22 Cent. L. J. 322; i Greenl. Ev. sec. 102, and cases 
 there cited; i Wharton Ev. sec. 268, and cases there cited.) There 
 are authorities seemingly opposed to this last proposition : Reed v. 
 N. Y. C. Rid. Co., 45 N. Y. 574; C. R. & I. Rid. Co. v. Huntley, 38 
 Mich. 537. 
 
 We think, however, that whenever evidence is introduced tending 
 to show a real injury or a real cause for suffering or pain, as in this 
 case, the declarations of the party concerning such suffering or pain 
 while it exists and as simply making known an existing fact, should 
 be allowed to go to the jury for what they are worth, and the jury 
 in such a case should be allowed to weigh them and to determine their 
 value. If they were made to a physician or surgeon while he was 
 examining the party as a patient, for the purpose of medical or
 
 412 CASES ON EVIDENCE 
 
 professional treatment and for that purpose only, the declarations 
 would be of great value. If, however, they were made at any other 
 time or under any other circumstances, they might not be of such 
 great value. If made casually to some person not a physician, and 
 with whom the party had no particular relations, they might pos- 
 sibly in some cases be of but very little or no value. (Reed v. N. Y. 
 C. R. R. Co., 45 N. Y. 574.) Yet generally they should be permitted 
 to go to the jury for what they are worth. (Ins. Co. v. Mosely, 75 
 U. S. 397; Hatch v. Fuller, 131 Mass. 574; Rogers v. Grain, 30 Tex. 
 284 ; Matteson v. N. Y. C. R. R. Co., 35 N. Y. 487 ; Gray v. McLaugh- 
 lin, 26 Iowa 279; Kennard v. Burton, 25 Me. 39; The State v. How- 
 ard, 32 Vt. 380; Lush v. McDaniel, 13 Ired. 485.) 
 
 Also, if the declarations are made to a physician or other person 
 merely for the purpose of obtaining testimony in the party's own case, 
 they might be of very little value and possibly might in some cases 
 be wholly excluded. (G. R. & I. Rid. Co. v. Huntley, 38 Mich. 537.) 
 But the mere fact that the declarations are made after suit has been 
 commenced and while it is pending will not be sufficient to exclude 
 the declarations, and generally they should be allowed to go to the 
 jury. (Barber v. Merriam, 93 Mass. 322; Hatch v. Fuller, 131 id. 
 
 574-) 
 
 In the present case we cannot say that the court below committed 
 any material error in admitting the evidence objected to. Everything 
 that the witnesses, Mrs. Thatcher and Mrs. Pitzer, testified to was 
 proved by the competent testimony of other witnesses. The injury, 
 the impaired health, the suffering, the pain and the entire condition 
 of the plaintiff's body were fairly shown by the evidence that cannot 
 be questioned, and very nearly all the declarations of the plaintiff, 
 as testified to by Mrs. Thatcher and Mr. Pitzer were in substance 
 declarations of present and existing pain, suffering and conditions of 
 the body, and not narratives of past pain, or suffering, or conditions 
 of the body; and to this extent they were unquestionably competent. 
 Those declarations, if any, which were not concerning present and 
 existing pain, suffering, and conditions of the body were so small in 
 amount and so trifling and insignificant in their influence, and were 
 concerning matters which were so thoroughly and incontestably proved 
 by other competent evidence, that their admission by the court could 
 not be material error. 
 
 Judgment of the court below will be affirmed. 
 
 All of the Justices concurring.
 
 DECORATIONS PART OF RES GESTAE 413 
 
 / 
 
 i 
 
 FREDA v. TISHBEIN. 
 174 Mich. 391. (1913) 
 
 STONE, J. This is an action of replevin brought by the plaintiff as 
 special administratrix of the estate of August Tishbein, Sr., deceased, 
 against the widow and son of said deceased. August Tishbein, Sr., 
 died intestate on or about the 3rd day of October, 1910. No petition 
 for administration was filed by his heirs, but after due time a petition 
 was filed by the plaintiff as a creditor of said estate, and special 
 administration was granted to her. It was claimed that the estate 
 of said deceased consisted of a stock in trade at 357 Gratiot avenue, 
 in the city of Detroit, and plaintiff, as special administratrix, brought 
 an action of replevin to obtain possession of the stock from the widow 
 arid son, who were in possession when demand was made for the 
 same. The record would indicate that the defendant August Tish- 
 bein, Jr., claimed to be the owner of the property when suit was 
 commenced. The trial resulted in a verdict and judgment for the 
 plaintiff, and the defendants have brought the case here for review. 
 
 The only errors upon which they rely relate to the action of the 
 trial judge in admitting certain testimony of the plaintiff and her 
 witnesses. 
 
 1. It is the claim of the defendants that certain testimony of the 
 plaintiff was incompetent under section 10212 3 Comp. Laws, as 
 amended, relating to matters equally within the knowledge of the 
 deceased. 
 
 2. That the court erred in permitting the various witnesses of the 
 plaintiff to testify as to statements made by decedent during his life- 
 time while in possession concerning the title to the stock of goods 
 in question. 
 
 There is no evidence that any such statements were made in the 
 presence of the defendants or either of them, and it is the claim of 
 the defendants that such testimony was clearly hearsay, selfserving, 
 and prejudicial. 
 
 I. Considering the matters in the order above stated, we will con- 
 sider first whether the testimony of the plaintiff was within the terms 
 of the statute prohibiting the opposite party, in a suit prosecuted or 
 defended by personal representatives of the deceased person, from 
 testifying to matters which, if true, must have been equally within 
 the knowledge of the deceased. It should be borne in mind that the 
 plaintiff represents the estate of the decedent. We do not think that
 
 CASES ON EVIDENCE 
 
 this statute renders the personal representative incompetent to* tes- 
 tify in behalf of the estate as to matters within the decedent's knowl- 
 edge. 
 
 2. The other question is one of more difficulty. Numerous wit- 
 nesses, including the plaintiff, were permitted to testify to conversa- 
 tions with the decedent while he was in possession of the stock of 
 goods, and not in the presence of either of the defendants, as to de- 
 cedent's ownership of the stock. It is the claim of the plaintiff, and 
 seems to have been the holding of the trial court, that such evidence 
 was admissible as part of the res gestae and as verbal acts character- 
 izing and explaining the nature of the possession. Under this ruling 
 of the court certain testimony was admitted tending to show that 
 the decedent said that he owned the stock. On the other hand, it is 
 the claim of the defendants that the testimony was hearsay, self-serv- 
 ing and prejudicial, and thus inadmissible, and that the rule in this State 
 is to the effect that declarations of the decedent cannot be shown if 
 they are in favor of the party who made them, and adverse to the 
 other party and many cases are cited by counsel on both sides. 
 
 It will be- noted that in this case the evidence was offered and re- 
 ceived as though there were some question qualifying or explanatory 
 of the possession of the decedent. An examination of the evidence 
 received shows that there was no question as to the nature of the 
 possession, nor what was the title claimed by decedent. This evi- 
 dence was offered to show who was the actual owner of this prop- 
 erty. It was material upon this point, if material at all. It seems to 
 us that such declarations were not admissible; that decedent was in 
 possession of the stock of goods was the real question in issue. No 
 question was raised as to the nature of his possession, and nothing 
 was offered explanatory of, or qualifying, such possession, and we 
 think the true rule is that where the issue is, not what was the nature 
 of the possession, nor what was the title claimed, but which party 
 was the actual owner, such declarations are not admissible. The 
 danger of admitting such testimony as tending to show who was 
 the actual owner is apparent. It does not seem to us that mere pos- 
 session may be termed an act, so as to justify the application of 
 this branch of the doctrine of res gestae. 
 
 The instances, when the declarations should be received, are when 
 the character of the possession, or nature of the claim made, becomes 
 material with a view to the determination of some ulterior question ; 
 as, for instance, cases in which a right rests upon the statute of limi- 
 tations, and it is necessary to show that the possession was adverse.
 
 DECLARATIONS PART of RES GKSTAE 415 
 
 To say that, in a case where the only issue is actual ownership, a 
 party may support his title by proof of his own declarations to 
 third persons on sundry occasions, not in the presence of the claim- 
 ant, is to declare that one may manufacture evidence for himself. 
 Declarations by a party in possession against interest or in disparage- 
 ment of title, are admissible under a different rule from that we are 
 here considering. We think the evidence should not have been re- 
 ceived, and that it was prejudicial error to allow it to be submitted 
 to and considered by the jury. 
 
 For this error we are constrained to reverse the case and grant a 
 new trial. 
 
 STEERE, C. J. and MOORE, BROOKE, KUHN, OSTRANDER and BIRD, 
 JJ., concurred. 
 
 LESSOR of SCOTT et al. v. RATLIFFE et al. 
 5 Peters (U. $.) 80. (1831) 
 
 CHIEF JUSTICE MARSHALL. This is a writ of error to a judgment 
 rendered in favor of the defendants, in an ejectment brought by the 
 plaintiffs in the Court of the United States, for the seventh circuit, 
 and district of Kentucky. 
 
 The plaintiffs claimed title as heirs of the Reverend James Madison, 
 deceased, under a patent issued to him by the governor of Kentucky, 
 on the 8th day of August, 1798. A verdict and judgment having 
 been rendered for the defendants, the plaintiffs have brought the 
 cause into this court by writ of error. The case depends on sev- 
 eral bills of exceptions taken to certain opinions given by the court 
 at the trial of the cause. 
 
 The plaintiffs gave in evidence the patent to their ancestor. It 
 grants to the Reverend James Madison a certain tract or parcel of 
 land containing eighteen hundred and fifty acres, by survey, &c., and 
 "bounded as follows." It then describes the exterior lines of the 
 whole tract, after which ^the following words are used ; "including 
 within said bounds, five hundred and twenty-two acres of land en- 
 tered for John Preston, four hundred and twenty-five acres for Wil- 
 liam Garrard; both claims have been excluded in the calculation of 
 the plot with its appurtenances," &c. 
 
 They then gave evidence conducing to prove the death of the
 
 416 CASES ON EVIDENCE 
 
 grantee before the institution of the suit; that the plaintiffs Susannah 
 and James C. were his heirs at law, and that the plaintiff Susannah 
 had intermarried with the plaintiff Robert G. Scott. They then in- 
 troduced Mrs. Eppes as a witness, who swore that she resided in 
 Petersburg, Virginia, and that Bishop Madison resided in Williams- 
 burg, Virginia; that while she resided in Petersburg she had seen 
 Bishop Madison, and was acquainted with his daughter only by re- 
 port ; that she had never seen her or Mr. Scott, but recollects to have 
 heard of her marriage in Petersburg, as she thought, before the 
 death of her father; that she could not state from whom she heard 
 the report, but she had three cousins who went to college at the time 
 that she lived in Petersburg, and had no doubt that she heard them 
 speak of the marriage; that she heard of the marriage of Miss Madi- 
 son before her own marriage, as she thought, which was in 1810; 
 that she was, as she believed, in 1811, in Williamsburg, and was told 
 that Mr. Madison was dead. 
 
 On the motion of the defendants, the court excluded this testimony 
 as incompetent; and the counsel for the plaintiffs excepted to this 
 opinion. 
 
 In considering this exception some diversity of opinion has pre- 
 vailed in this court, with respect to that part of it which related to 
 the time of the intermarriage between the plaintiff Robert G. Scott 
 and Susan his wife. Some of the judges think that the evidence 
 given by Mrs. Eppes respecting the time, as well as that respect- 
 ing the fact of intermarriage, comes within the general rule excluding 
 hearsay testimony, which was laid down by this court in the case of 
 Mima Queen and child against Hepburn, 7 Cranch 290. That rule 
 is, "that hearsay evidence is incompetent to establish any specific fact, 
 which fact is in its nature susceptible of being proved by witnesses 
 who speak from their own knowledge." 
 
 Others think that the fact of the marriage being established by 
 other testimony, the circumstances that this fact was communicated to 
 the witness before another event took place, becomes itself a fact, and 
 is evidence that the marriage was anterior to that other event. It be- 
 comes unnecessary to decide on this principle, because we are all of 
 opinion that so much of the testimony of Mrs. Eppes as goes to prove 
 the death of Mr. Madison was admissible, and ought not to have 
 been excluded. 
 
 The judgment is reversed, for error in the entire exclusion of the 
 testimony of Mrs. Eppes; and the cause is to be remanded, with in- 
 struction to award a venire facias de novo.
 
 DECLARATIONS PART of RES GESTAE 417 
 
 ROGERS v. STATE. 
 88 Ark. 451. (1908) 
 
 , Ch. J. Ben Rogers was indicted by the grand jury of Craig- 
 head county for robbery, was convicted, and has appealed. Fielder 
 testified that on the night of May 31, 1908, in the city of Jonesboro, 
 he left a restaurant, and was accompanied by one Tomlinson, and 
 the defendant Rogers followed them. That Tomlinson offered him 
 a drink of whisky, which he refused, and the defendant stepped up 
 and said he would take a drink, and Tomlinson handed him the bottle, 
 and he took a drink and dropped behind them, with the bottle. He 
 and Tomlinson walked under the shadows of some trees, and some one 
 hit him from behind with a bottle on the side of the head and face and 
 he was knocked senseless. After he fell some one beat him on the head 
 and face with his fists; and either Tomlinson or the defendant ran his 
 hands in his pockets and got his money. "After I was hit, I do not 
 remember anything until I was being talked to by Arrington, chief 
 of police, in a plumbing shop on South Main street. 
 
 He was then permitted, over the objection of defendant, to state 
 that "Mr. Arrington asked me who robbed me, and I told him a white 
 man whose name I did not know and a negro whom they called Ben." 
 The next morning he went to the jail to see if he could identify the 
 defendant, who had been arrested. His eyes were so swollen that 
 he could not see distinctly, and he asked that the defendant talk. The 
 defendant did so, and he recognized him by his voice. The witness 
 does not appear to have been cross-examined at least the bill of 
 exceptions does not show what part of his examination is in chief 
 and what is cross-examination ; and there is no inconsistent or contra- 
 dictory statement in his testimony indicative that any part of it was 
 brought out by cross-examination. 
 
 Arrington, the chief of police, was permitted to testify, over the 
 objections of defendant, that he had arrested defendant the night 
 that Fielder was robbed, and that he found Fielder in a plumbing 
 shop on South Main street. "I asked Fielder who robbed him ; 
 he said a white man and a negro; that he did not know who the 
 white man was, but they called the negro Ben Rogers." No money 
 or other property was found on the defendant, after his arrest, that 
 belonged to Fielder. 
 
 It appears that from one to two hours elapsed from the time 
 that Fielder was robbed until he made the statement to the chief of
 
 4i 8 CASES ON EVIDENCE 
 
 police in the plumbing shop. The defendant testified, denying that he 
 had robbed Fielder, and stated that he was at another place at the 
 time of the occurrence. Several other witnesses testified, tending to 
 sustain his alibi. 
 
 The subject of prior consistent statements was recently considered 
 by this court in Burks v. State, 78 Ark. 271, where one phase of it 
 was discussed and the authorities reviewed. The court said: "After 
 all, the effect of proof of previous consistent statements could only 
 be to corroborate the statement of the witness under oath by his own 
 words uttered on another occasion. It would add nothing to his 
 statement upon the witness stand either as to his testimony on the 
 main issue, or as to his denial of the contradiction. We are of the 
 opinion that the admission of the testimony by the court was im- 
 proper and prejudicial, and should not have been allowed." 
 
 This subject is exhaustively reviewed in 2 Wigmore on Evidence, 
 sec. 1 122 et seq. and the occasion and time when such statements 
 may be admitted fully explained. In section 1124 Mr. Wigmore says: 
 "When the witness has merely testified on direct examination, with- 
 out any impeachment, proof of consistent statements is unnecessary 
 and valueless." In some classes of crime statements of a complaint 
 being made are admissible, notably rape. 2 Wigmore, Evidence, 1134. 
 Likewise, statements made by the owner or possessor of goods after 
 an alleged robbery or larceny of them may, under some circumstances, 
 be admitted. Upon principle, however, only the fact of the complaint, 
 and not the details of the statement, will be admissible. 2 Wigmore, 
 Evidence, sec. 1142. 
 
 Applying the principles here, it is plain to be seen that the prior 
 consistent statements were inadmissible ; and, as their tendency was 
 naturally to reinforce the testimony of the witness prior to an attack 
 upon it, by incompetent testimony, it would ordinarily be prejudicial. 
 It is necessarily so in this case, as the conviction depends solely upon 
 the testimony of Fielder, as against the testimony tending to prove 
 that the defendant was at another place, and could not and did not 
 commit the robbery. 
 
 The Attorney General seeks to sustain the admission of these state- 
 ments as a part of the res gestae. Mr. Wharton's definition and ex- 
 planation of res gestae, quoted in Little Rock Traction & Electric Co. 
 v. Nelson, 66 Ark. 494, has often been approved by this court. He 
 says: "Their sole distinguishing feature is that they must be the 
 automatic and necessary incidents of the litigated act; necessary in 
 this sense, that they are part of the immediate preparations for, or
 
 DECLARATIONS PART OF RES GESTAE , 419 
 
 emanations of, such act, and are not produced by the calculated policy 
 of the actors. They are the act talking for itself, not what people 
 say when talking about it." In this case the evidence is what the 
 person said when talking about the act, and was not the voluntary 
 emanation of the act itself. See further applications of the principle 
 in Williams v. State; 66 Ark. 264; Blair v. State, 69 Ark. 558; Kansas 
 City S. Ry. Co. v. Morris, 80 Ark. 528; Beal & Doyle Dry Goods Co. 
 v. Carr, 85 Ark. 479. 
 
 For the error indicated the judgment is reversed and the cause re- 
 manded for new trial. 
 
 PARKHURST v. KRELLINGER. 
 69 Vt. 375. (1897) 
 
 START, J. This action is brought to recover for boarding and nurs- 
 ing Nellie Krellinger, an unmarried daughter of the defendant. It 
 appeared that Nellie had been ill for some weeks before going to the 
 plaintiff's house, during which time she had been at the home of her 
 father; that, for some time previous to her illness, but for how long 
 a time did not appear, Nellie had been away at work, and, while so 
 away, was taken sick and returned to her father's house; that, during 
 her illness, she had no means for her support and was unable to sup- 
 port herself by work; and that her father was possessed of sufficient 
 means to provide for her. 
 
 The defendant claimed that his daughter was' over eighteen years 
 of age, and, upon this issue, was allowed to show that she had a 
 birthday party, on which occasion there was a birthday cake with 
 figures thereon indicating her age. The party was before the contro- 
 versy arose and at a time when the defendant could have no motive 
 in representing the age of his daughter to be different from what 
 it was in fact; and we think the evidence must be regarded as in the 
 nature of an act of the defendant that rendered his claim more prob- 
 able, and was admissible. 
 
 Judgment reversed on another ground.
 
 420 CASKS ON EVIDENCE 
 
 NORTHERN PACIFIC R. R..CO. v. URLIN. 
 158 U. S. 271. (1894) 
 
 This was an action brought by Alfred J. Urlin, in the Circuit Court 
 of the United States for the District of Montana, against the North- 
 ern Pacific Railroad Company, to recover for personal injuries re- 
 ceived by him when traveling as a passenger in one of its trains. 
 
 The car in which the plaintiff was riding became derailed, and was 
 thrown down a bank and overturned. The complaint charged that 
 the accident was due to "the defective, decayed and rotten condition 
 of the crossyties" in the road, and that the plaintiff received "severe 
 and dangerous wounds and internal injuries." 
 
 The case proceeded to trial before the court and a jury, and resulted 
 in a verdict for the plaintiff in the sum of $7500, and the jury also 
 returned certain special findings which had been submitted to them 
 at the request of the defendant. Judgment was entered upon said 
 verdict and special findings. During the trial several exceptions were 
 taken by the defendant, which were allowed and signed by the judge, 
 and which are brought for review to this court by a writ of error. 
 
 MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of 
 the court. 
 
 The third assignment of error is strenuously pressed on our atten- 
 tion in the brief of the plaintiff in error. It arises out of the refusal 
 of the court below to suppress certain portions of the depositions 
 of Drs. Mills and DeWitt because of incompetency and as merely 
 hearsay. 
 
 This objection is founded upon the witnesses having been permitted 
 to testify to statements made by the defendant, at various times, to 
 the physicians in respect to his feelings, aches, and pains, and it is 
 contended that such statements were made too long after the occur- 
 rence of the injury to be part of the res gestae, but were merely nar- 
 rations of past incidents; and it is further urged that, whatever rea- 
 son there may have formerly been when a party could not himself 
 testify to his sensations, for liberality in admitting such statements, 
 now that he is a competent witness, such reason no longer operates. 
 
 An inspection of the depositions shows that the statements objected 
 to were mainly utterances and exclamations of the defendant when 
 undergoing physical examinations by the medical witnesses. As one 
 of the principal questions in the case was whether the injuries of the 
 defendant were of a permanent or of a temporary character, it was
 
 DECLARATIONS PART OF RES GESTAE 421 
 
 certainly competent to prove that, during the two years which had 
 elapsed between the happening of the accident and the trial, there 
 were several medical examinations into the condition of the plaintiff. 
 Every one knows that when injuries are internal and not obvious to 
 visual inspection, the surgeon has to largely depend on the responses 
 and exclamations of the patient when subjected to examination. 
 
 "Whenever the bodily or mental feelings of an individual are ma- 
 terial to be proved, the usual expressions of such feelings, made at 
 the time in question, are also original evidence. If they were the 
 natural language of the affection whether of body or mind, they fur- 
 nish satisfactory evidence, and often the only proof of its existence, 
 and whether they were real or feigned is for the jury to determine. 
 So, also, the representations by a sick person of the nature, symptoms 
 and effects of the malady under which he is suffering at the time are 
 original evidence. If made to a medical attendant they are of greater 
 weight as evidence, but if made to any other person they are not, 
 on that account, rejected." I Greenl. Ev. I4th ed. sec. 102. 
 
 In Fleming v. Springfield, 154 Mass. 520, 522, where such a ques- 
 tion arose, it was said : 
 
 "The testimony of Dr. Rice was properly admitted. The statement 
 made by the plaintiff purported to be a description of his symptoms 
 at the time it was made, and not a narrative of something that was 
 past; and it may be fairly inferred that it was made for the purpose 
 of medical advice and treatment. At any rate, although it was only a 
 day or two before, or possibly during the trial, it does not appear that 
 such is not the case." 
 
 The declarations of a party himself, to whomsoever made are com- 
 petent evidence, when confined strictly to such complaints, expres- 
 sions, and exclamations as furnish evidence of a present existing 
 pain or malady, to prove his condition, ills, pains and symptoms, 
 whether arising from sickness, or from an injury by accident or vio- 
 lence. If made to a medical attendant they are of more weight than 
 if made to another person. 
 
 Affirmed.
 
 422 CASES ON EVIDENCE 
 
 SOTO v. TERRITORY. 
 12 Ariz. 36. (1908) 
 
 SLOAN, J. The appellant, Soto, was charged and convicted in the 
 court below with having committed the infamous crime against nature 
 with one Amilio Sherman, a Mexican boy of about the age of four 
 years. Upon the trial the mother of the boy testified that about n 
 o'clock on the morning of the 2nd of March, 1907, she sent her son 
 to a store, situated about the distance of six blocks from her home, 
 to purchase some red chili and candy; and that at about half-past 12 
 o'clock her son returned crying and very pale; that she examined him 
 and found him lacerated and bleeding. She was then asked by the 
 district attorney to state what, if anything, was said by the boy 
 then as to the cause of his injuries. The question was objected to by 
 counsel for the defendant, but the objection was overruled, and the 
 witness was then permitted to state in full what was said by the boy 
 as to what had transpired between himself and the defendant. Other 
 witnesses testified to having seen the boy soon after his return to 
 his mother's house, and that he was then in a state of excitement 
 and was crying and complaining of his injuries. These witnesses 
 described the injuries as did the mother. The admission of the tes- 
 timony of the latter as to the statement of her son as to the details 
 of the alleged assault is complained of by counsel for appellant and 
 is the only question raised on this appeal. 
 
 Upon no branch of the law of evidence is there such confusion 
 and seeming conflict as in the application of the rule admitting state- 
 ments as a part of the res gestae. As expressed by Chief Justice 
 Blakely of Georgia: "The difficulty of formulating a description of 
 the res gestae which will serve for all cases seems insurmountable. 
 To make the attempt is something like trying to execute a portrait 
 which shall enable the possessor to recognize every member of a 
 numerous family." 
 
 In its application to statements made by injured persons after their 
 injuries as to the circumstances of such injuries Mr. Wigmore, in 
 his work on Evidence has well pointed out that "the verbal act" or 
 res gestae rule is inadequate to account for their admission. Their 
 admission is rather based upon the theory that human experience 
 shows that under circumstances of physical shock or great nervous 
 excitement a person will give utterance to the truth as to their knowl- 
 edge of the event which produced such shock or nervous excitement,
 
 DECLARATIONS PART OF RES GESTAE 423 
 
 and their experience in relation thereto. As the learned author points 
 out, the verbal act rule is distinct from this, which may be denom- 
 inated the rule of "spontaneous utterance," in that the former is 
 based upon the theory that the utterance is part of the entire act and 
 is admitted without reference to its trustworthiness, while the latter 
 like that of a dying declaration, rests entirely upon the assumed 
 truthfulness of the utterance. Logic requires that the former shall 
 be strictly contemporaneous with the main event, or follow it so 
 closely as to constitute both one entire transaction. Greater flexibility 
 as to time is permitted in the application of the latter rule, bat to 
 render such statements or declarations admissible the circumstances 
 must be such as naturally to produce such shock or nervous excite- 
 ment as to render the utterance spontaneous and unreflective; and it 
 must have been uttered while such shock or nervous excitement may 
 be supposed still to dominate and control and keep in abeyance the 
 reflective powers of the person who has made it. It follows that such 
 utterance or statement under this rule need not be shown to be 
 contemporaneous with the event which called it forth, provided there 
 has not been time for the exciting cause to lose its effect. As to the 
 limit of time within which the exciting cause should be held to have 
 been so dissipated as to render such statement inadmissible, no rule 
 may be formulated. Each case must depend upon its own facts and 
 must be left to the sound discretion of the trial court. 
 
 We do not mean to imply that the time when such utterance is 
 made with reference to the main event should not be an important 
 or even a controlling factor in the exercise of the court's discretion 
 in the admission of such testimony. Where the victim of an assault 
 is of an age to render it improbable that his utterance was deliberate 
 and its effect premeditated in any degree, we do not think it is re- 
 quired that such utterance to be admissible as evidence shall have 
 been so nearly contemporaneous with the event, which gave rise to it 
 as in the case of an older person, whose reflective powers are not 
 presumed to be so easily affected or kept in abeyance. Testimony of 
 declarations or statements made by a person under the rule of spon- 
 taneous utterance is admitted in evidence, notwithstanding he be not 
 called as a witness and testify at the trial, and his testimony is ad- 
 missible, notwithstanding he be incompetent as a witness because of 
 youth. In a case similar to this the court of criminal appeals of 
 Texas held that the statements of a child, made after an alleged 
 assault had been committed upon her were admissible in evidence, not- 
 withstanding the fact that she was incompetent to testify because of
 
 424 CASES ON EVIDENCE 
 
 her age. Croomes v. State, 40 Tex. Cr. 672, 51 S. W. 924, 53 S. W. 
 882; Kenney v. State (4 Tex. Cr. App.), 79 S. W. 818, 65 L. R. A. 
 316; State v. Andrews, 130 Iowa 609, 105 N. W. 215. 
 
 Applying the doctrine to the case at bar, we cannot say that the trial 
 court erred in admitting the testimony of the mother of the boy as 
 to his statements of what had taken place between him and the de- 
 fendant. When we consider his youth, his physical condition, the 
 degree of excitement and nervousness he was under at the time of 
 his return to his home, and when his statements were made, and 
 all the surrounding circumstances shown in evidence, we think it was 
 within the sound discretion of the trial court to have permitted this 
 testimony to go to the jury. 
 
 The judgment is affirmed. 
 
 KENT, C. J. and CAMPBELL and NAVE, JJ., concur. 
 
 PEOPLE v. GAGE. 
 62 Mich. 271. (1886) 
 
 CHAMPLIN, J. The respondent was convicted of an assault with 
 intent to commit rape upon a female child of the age of ten years or 
 more, 
 
 The evidence showed that the little girl was ten years and four 
 months old at the time the offense was committed. 
 
 It appeared from the testimony of the girl that the respondent, at 
 the time he committed the alleged offense, told the girl that she must 
 not tell her father about it; that if she did he would give her an awful 
 whipping and that she did not tell her parents of it for fear her father 
 would whip her. It appears, also, that a few days after the transac- 
 tion she told of it to a cousin, and that her parents only found it out 
 in August, a short time before respondent was arrested, and thereupon 
 her mother questioned her in regard to it ; and this conversation was 
 received in evidence, against the respondent's objection, in which the 
 mother was permitted to detail all the circumstances of the transaction 
 constituting the alleged offense. 
 
 Prof Greenleaf says: 
 
 "Though the prosecutrix may be asked whether she made complaint 
 of the injury, and when and to whom, and the person to whom 
 she complained is usually called to prove that fact, yet the particular
 
 DECLARATIONS PART 01- RES GESTAE 425 
 
 facts which she stated are not admissible in evidence except when 
 elicited on cross-examination, or by way of confirming her testimony 
 after it has been impeached. 
 
 "On the direct examination the practice has been merely to ask her 
 whether she made complaint that such an outrage had been perpe- 
 trated upon her, and to receive only a simple 'yes' or 'no'. Indeed, 
 the complaint constitutes no part of the res gestac, it is only a fact 
 corroborative of the testimony of the complainant; and where she is 
 not a witness in the case, it is wholly inadmissible." 3 Greenl. Ev. 
 sec. 213. 
 
 The rule stated above is supported by abundant authority: I Phil. 
 Ev. 233; Baccio v. People, 41 N. Y. 265; I Russ. Cr. 689; Roscoe, 
 Crim. Ev. 26, note i ; Rex v. Clarke, 2 Starkie, 241 ; Reg. v. Walker, 
 2 Moody & R. 212; Reg. v. Meyson, 9 Car. & P. 418; People v. Mc- 
 Gee, i Denio 19 ; Phillips v. State, 9 Humph. 246 ; Peff erling v. State, 
 44 Tex. 486; People v. Hulse, 3 Hill 316. 
 
 But we think the rule not an inflexible one, and ought to yield where 
 the particular circumstances of the case make it inapplicable; as 
 where the party outraged is of tender years and her silence is the 
 direct consequence of fears of chastisement induced by threats of 
 the perpetrator of the wrong. The reason of the rule admitting the 
 fact that complaint was made, and excluding the complaint itself, is 
 founded, aside from its being hearsay, by those courts which do not 
 treat it as part of the res gestae, upon the danger of allowing a de- 
 signing female to corroborate her testimony by statements made by 
 herself to third persons, and the difficulty of disproving the principal 
 fact by the accused. But some courts hold that the evidence that 
 complaint was made is not received merely as corroborative of the 
 statement of the prosecutrix, but as part of res gestae, where they are 
 made immediately after the outrage complained of, and this is the 
 holding of our own court : Lambert v. People, 29 Mich. 71 : People 
 v. Brown, 53 id. 531. 
 
 If the complaint made immediately after the occurrence constitutes 
 part of the res gestae, it would seem that not only the fact that com- 
 plaint was made, but the complaint made, should be admitted. Be- 
 sides, the reason upon which the rule of exclusion is based, namely, 
 the difficulty of disproving the accusation, no longer exists in this 
 State, where the accused is permitted to testify in his own behalf. 
 We think in this case there was no error in admitting the testimony 
 of the mother of the child.
 
 426 CASES- ON EVIDENCE 
 
 The judgment is affirmed. 
 The other Justices concurred. 
 
 HARRIMAN et al. v. STOWE. 
 57 Mo. 93. (1874) 
 
 WAGNER, J. The plaintiff, a married woman, in conjunction with 
 her husband brought this action for damages against the defendant 
 for injuries sustained by her in falling through a hatchway which, 
 it was alleged, was constructed by defendant, and by him negligently, 
 carelessly and wrongfully left insecure and unprotected. 
 
 The answer denied the allegations of negligence, and as a further 
 defense set up that the house where the hatchway was built was the 
 property of defendant's wife, and that defendant in doing the work 
 was acting as her agent. There was a replication as to negligence 
 and carelessness, but it was admitted that the property belonged to 
 defendant's wife. 
 
 The verdict and judgment were for plaintiff, and defendant ap- 
 pealed. On the trial E. W. Shauffler was sworn as a witness for the 
 plaintiff and stated that he was a practicing physician, and as such 
 attended on the plaintiff. The defendant objected to his giving any 
 testimony because under the statute he was incompetent. This objec- 
 tion was overruled. 
 
 The witness was then asked to state in what condition he found 
 the plaintiff when he was called in. This question was objected to 
 by the defendant for the same reason as above given. The court 
 sustained the objection, but permitted the witness to answer under 
 the following restriction : "In answering the question you will not 
 reveal any information you may have received from the plaintiff 
 while attending her in your professional character, which informa- 
 tion was necessary to enable you to prescribe for her as a patient 
 in your capacity as physician or surgeon." The witness then gave 
 testimony tending to show that plaintiff was injured about noon, what 
 her injuries were, that he was her physician before that time and that 
 he was called to see her between one and four o'clock of that day. 
 At f jie -same time she stated to him that the trap-door in the kitchen 
 had been left in an insecure condition, and that she stepped on it and 
 fell through.
 
 DECLARATIONS PART OF RES GESTAE 427 
 
 The general rule is, that evidence in order to become a part of the 
 res gestae should consist of declarations made contemporaneously, 
 or nearly so, with the main event by which it is alleged that the prin- 
 cipal transaction occurred. Browness v. Pacific R. R. Co., 47 Mo. 
 
 239- 
 
 But in Ins. Co. v. Mosely (8 Wall. 397) where the question was 
 carefully and ably considered, it was declared that though generally 
 the declarations must be contemporaneous with the event, yet where 
 there are any connecting circumstances they may, even when made 
 some time afterward, form a part of the whole res gestae. 
 
 In the present case the witness came within a short time after the 
 plaintiff received the injuries. He found her suffering, and she told 
 him how she was hurt, namely, by falling through the trap door. 
 
 The accident and the declarations formed connecting circumstances, 
 and in the ordinary affairs of life no one would doubt the truth of 
 these declarations or hesitate to credit them as evidence. I can per- 
 ceive no valid objection to their admissibility. 
 
 Judgment affirmed. 
 
 COMMONWEALTH v. M'PIKE. 
 57 Mass. 181. 
 
 The defendant was indicted in the Municipal Court of the city of 
 Boston and there tried before Hopkins, J., at the last November term, 
 for the offense of manslaughter. The indictment alleged, that the 
 defendant, on the 4th of July, 1848, and in the night time of that 
 day, feloniously assaulted Elizabeth M'Pike the wife of the defendant, 
 and stabbed her near the right hip joint, with a dangerous weapon, 
 to wit, a knife, inflicting therewith a mortal wound, of which the party 
 injured died on the 7th of October, 1848. 
 
 At the trial, the attorney for the commonwealth introduced evi- 
 dence, that the deceased, between twelve and one o'clock on the morn- 
 ing of the 5th of July ran from her room, where her husband the 
 defendant was to the room occupied by the witness in the same house, 
 in the story above that of the defendant, and there knocked at the 
 door, crying murder. On being let in, the deceased wanted the occu- 
 pant to call a doctor and a priest, saying that she was killed. The 
 witness saw that the deceased was wounded, and that blood was run-
 
 428 CASES ON EVIDENCE 
 
 ning down upon the floor, and started immediately for a physician. 
 On opening her door to go out, she met the defendant at the door, 
 and pushed him aside and went out. 
 
 The attorney for the Commonwealth called Benjamin D. Shaw as 
 a witness, who testified, that, about the time mentioned by the pre- 
 ceding witness, he heard the voice of a woman crying murder, as she 
 was going up stairs. He got up and going towards the room, met 
 the last witness coming out, who told him not to go up, for the 
 defendant would kill her, and he then saw the defendant coming 
 out of the room. The witness then went for a watchman, and, com- 
 ing back went immediately up to the room where the deceased was, 
 and there found her lying on the floor bleeding profusely. She asked 
 the witness for some water, and to go for a physician. She said that 
 John (meaning the defendant) had stabbed her and told the witness 
 what she wanted done, if she died. The defendant objected to the 
 admission of the declaration of the wife, that the defendant had 
 stabbed her; but the court admitted the testimony. 
 
 DEWEY, J. The admission in evidence of the statement of the 
 party injured, as to the cause and manner of the injury which ter- 
 minated in her death may be sustained upon the ground, that the 
 testimony was of the nature of the res gestae. The witness describes 
 the situation in which he found the party, her appearance and her 
 request for assistance, and, in connection therewith her declaration 
 of the cause of the injury. The period of time, at which these acts 
 and statements took place, was so recent after the receiving of the 
 injury, as to justify the admission of the evidence as a part of the 
 res gestae. In the admission of testimony of this character, much 
 must be left to the exercise of the sound discretion of the presiding 
 judge. 
 
 Exceptions overruled. 
 
 STATE v. LASECI. 
 po Ohio St. 10. (1914) 
 
 On the evening of January i, 1913, Mike Zacharias, in company 
 with his little son, aged about four years, and certain other men, 
 visited the saloon of his brother, William Zacharias, in Berea street, 
 Berea.
 
 DECLARATIONS PART OF RES GESTAE 429 
 
 Across the street from William Zacharias' saloon, another saloon 
 was kept by a man by the name of Frank Niec. Between ten and 
 eleven o'clock in the evening, the defendant, John Lasecki, accom- 
 panied by John Wisniewski and Ignatz Maslinski, left Nice's place. 
 Just before they left, Niec passed two clubs over the bar to them. 
 Some few minutes later they returned to Nice's place, without clubs, 
 and went into a side room. At about this time Mike Zacharias was 
 killed in the street not far distant from Nice's place. 
 
 Testimony was also offered to show that several others left Zach- 
 arias' saloon with the deceased at about this time, including the de- 
 ceased's little son. The party left the saloon for the purpose of taking 
 a car to Cleveland. As they walked towards the car Mike and his 
 son were the last of the party. An altercation was heard between 
 Mike and some other men not of his party. The sound of two or 
 three blows, as if by a club, was heard by the men ahead of him. 
 One or more of these men ran back and found the deceased lying 
 on the ground and also saw some men running away. As they came up 
 to where Mike was lying, the boy, in a nervous and much frightened 
 state of mind, said, "The bums killed pa with a broomstick." The 
 boy was then about twenty-five feet away from his father and out 
 of hearing of those who were fleeing from the scene of the attack. 
 
 The above statement of facts is taken verbatim from the opinion 
 of the Court of Appeals, and it is on this exclamation of the boy 
 that the Court of Appeals reversed the judgment of conviction ob- 
 tained in the Common Pleas Court, and which judgment of reversal 
 the State asks to have reversed in this court. 
 
 WANAMAKER, J. Was the exclamation of the boy competent tes- 
 timony ? 
 
 Both sides agree that this is the only question in the case, and 
 that the testimony is competent only upon the theory that it is a part 
 of the res gestae of the case. 
 
 The record discloses that the exclamation arose in the following 
 manner : 
 
 "Q. You may tell if anything unusual happened there and what 
 it was, anything out of the ordinary? A. We was walking about 
 one hundred and fifty feet from the car, maybe two hundred, I 
 couldn't tell you, and I heard the hitting twice, like that (indicating), 
 and think there was an argument started and the boy said that the 
 bums had killed his papa with a broomstick. Objection. Objection 
 overruled. Exception."
 
 430 CASES ON EVIDENCE 
 
 It will be noted that there was no objection to the question, and 
 that the objection is to the whole answer. 
 
 Now, manifestly, the major part of the answer is competent and 
 responsive to the question. If the exclamation of the boy be incom- 
 petent, the objection of counsel should have been addressed to that 
 exclamation, asking an order from the court to exclude it from the 
 consideration of the jury. But that was not done. Where objection 
 is made to the entire answer, part of which is competent and part 
 incompetent, there is but one thing for the trial judge to do, that 
 is to overrule the objection, and in this case there was no error on 
 the part of the trial court 
 
 But we are not disposed to decide a case of this importance upon 
 the mere failure of counsel to properly save his rights, and shall 
 consider the case on its merits, as if the objection and exception had 
 been properly made. 
 
 Was the exclamation a part of the res gestaef 
 
 Wharton's definition of res gestae is as follows : "Those circum- 
 stances which are the undesigned incidents of particular litigated acts, 
 and are admissible where illustrative of such acts. These incidents 
 may be separated from the act by lapse of time more or less appre- 
 ciable. Their sole distinguishing feature is that they should be neces- 
 sary incidents of the litigated act necessary in this sense; that they 
 are part of the immediate preparations for, or emanations from, such 
 acts, and are not produced by the calculated policy of the actors. 
 In other words, they must stand in immediate casual relation to the 
 act a relation not broken by individual wariness seeking to manu- 
 facture evidence for itself. Therefore declarations which are the 
 immediate accompaniments of an act are admissible as part of the 
 res gestae; remembering that immediateness is tested by closeness, 
 not of time but by causal relation, as just explained." 7 Words and 
 Phrases Judicially Defined, 6130. 
 
 Again, Wharton says res gestae are the facts which form the en- 
 vironment of a litigated issue. 
 
 It is impossible to reconcile the multitude of divers decisions by 
 courts of last resort on the proper scope and limitations of the old 
 phrase res gestae. Many of the states follow reverently and rigidly 
 the old English rule, that before any exclamation is admissible in 
 evidence on the theory of res gestae, it must be contemporaneous in 
 time with the principal fact in litigation. That is, just as soon as it 
 appears that it is subsequent in time to the principal fact and merely
 
 DECLARATIONS PART OF RES GESTAE 431 
 
 narrative of it, such exclamation is not a part of the res gestae and 
 is, therefore, not admissible. 
 
 This old English rule had its birth in a strange combination of 
 circumstances. First, the inhumanity and barbarity of the penalties 
 provided by the English law for criminal cases. A century ago two 
 hundred crimes in England were punishable by death. Second, the 
 prisoner had no rights in an English court of justice, save the right 
 to be convicted. He was not competent as a 'witness in his own 
 behalf, nor indeed were any members of his family. He was not al- 
 lowed the privilege of having his own counsel address the jury, and 
 indeed, in earlier days, was not even allowed the privilege of counsel. 
 He had no right of appeal, and many other prerogatives now enjoyed 
 by the defendants were wholly unknown to the English law a century 
 or more ago. 
 
 With these barbarous penalties and this outrageously unjust pro- 
 cedure it is little wonder that the humanity of the judge as well as 
 his love of legal casuistry should resort to a strained and technical 
 construction of the law to overcome its barbarity. 
 
 The second class of states practically ignored the old English doc- 
 trine of contemporaneous character of facts or exclamations and con- 
 sidered chiefly the causal connection or logical relation that the second- 
 ary facts sustain to the primary facts in controversy. 
 
 Now, applying the doctrine or test of causation, it would be ex- 
 pected not infrequently that there would be an appreciable interval 
 between cause and effect, between those things that have a logical 
 relation, such as the commission of an act and an impulsive exclama- 
 tion concerning the same. 
 
 Now, when the exclamation is the combined result of the tragic 
 circumstances of the situation making an awful and fearful impres- 
 sion upon the human mind, especially that of a child seeing its own 
 father murderously assaulted, the child being overwhelmed with fear 
 and grief because of the darkness of the night, the absence of a help- 
 ing hand, grief of parental loss, with nobody to appeal to, all these 
 combined placing the child under natural and extreme excitement, 
 and, then, after a few seconds, some one comes into his presence to 
 help, what is more natural, indeed necessary, in such situation than 
 just such an exclamation as we have in this case, "The bums killed 
 pa with a broomstick"? 
 
 The language proceeds from impulse, from the natural and neces- 
 sary impressions made by the acts of the parties in controversy, so 
 that the human mind in its helplessness or despair, or its natural
 
 432 CASES ON EVIDENCE 
 
 necessary anxiety, acts under an impulse or a spontaneous influence 
 that is a sort of echo or reaction from the general situation. The 
 time limit recognized by those courts that fall under this second class 
 which disregards the strict contemporary character, is placed at a 
 point where there is no opportunity given for fabrication or manu- 
 facturing some statement or story according to one's self-interest. 
 
 We feel, however, that it is but just to say that the judgment of 
 the Court of Appeals in this case finds abundant warrant in the 
 former decisions of this court in analogous cases. 
 
 We believe, however, that the demands of justice, as well as the 
 probative force and effect of such exclamations made where there is 
 a maximum probability as to their truth and a minimum possibility 
 of artifice or fabrication by reason of their being natural, spontane- 
 ous and, sometimes, as in this case, the necessary language of a 
 child, require that the old rule should be relaxed and liberalized so as 
 to meet the naturalness and necessities of the case, as well as to put 
 the jury and court in possession of all the facts, circumstances and 
 environment immediately before and after the principal fact in con- 
 troversy. 
 
 The judgment of the Court of Appeals is reversed and the judg- 
 ment of the Court of Common Pleas is affirmed, and the cause re- 
 manded to the Court of Common Pleas for further proceedings accord- 
 ing to law. 
 
 Judgment reversed. 
 
 NICHOLS, C. J., JOHNSON, DONAHUE, NEWMAN and WILKIN, JJ., 
 concur. 
 
 GRANT v. STATE. 
 124 Ga. 757. (1905) 
 
 BECK, J. The plaintiff in error was charged with the- offense of 
 murder, and was convicted of that offense, without a recommendation. 
 He moved for a new trial, his motion embracing several grounds. 
 
 Exception was taken to the refusal of the court to exclude the 
 following testimony: "Mary's [deceased's] child said, 'Huss [de- 
 fendant] , you have shot mama.' " The testimony quoted was that of 
 Jake Colbert, a witness for the State, and it was objected to "on the 
 ground that the solicitor-general, in opening the case to the jury,
 
 DECLARATIONS PART OF RES GESTAE 433 
 
 had stated that Mary Johnson's (deceased's) child the one referred 
 to by the witness Colbert, was too young to be a competent witness 
 or to testify/' -And movant adds that this (foregoing statement of 
 the solicitor-general) "was true, and allowing Colbert to testify as 
 to what the child said was in effect allowing the child to testify." 
 We cannot agree with counsel that permitting the witness to testify 
 to the words of a little child, too young to be brought into court as 
 a witness, was equivalent to permitting the child itself to testify. It 
 appears from the evidence that the witness Colbert, at the sound of 
 the shots which slew the deceased, ran immediately from an adjoining 
 room into the one where the homicide was committed, and said twice 
 to the defendant, "Have you shot Mary?" The defendant made no 
 answer, but the child, as the defendant silently left the room, uttered 
 the words, "Huss, you have shot mama." These words, spoken by 
 a little child immediately after the shocking occurrence, were clearly 
 admissible 'as a part of the res gestae. No declaration could have 
 been freer "from all suspicion of device or afterthought," and it was, 
 in point of time, almost concurrent with the act to which it referred. 
 It was the very deed itself speaking through the mouth of a .babe. 
 
 Judgment affirmed. All the Justices concur, except Atkinson, J., 
 who did not preside. 
 
 JORDAN v. STATE. 
 81 Ala. 20. (1886) 
 
 This case comes up on appeal to this court the second time. The 
 appellants, Jule and Handy Jordan, two colored men, were under 
 indictment for the murder of one Albert York, also a colored man. 
 The homicide occurred at night in the house of one Jerry Williams, 
 in the county of Montgomery. The house consisted of two rooms 
 with a partition wall between, in which was a door connecting the 
 two rooms, and, on the night of the difficulty, a party was being given 
 at this house, and for the occasion, one of the rooms was designated 
 as the "party room" and the other as the "dancing room". The evi- 
 dence on the part of the State, among other things, tended to show, 
 that, on the night of the difficulty, defendant, Jule Jordan, being
 
 434 CASES ON EVIDENCE 
 
 at the party, attempted to light a cigar, and, in doing so, put out both 
 lights in the "party room," leaving the room dark, and, thereupon, 
 one Sam Williams caught hold of one Mason Taylor, and jokingly 
 said that he (Taylor) was the only one present who would steal 
 anything; that Taylor became angry and Jerry Williams and the de- 
 ceased, Albert York, took Taylor out of the room; that one Raoul, 
 whose wife was giving the party, came outside and began to quarrel 
 with Taylor about taking people from the party; and defendant, Jule 
 Jordan, came up and drawing a pistol, said, "I will put a light hole 
 through any one who strikes Mason Taylor." Whereupon Raoul, 
 having a knife in his hand, said, "Do you mean me?" and Jule Jor- 
 dan, pointing his pistol, at Raoul, replied, "D n you, I'll shoot you 
 if you move." Then Jerry Williams and the deceased quieted this 
 difficulty, and, as they were returning to the house, deceased took 
 Jule Jordan's pistol from him and gave it to one Warren Beasley 
 and subsequently, at request of deceased, said Beasley returned the 
 pistol to Jule Jordan. Shortly afterwards, Jule Jordan came into the 
 party room with a stick in his hand and Jerry Williams and deceased 
 took the stick from him, and while so doing, defendant, Handy Jor- 
 dan came up and said, 'Turn Jule loose, or I will cut you up." There- 
 upon, Jerry Williams told Handy they were not hurting Jule, and 
 no more was then said. All this occurred about a half hour before 
 the killing. 
 
 The defendants separately moved the exclusion of all the testimony 
 in reference to the difficulty with Mason Taylor; which motions the 
 court refused, and the defendants separately excepted. The de- 
 fendants then moved the exclusion of all the testimony preceding the 
 remark of Jule Jordan, about "putting a light hole," Sec. ; which 
 motion was overruled and they separately excepted. 
 
 Defendants next moved the exclusion of all the testimony after 
 the said remark of Jule Jordan; which the court refused, and de- 
 fendants separately excepted. 
 
 They then moved the exclusion of that portion of the testimony 
 in reference to taking the stick from Jule Jordan and what Handy 
 said about cutting up some one; the court overruled the motion, and 
 defendants separately excepted. 
 
 CLOPTON, J. In respect to the relevancy of evidence, the general 
 rule is, that it must be confined to the points in issue, and no circum- 
 stance is admissible, which does not tend to establish a fact material 
 to the prosecution or defense, or from which no presumption or in- 
 ference can be reasonably drawn in reference to a material fact or
 
 DECLARATIONS PART OF RES GEST AE 435 
 
 inquiry involved in the issue. It is often difficult to determine when 
 a fact or circumstance is too remote to aid the jury in arriving at 
 a conclusion on the issues to be tried. It may be said generally, 
 that all parts of one continuous transaction, though not shown to 
 have any immediate connection with the offense the culmination of 
 all the circumstances and facts, proximate to the consummation of 
 the crime, which tend to shed light on the main inquiry, are admis- 
 sible. The occurrences in which the deceased, Jule Jordan and 
 Mason Taylor, were involved at the place of the homicide and dur- 
 ing the same evening, may be regarded as constituting a continuous 
 transaction, though brief intervals of time may have intervened; and 
 the declaration of Jordan, that he would put a light hole through any 
 one who struck Mason Taylor, tends to illustrate his motive and 
 purpose in addressing deceased, when he afterwards struck Taylor. 
 Armour v. The State, 63 Ala. 173; Mattison v. The State, 55 Ala. 224. 
 The evidence being admissible against one of the defendants, could 
 not be excluded on the objection of the other, though inadmissible 
 against him. He should relieve himself from its influence by a charge 
 limiting its operation. 
 
 Reversed and remanded on other grounds. 
 
 LANDER v. THE PEOPLE. 
 104 III. 248. (1882) 
 
 MULKEY, J. At the December term, 1881, of the Macon County 
 Circuit Court, George Lander, plaintiff in error, was tried and con- 
 victed of the crime of rape upon the person of Mary Sturgis and 
 was duly sentenced to the penitentiary for a period of twenty-five 
 years, in pursuance of the verdict of the jury, and the accused 
 brings the case here for review, and asks for a reversal on several 
 grounds, but chiefly because the evidence does not, as is alleged, 
 sustain the conviction. 
 
 The real and vital question in the case, is as is conceded by counsel 
 for plaintiff in error, does the evidence sustain the conviction. 
 
 Hattie Moore testifies : "I was with Minnie Blentz and -saw Mrs. 
 Sturgis lying at the side of the railroad track. It was between four 
 and five o'clock in the afternoon, and about two miles from the 
 depot. I saw a man on his knees over her, and as he got up he made
 
 436 CASES ON EVIDENCE 
 
 a motion with his hands as if pulling down her clothes. I was 
 twenty-five yards away from them. We hallooed, then he got up, 
 dumb the fence, and ran into the woods. Mrs. Sturgis sat there 
 about five minutes, when she was helped home by Charley Athons. 
 She seemed in great pain and distress, and complained of being in- 
 ternally injured. The next day Minnie Blentz called me to the 
 window of her house and pointed to a man going west on the railroad, 
 and said, 'There goes the man.' I said, 'Yes, there he goes.' The 
 man we saw was this defendant." 
 
 Minnie Blentz, spoken of by the last witness as being in company 
 with her at the time of the assault, testifies substantially to the same 
 facts sworn to by Hattie Moore. Charley Gouker and Warren Marth- 
 land were also examined on behalf of the People, both of whom 
 testify they were near the place testified to by the.prosecutrix, and 
 saw the assault made upon her; and while they did not get a fair 
 view of the assailant's face, yet, from his general appearance, they 
 give it as their opinion the accused is the same person. They further 
 testify that when requested by the State's Attorney to pick him out 
 from a number of other persons seated on the 'opposite side of the 
 bar, they were able to do so. 
 
 Thus we see four persons, besides the prosecutrix, unimpeached 
 and unimpeachable, so far as the record shows, who were eye wit- 
 nesses of the assault, swearing to the best of their opinion, the 
 accused is the perpetrator of the offense, and this is denied by no 
 one other than the accused himself. Under these circumstances we 
 are of opinion the jury were fully warranted in reaching the conclusion 
 they did. 
 
 As already appears from the testimony of Minnie Blentz and 
 Hattie Moore, the accused, on the day following the assault, was 
 passing near the place where it happened, when the former, calling 
 the attention of the latter to the accused, exclaimed, "There goes the 
 man," the other replying, "Yes, there he goes," and the court, against 
 the objection of the defendant, permitted the witnesses, in giving 
 an account of the transaction, to repeat these exclamations, made 
 at the time by the witnesses, and this is assigned for error. We do 
 not think the point well taken. It is a well settled principle in the 
 law of evidence, that whenever it becomes important to show, upon 
 the trial of a cause, the occurrence of any fact or event, it is competent 
 and proper to also show any accompanying act, declaration or ex- 
 clamation which relates to, or is explanatory of such fact or event. 
 Such acts, declarations or exclamations are known to the law as res
 
 DECLARATIONS PART OF RES GESTAE 437 
 
 gestae. It is not questioned that it was perfectly competent to show 
 that the witnesses saw and readily recognized the accused, near the 
 scene of the transaction, on the following day, as testified to by them, 
 and it must be admitted the spontaneous exclamation, "There goes 
 the man," with the response, "Yes, there he goes," is highly charac- 
 teristic of the fact of their recognition. The true test, in all cases, 
 by which the admissibility of such testimony is determined, is, the 
 act, declaration or exclamation must be so intimately interwoven 
 or connected with the principal fact or event which it characterizes, 
 as to be regarded as a part of the transaction itself, and also to clearly 
 negative any premeditation or purpose to manufacture testimony, 
 and we are of opinion the circumstances of this case clearly bring it 
 within the rule. 
 
 Perceiving no substantial error in the record, the judgment will be 
 
 Affirmed. 
 
 MITCHELL v. COLGLAZIER. 
 106 Ind. 464. (1886) 
 
 MITCHELL, J. The complaint in this case charges that David Col- 
 glazier, with the intent to defraud the plaintiff, a judgment creditor, 
 and without consideration, conveyed certain real estate, of which 
 he was the owner, to his wife. The suit was to set aside this con- 
 veyance. 
 
 Louisa Colglazier, answered separately, and the ruling of the court, 
 in overruling a demurrer to her answer, presents the principal ques- 
 tion for decision. 
 
 The substance of her answer was, that in 1872, she was the wife 
 of David Colglazier, and was possessed of certain moneys and choses 
 in action which were her separate property, and that she appointed 
 her husband to purchase for her the property in controversy. It is 
 averred that, while so acting for her, he did purchase the land for 
 $2,100, and that he made the entire cash payment of $100 with her 
 money, and gave his own notes for the deferred payments. He also, 
 took the title to himself without her knowledge or consent. As the 
 notes for the deferred payments came due, she supposing the title 
 of the land was in her name, furnished the money with which they 
 were all paid off. Upon discovering that the title was in her husband,
 
 438 CASKS ON EVIDENCE 
 
 she demanded that the property should be conveyed to her. In pur- 
 suance of her demand and before the plaintiff's judgment was re- 
 covered, the conveyance, the making of which is the subject of the 
 suit, was made. 
 
 The objections which are made to this answer are, that it does not 
 controvert the charge of fraud, nor deny that the deed was made 
 without consideration. This view does not seem to be sustained. 
 Conceding that there is no direct denial of the imputed fraud, and 
 that it is not stated in terms, that a valuable consideration was paid 
 for the conveyance, the conclusion nevertheless follows irresistibly, 
 that the deed was neither fraudulent nor without consideration. 
 
 The motion for a new trial assigns among other grounds that the 
 court erred in admitting certain evidence over the appellant's objec- 
 tion. The testimony thus admitted was to the effect that, on the day 
 Mrs. Colglazier learned that her husband had taken the title to the 
 land in dispute in his own name, she declared that her money paid for 
 it and that she wanted it conveyed to her, and demanded that it 
 should be done. The conveyance was made upon the same day, in 
 pursuance of her demand. 
 
 This testimony was competent as tending to show the consideration 
 upon which the deed was made, and that it was made in pursuance 
 of the demand of Mrs. Colglazier. It was part of the res gestae, and 
 so connected with the execution of the deed as to make it competent 
 as part of the transaction. Doe v. Reagan, 5 Blackf. 217; Kenney v. 
 Phillips, 91 Ind. 511. 
 
 The judgment is affirmed, with costs. 
 
 THROCKMORTON v. HOLT. 
 180 U. S. 552. (1900) 
 
 This was a proceeding in the Supreme Court of the District of 
 Columbia for the purpose of proving an alleged will of the late 
 Joseph Holt, a distinguished lawyer and for many years Judge Ad- 
 vocate General of the United States Army, who died at the age of 
 eight-seven, in Washington on Aug. i, 1894, after a residence of many 
 years in that city. The proceeding resulted in the rejection of the 
 paper on the ground that it was not the will of Judge Holt but was 
 a forged document, and judgment refusing probate was entered upon
 
 DECLARATIONS PART OF RES GESTAE 439 
 
 the verdict of the jury. The proponents of the will appealed to the 
 Court of Appeals of the District, but before the appeal was brought 
 on for argument Miss Hynes, one of the legatees named in the will, 
 withdrew her appeal. The judgment of the Supreme Court upon the 
 appeal of the other proponents was subsequently affirmed by the 
 Court of Appeals, and the proponents of the paper, excepting Miss 
 Hynes, have brought the case here by writ of error. 
 
 MR. JUSTICE PECKHAM. The facts set forth in the statement pre- 
 fixed to this opinion show the case to be one of an extraordinary 
 nature. There being no proof in regard to the history or where- 
 abouts of the paper before it was received by the register of wills, 
 and the evidence pro and con as to its genuineness having been re- 
 ceived upon the trial, the question arises as to the admissibility of the 
 various declarations of the deceased, and also of his letters to different 
 relatives living in Kentucky and other states, which it is claimed 
 tend to show the improbability of the deceased making such a dis- 
 position of his property as is made in the paper in controversy. The 
 question is, in other words, can the contestants prove by unsworn oral 
 declarations and by letters of the deceased facts from which an in- 
 ference is sought to be drawn that the disposition of the property 
 as made in the paper is improbable, and that the paper was therefore 
 a forgery? The decisions of the state courts as to the admissibility of 
 this kind of evidence are not in accord. Those included in class A 
 favor the exclusion of such evidence, while those in class B favor its 
 admission. The principle of exclusion was favored by Chancellor 
 Kent, and also by Justices Washington, Story, Livingston and Thomp- 
 son, all of whom once occupied seats upon the bench of this court. 
 
 The cases cited in the two classes do not all, or even a majority 
 of them, deal with the question of forgery, but many of them treat 
 the subject of declarations of a deceased person upon a principle 
 which would admit or exclude them in a case where a forgery was 
 the issue. 
 
 In the cases contained in class A, it is held that declarations, either 
 oral or written, made by a testator, either before or after the date 
 of the alleged will, unless made near enough to the time of its exe- 
 cution to become a part of the res gestae are not admissible as evi- 
 dence in favor of or against the validity of the will. The exception to 
 the rule as admitted by these is that where the issue involves the testa- 
 mentary capacity of the testator and also when questions of undue 
 influence over a weakened mind are the subject of inquiry, declara- 
 tions of the testator made before or after, and yet so near to the
 
 44O CASES ON EVIDENCE 
 
 time of the execution of the will as to permit of the inference that 
 the same state of mind existed when the will was made are admissible 
 for the purpose of supporting or disproving the mental capacity of the 
 testator to make a will at the time of the execution of the instrument 
 propounded as such. These declarations are to be admitted, not in 
 any manner as proof of the truth of the statements declared, but only 
 for the purpose of showing thereby what in fact was the mental con- 
 dition, or, in other words, the mental capacity of the testator at the 
 time when the instrument in question was executed. 
 
 The cases contained in class B favor generally the admission of 
 declarations of the deceased, made under similar conditions in which 
 declarations are excluded by the cases in class A. 
 
 If declarations of the character now under consideration are admis- 
 sible when made prior to the execution of the alleged will, although 
 not after it, then a large part of the evidence in this case as to 
 the oral and written declarations of the deceased was properly ad- 
 mitted upon the issue of forgery, because such declarations may have 
 all been made before the forgery was executed, the date of the paper 
 not furnishing any evidence of the time when it was in fact prepared. 
 The forger could not be permitted, by giving a date to the instrument, 
 to fix the time subsequent to which the declarations should be ex- 
 cluded. 
 
 But we see no good ground for the distinction. The reasons for 
 excluding them after the date of the will are just as potent when 
 they were made prior thereto. When made prior to the will, it is 
 said they indicate an intention as to a testamentary disposition of 
 property thereafter to be made, and that such declarations may be 
 corroborative of the other testimony as to what is contained in the 
 will, as is said by Mellish, L. J. in Sugden v. Lord St. Leonards, 
 L. R. i P. D. 154, 251, (a case of a lost will) or else they indicate 
 the feeling of the deceased toward his relatives, from which an infer- 
 ence is sought that a testamentary provision not in accordance with 
 such declarations would be forged. The declarations are, however, 
 unsworn in either case, and if they are inadmissible on that ground 
 when made subsequent to the execution of the will, they would be 
 also inadmissible, when made prior to its execution. In Stevens v. 
 Vancleve, 4 Washington, D. C. 262, 265, supra, Mr. Justice Washing- 
 ton said that declarations of the deceased, prior or subsequent to the 
 execution of the will, were nothing more than hearsay, and there was 
 nothing more dangerous than their admission, either to control the
 
 DECLARATIONS PART OF RES GESTAE 441 
 
 construction of the instrument or to support or destroy its validity. 
 Judge Pennington concurred in those views. 
 
 After much reflection upon the subject, we are inclined to the 
 opinion that not only is the weight of authority with the cases which 
 exclude the evidence both before and after the execution, but the 
 principles upon which our law of evidence is founded necessitate that 
 exclusion. The declarations are purely hearsay, being merely un- 
 sworn declarations, and when no part of the res gestae are not within 
 any of the recognized exceptions admitting evidence of that kind. 
 Although in some of the cases the remark is made that declarations 
 are admissible which tend to show the state of the affections of the 
 deceased as a mental condition, yet they are generally stated in cases 
 where the mental capacity of the deceased is the subject of the in- 
 quiry, and in those cases his declarations on that subject are just as 
 likely to aid in answering the question as to mental capacity as those 
 upon any other subject. But if the matter in issue be not the mental 
 capacity of the deceased, then such unsworn declarations, as indicative 
 of the state of his affections, are no more admissible than would be 
 his unsworn declarations as to any other fact. 
 
 When they are not a part of the res gestae, declarations of this 
 nature are excluded because they are unsworn, being hearsay only, 
 and where they are claimed to be admissible on the ground that they 
 are said to indicate the condition of mind of the deceased with regard 
 to his affections, they are still unsworn declarations, and they cannot 
 be admitted if other unsworn declarations are excluded. In other 
 words, there is no ground for an exception in favor of the admissi- 
 bility of declarations of a deceased person as to the state of his af- 
 fections, when the mental or testamentary capacity of the deceased 
 is not in issue. When such an issue is made, it is one which relates 
 to a state of mind which was involuntary and over which the deceased 
 had not the control of the sane individual, and his declarations are 
 admitted, not as any evidence of their truth, but only because he 
 made them, and that is an original fact from which, among others, 
 light is sought to be reflected upon the main issue of testamentary 
 capacity. The truth or falsity of such declarations is riot important 
 upon such an issue (unless that for the purpose of showing delusion 
 it may be necessary to give evidence of their falsity) but the mere 
 fact that they were uttered may be most material evidence upon that 
 issue. The declarations of the sane man are under his control, and 
 they may or may not reflect his true feelings, while the utterances of 
 the man whose mind is impaired from disease or old age are not
 
 442 CASES ON EVIDENCE 
 
 the result of reflection and judgment, but spontaneous outpourings 
 arising from mental weakness or derangement. The difference be- 
 tween the two, both as to the manner and the subject of the declara- 
 tions of the deceased are properly received upon the question of his 
 state of mind, whether mentally strong and capable or weak and 
 incapable and that from all the testimony, including his declarations, 
 his mental capacity can probably be determined with considerable 
 accuracy. Whether the utterances are true or false cannot be deter- 
 mined from their mere statements and they are without value as 
 proof of their truth, whether made by the sane or insane, because 
 they are in either case unsworn declarations. 
 
 We are therefore of opinion that the court below erred in admitting 
 this evidence upon the issue of forgery, and that the error was of a 
 most important and material nature. 
 
 The judgment of the Court of Appeals of the District of Columbia 
 is reversed and the cause remanded to that court with directions to 
 reverse the judgment of the Supreme Court of the District and to 
 remand the cause to that court with instructions to grant a new trial. 
 
 SPRINGFIELD CONSOLIDATED RAILWAY CO. v. 
 PUNTENNEY. 
 
 200 III. O. (l^OS) 
 
 CARTER, J. The appellee, Eleanor Puntenney, recovered a judg- 
 ment in the Sangamon Circuit Court against the appellants, the 
 Springfield Consolidated Railway Company and the Springfield Trans- 
 fer Company, for damages for personal injuries which she received 
 in a collision between a street car of said railway company and a 
 cab of the transfer company in which she was being conveyed as a 
 passenger. The Appellate Court affirmed the judgment, and the de- 
 fendants have brought the record to this court for review on errors 
 of law. 
 
 It is also claimed that the court erred in not allowing Louis Dellert, 
 a witness called by the railway company, to testify to a conversation 
 he had with the driver of the cab just after the accident, in which it 
 is claimed the driver said that it was all his fault. The event had 
 fully transpired, and what was said was purely narrative of a past 
 transaction fully ended, and did not characterize or in any way relate
 
 DECLARATIONS PART OF RES GESTAE 443 
 
 to a transaction then taking place. While the statements of the driver 
 of the cab sought to be proved were claimed to have been made 
 almost immediately after the accident, it did not appear but that they 
 were made under circumstances that would deprive them of their 
 spontaneous character as utterances called forth by the transaction 
 itself. We are of the opinion that it was not made to appear that 
 the statements called for were a part of the res gestae, and the court 
 did not err in excluding them. See Monroe v. Snow, 121 111 126; 
 21 Am. & Eng. Encyc. of Law, 99, 102. 
 
 Judgment affirmed. 
 
 HUTCHEIS v. CEDAR RAPIDS & MARION CITY R. R. CO. 
 128 Iowa 279. (1905) 
 
 Action to recover damages for personal injuries alleged to have 
 resulted from falling or being thrown to the pavement in attempting 
 to alight from a street car operated by the defendant company. Ver- 
 dict and judgment for plaintiff for $2,000. Defendant appeals. Af- 
 firmed. 
 
 McCLAiN, J. Plaintiff's witnesses were allowed, over defendant's 
 objection to testify that after plaintiff fell, she exclaimed, "Yes, let 
 the step down after I fall!" this declaration being relevant to similar 
 evidence tending to show that the step was let down after plaintiff 
 fell, and not, as it should have been at the time when the bar was 
 raised after the car left the bridge, and before it stopped at the street 
 crossing. The objection to the admission of proof of this declaration 
 is that it could not be shown as a part of the res gestae. Under recent 
 decisions of this sort, proof of the declaration was admissible. It 
 was made immediately after the accident, with reference to the cause of 
 the fall, without opportunity for premeditation. Without elaboration, 
 it is sufficient to refer to Rothrock v. Cedar Rapids, 103 N. W. 475 ; 
 Alsever v. Minneapolis & St. L. R. Co., 115 Iowa 338; Keyes v. Cedar 
 Falls, 107 Iowa 510. 
 
 Finding no error in the record, the judgment of the lower court is 
 
 Affirmed.
 
 444 CASES ON EVIDENCE 
 
 GREINKE v. THE CHICAGO CITY RAILWAY CO. 
 234 III. 564. (1908) 
 
 HAND, J. This was an action on the case commenced in the 
 Superior Court of Cook County by the appellee, a minor, by her 
 next friend, to recover damages alleged to have been sustained by 
 her on August 6, 1904, in consequence of the negligence of the ap- 
 pellant while she was a passenger upon one of its street cars, in the 
 city of Chicago. 
 
 The general issue was filed and a trial resulted in a verdict in favor 
 of the appellee for the sum of $5,000, upon which the trial court, 
 after overruling motions for a new trial and in arrest of judgment, 
 rendered judgment, which judgment has been affirmed by the Appel- 
 late Court for the First District, and a further appeal has been prose- 
 cuted to this court. 
 
 It is further contended that the court erred in admitting in evi- 
 dence certain expert testimony offered upon the trial upon behalf of 
 the appellee. It was claimed that the appellee was suffering with 
 paralysis as a result of the injury which she received, and she called 
 as a witness on her behalf one Dr. Stephen W. Cox, who had exam- 
 ined the appellee on the day before he testified, to qualify himself 
 as an expert witness, and who was permitted to testify over the 
 objection of the appellant, that at the time of his examination of the 
 appellee she was nervous; that there was a twitching and jerking of 
 her hands; that there was a slight drooping of the left leg or left 
 foot as she allowed it to hang over a chair; that the toes of the 
 left foot turned in more than those of her right foot; that the step 
 with the left foot was not as strong as that with the right, "not ex- 
 actly a dragging but a suspicion of dragging;" that he tested the 
 strength of her hands by taking hold of them with his hands and 
 asking her to squeeze; that he noticed a difference in the strength of 
 her hands; that one thumb was weaker than the other; that the 
 examination was not made for the purpose of treating the appellee 
 but that he might testify as a witness in her case; that he could not 
 say positively whether the jerking and twitching which he observed 
 were voluntary or involuntary ; that his impression was that they were 
 involuntary; that the muscles which produced the conditions observed 
 by him were voluntary and under the control of the appellee. 
 
 The rule is well established in this State that the declarations of 
 the injured party, in a case like this, when made as a part of the
 
 DECLARATIONS PART OF RES GESTAE 445 
 
 res gestae or to a physician during treatment or upon an examination 
 prior to and without reference to the bringing of an action to recover 
 damages for the injury complained of, may be introduced in evidence ; 
 (Illinois Central Railroad Co. v. Sutton, 43 111. 438; West Chicago 
 Street Railroad Co. v. Carr, 170 id. 478; Springfield Consolidated 
 Railway Co. v. Hoeffner, 175 id. 634; Lake Street Elevated Railroad 
 Co. v. Shaw, 203 id. 39; Chicago City Railway Co. v. Bundy, 210 id. 
 39;) but the declarations of the injured party made to a physician 
 who has made an examination of such party with a view to qualify 
 himself to testify as a witness only, are not admissible. (Chicago and 
 Eastern Illinois Railroad Co. v. Donworth, 203 111. 192; Chicago City 
 Railway Co. v. Shreve, 226 id. 530; City of Chicago v. McNally, 227 id. 
 14; Chicago Union Traction Co. v. Giese, supra; Eckels v. Mutschall, 
 230 111. 462; Kath v. Wisconsin Central Railway Co., 121 Wis. 503; 99 
 N. W. 217; Grand Rapids and Indiana Railroad Co. v. Huntley, 38 
 Mich. 537. It has also been held that witnesses who are not experts 
 may express their opinions as to the physical condition of persons 
 whom they have observed; that is, they may state whether, in their 
 opinion, such persons are in good health, have the ability to perform 
 work, whether they are suffering pain, are conscious or unconscious, in 
 possession of their mental faculties, etc. (West Chicago Street Railway 
 Co. v. Fishman, 169 111. 196; Cicero and Proviso Street Railway Co. v. 
 Priest, 190 id. 592; Chicago and Eastern Illinois Railroad Co. v. 
 Randolph, 199 id. 126.) The rule however, is well settled that a 
 physician, when called as a witness who has not treated the injured 
 party but has examined him solely as a basis upon which to found 
 an opinion to be given in a trial to recover damages for the injury 
 sustained by the injured party, cannot testify to the statements 
 made by the injured party to him, or in his presence, during such 
 examination, or base an opinion upon the statements of the injured 
 party. (Illinois Central Railroad Co. v. Sutton, supra; West 
 Chicago Street Railroad Co. v. Carr, supra; West Chicago Street 
 Railroad Co. v. Kennelly, 170 111. 508; Stevens v. People, 215 id. 593.) 
 An expert witness called under such circumstances must base his 
 opinion upon objective, and not subjective, conditions. If, therefore, 
 it would have been improper for Dr. Cox to have inquired of the 
 appellee as to the relative strength of her hands, or as to whether 
 she could use her left leg as well as her right leg, or whether she 
 could walk without dragging her left leg, and it would have been in- 
 competent for him to have given to the jury the result of such inter- 
 rogations by detailing to them her replies to said questions (as clearly
 
 446 CASES ON EVIDENCE 
 
 it would have been), we think it equally clear that he could not reach 
 the same result by having her answer his questions by a nod of the 
 head or by the pressure of her hands, or by asking her to sit upon a 
 a chair, or to walk, and then giving the jury the results of his ob- 
 servations. 
 
 .The declarations of an injured party as to his physical condition, 
 brought about as a result of injury, are self-serving, and, at the best, 
 hearsay evidence. Statements, however, made by an injured party 
 which form a part of the res gestae, or those made to his physician 
 during treatment, constitute an exception to the general rule, and 
 are admitted by reason of the fact that he will not be presumed to 
 prevaricate at the very instant of his injury or while he is stating his 
 physical condition to a physician from whom he expects and hopes to 
 receive medical aid, nor will he be presumed to feign disease, pain 
 or distress under those conditions in which he is ordinarily observed 
 by strangers or his friends and neighbors. No such safe guards 
 however surround him when he is being examined by an expert whom 
 he has employed to examine him and to give evidence in his case 
 which is about to be tried in court. To permit the injured party, 
 while undergoing an examination by an expert in his employ, by 
 jerks and twitches, by a pressure of his hand, by turning his toes in 
 or by dragging one of his legs when walking, to thus make evidence 
 for himself, bolster up and strengthen by his opinion the self-serving 
 testimony thus manufactured by the injured party, would open up 
 the door wide for the grossest fraud, which might work upon his 
 adversary the most palpable injury. This character of self-serving 
 testimony has been held incompetent by the Supreme Court of Michi- 
 gan in McCormick v. City of West Bay City, no Mich. 265, and 
 Comstock v. Georgetown Township, 137 id. 541, 100 N. W. 788, and 
 the general rule announced by that court is, we think, in entire har- 
 mony with the ruling of this court in the numerous cases hereinbefore 
 cited, and is the correct rule and the one most conducive to justice. 
 
 We do not intend to hold, however, that a physician may not be 
 able, from an examination of an injured party, to form and express an 
 opinion as to his physical condition and the probable cause which in- 
 duced such condition, based upon objective testimony alone, but what 
 we do intend to hold is, that a physician who has not treated the in- 
 jured party but who has made an examination of the injured party 
 solely with a view to testify as an expert, should not be permitted to 
 express an expert opinion to the jury based upon subjective conditions, 
 and then be allowed to fortify his opinion by stating to the jury acts
 
 DECLARATIONS PART OF RES GESTAE 447 
 
 of the injured party which could have been purely voluntary and under 
 the control of the injured party, and which may rest upon no other 
 basis than the truthfulness of the injured party. 
 
 Judgment affirmed. 
 
 WATERMAN v. WHITNEY. 
 nN.Y.i 57 . (1854) 
 
 In July, 1846, the surrogate of Broome county made an order re- 
 fusing to admit to probate, the will of Joshua Whitney, late of 
 Binghamton, in said county, who died in April, 1845. The respond- 
 ents, Waterman and others, appealed from the order of the surrogate 
 to the circuit judge of the sixth circuit, who in 1847 reversed the 
 order, and directed feigned issues to be made and tried at the next 
 Circuit Court, to be held in the county of Broome. 
 
 Issues were afterwards settled as follows: i. Was the instrument 
 propounded by Thomas G. Waterman and others, before J. R. Dick- 
 inson, Esq. late surrogate of the county of Broome, bearing date on 
 the 26th day of February, 1844, and purporting to be the last will and 
 testament of Joshua Whitney, deceased, late of the town of Chenango, 
 county of Broome, duly made and executed by the said Joshua Whit- 
 ney as his last will and testament? 2. Was the said Joshua Whitney, 
 deceased, at the time of making and executing the said paper writing 
 bearing date of the 26th day of February, 1844, purporting to be his 
 last will and testament, of sound mind, and capable of making a valid 
 disposition of his property, real and personal, by last will and testa- 
 ment? 3. Was there, on the day of executing the said paper writing, 
 purporting to be the last will and testament of said Joshua Whitney, 
 deceased, or at any time previous, any undue influence, fraud or de- 
 ception used or practiced by any person or persons whatever, to cause 
 or induce the said Joshua, deceased, to make or execute the said 
 instrument, propounded by the said Thomas G. Waterman and others 
 for proof, as the last will and testament of the said Joshua Whitney, 
 deceased ? 
 
 SELDEN, J. The principal question presented by the bill of excep- 
 tions in this case is, as to the admissibility of the declarations of the 
 testator made after the execution of the will. 
 
 The subject to which this question belongs is of very considerable
 
 448 CASKS ON EVIDENCE 
 
 interest, and one upon which the decisions are to some extent in con- 
 flict. Much of the difficulty, however, has arisen from the omission 
 to distinguish with sufficient clearness, between the different objects 
 for which the declarations of testators may be offered in evidence, in 
 cases involving the validity of their wills. It will tend to elucidate 
 the subject to consider it, under the following classification of the 
 purposes for which the evidence may be offered, viz. i. To show a 
 revocation of a will admitted to have been once valid. 2. To im- 
 peach the validity of a will for duress, or on account of some fraud 
 or imposition practiced upon the testator, or for some other cause 
 not involving his mental condition. 3. To show the mental in- 
 capacity of the testator, or that the will was procured by undue in- 
 fluence. The rules by which the admissibility of the evidence is gov- 
 erned, naturally arrange themselves in accordance with this classi- 
 fication. They have, however, been considered in most of the cases 
 without regard to it; and hence much of the apparent conflict among 
 them will disappear, when the proper distinctions are taken. 
 
 To show the state of the authorities, therefore, and what the differ- 
 ences really are between them, it is necessary to arrange the cases 
 according to this arrangement of the objects for which the evidence 
 is given. In referring however, to those belonging to the first of these 
 divisions, it is proper to premise, that the revocation of a valid will, 
 is a matter which not only in England, but in this state, and in most 
 if not all the other states, is regulated by statute: and these statutes are 
 substantially the same ; those in this country being for the most part 
 taken from the English statute of frauds. Most if not all these statutes 
 require either a written revocation executed with the same formalities 
 as the will itself, or some act amounting to a virtual destruction of 
 the will, such as burning, tearing, obliterating, &c., accompanied by 
 an unequivocal intention to revoke it. Mere words will in no case 
 amount to a revocation. 
 
 Under these statutes, therefore, the only possible purpose for which 
 evidence of the declarations of the testator can be given, upon a 
 question of revocation, is to establish the animo revocandi; in othe r 
 words, to show the intent with which the act relied upon as a revo- 
 cation was done. The cases on this subject are in the main in har- 
 mony with each other, and in general entirely accord with the view 
 here presented. 
 
 I consider these cases as establishing the doctrine that upon a 
 question of revocation, no declarations of the testator are admissible 
 except such as accompany the act by which the will is revoked; such
 
 DECLARATIONS PART OF RES GESTAE 449 
 
 declarations being received as a part of the res gestae, and for the 
 purpose of showing the intent of the act. 
 
 In regard to the second class of cases, viz. where the validity of a 
 will is disputed on the ground of fraud, duress, mistake or some simi- 
 lar cause, aside from the mental weakness of the testator, I think it 
 equally clear that no declarations of the testator himself can be 
 received in evidence except such as were made at the time of the 
 execution of the will and are strictly a part of the res gestae. 
 
 I have referred thus particularly to these numerous cases in which 
 the declarations of testators have been held inadmissible upon contests 
 respecting the validity of their w r ills, for the purpose of showing that 
 they all apply to one or the other of the first two of the three classes 
 into which I have divided the cases on the subject. None of them 
 have any application to cases in which the will is assailed on account 
 of the insanity, or mental incapacity of the testator at the time the will 
 was executed, or on the ground that the will was obtained by undue 
 influence. 
 
 The difference is certainly very obvious between receiving the dec- 
 laration 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 declarations of third persons are 
 subject ; while in the latter it is the most direct and appropriate species 
 of evidence. Questions of mental competency and of undue influence 
 belong in this respect to the same class ; because, as is said by Jarman 
 in his work on wills, "The amount of undue influence which will be 
 sufficient to invalidate a will, must of course vary with the strength 
 or weakness of the mind of the testator." (Jarman on Wills, 36.) 
 So the mental strength and condition of the testator is directly in issue 
 in every case of alleged undue influence; and the same evidence is 
 admissible in every such case, as in cases where insanity or absolute 
 incompetency is alleged. It is abundantly settled that upon either 
 of these questions, the declarations of the testator, made at or before 
 the time of the execution of the will, are competent evidence. The 
 only doubt which exists on the subject is, whether declarations made 
 subsequent thereto may be also received. 
 
 There is no conflict between the doctrine here advanced in regard 
 to the admissibility of the species of evidence in question, and the 
 rule before adverted to, which excludes it when the issue is as to the 
 revocation of a will. The difference between the two cases consists 
 in the different nature of the inquiries involved. One relates to a vol-
 
 450 CASES ON EVIDENCE 
 
 untary and conscious act of the mind ; and the other to its involuntary 
 state or condition. To receive evidence of subsequent declarations in 
 the former case, would be attended with all the dangers which 
 could grow out of changes of purpose or of external motive operation 
 upon an intelligent mind. No such dangers would attend the evi- 
 dence upon inquiries in relation to the sanity or capacity of the 
 testator. 
 
 The judgment of the Supreme Court must be reversed, and there 
 must be a new trial of the issues. 
 
 DENI, JOHNSON, PARKER, ALLEN and EDWARDS, JJ., concurred. 
 
 CLARK v. TURNER. 
 
 50 Neb. 2po. (1897) 
 
 IRVINE, C. 
 
 John J. Turner was an elderly citizen of the city of Lincoln, blessed 
 with a pious disposition and a considerable quantity of this world's 
 goods. He died March i, 1890, leaving him surviving two sons, Wil- 
 liam J. Turner and R. Morris Turner. Some time after his death 
 William M. Clark and Nahum S. Scott propounded for probate what 
 purported to be a copy of John J. Turner's last will and testament, it 
 being alleged that said will had been deposited in a valise belonging to 
 the testator, which, after his death, had been delivered to his sons, and 
 that. thereafter it was claimed that the house in which the valise had 
 been kept was burglariously entered, the valise cut open, and its con- 
 tents extracted. The probate was contested by the two sons. The re- 
 sult of the proceedings on the county court does not appear from the 
 record. The case was, however, appealed to the district court, where, 
 as a result of what appears to have been a third trial there, a verdict was 
 rendered in favor of the contestants. 
 
 The difficulty lies in the proof which was offered as to the contents 
 of the will. It does not appear that any person ever read the will, or 
 was aware of any portion of its contents except through statements 
 made by Dr. Turner. The strongest evidence is that of Captain Scott, 
 to the effect that Dr. Turner came to his office declaring that he had 
 made his will, and then read it to Captain Scott, asking him whether it 
 was in legal form. Captain Scott was blind and therefore did not see 
 the will himself, so that his testimony amounts to nothing more than 
 a repetition of Dr. Turner's declarations as to its contents. In addition
 
 DECLARATIONS PART OF RES GESTAE 451 
 
 to this there is evidence of a few declarations made to others subse- 
 quently as to the effect of different provisions contained in the will. 
 Dr. Turner told Mr. Clark that he and Captain Scott were named as 
 executors. He told Karen Rootham that he had provided for her ; he 
 told his pastor, Dr. Curtis, something in regard to the bequests to the 
 two missionary boards; beyond this there is no evidence as to the 
 contents of the will. 
 
 The precise question does not seem to have often arisen. We think 
 all the cases hold that the declarations of a testator may be received in 
 evidence to prove the existence of a will and in proof of issues relating 
 to the testator's competency or to undue influence, but it has been 
 doubted whether such declarations may be received to establish a revoca- 
 tion. It follows that in all proceedings to probate a lost will, such 
 declarations are admissible in evidence because the existence of the 
 will must necessarily be established by some such indirect method. The 
 declarations having been admitted for that purpose their sufficiency to 
 establish the contents of the will is another question. 
 
 In England, prior to the leading case of Sugden v. Lord St. Leonards, 
 L. R., I P. D,. 154, it was considered that the declarations were not 
 admissible as tending to prove the contents. Doe v. Palmer, 16 Q. B. 
 (Eng.), 747, turned upon the question whether an interlineation had 
 been made before or after the execution of the will, and it was held that 
 the testator's declarations as to his intentions made before the execution 
 of the will were admissible, but the declarations made after its execu- 
 tion were not. Quick v. Quick, 3 Swab. & T. (Eng.), 442, was a case 
 startlingly like that at bar in some points. The sole evidence of the 
 contents of the will was the testator's declaration. There was the same 
 fact of the will being kept in a bag and of its being taken by burglars. 
 The court held that there was a failure of proof, holding also that the 
 declarations were incompetent. The Court of Appeals, however, in 
 Sugden v. Lord St. Leonards, overruled Quick v. Quick and distinctly 
 held such declarations admissible. The will in question was, however, 
 proved by much other evidence; Miss Sugden, the testator's daughter, 
 had not only heard the will read but she had herself read it a number 
 of times and was able to testify in much detail as to its contents from 
 such personal inspection ; moreover, not less than eight codicils were 
 found, the terms of these all tending to corroborate her .as to the con- 
 tents of the original will.. In addition to this proof there was the evi- 
 dence of the testator's declarations as to the will's contents. The long 
 and exhaustive opinions are directed only incidentally to the admissibil- 
 ity of the declarations. The crucial question having been whether all
 
 452 CASES ON EVIDENCE 
 
 the evidence was sufficient to establish the will, the case, therefore, falls 
 far short of holding that the contents of a lost will may be proved 
 solely by the declarations of the testator. Its effect is merely that such 
 declarations are admissible to corroborate more direct evidence. This 
 is the construction given the case by the house of lords in Woodward 
 v. Goulstone, II App. Cas. (Eng.), 469, where the declarations of the 
 testator were held insufficient alone to establish the will. An intima- 
 tion was given that Sugden v. Lord St. Leonards was not considered 
 free from doubt and the question there presented left open. The im- 
 portance of interests involved in probate cases in Egland is such that 
 the decisions of English courts on such subjects are entitled to great 
 weight, and we may safely say that the result of the English cases is 
 that the contents of a lost will cannot be established solely by the decla- 
 rations of the testator, although such declarations are now deemed 
 admissible for the purpose of corroboration. 
 
 The American cases relied on to support proponents' theory are, 
 when examined, in strict accordance with the English rule. In re Page, 
 118 111. 576, expressly follows Sugden v. Lord St. Leonards, and comes 
 within the true doctrine of that case, because the declarations in that 
 case merely went to corroborate the testimony of the lawyer who drew 
 the will and who produced a copy thereof. 
 
 On no subject, perhaps, are statutes so strict in requiring a writing 
 executed and attested in certain forms as in the case of wills, and 
 while it is firmly established that a lost will may be proved by secondary 
 evidence, the courts have always required such evidence to be direct, 
 clear and convincing. As said by the Supreme Court of the United 
 States in Leav. Polk County Copper Co., 21 How. 493: "Courts of 
 justice lend a very unwilling ear to statements of what dead men have 
 said." Such evidence is always considered dangerous, and subject to 
 the closest scrutiny. We think it would be in the highest degree dan- 
 gerous, and would be violative of the object and spirit of the statute, 
 should we hold that the existence and contents of an alleged will might 
 be established solely by testimony of the testator's declarations. As 
 already indicated, this view leads to affirmation of the judgment, because 
 the verdict was the only one warranted by the evidence. 
 
 Judgment affirmed. 
 
 Note. The term "res gestce," as used In the law of evidence, has a 
 vague meaning. Interpretations of the term by the courts are not at all 
 harmonious. As said by Chief Justice Beasley, "I think I may safely say 
 that there are few problems in the law of evidence more unsolved than 
 what things are embraced in those occurrences that are designated in the 
 law as the res gestce" (Hunter v. State, 40 N. J. L. 536).
 
 OPINION EVIDENCE 453 
 
 OPINION EVIDENCE.1 
 
 HARDY v. MERRILL. 
 56 N. H. 227. (1875) 
 
 Appeal by William H. Hardy against Isaac D. Merrill, from the 
 decree of the judge of probate approving and allowing, in solemn form, 
 the will of Joseph Hardy, deceased. Said will was dated July 26, 1870. 
 Issues had been made up at the law term, and sent to the Circuit Court 
 for trial by jury. The issues were in common form. In the first, the 
 executor alleged that the said Joseph Hardy was of sound mind ; and 
 in the second, he alleged that said will was not obtained by undue in- 
 fluence : upon both of which allegations issue was taken by the appellant. 
 
 FOSTER, C. J., C. C. The case before us involves an inquiry into the 
 nature and extent of the exceptions to the general rule, that testimony 
 of facts alone is admissible in courts of justice, and that the opinions of 
 witnesses are to be excluded. 
 
 Opinions concerning matters of daily occurrence, and open to com- 
 mon observation, are received from necessity Commonwealth v. Stur- 
 tevant, 117 Mass.; and any rule which excludes testimony of such a 
 character, and fails to recognize and submit to that necessity, tends to 
 the suppression of truth and the denial of justice. 
 
 The ground upon which opinions are admitted in such cases is, that, 
 from the very nature of the subject in issue, it cannot be stated or 
 described in such language as will enable persons, not eye-witnesses to 
 form an accurate judgment in regard to it. DeWitt v. Barley, 17 N. Y. 
 340 ; Bellows, J., in Taylor v. Grand Trunk Railway, 48 N. H. 309. 
 
 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 step, convey to a 
 jury any very accurate impression as to the age of the person described ? 
 And so, also, in the investigation of mental and psychological conditions, 
 because it is impossible to convey to the mind of another any adequate 
 conception of the truth by a recital of visible and tangible appearances, 
 because you cannot, from the nature of the case, describe emotions, 
 sentiments, and affections, which are really too plain to admit of 
 concealment, but, at the same time, incapable of descriptions, the 
 opinion of the observer is admissible from the necessity of the case; 
 
 1 Hughes on Evidence, p. 155.
 
 454 CASES ON EVIDENCE 
 
 and witnesses are permitted to say of a person, "He seemed to be 
 frightened;" "he was greatly excited;" "he was much confused;" he 
 was "agitated ;" "he was pleased ;" "he was angry." All these emotions 
 are expressed to the observer by appearance of the countenance, the eye, 
 the general manner and bearing of the individual appearances which 
 are plainly enough recognized by a person of good judgment but which 
 he can not otherwise communicate than by an expression of results in 
 the shape of an opinion. See Best on the Principles of Evidence 585. 
 It is on this principle, says Mr. Best, that testimony to character is 
 received: as where a witness deposes to the good or bad character of 
 a party who is being tried on a criminal charge, or states his convic- 
 tion that, from the general character of another witness, he ought not 
 to be believed on his oath. Best on Ev. 657. "So," continues Mr. Best, 
 "the state of an unproducible portion of real evidence, as, for in- 
 stance, the appearance of a building or of a public document which the 
 law will not allow to be brought from its repository, may be explained 
 by a term expressing a complex idea, e. g., that it looked old, decayed, 
 or fresh; was in good or bad condition, &c. So, also, may the emo- 
 tions or feelings of a party whose psychological condition is a question. 
 Thus, a witness may state as to whether, on a certain occasion, he. 
 looked pleased, excited, confused, agitated, frightened, or the like." 
 
 A non-expert may testify that he thought a horse "was not then 
 sound: his feet appeared to have a disease of long standing" Willis 
 v. Quimby, 31 N. H. 485, 487; that a horse "appeared to be well, and 
 free from disease;" that he thought "he never saw any indication of 
 the horse being diseased" Spear v. Richardson, 34 N. H. 428-431. 
 These two cases relate to the physical condition of a horse. The same 
 doctrine is equally well settled in relation to the mental and moral 
 condition of a horse, so to speak; for, in State v. Avery, 44 N. H. 393, 
 392, it was held Bellows, J. that a non-expert might testify, on an 
 indictment for cruelly beating a horse, that the horse drove like a 
 pleasant and well-disposed horse, unless when harassed by the whip ; 
 that, at the time of the beating, he saw no viciousness or obstinacy in 
 the horse, and that the blows appeared to affect the horse in a particular 
 manner. The evidence was opinion, and nothing else; and it was 
 opinion of the mental and moral condition of the horse, judged of by 
 the witness from actions which it was impossible for the witness to 
 describe in any better or more satisfactory way, so as to give the jury 
 the best evidence the nature of the subject permitted.- 
 
 In Whittier v. Franklin, .6 N. H. 23, an action -for a defective high- 
 way, one point of the defense being that the plaintiff's horse, which he
 
 OPINION EVIDENCE 455 
 
 was driving at the time of the accident, was vicious and unsafe, and 
 that the plaintiff's injuries were caused by the vices of his horse, it 
 was held Judge Bellows delivering the opinion of the court that a 
 non-expert who witnessed the accident might testify that he did not 
 see any appearance of fright; that the horse did not appear to be 
 frightened in the least before he went off the bank, or afterwards ; that 
 he appeared to be rather a sulky dispositioned horse to use." Judge 
 Bellows cites People v. Eastwood, 14 N. Y. 562, where it was held that 
 opinions as to whether a person is intoxicated may be received. Milton 
 v. Rowland, n Ala. 732 opinions as to the existence of disease, when 
 perceptible to the senses; Bennett v. Fail, 26 Ala. 605 opinion that a 
 slave appeared to be healthy ; and other cases in relation to opinions of 
 a healthy or sickly condition of body. He also cites Spear v. Richard- 
 son and Wills v. Quimby, before referred to, as to opinion of health of 
 horses. The very learned judge says that the ' substance of the state- 
 ment of the witness is, that the horse did not appear to be frightened, 
 but appeared to be sulky, that, on such subjects, persons of common 
 observation may and do form opinions, that are reasonably reliable in 
 courts of justice, from marks and peculiarities that could not in words 
 be conveyed to the minds of jurors, to enable them to make the just 
 inferences ; that it is much like the testimony that a horse appeared well 
 and free from disease, or that a person appeared to be healthy, or in- 
 toxicated p. 26. The evidence was held admissible as an opinion. 
 
 What reason is there for allowing a witness to testify that a horse 
 appeared to have a sulky disposition, and not allowing the same witness 
 to testify that a, man appeared to have a similar disposition? What 
 difference whether the witness says, "He appeared to have a sulky 
 disposition"? or, "In my opinion, based upon my own observation of 
 him, he had a sulky disposition." 
 
 A non-expert may give his opinion on the physical health of a man as 
 well as on the physical health of a horse State v. Knapp, 45 N. H. 148- 
 150; may give his opinion not only that a horse did not appear to be 
 frightened, but also that a lady did not seem to be frightened or ex- 
 cited Taylor v. Railway, 48 N. H. 304, 306, 309. 
 
 The opinion of non-experts in relation to mental condition is not 
 limited to the question of a mental disturbance caused by fright. In 
 Bradley v. Salmon Falls Manufacturing Co., 30 N. H. 487, 491, it 
 was held that a non-expert might testify that the plaintiff "seemed 
 satisfied with a business arrangement proposed to him by the witness." 
 
 In McKee v. Nelson, 4 Cow. 355, it was held that, in an action for a 
 breach of promise of marriage, a witness who knew the plaintiff and
 
 456 CASES ON EVIDENCE 
 
 had observed her conduct and deportment towards the defendant, was 
 permitted to express his opinion that the plaintiff was sincerely attached 
 to the defendant, "a fact" said Judge Selden, "which it is plain could 
 be proved in no other way;" and this decision was cited as undoubted 
 law by Judge Parker, in Robertson v. Stark, 15 N. H. 114, 115. In 
 McKee v. Nelson, the court say, "There are a thousand nameless 
 things, indicating the existence and degree of the tender passion, which 
 language cannot specify" precisely what Judge Bellow, in Whittier v. 
 Franklin, said of the frightened mental condition and sulky disposition 
 of a horse. 
 
 Better illustrations, I think, could not be had of the meaning of the 
 rule admitting the best evidence. 
 
 A boy works many years on a farm; and the question arises, What 
 was the value of his services? Suppose he is dead, as is the subject of 
 inquiry in this and every testamentary case; one of the material ques- 
 tions would be whether the boy was bright or stupid, amiable or 
 morose. What evidence on these points would be so satisfactory as 
 the opinions of the intelligent and disinterested farmers in the neigh- 
 borhood, who knew him well? If there was a general concurrence in 
 their opinions, one way or the other, would it not be decisive? and. if 
 there was not a concurrence, would not the cross-examination as to the 
 grounds and reasons of their opinions generally show the facts much 
 better than any statement of facts without opinions? 
 
 What facts without opinion can any parent state as to his own 
 children, to give a stranger any such tangible and satisfactory informa- 
 tion of their mental and moral peculiarities as is given by an expression 
 of his opinion? 
 
 It would be superfluous for me to add that I fully concur in the 
 views and opinions expressed by Judge Doe in Boardman v. Woodman 
 and State v. Pike, and that I cordially endorse the remarks of Judge 
 Redfield (n Am. Law Reg., N. E. page 259), as follows: "The 
 learned judge shows very conclusively, both upon authorities and 
 reason, that the opinion of the unprofessional witnesses, in such a case, 
 is commonly far more reliable as a basis of ultimate decision in ques- 
 tions of sanity and mental capacity, than any specific facts which could 
 possibly be gathered from the witnesses. We have said in our book on 
 wills, and in other places, all that we could desire to say, both as to 
 the rationale of the rule, and the support which it receives from au- 
 thority. The tendency of the American courts in the last few years 
 has been largely in the direction contended for by the learned judge; 
 and there seems to be little question that it must ultimately prevail all
 
 OPINION EVIDENCE 457 
 
 but universally. We should rejoice at such a result, as greatly tending 
 towards the establishment of truth with greater facility and certainty 
 in a very important class of cases." See Redf. on Wills (4th ed., A. D. 
 1876) 138-145, where many other cases than those hereinbefore al- 
 luded to are cited and commented upon. 
 
 Thus supported upon principle and authority, I am satisfied that the 
 time has arrived when this court is called upon to declare the law to be 
 in conformity wifli the views I have expressed. 
 
 LADD, J. I think it is shown by proofs which fall little, if at all, short 
 of demonstration, that the doctrine excluding the opinions of non- 
 experts on the question of insanity has grown up in this state within 
 the memory of men now living in the profession ; that it had no place 
 in the common law brought here from England, nor in the jurispru- 
 dence or practice in this state, from the constitution down to a com- 
 paratively recent date; that it is contrary to reason, extremely difficult 
 of application, and inconvenient in practice; that the great weight of 
 judicial opinion and authority outside this state is against it; and that, 
 even if we look at the condition of authority as shown by the expression 
 of judicial opinion and practice in this state, the balance cannot fairly 
 be said to be in favor of the rule. No titles are to be disturbed by 
 adopting a rule more consonant with reason, and which accords with 
 the almost universal practice in jurisdictions where the common law is 
 used the world over. I therefore concur fully with my brother Foster 
 in the conclusions at which he has arrived. 
 
 GUSHING, C. J., concurred. 
 
 Case discharged. 
 
 CONNECTICUT MUTUAL LIFE INS. CO. v. LATHROP. 
 in U. S. 612. (1883) 
 
 This was a writ of error from a judgment in favor of Helen Pitkin, 
 the beneficiary in two policies issued by the Connecticut Mutual Life In- 
 surance Company upon the life of her husband one, on the loth day 
 of August, 1866, for the sum of $5,000; and the other, on the 24th day 
 of September, 1873, for the sum of $423. The insured, George E. 
 Pitkin, died on the 29th day of September, 1878. After the case came 
 to this court the beneficiary in the policies died, and there was a revivor 
 against her personal representative.
 
 458 CASES ON EVIDENCE 
 
 i 
 
 The defense was the same as to each policy. Briefly stated, it was 
 this : That the policy expressly provides that in case the insured shall, 
 after its execution, become so far intemperate as to impair his health, 
 or induce delirium tremens, or should die by his own hand, it shall be 
 void and of no effect; that, after its execution and delivery, he did 
 become so far intemperate as to impair his health, and induce delirium 
 tremens; also, that he died by his own hand, because with premedita- 
 tion and deliberation, he shot himself through the head with a bullet 
 discharged by himself from a pistol, by reason whereof he died. Fur- 
 ther, that the affirmative answer by plaintiff, in her application for 
 insurance, to the question, whether the insured was then and had 
 always been of temperate habits, being false and untrue, the contract 
 was annulled; because, by its terms, the policy was to become void if 
 the statements and representations in the applicati9n constituting the 
 basis of the contract between the parties were not in all respects true 
 and correct. 
 
 The plaintiff, in her reply, put in issue all the material allegations of 
 the answer, except that alleging the self-destruction of her husband; 
 as to which she averred that, "at the time he committed said act of 
 self-destruction, and with reference thereto," ho "was not in possession 
 of his mental faculties and was not responsible for said act." 
 
 MR. JUSTICE HARLAN. At the close of the evidence introduced for 
 the plaintiff, the defendant, by counsel, moved the court to instruct the 
 jury that upon the pleadings and evidence the plaintiff could not recover. 
 That motion was denied, and the action of the court to which the 
 defendant at the time excepted is assigned for error. 
 
 This brings us to the consideration of the substantial questions pre- 
 sented by the assignments of error. They relate to the admission, 
 against the objections of the defendant, of certain evidence touching 
 the condition of the mind of the insured at or about the time he de- 
 stroyed his life. 
 
 It is contended, in behalf of plaintiff in error, that the impressions and 
 opinions of these non-professional witnesses as to the mental condition 
 of the insured, although accompanied by a statement of the grounds 
 upon which they rested, were incompetent as evidence of the fact of 
 insanity. This question was substantially presented in Ins. Co. v. Rodel, 
 ubi supra, which was an action upon a life policy containing a clause of 
 forfeiture in case the insured died by his own hand. The issue was as 
 to his sanity at the time of the act of self-destruction. Witnesses ac- 
 quainted with him described his conduct and appearance at or about, 
 and shortly before, his death. They testified that he "looked like he
 
 OPINION EVIDENCE 459 
 
 was insane;" another, that his impression was that the insured "was 
 not in his right mind." In that case the court said that, "although 
 such testimony from ordinary witnesses may not have great weight 
 with experts, yet it was competent testimony, and expressed in an 
 artificial way the impressions which are usually made by insane per- 
 sons upon people of ordinary understanding." 
 
 The general rule undoubtedly is, that witnesses are restricted to proof 
 of facts within their personal knowledge, and may not express their 
 opinion or judgment as to matters which the jury or, the court are 
 required to determine, or which must constitute elements in such de- 
 termination. To this rule there is a well-established exception in the 
 case of witnesses having special knowledge or skill in the business, art, 
 or science, the principles of which are involved in the issue to be tried. 
 Thus, the opinions of medical men are admissible in evidence as to the 
 sanity or insanity of a person at a particular time, because they are 
 supposed to have become by study and experience, familiar with the 
 symptoms of mental disease and, therefore qualified to assist the court 
 or jury in reaching a correct conclusion. And such opinions of medical 
 experts may be based as well upon facts within their personal knowl- 
 edge, as upon a hypothetical case disclosed by the testimony of others. 
 But are there no other exceptions to the general rule to which we have 
 referred ? 
 
 While the mere opinion of a non-professional witness, predicated 
 upon facts detailed by others, is incompetent as evidence upon an issue 
 of insanity, his judgment, based upon personal knowledge of the cir- 
 cumstances involved in such an inquiry, certainly is of value; because, 
 the natural and ordinary operations of the human intellect, and the 
 appearance and conduct of insane persons, as contrasted with the ap- 
 pearance and conduct of persons of sound mind, are more or less 
 understood and recognized by every one of ordinary intelligence who 
 comes in contact with his species. The extent to which such opinions 
 should influence or control the judgment of the court or jury must de- 
 pend upon the intelligence of the witness, as manifested by his examina- 
 tion, and upon his opportunities to ascertain all the circumstances 
 that should properly affect any conclusion reached. It will also depend, 
 in part, upon the degree of the mental unsoundness of the person whose 
 condition is the subject of inquiry; for, his derangement may be so total 
 and palpable that but slight observation is necessary to enable persons 
 of ordinary understanding to form a reasonably accurate judgment as 
 to his sanity or insanity ; in other cases, the symptoms may be of such
 
 460 CASES ON EVIDENCE 
 
 an occult character as to require the closest scrutiny and the highest 
 skill to detect the existence of insanity. 
 
 The truth is, the statement of a non-professional witness as to the 
 sanity or insanity, at a particular time, of an individual, whose appear- 
 ance, manner and motions of another person, or which a correct idea 
 cannot well be communicated in words to others, without embodying, 
 more or less, the impressions or judgment of the witness. But, in a 
 substantial sense, and for every purpose essential to a safe conclusion, 
 the mental condition of an individual, as sane or insane, is /a fact, and 
 the expressed opinion of one who has had adequate opportunities to 
 observe his conduct and appearance is but the statement of a fact; not. 
 indeed, a fact established by direct and positive proof, because in most, 
 if not all cases, it is impossible to determine, with absolute certainty, the 
 precise mental condition of another; yet, being founded on actual ob- 
 servation, and being consistent with common experience and the ordi- 
 nary manifestations of the condition of the mind, it is knowledge, so far 
 as the human intellect can acquire knowledge upon such subjects. In- 
 sanity is a "disease of the mind which assumes as many and various 
 forms as there are shades of difference in the human character." It is, 
 as has been well said, "a condition, which impresses itself as an aggre- 
 gate on the observer," and the opinion of one, personally cognizant of 
 the minute circumstances making up that aggregate, and which are de- 
 tailed in connection with such opinion, is, in its essence, only a fact "at 
 short-hand." I Wharton & Stille's Med. Juris., sec. 257. This species 
 of evidence should be admitted, not only because of its intrinsic value, 
 when the result of observation by persons of intelligence, but from 
 necessity. We say from necessity, because a jury or court, having had 
 no opportunity for personal observation, would otherwise be deprived 
 of the knowledge which others possess ; but, also because, if the witness 
 may be permitted to state as undoubtedly, he would be, where his 
 opportunities of observation have been adequate "that he has known 
 the individual for many years; has repeatedly conversed with him and 
 heard others converse with him; that the witness had noticed that in 
 these conversations he was incoherent and silly; that in his habits he 
 was occasionally highly pleased and greatly vexed without a cause ; and 
 that, in his conduct he was wild, irrational, extravagant, and crazy, 
 what would this be but to declare the judgment or opinion of the wit- 
 ness of what is incoherent or foolish in conversation, what reasonable 
 cause of pleasure or resentment, and what the indicia of sound or dis- 
 ordered intellect? 
 
 Affirmed.
 
 OPINION EVIDENCE 461 
 
 COMMONWEALTH v. STURTIVANT. 
 1/7 Mass. 122. (1874) 
 
 Indictment for the murder of Simeon Sturtivant, at Halifax, in the 
 county of Plymouth, on February 15, 1874. Trial before Wells and 
 Ames, JJ., who allowed a bill of exceptions in substance as follows : 
 
 i. There was evidence tending to show that Simeon Sturtivant and 
 Mary Buckley, his housekeeper, were last seen alive about half past six 
 o'clock on Sunday evening, February 15, 1874, and that Thomas Sturti- 
 vant was last seen alive about half past four o'clock of the afternoon 
 of the same day ; that about half past seven o'clock on the morning of 
 the 1 6th, Mary Buckley was found lying dead in a field about thirty- 
 five rods from the dwelling-house of the Sturtivants, and soon after- 
 wards the dead body of Thomas was found lying in one room of the 
 house, and that of Simeon in another room ; that between these rooms 
 was another large room, all the doors of which were closed. 
 
 The only evidence tending to show who was the murderer of either 
 of these persons was circumstantial. The government contended that 
 the evidence tended to show that the three persons were killed by the 
 same person, with the same weapon, at the same time. 
 
 ENDICOTT, J. There was evidence tending to show that three per- 
 sons, Simeon Sturtivant, Thomas Sturtivant and Mary Buckley, were 
 killed at the same time, by the same weapon. 
 
 The principal exception is to the competency of the evidence in 
 regard to the blood-stain. The question here is whether a witness, who 
 is familiar with blood and has examined, with a lens, a blood-stain 
 upon a coat, when it w r as fresh, can also testify that the appearance 
 then indicated the direction from which it came, and that it came from 
 below upward, although he has never experimented with blood or 
 other fluid in this respect. The witness had previously testified to its 
 appearance at the time he examined it, and to the fact that at the trial 
 it was not in the same condition, some of the blood having been 
 rubbed off. 
 
 The exception to the general rule that witnesses cannot give opinions, 
 is not confined to the evidence of experts testifying on subjects re- 
 quiring special knowledge, skill or learning; but includes the evidence 
 of common observers, testifying to the results of their observation made 
 at the time in regard to common appearances or facts, and a condition 
 of things which cannot be reproduced and made palpable to a jury. 
 Such evidence has been said to be competent from necessity, on the
 
 462 CASKS ON EVIDENCE 
 
 same ground as the testimony of experts, as the only method of proving 
 certain facts essential to the proper administration of justice. Nor is 
 it a mere opinion which is thus given by a witness, but a conclusion of 
 fact to which his judgment, observation, and common knowledge has 
 led him in regard to a subject matter which requires no special learning 
 or experiment, but which is within the knowledge of men in general. 
 Every person is competent to express an opinion on a question of 
 identity as applied to persons, things, animals or handwriting, and may 
 give his judgment in regard to the size, color, weight of objects, and 
 may estimate time and distances. He may state his opinion in regard 
 to sounds, their character, from what they proceed, and the direction 
 from which they seem to come. State v. Shinborn, 46 N. H. 497. The 
 correspondence between boots and foot-prints is a matter requiring no 
 peculiar knowledge, and to which any person can testify. Common- 
 wealth v. Pope, 103 Mass. 440. So a person not an expert may give 
 his opinion whether certain hairs are human hairs. Commonwealth v. 
 Dorsey, 103 Mass. 412. And a witness may state what he understood 
 by certain "expressions, gestures and intonations," and to whom they 
 were applied; otherwise the jury could not fully understand their 
 meaning. Leonard v. Allen, n Cush. 241. 
 
 In this connection may be noticed a large class of cases, where, from 
 certain appearances more or less difficult to describe in words, wit- 
 nesses have been permitted to state their conclusions in relation to in- 
 dications of disease or health, and the condition or qualities of animals 
 or persons. As when a witness testifies that a horse's foot appeared to 
 be diseased, he states a matter of fact open to the observation of com- 
 mon men. Willis v. Quimby, 31 N. H. 485. And it is proper for a 
 witness to give his opinion that a horse appeared to be sulky and not 
 frightened at the time of an accident ; Whittier v. Franklin, 46 N. H. 
 23; or he may testify as to the qualities and appearance of a horse. 
 State v. Avery, 44 N. H. 392. In Currier v. Boston & Maine Railroad, 
 34 N. H. 498, it is said that the question whether there was hard pan 
 in an excavation does not ask for an opinion, but seeks for facts within 
 the knowledge of the witness, and of which the knowledge may be 
 obtained by common observation. It is competent for a witness to 
 testify to the condition of health of a person, and that he is ill or 
 disabled, or has a fever, or is destitute and in need of relief ; Parker 
 v. Boston & Hingham Steamboat Co., 109 Mass. 449; Wilkinson v. 
 Mosely, 30 Ala. 562 ; Barker v. Coleman, 35 Ala. 221 ; Autauga County 
 v. Davis, 32 Ala. 703 ; and one may testify that another acted as if she 
 felt very sad. Culver v. Dwight, 6 Gray, 444. So those who have
 
 OPINION EVIDENCE 463 
 
 observed the relations and conduct of two persons to each other may 
 testify whether in their opinion one was attached to the other. And 
 in M'Kee v. Nelson, 4 Cowen, 355, the court say, "The opinion 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." See Trelawney v. Colman, 2 Stark. 191. A witness may also 
 give his judgment whether a person was intoxicated at a given time: 
 People v. Eastwood, 4 Kernan 562 ; or whether he noticed any change 
 in the intelligence or understanding, or any want of coherence in the 
 remarks of another. Barker v. Comins, no Mass. 477. Nash v. 
 Hunt, 116 Mass. 237. 
 
 In Steamboat Clipper v. Logan, 18 Ohio 375, it was held that a 
 person who had been a captain and engineer of a steamboat, having 
 examined a boat after an injury by collision, may state his opinion as 
 to the direction from which the boat was struck at the time of the 
 collision. There was no evidence that the witness had any special 
 knowledge in regard to collisions, through observation or experiment ; 
 and the court does not rest the decision on the ground that the witness 
 was an expert; but says there is "no objection to calling these men 
 experts, if the name will render their testimony more unexceptionable ; 
 but it is not true as a legal proposition that no one but an expert can 
 give an opinion to a jury. From the necessity of the case, testimony 
 must occasionally be a compound of fact and opinion." And the court 
 say that they can give no better illustration of their meaning than by 
 the use of the language in M'Kee v. Nelson, a portion of which is 
 quoted above. 
 
 It would also seem to be within the range of common knowledge to 
 observe and understand those appearances, in marks or stains caused 
 by blood or other fluids, which indicate the direction from which they 
 came, if impelled by force. 
 
 The competency of this evidence rests upon two necessary conditions : 
 first, that the subject matter to which the testimony relates cannot be 
 reproduced or described to the jury precisely as it appeared to the wit- 
 ness at the time; and second, that the facts upon which the witness is 
 called to express his opinion, are such as men in general are capable 
 of comprehending and understanding. 
 
 When these conditions have been complied with or fulfilled in a given 
 case, the court must then pass upon the question, whether the witness 
 had the opportunity and means of inquiry, and was careful and in- 
 telligent in his observation and examination. It is not the mere qual- 
 ication of the witness but the extent and thoroughness of his exam-
 
 464 CASES ON EVIDENCE 
 
 ination into the specific facts to which the inquiry relates, and the 
 general character of those facts, as affording to one, having his oppor- 
 tunity to judge, the requisite means to form an opinion. 
 
 In the case at bar the admission of the evidence by the court involved 
 the decision: i. That the stain was not in the same condition, and 
 did not exhibit the same appearance at the trial as it did when examined 
 by the witness and cannot be reproduced to the jury; upon this as a 
 matter of fact there is no question; 2. That the stain might in itself 
 furnish indications from what direction it came, capable of being ob- 
 served by a witness, who though familiar with blood and its qualities, 
 had not made or seen experiments made with it or other fluids in this 
 respect; and 3. That the witness had made that thorough, careful and 
 intelligent observation of the appearances, which would entitle him to 
 testify. We must take the decision of the court on this last point to be 
 conclusive. 
 
 Whether the reasons the witness gave for his opinion of the direction 
 of the stain were sound or unsound, does not affect the question of 
 competency, and of course the defendant had full opportunity to test 
 him by cross-examination, or to show by evidence or argument that 
 his reasons were unsound. 
 
 We cannot say that such a witness, familiar with blood, its properties 
 and appearance, with his opportunity to examine and the actual ex- 
 amination made by him, might not form and testify to a reliable opinion 
 as to the direction in which the blood moved in making the elongated 
 stain, although he had never made actual experiments of that kind; 
 and we see no ground for sustaining this exception to the admission of 
 the evidence. 
 
 Exceptions overruled.
 
 OPINION EVIDENCE 465 
 
 VINTON v. PECK. 
 14 Mich. 287. (1866) 
 
 CAMPBELL, J. Peck sued Vinton upon a promissory note, dated 
 June 2nd, 1862 and payable three months after date to the order of 
 Z. H. Bullard, who endorsed it to Peck. 
 
 Vinton, upon the trial, set up in defense that the note was either 
 altered or forged, claiming he gave no note for more than eight dollars, 
 whereas the note sued on was for eighty. One George T. Clark was 
 called for Peck, and swore that he had been a Conveyancer and Notary 
 Public for twenty-five years, and was familiar with Vinton's hand- 
 writing, and that the note was genuine. He was then asked whether, 
 in his opinion, the word eight had been altered to eighty since its ex- 
 ecution. This was objected to, and the objection overruled, and an 
 exception taken. He stated that he thought it had not been altered, and 
 on cross-examination stated the "y" could not have been added, because 
 of its relation to the letters. This testimony was proper. The witness 
 was engaged in a business which would be quite apt to familiarize him 
 with all the ordinary appearances of writings, and the addition of a 
 letter, after a document has been finished, is so generally adapted to 
 give it a peculiar and recognizable appearance, that no great amount of 
 experience would be necessary to detect it in ordinary cases. The 
 value of a witness's belief must depend upon circumstances, but it is 
 proper to go to the jury like other questions upon the genuineness of 
 writings. It is very true that the jury may examine the paper for them- 
 selves, and that opinions are not usually admissible where the jury can 
 form their own conclusions unaided. But we do not think it would be 
 safe in this country to adopt a rule which assumes such a degree of 
 knowledge and skill among jurors. 
 
 It is also assigned as error that several witnesses were allowed to 
 compare the note in suit with the appeal bond and affidavit on file in 
 the cause, which were admitted to be signed by Vinton. It is claimed 
 that they were not shown to be experts. In proving handwriting in 
 general there is no rule which requires any particular amount of skill 
 in the witness. Any one who has had the proper facilities, and who 
 can swear to a knowlege of the handwriting in question, has al- 
 ways been admitted. There are undoubtedly questions presented at 
 times, which require greater skill than others, but such cases stand on 
 their own grounds. It is a matter of common experience that all 
 persons who can write at all can attain some familiarity with the hand-
 
 466 CASES ON EVIDENCE 
 
 writing of others, and we can find no test which would be at all prac- 
 ticable, except that of leaving their skill and capacity to be determined 
 by the jury who hear them examined. 
 
 A more serious question is, whether the comparison here resorted to 
 was admissible at all. It has very commonly been said that a witness 
 must obtain his knowledge of handwriting by seeing the party write, or 
 from papers in his own possession which he knows to be genuine, by 
 recognition or dealing mutually had on their credit. Proof by com- 
 parison of hands on the trial has not always been deemed competent, 
 and there are many authorities which deny its admissibility at all. Upon 
 a subject which has been so much discussed, and upon which there is 
 so wide a variance of opinion, we think the safest course is to satisfy 
 ourselves concerning the principles involved, and frame our conclusions 
 a9cordingly. 
 
 It has never been required that a witness should have seen any par- 
 ticular number of specimens or acts of handwriting. On the contrary 
 seeing a person write once, has been held sufficient. 
 
 In the case of ancient documents proof by comparison has always 
 been permitted, although the comparison can only be made by proving 
 the genuineness of papers not involved in the cause. Doe v. Tarver, 
 Ry. and M. 141. The right to establish handwriting by comparison in 
 other cases has been denied on two grounds : first, because the specimens 
 for comparison may be unfairly selected, and second, because proof of 
 the genuineness of the specimens would raise collateral issues which 
 would encumber the case, and which the party could not be supposed to 
 be ready to meet. Accordingly the rule has been inflexibly, and we 
 think justly settled, that disputed papers which do not belong in the 
 cause, and are not involved in the issue, cannot have their genuineness 
 made a question of inquiry in the cause, and cannot therefore be made 
 a basis of comparison for either witnesses or jury. Doe v. Newton, 5 
 Ad. & El. 514; Griffits v. Ivery, u Id. 322; Hughes v. Rogers, 8 M. & 
 W. 123 ; Bromage v. Rice, 7 C. & P. 548. There is one English case in 
 which the Court of Queen's Bench was equally divided upon the ques- 
 tion whether, after an attesting witness had in his testimony stated 
 several specimens of his signature (including his attestation) to be 
 genuine, an expert might be allowed to compare them all (relevant as 
 well as irrelevant) to ascertain whether the attestation was genuine. 
 The course of the discussion on the bench elicited the most complete 
 investigation of the various methods of proving handwriting which is 
 to be found in the books; and while it seems dangerous to allow com- 
 parison by disputed documents and signatures, the reasons for allowing
 
 OPINION EVIDENCE 467 
 
 it among those not disputed are very forcibly set forth, Doe v. Sucker- 
 more, 5 A. & E. 733. Where papers are already in the case, it is held 
 almost if not quite universally, that the jury may make the comparison 
 for themselves, i Greenl. Ev. 578. Mr. Greenleaf gives it as his opin- 
 ion that this comparison may be made with or without the aid of ex- 
 perts. In Doe v. Newton (before cited) it is said that the court should 
 enter into this inquiry with the jury, but it is doubtful whether it was 
 meant to intimate that witnesses should be examined for that purpose. 
 The general English rule would seem to be that the jury must form 
 their own opinions among themselves from the comparison. And the 
 English authorities agree in saying that the objection that a jury may 
 be illiterate cannot now have any weight. But it cannot be denied that, 
 even among intelligent men, there is much difference in regard to the 
 capacity of forming an accurate judgment by comparison, while all 
 persons who can read and write can form some sort of an opinion. 
 Experts can certainly aid a jury very much in these inquiries, and, if 
 any are admitted, the degree of their skill cannot be nicely measured. 
 But, as we have already remarked, we think the presumption cannot 
 safely be raised that all jurors here can be qualified to form opinions 
 for themselves upon questions of handwriting, and while, if capable, 
 they may properly make comparison, it is safer and better, we think, to 
 make sure that they receive such light as is accessible. 
 
 Where, as in the present case, the papers used as means of comparison 
 are a part of the records in the cause, and undisputed, it is held by the 
 authorities cited that the jury can compare them and that a witness may 
 also use them, to form an opinion concerning the handwriting ; and no 
 objection can arise on the ground that they can have been specially 
 selected as a standard. We should feel disposed to say had not the 
 doctrine become almost venerable from much repetition that there is 
 nothing in ordinary experience which could lead any one to suppose 
 that a person cannot form a better judgment of resemblances in writing 
 from having the specimens before him, than from any mere effort of 
 memory. And we feel constrained to hold that a comparison of hands 
 by witnesses, where there is an undisputed standard in the cause, or 
 where documents are fairly before the jury upon the issues, is al- 
 lowable. 
 
 There is no error in the judgment, and it must be affirmed. 
 
 CHRISTIANCY and COOLEY, JJ. concurred.
 
 468 CASES ON EVIDENCE 
 
 HAMMOND v. MARIAN. 
 54 N. Y. 398. (1873) 
 
 Appeal by Allen C. Yarian, one of the defendants, from judgment of 
 the General Term of the Supreme Court in the sixth judicial district, 
 in favor of the plaintiff, entered upon an order denying a motion for a 
 new trial, and directing judgment on a verdict. 
 
 This action was brought on a promissory note, dated March 10, 1863, 
 for $125, purporting to have been made by the defendants jointly, pay- 
 able nine months after date to Charles Ross or bearer. 
 
 LOTT, Ch. C. The note in question was properly admitted in evidence. 
 
 Proof was given by the plaintiff of an admission by the defendant, 
 Allen C. Varian, tending to show, and sufficient, if uncontradicted, to 
 prove that he had made it, and other evidence was given of facts and 
 circumstances in relation to its delivery to Ross, the payee, from which 
 it might, in connection with the evidence of such admission, be inferred 
 that it was signed by him. There can, therefore, be no question of the 
 sufficiency of the proof to warrant the note to be read to the jury at 
 the time it was offered and introduced. 
 
 After its introduction, one witness who had seen the defendant write 
 his name once, and another who had never seen him write, but who 
 had held his note, acknowledged and conceded to be genuine, were per- 
 mitted to express their opinion and belief, against the defendant's ex- 
 ception, whether the signature was his. The objection taken to the 
 testimony was, that they had not shown themselves sufficiently ac- 
 quainted with the defendant's handwriting, to testify as to its genuine- 
 ness. This is not tenable. They had some means, although slight, of 
 enabling them to judge whether the signature was that of the defendant, 
 yet sufficient, in their belief, to express an opinion in reference thereto. 
 The extent of their knowledge, and the weight or effect to be given to 
 their opinion, were proper matters for the consideration of the jury. 
 (See Greenleaf on Evidence, vol. i, sec. 577.) 
 
 Judgment reversed on other grounds.
 
 OPINION EVIDENCE; 469 
 
 WILSON v. VANLEER. 
 127 Pa. St. 372. (1889) 
 
 On August 22, 1885, an issue devisavit vel non, wherein Joseph 
 VanLeer and Caroline, his wife, in right of said Caroline, were plain- 
 tiffs, and Sidwell T. Wilson and Needham M. Wilson, executors of 
 the will of Needham Wilson, were defendants, was formed to try 
 whether or not a certain testamentary paper was a codicil to the last 
 will and testament of Needham Wilson. The issue had been directed 
 by the Orphans' Court upon an appeal by said executors from the decree 
 of the register of wills, admitting said paper to probate. 
 
 Cornelius Carman, called by the plaintiffs, testified that he was a 
 brother of Caroline VanLeer, and had known Needham Wilson from 
 his own boyhood; that when the witness was ten or eleven years old, 
 which was thirty-two years before the trial, he was living with Mr. 
 Wilson and saw him write two or three letters to the witness's father ; 
 that in October, 1865, the witness was with Mr. Wilson at a hotel in 
 Lancaster, and saw him write a memorandum of articles he wished 
 to purchase and indorse his name on a check, and since then witness 
 had not seen Mr. Wilson write. The witness was subjected to a rigid 
 cross-examination, and testified to his belief that the signature and the 
 whole of the paper shown him was in the handwriting of Needham 
 Wilson. 
 
 MITCHELL, J. The competency of Cornelius Carman was in the first 
 instance clearly a matter for the court, and no subsequent evidence hav- 
 ing raised any dispute of fact upon it, the learned judge was right in 
 saying that the court was the sole judge of competency, and refusing to 
 allow the jury to review the ruling. Had the facts upon which the 
 judge held him prima facie competent been denied or contradicted, it 
 might have been proper to submit the whole matter to the final decision 
 of the jury : Lee v. Welsh, i W. N. 453 ; but there was no such con- 
 flict as made that course necessary. 
 
 The learned judge was also within the line of authorities, in holding 
 that Carman had sufficient knowledge of Wilson's handwriting to make 
 him competent to testify concerning it. It is said to be sufficient if 
 the witness has seen the party write but once, and then only his name : 
 i Greenl. Ev. sec. 577; and probably no higher standard can be fixed 
 for a definite rule, though, considering the untrustworthiness of opin- 
 ions on handwriting in general (see note of Chief Justice Redfield to 
 his edition of Greenleaf, vol. I, sec. 578), such evidence ought to be
 
 470 CASES ON EVIDENCE 
 
 guarded with great caution. Nor in the nature of things is it possible to 
 fix any arbitrary limit of time within which the witness must have seen 
 the writing done. That must depend on his intelligence, his habit of 
 observation of such matters, the apparent strength and confidence of 
 his memory, etc., which must be passed upon in the first instance by the 
 trial judge. Carman's knowledge seems not only to have been ex- 
 tremely stale, but of the narrowest extent, and if the learned judge had 
 held that it was too remote and unreliable to qualify him, we should not 
 have been disposed to disagree with him. But the matter was within 
 his discretion, and his conclusion was, as already said, within the line of 
 the authorities. It was therefore for the jury and not for us to deter- 
 mine the weight to which the testimony should be entitled. The assign- 
 ments of error in relation to Carman's testimony are therefore not 
 sustained. 
 Judgment reversed, and venire de novo awarded on other grounds. 
 
 TOWER v. WHIP. 
 53 W. Va. 158. (1903) 
 
 BRANNON, J. This was an action of debt tried before a special 
 judge, on a negotiable note in the Circuit Court of Mineral county, 
 brought by M. C. Totten against Sandford Whip, resulting in a verdict 
 and judgment for the defendant, from which he has sued out a writ 
 of error. 
 
 The defendant pleaded nil debet and filed a plea No. 3 saying that 
 "he did not make or sign the notes sued on," which were verified by 
 affidavit. 
 
 The vital question in this case is, did Whip make the note? He 
 denied doing so by pleas i and 3. On trial the plaintiff offered a 
 witness as an expert, and proposed that he inspect Whip's signature to 
 the affidavits of the four pleas filed by him and the signature of Whip 
 on the note in suit, and say whether the same person made them and 
 proposed to prove by him that in his opinion the same person made 
 all the signatures ; but the evidence was rejected. In West Virginia it 
 is settled law that the genuineness of an instrument cannot be proven 
 or disproven by comparison with other writings ; as a general rule com- 
 parison of handwritings is not allowed. State v. Koontz, 31 W. Va. 
 127. I never could see the soundness of this rule; but it was well
 
 OPINION EVIDENCE 471 
 
 settled common law in England until statute wiped it away, and gen- 
 erally, but not everywhere, prevailed in the United States. It came to 
 this State from Virginia. We have always regarded this the Virginia 
 rule; but if so, Hanriot v. Sherwood, 82 Va. i, has overruled it. But 
 concede such to be the law in West Virginia, yet, as the Supreme Court 
 said in Moore v. United States, 91 U. S. 270, "the general rule of the 
 common law disallowing a comparison of handwriting as proof of sig- 
 nature has exceptions equally as well settled as the rule itself. One of 
 these exceptions is, that if a paper admitted to be in the handwriting 
 of the party, or to have been subscribed by him, is in evidence for some 
 other purpose in the cause, the signature or paper in question may be 
 compared with it by the jury." The disputed paper "May be compared 
 with it by the jury." The disputed paper "May be compared with other 
 writings by such person proved or admitted to be genuine and already 
 properly before the court for other purposes, either as evidence in the 
 case or as part of the record." 15 Am. & Eng. Encyc. of L. 266. The 
 defense on the trial stated that it was not admitted that the signatures 
 to the pleas were in Whip's handwriting but it was not denied. And is 
 it not presumptive, in the case of a natural person, that a signature to 
 a plea filed in court by him is his own, especially as it is certified to 
 have been subscribed by him before the clerk? And he proffered it as 
 his, and it would be prima facie his, until shown not to be his. It 
 would be different with a paper not in the case. Here it was part of 
 the record. Could it be questioned that the jury might compare the 
 note with the pleas? I think not. But our question is, can an expert 
 make a comparison of those papers and give his opinion? Yes, he can, 
 because, if you once settle that a jury can do so, it is a subject of expert 
 evidence. If the papers are such as to allow a comparison, expert evi- 
 dence may be applied to them. Vinton v. Peck, 14 Mich. 287. is author- 
 ity not only to allow comparison with other papers already in the case, 
 but also to show that experts may be called to make the comparison, and 
 that it is better that the jury have the aid of experts, as few of us are 
 competent to do so with success, i Greenl. Ev. sec. 578 thus states the 
 law : "Where other writings admitted to be genuine are already in the 
 case ; here the comparison may be made by the jury with or without the 
 aid of experts." In Hardwick v. Sherwood, 82 Va. i, expert evidence 
 to make such comparison is held proper. In Springer v. Hall, 83 Mo. 
 693. it is held that such expert evidence may be used to compare. This 
 case is cited by the defense to show that comparison cannot be made 
 with paper made after suit, but there the defendant proposed to use his 
 signature to his own pleadings to prove that he did not make the note.
 
 472 CASKS ON EVIDENCE 
 
 Any amount of law can be cited to show that experts may compare 
 writings and give their opinions. Rogers, Expert Test., sec. 133 ; State 
 v. Thompson, 6 Am. St. R. 172. Much case law is cited to show that 
 expert testimony is weak and unreliable. This may or may not, be so. 
 Courts differ as to this. Many regard it valuable, as it surely is in 
 certain cases. We pass no opinion, as its weight is for the jury. Being 
 admissible, we are not able to say that it would not have had weight, 
 and if such evidence might have been beneficial to the plaintiff, its re- 
 jection is error, as he was entitled to place before the jury all admis- 
 sible evidence. Kerr v. Lunsford, 31 W. Va. 675. 
 
 Reversed. 
 
 MORRISON v. PORTER. 
 55 Minn. 425. (1886) 
 
 The plaintiff brought this action in the district court for Hennepin 
 county to determine the defendant's adverse claims to certain land, and 
 appeals from an order by Lochren, M., refusing a new trial. 
 
 DICKINSON, J. The defendant, the railroad corporation, has title to 
 the land in controversy through a chain of conveyances running back 
 to the plaintiff, if in fact the plaintiff executed a certain deed of convey- 
 ance in the year 1860, the execution of which the plaintiff disputes. 
 The court found that it had been executed by her. The first point to 
 be considered arises upon the admission in evidence of an instrument 
 (Exhibit Y) containing a signature of the plaintiff admitted to be 
 genuine, to enable a comparison to be made between that signature and 
 the disputed signature in issue, Exhibit Y being not otherwise relevant 
 to the issue. Expert witnesses were allowed to give their opinions, 
 based upon such comparison. Upon the question thus presented, as to 
 whether a writing, admitted to be in the hand of the person whose 
 signature is in issue, may be received in evidence for the purpose of 
 comparison, the authorities are so at variance that we are at liberty to 
 adopt the rule of evidence which seems to be most consistent with 
 reason, and conducive to the best results. At common law, and gen- 
 erally in the United States, it has been the rule that where other writ- 
 ings, admitted to be genuine, are already in evidence for other purposes 
 in the case, comparison may be made between such writings and the 
 instrument in question. If such a comparison is conducive to the ends
 
 OPINION EVIDENCE 473 
 
 of truth, and is allowable, there would seem to be but little reason for 
 refusing to allow a comparison with other writings admitted to be 
 genuine, although not in evidence for other purposes. 
 
 The objections which have been urged to receiving other instruments, 
 for the purpose of comparison, have been the multiplying of collateral 
 issues ; the danger of fraud or unfairness in selecting instruments for 
 that purpose, from the fact that handwriting is not always the same, 
 and is affected by age, and by the various circumstances which may 
 attend the writing; and the surprise to which a party against whom 
 such evidence is produced may be subjected. When the writings pre- 
 sented are admitted to be genuine, so that collateral issues are not likely 
 to arise, nor the adverse party to be surprised by evidence which he is 
 unable to meet, these objections seem to us to be insufficient as reasons 
 for excluding the evidence. If such evidence has apparent and direct 
 probative force, it should not be excluded unless for substantial reasons. 
 In general, and from necessity, the authenticity of handwriting must 
 be subject to proof by comparison of some sort, or by testimony which 
 is based upon comparison, between the writing in question- and that 
 which is in some manner recognized or shown to be genuine. This is 
 everywhere allowed, through the opinions of witnesses who have ac- 
 quired a knowledge more or less complete, of the handwriting of a 
 person, as having seen him write, or from acquaintance with papers 
 authenticated as genuine. In such cases the conception of the hand- 
 writing retained in the mind of the witness becomes a standard for 
 comparison, by reference to which his opinion is formed, and given in 
 evidence. It would seem that a standard generally not less satisfactory, 
 and very often much more satisfactory, is afforded by the opportunity 
 for examining side by side the writing in dispute and other writings of 
 unquestioned authenticity ; and this, we think, is in accordance with the 
 common judgment and experience of men. 
 
 The evils that may be suggested as likely to arise from the selection 
 of particular writings for the purposes of comparison, may be left, as 
 all unfair or misleading evidence must be, to be corrected by other 
 evidence, and by the intelligent judgment of the court or jury. In our 
 opinion, such evidence is conducive to the intelligent ascertaining of 
 the truth, and the receiving of it in this case was not error. We cite 
 authorities sustaining this view, some of which go further in this direc- 
 tion than does our present decision. Tyler v. Todd, 36 Conn. 218; 
 Moody v. Rowell, 17 Pick. 490, (28 Am. Dec. 31) ; State v. Hastings, 
 53 N. H. 452; Adams v. Field, 21 Vt. 256; State v. Ward, 39 Vt. 225 ; 
 Farmers' Bank v. Whitehill, 10 Serg. & R. no; Travis v. Brown, 43
 
 474 CASES ON EVIDENCE 
 
 Pa. St. 9; Chance v. Indianapolis & W. G. R. Co., 32 Ind. 472; Ma- 
 comber v. Scott, 10 Kan. 335 ; Wilson v. Beauchamp, 50 Miss. 24. 
 
 Order affirmed. 
 
 STATE v. FLANDERS. 
 38N.H.332. (1859) 
 
 INDICTMENT, charging the respondent with the crime of forgery, in 
 having altered, at Manchester, in said county, on the fourth day of 
 August, 1857, a bond of that date, in the penal sum of forty thousand 
 dollars, signed by himself as principal, and by Samuel Andrews and 
 Luther Aiken as sureties, given and payable to Thomas P. Webber. 
 
 The principal questions before the jury were whether the signature 
 of Aiken was upon the bond when the respondent made the alteration ; 
 the evidence being clear that Aiken never saw the bond before it was 
 passed to Webber, except when he signed it, and never assented to any 
 alteration after it was made and before the respondent passed or at- 
 tempted to pass the bond to Webber as genuine. 
 
 SAWYER, J. 
 
 Another question in the case is, whether the testimony of Aiken, as to 
 his impression, was properly received. He testified that he read the 
 bond hastily when he signed it and could not say whether it had then 
 been altered or not, but that he had an impression in regard to it. The 
 government then asked what the impression was, to which the re- 
 spondent objected. The objection has several aspects. An impression 
 as to a past fact may mean personal knowledge of the facts as it rests 
 in the memory, though the remembrance is so faint that it cannot be 
 characterized as an undoubting recollection, and is therefore spoken of 
 as an impression. This, perhaps, is the sense in which the word is 
 most commonly used by witnesses, in giving their testimony. In this 
 sense the impression of a witness is evidence, however indistinct and 
 unreliable the recollection may be. No line can be drawn for the 
 exclusion of any record left upon the memory, as the impress of per- 
 sonal knowledge, because of the dimness of the impression. If, there- 
 fore, the objection is to be considered as one taken to the general com- 
 petency of such testimony, it is clear that it was properly overruled. 
 An impression, however, may mean an understanding or belief of the 
 fact, derived from some other source than personal observation, as the
 
 OPINION EVIDENCE 475 
 
 information of others; or it may mean an inference or conclusion of 
 the mind as to the existence of the fact, drawn from a knowledge of 
 other facts. When used in these senses, it is not evidence; and the 
 objection may be understood to be that enough appears in other state- 
 ments of the witness, when considered in connection with the subject 
 of his testimony, to show that he intended to use the word in one of 
 these senses as his understanding and belief, or his inference and 
 conclusion, and not as his recollection. It has been urged in the argu- 
 ment, that when the witness stated that he read the bond hastily, and 
 could not say whether it had then been altered or not, he was fairly to 
 be understood as meaning that he had no recollection founded upon his 
 personal observation, as would enable him to testify from memory; 
 and that, consequently, by the word impression, he must have meant an 
 understanding or inference, resulting from the information of others, 
 or the operations of his own mind, instead of his personal knowledge of 
 the fact. If it was apparent to the court that the word was thus used, 
 the objection is well taken. We think, however, that, taking the whole 
 testimony together, it may be understood to mean that, although, from 
 the slight attention which he gave the bond in his hasty reading, he 
 cannot say positively whether the alteration had been made or not, he 
 nevertheless had an impression upon his memory, derived from reading 
 it, that it had not. At least, it may be said that the jury might so 
 understand him, without doing violence to any fact or statement con- 
 tained in his testimony. If it was susceptible of that construction, it 
 could not be excluded by the court merely because a different interpre- 
 tation might be put upon it, which would render it incompetent. If 
 the parties choose to leave the testimony of a witness doubtful, by re- 
 fraining to draw from him an explicit declaration of his meaning, when 
 it is susceptible of two interpretations, one of which renders it com- 
 petent and the other incompetent, it must be submitted to the jury, with 
 proper instructions of course, as to how they are to rega^etit, when they 
 have ascertained what his meaning really was. 
 
 In another view, the objection might have been/sustained, if it had 
 appeared in the case that objection was placed on that ground at the 
 trial. When the witness stated that he could not say whether the bond 
 had been altered or not, it might well be doubted how he intended to be 
 understood in the subsequent statement that he had an impression in 
 regard to it. If the respondent had objected that the witness should 
 not be asked the question what his impression was, until it had first been 
 ascertained whether he meant by the word impression, a recollection or 
 not, the objection would have been sustained. It cannot be understood
 
 476 CASES ON EVIDENCE 
 
 to have been made on that ground. It is stated as a general objection, 
 and, as such, must be understood as taken to the competency of the 
 evidence, and not to the form of the question or other incidental matter, 
 which, if stated at the trial, would have given the counsel for the gov- 
 ernment an opportunity to obviate it. , 
 Verdict set aside and new trial granted on other grounds. 
 
 BENNETT v. BEAM. 
 42 Mich. 346. (1880) 
 
 MARSTON, C. J. The action in this case was brought to recover dam- 
 ages for breach of a contract to marry. 
 
 It is alleged as error that the plaintiff and her father were allowed to 
 testify as to the effect of the alleged refusal to marry, upon her mind 
 and feelings. That such evidence was admissible under the general 
 allegations of the declaration we consider too clear to require argument. 
 The effect upon her mind and feelings was one of the usual and natural 
 results of the breach, and had an essential bearing upon the question of 
 damages. 
 
 It is also alleged that it was not proper to show the financial standing 
 of the defendant. 
 
 In this state it is a well settled legal axiom that the just theory of an 
 action for damages, and its primary object, are that the damages recov- 
 ered shall compensate for the injury sustained. There are exceptions 
 to this rule, but it would not be claimed that this case comes within 
 them. Now the contract for a breach of which this suit was brought, 
 was one for a life association of interests, and it is one of the most 
 obvious facts that the pecuniary circumstances of the defendant, as well 
 as his social position, would largely influence any one's estimate of the 
 damages suffered. This would be so even if the woman had in no 
 manner taken the man's property into account in engaging herself to 
 him, but the law always supposes that property considerations are not 
 ignored in these cases. 
 
 In cases like the present, what loss is it that the plaintiff has sus- 
 tained by a breach of the contract? To determine this we must look 
 at the surroundings and see what it was to which the defendant invited 
 her. If it was to a home of poverty and a life of probable hardship and 
 misery, the loss would apparently be small; but if it was a home pos-
 
 OPINION EVIDENCE 477 
 
 sessed of and surrounded by all the comforts and even the luxuries of 
 life, and where her social position in the circles in which she would 
 move by right of the marriage would be the very best, the case would 
 be exactly the opposite, because in such case there would be abundant 
 promise of social and domestic happiness. But beyond this the very 
 marriage confers certain rights in the husband's real and personal estate 
 of which she cannot afterwards be deprived except by her own consent, 
 and she would naturally and justly look to them as her security against 
 becoming dependent through the accidents and misfortunes of life. It 
 is all these that the breach of the marriage contract deprives the woman 
 of, and she is allowed to prove them, not to show that he will be able 
 to satisfy a judgment if she obtains one, but to measure the extent of 
 her loss. 
 
 For the breach of an ordinary contract, as for the sale and delivery 
 of goods, the wealth of the defendant can and should have no possible 
 bearing in the case, as it could in no way enhance or lessen the damages 
 sustained. In such a case the damages would be ascertained according 
 to well settled rules dependent upon the condition of the market and 
 other circumstances which the defendant's wealth could not to any ap- 
 preciable degree affect. In this case a prospective participation in the 
 wealth of the defendant is one of those things of which the plaintiff by 
 the breach has been deprived, and goes therefore to the extent of the 
 injury. Miller v. Rosier, 31 Mich. 478; Kelly v. Riley, 8 Am. 336; 106 
 Mass. 339. See also James v. Biddington, 6 C. & P., 331. 
 
 The judgment must be affirmed with costs. 
 
 SWAN and others v. COUNTY OF MIDDLESEX. 
 101 Mass. 173. (1869) 
 
 Petition to the county commissioners by Benjamin L. Swan and five 
 others, heirs of Benjamin L. Swan, deceased, for a jury to estimate the 
 damages sustained by taking, to widen High Street in Medford, a strip 
 of land three feet and a half wide from the front of a lot on which was 
 a dwelling-house ; a fence and trees were on the strip taken. Trial be- 
 fore the sheriff of Middlesex, who returned with the verdict of the jury 
 a certificate of his rulings as follows : 
 
 "At the trial the petitioners offered evidence tending to show the 
 position of the fence, and the value of the trees to the occupants of the
 
 47 8 CASES ON EVIDENCE 
 
 house, and also evidence tending to show the cost of removing the fence 
 and trees ; and rested their case. The respondents then called a number 
 of witnesses, all of whom had resided many years in Medford, and 
 some been selectmen and assessors, and who all testified that they 
 had knowledge of the value of the land in Medford, some of them from 
 actual sales or purchases by themselves, and some of them from know- 
 ing of sales of others; they all testified in reply to questions by the 
 petitioners, that they had no actual knowledge of the effect produced 
 upon the value of the dwelling-house and lot, in a single instance, by 
 widening the street in front, and narrowing the ground in front of the 
 house. The respondents then inquired of each of the witnesses, what, 
 in his opinion, would be the effect upon the value of the estate in 
 question, of widening the street, and cutting off the land and the trees. 
 To this question the petitioners objected, both on the ground that the 
 witnesses were not qualified as experts to answer the question, and 
 because it was not a matter requiring any special knowledge in a witness 
 as an expert, and therefore not a proper matter to be shown by an 
 expert, but the witnesses were allowed to answer the question. 
 
 GRAY, J. It is well settled in this Commonwealth that, when the 
 value of real estate is in controversy, opinions of persons acquainted 
 with its value are admissible in evidence. These opinions are admitted, 
 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 knowl- 
 edge 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. D wight v. County Commissioners, 
 1 1 Cush. 203 ; Shattuck v. Stoneham Branch Railroad Co., 6 Allen 1 16, 
 117; Whitman v. Boston & Maine Railroad, 7 Allen 316, and cases 
 there cited. The same rule has prevailed in courts of authority in 
 other states. Kellogg v. Krauser, 14 S. & R. 137; Warren v. Wheeler, 
 21 Maine 484; Clark v. Baird, 5 Selden, 183. The knowledge req- 
 uisite to qualify a witness to testify to his opinion of the value 
 of the lands may either be acquired by the performance of official 
 duty, as by a county commissioner or selectman, whose duty it is 
 to lay out public ways, or by an assessor whose duty it is to ascer- 
 tain the value of the lands for the purpose of taxation; or it may 
 be derived from knowledge of sales and purchases of other lands 
 in the vicinity, either by the witness himself or by other persons. 
 Dickens v. Fitchburg, 13 Gray 546. Whitman v. Boston & Maine 
 Railroad, 70 Allen 316. Russell v. Horn Pond Branch Railroad
 
 OPINION EVIDENCE 479 
 
 Co., 4 Gray 607; Fowler v. County Commissioners, 6 Allen 97. On 
 the question of the sufficiency of the knowledge of the witness, must 
 be left to the discretion of the judge or officer presiding at the trial. 
 Paine v. Boston, 4 Ala. ; Shattuck v. Stoneham Branch Railroad Co., 6 
 Allen 117. When the matter in issue is the assessment of damages to 
 land by the laying out of a public way, witnesses having the requisite 
 knowledge may testify to their opinion of the comparative value of the 
 lands immediately before and after the taking, and to the effect of the 
 taking upon the value of the remaining land, by way of injury or bene- 
 fit, Dwight v. County Commissioners, n Cush. 201; Shaw v. Charles- 
 town, 2 Gray 107; West Newbury v. Chase, 5 Gray 421 ; Dickenson v. 
 Fitchburg, 13 Gray 546; Shattuck v. Stoneham Branch Railroad Co., 6 
 Allen 116, 117. 
 
 Applying these rules to the present case, we are of the opinion that 
 there is no ground for sustaining the petitioners' exceptions to the rul- 
 ings of the sheriff. The only objections taken at the trial, so far as 
 they applied to each of the witnesses, were to the admission of the 
 question, "what in his opinion would be the effect, upon the value of 
 the estate in question, of widening the street and cutting off the land 
 and trees ?" and to the answer to this question given on direct examina- 
 tion. The grounds assigned for these objections were twofold, because 
 the witnesses were not qualified to answer the question, and because it 
 did not relate to a matter upon which the opinion of any witness would 
 be admissible. Neither of these grounds is tenable. 
 
 Verdict accepted 
 
 LYNCH v. SMITH. 
 104 Mass. 52. (1870) 
 
 Tort in the plaintiff's name by his next friend for injuries alleged to 
 have been caused on December 3, 1866, by the negligence of the de- 
 fendant's servant in driving a pair of horses, drawing a hack, over the 
 plaintiff, who at the time of the accident was crossing Henly Street in 
 Charlestown and using due care. The answer denied that the driver 
 was negligent, and that the plaintiff used due care. 
 
 The plaintiff called his school-teacher, Sarah Browers, as a witness, 
 "and offered to show by her, and by. others, that, in her and their opin- 
 ion, the plaintiff was capable of exercising ordinary care in travelling
 
 480 CASES ON EVIDENCE 
 
 along and across the streets through which he was called to pass in going 
 to and returning from school, and was competent to go to and from 
 school unattended; but the judge ruled the testimony incompetent and 
 inadmissible, and refused to receive it." 
 
 CHAPMAN, C. J. The plaintiff's declaration alleges that the defendant 
 was driving a hack drawn by a pair of horses, in and along Henly 
 Street in Charlestown, by his servant, and carelessly ran over the 
 plaintiff (who was crossing the street and using due care), and injured 
 him. The answer puts these allegations in issue. 
 
 It appeared in evidence that the plaintiff was a child four years and 
 seven months old, and of the ability and intelligence of the average of 
 children attending the public schools of the age of five years, and was 
 attending the common school when the accident happened. 
 
 The question, whether a child like the plaintiff is of such capacity that 
 he may be safely trusted to go to and from school alone, is one of fact, 
 and not of law. Its importance arises from the necessity that exists, 
 in an action like this, to prove the due care that he alleges. In an ac- 
 tion for a wilful assault and battery in the street, it would be immaterial. 
 But in an action for negligence, either the plaintiff, or some one on his 
 behalf, must use due care, so that his own negligence shall not have 
 contributed directly to the injury. On this point, the testimony of 
 the school-teacher, merely expressing her opinion of the capacity of 
 the child, was properly excluded. Yet, in connection with a description 
 of the child, an opinion of a person acquainted with him, and having 
 had opportunity to observe him, as to his quickness of observation and 
 comprehension, as compared with other persons, would be admissible. 
 The statement of such an opinion, as to whether he was physically large 
 or small, strong or weak, and quick or slow of movement, in com- 
 parison with others, would be according to every day's practice; and 
 when related to the exhibition of mental qualities, it would be of the 
 same species. There is a class of evidence of this character which 
 necessarily involves the statement of opinion. We have had occasion to 
 consider it recently in Commonwealth v. Dorsey, 103 Mass. 412. 
 
 Exception sustained on another ground.
 
 OPINION EVIDENCE 481 
 
 VANDIN.E v. BURPEE, & another. 
 54 Mass. 288. (1847) 
 
 This was action of trespass upon the case, brought against Amos Bin- 
 ney and Nathaniel Burpee, to recover damages for injury alleged to be 
 done the plaintiff's garden and nursery in Cambridge, by smoke, heat 
 and gas, proceeding from their brick kilns, made and burnt in a brick 
 yard near said garden. The defendants severally pleaded the general 
 issue. 
 
 DEWEY, J. The only objection, now urged to the ruling at the trial, 
 is the admission of the testimony of Willett and Walker, as to their 
 opinion of the amount of damages sustained by the plaintiff, by the 
 injuries which they had already specified in detail. 
 
 As a general rule, witnesses are to testify to facts, and the jury are 
 to draw the inferences and form the opinions which are to govern the 
 case. In the application of this principle, it has been sometimes sup- 
 posed that it should be carried so far as to exclude the opinion of 
 witnesses as to the value of property which is in controversy ; and de- 
 cisions to this effect are found in the New Hampshire Reports. 3 N. 
 Hamp. 349; 6 N. Hamp. 462; 10 N. Hamp. 130; n N. Hamp. 397. 
 The case cited from 8 Shepley, 23 Wend. 354, and 14 S. & R., sanction 
 the contrary doctrine. 
 
 It seems to us that it would be impractical to dispense with this species 
 of testimony, in many actions of trover for personal property, where no 
 details of facts could adequately inform the jury of the value of the 
 articles. The opinion of a witness, as to the value of a horse, is much 
 more satisfactory evidence than a detailed statement of his size, color, 
 age, etc., to give the jury the requisite information, to enable them to 
 assess damages for the conversion of such a horse. In the present case, 
 the evidence of opinion was offered under the most favorable circum- 
 stances for its admissions. The witnesses were men having practical 
 experience with the subject of cultivating fruit trees and shrubs ; they 
 had already stated, in detail, to the jury, the nature and extent of the 
 injury so far as description of that kind could add ; also their opinions 
 as to the amount of damage occasioned by the injury, of which they 
 had before testified. 
 
 The court are of the opinion that the testimony was competent. 
 
 Exceptions overruled.
 
 482 CASES ON EVIDENCE 
 
 C. & E. I. R. R. CO. v. WALLACE. 
 
 202 III 12$. (1903) 
 
 This is an action, brought by appellee against the appellant company 
 to recover damages for personal injury. 
 
 MR. CHIEF JUSTICE MAGRUDER delivered the opinion of the court. 
 
 Counsel for the appellant company urge only two points upon our 
 attentions as reasons for asking the reversal of the judgment of the 
 Appellate Court. These two points are, first, that the trial court erred 
 in refusing to sustain objections, made by appellant to certain hypo- 
 thetical questions asked of expert witnesses testifying in behalf of ap- 
 pellee upon the trial below ; and, second, that the court below erred in 
 sustaining the demurrer to the plea of the Statute of Limitations, which 
 was filed to the first additional count. 
 
 It seems to be generally settled by the great weight of authority, that 
 a hypothetical question, addressed to an expert witness, is not improper, 
 simply because it includes only a part of the facts in evidence, provided 
 the testimony tends to establish such facts as are embodied in the ques- 
 tion. (Rogers on Expert Testimony, 2d ed., sec. 27). This precise 
 point has been decided by this court in Howard v. People, 185 111. 552, 
 where we said (p. 560) : "There was evidence tending to prove each 
 of the facts stated in the hypothetical questions upon which the opinions 
 of witnesses were asked, and that was all that was necessary. (Thomp- 
 son on Trials, sec. 604, et seq.) Whether the facts, stated in a hypo- 
 thetical question, are sufficiently established by the proof is to be de- 
 cided by the jury. 'The fact, that a question is a hypothetical one, im- 
 plies that the truth of some statement of facts is assumed for a par- 
 ticular purpose, and, if such a question could be based upon undisputed 
 facts alone, it would never be asked in any case where an issue of fact 
 arose.' (Underbill on Evidence, p. 272.) To require the court to 
 determine in advance that questions so put embraced all the facts 
 would be to take from the jury the weight to be given to the evidence." 
 The ruling of the Howard case upon this subject was subsequently re- 
 ferred to and adopted in Chicago and Alton Railroad Co. v. Harington, 
 192 111. 9, where it was said : "A hypothetical question- may be put to 
 a witness, if there is evidence tending to prove the facts stated in the 
 question." 
 
 The rule, that a hypothetical question is not improper because it 
 includes only a part of the facts in evidence, is sustained by the de- 
 cisions in other States, as well as those in Illinois.
 
 OPINION EVIDENCE 483 
 
 In Cole v. Fall Brook Coal Co., 159 N. Y. 68, it was said: "In 
 framing a hypothetical question, counsel may base it upon the hy- 
 pothesis of the truth of all the evidence, or upon the hypothesis es- 
 pecially framed on certain facts assumed to be proved for the purpose 
 of the inquiry. The question is not improper simply because it includes 
 only a part of the facts in evidence. (Stearns v. Field, 90 N. Y. 640.) 
 If framed upon the assumption of certain facts, counsel may assume 
 the facts in accordance with his theory of them, it not being essential 
 that he should state the facts as they actually exist, provided there is 
 proof sustaining those, upon which the question is based. * * * He 
 may assume any state of facts which there is evidence to prove, and 
 have the opinion of the expert upon the facts assumed." 
 
 The question is ably discussed in the case of Goodwin v. State, 96 
 Ind. 574, where it is said: "If the court were required to determine 
 whether the hypothetical question correctly stated all the facts, it 
 would be compelled to usurp the functions of the jury. If the court 
 were required to determine whether all the facts were stated it would 
 be compelled to wrest from the jury the right to determine the cred- 
 ibility of witnesses. If the hypothetical question were required to em- 
 brace all the facts, then there would be an end to all certainty in trials, 
 for confusion and endless wrangling must inevitably flow from such 
 a rule." 
 
 The rule is thus stated in 8 Encyclopedia of Pleading and Practice, 
 PP- 755> 757) : "Hypothetical questions to an expert witness may be 
 framed either upon all the facts in the case, or upon any part of the 
 facts assumed to be true, which is sufficient in itself. * * * It must 
 be based upon facts in evidence, but may be addressed to any reasonable 
 theory which may be taken of them." (See also Filer v. New York 
 Central Railroad Co., 49 N. Y. 46.) It is said in some of the author- 
 ities that, where such a hypothetical question does not embrace all the 
 facts, the opposing counsel can on cross-examination ascertain from 
 the witness, whether such omitted facts would in anywise modify or 
 change the opinion of the witness, whether such omitted facts would 
 in anywise modify or change the opinion of the witness. Thus in 
 Stearns v. Field, 90 N. Y. 640, the court says : "It is now argued by 
 the appellant that the question is defective in that it did not state 
 enough. * * * If, in the opinion of the counsel, there was evidence 
 other than that supposed proper for the witness to consider, his atten- 
 tion should have been called to it upon cross-examination. Such a 
 question is not improper because it includes only a part of the facts in 
 evidence. (Stearns v. Field, 90 N. Y. 640.)
 
 484 CASKS ON EVIDENCE 
 
 So, in the case at bar, if the hypothetical questions, addressed by 
 counsel for the appellee to the expert witness, omitted facts claimed by 
 appellant to have been proven, and if the appellant believed that such 
 omitted fact, as for instance those relating to childbirth, miscarriage, 
 change of life or sedentary habits, might have had a bearing upon the 
 opinions of the witnesses, counsel for appellant should have called the 
 attention of the witnesses to such omitted matters- upon cross- 
 examination. 
 
 Judgment affirmed. 
 
 THE PEOPLE v. LEHR. 
 196 III. 361. (1902) 
 
 MR. CHIEF JUSTICE WILKIN delivered the opinion of the court. 
 
 This is a writ of error to the Appellate Court for the Second District, 
 to reverse a judgment of that court affirming a judgment of the Circuit 
 Court of Peoria county acquitting defendant in error of a violation of 
 the act entitled "An act to regulate the practice of medicine in the State 
 of Illinois," etc. (Hurd's Stat. 1899, p. 1143.) 
 
 The only criticism made upon the ruling of the Circuit Court in the 
 exclusion of testimony is, that it refused to allow a physician, Dr. Ed- 
 ward Hasson, to answer the question, "State whether or not, in your 
 opinion, a person prescribing a medical device, claiming that it will cure 
 rheumatism, etc., would be regarded as practicing medicine, as you 
 understand the term?" Manifestly, the question was improper. The 
 statute defines the practicing of medicine, and it was for the jury, and 
 not for a witness, even though he might be called an expert, to say 
 whether certain conduct amounted to the practice of medicine. In 
 other words, this question seeks to have the witness decide the very 
 ultimate question which the jury had sworn to try. The court properly 
 sustained the objection to it. 
 
 Judgment affirmed.
 
 OPINION EVIDENCE 485 
 
 SEXTON v. LAMB. 
 27 Kan. 426. (1882) 
 
 The opinion of the court was delivered by BREWER, J. 
 
 The court over the objection of defendant, admitted the testimony 
 of several witnesses that they had been in the ice business in the city 
 of Leavensworth for a series of years, and that with ice properly 
 handled and managed, only a certain per cent, was lost by melting, 
 etc. The question now presented is, was such testimony competent 
 for the purpose of determining what amount of ice was originally 
 in the ice-house? It is true that the most direct testimony would be 
 that of those who put ice up, or of parties who measured the ice 
 after it was already in the ice-house; and yet we think such testi- 
 mony was competent, and tended to show the amount of ice originally 
 there. Counsel call it expert testimony, and say that it is not legi- 
 timate expert testimony; and yet it is the testimony of those ex- 
 perienced in the business of handling ice as to waste in such handling, 
 and therefore we think competent testimony. It tends most clearly 
 to show either that the amount of ice claimed was not originally 
 there, or that the defendant, or manager, or some other party had 
 made improper disposition of such ice; for if ice properly handled 
 loses in ordinary sale by retail only from 30 to 50 per cent., and if 
 only 1 60 to 170 tons are reported as sold, then it follows that either 
 the ice was improperly handled and managed by the agent, or that 
 sales made were not reported, or that some parties had improperly 
 taken ice from the ice-house, or else that the amount of ice originally 
 reported was not there; and while this was not the most direct and 
 positive testimony, yet it certainly was testimony competent to be con- 
 sidered, and testimony, in the absence of more direct and positive testi- 
 mony, sufficient to sustain and uphold the conclusions of the trial 
 judge. It is certainly testimony which, presuming good faith on 
 the part of the agent, and good faith on the part of the defendant, 
 tends strongly to show that there was a great mistake as to the amount 
 of ice which in fact he had originally put up in the ice-house. 
 
 Affirmed. 
 
 All the Justices concurring.
 
 486 CASES ON EVIDENCE 
 
 LOWMAN v. THE STATE, 
 /op Ga. 501. (1899) 
 
 LUMPKIN, P. J. At the August term, 1899, of the Superior Court 
 of Dawson county, Morgan Lowman was convicted of the murder 
 of Benjamin Anderson, and sentenced to be executed. The accused 
 made a motion for a new trial, which was overruled, and the case is 
 here for review. 
 
 A witness for the accused, who was present at the homicide and 
 who had given his version of what had occurred, was asked if at a 
 certain juncture the time had not come for the accused "to either 
 run or fight." The answer would have been in the affirmative, bull 
 it was properly rejected. Allowing this testimony to go to the jury 
 would have been permitting the witness to express his mere opinion 
 as to a -matter which did not fall within the domain of "opinion 
 evidence." The nature of the emergency in which the accused was 
 placed by the conduct of the deceased, and the manner in which it 
 should have been met, were matters for determination by the jury 
 and not by the witness. 
 
 Judgment reversed on another ground. 
 
 All the Justices concurring. 
 
 JONES and FULLER, 
 /p S. C. 66. (1882) 
 
 MR. JUSTICE MclvER. This was an action to recover damages for 
 a breach of promise of marriage. The contract and the breach thereof 
 were fully established, not only by the admission in the pleadings, but 
 also by testimony adduced at the trial, and the only question for the 
 jury was as to the amount of the damages. 
 
 The plaintiff, after adducing testimony as to the contract and 
 its breach, offered evidence tending to show the damages which she 
 had sustained. Amongst other witnesses offered for this purpose, 
 Dr. E. G. Simpson was examined, who testified "that he had known 
 the plaintiff from her infancy, having been the family physician; 
 that the social standing of the family was as good as any in the coun- 
 try; that the plaintiff was particularly bright and attractive, and that
 
 OPINION EVIDENCE 487 
 
 she was well educated ; that her engagement to Fuller was well known 
 in the community, and also the treatment which she had received from 
 Fuller; that he thought she had been seriously damaged." 
 
 This witness was then asked the following question: "From what 
 you know of all the facts and circumstances, how much was the 
 plaintiff damaged?" To this question the defendant objected, and 
 his objection being overruled, the witness answered as follows : "That 
 he thought the plaintiff had been seriously somewhere from $5,000 
 to $10,000." The next witness offered was Col. John G. Williams, 
 who after testifying substantially as Dr. Simpson had done, was 
 asked the same question, as to what he thought was the amount of 
 damages sustained by plaintiff, to which, after objection, which was 
 overruled, he replied : "Her damages are incalculable in dollars and 
 cents certainly not less than $10,000." 
 
 No testimony was offered on the part of the defense, and the 
 circuit judge, after instructing the jury that the only question for 
 them to determine was the amount of damages, the contract and its 
 breach having been admitted by the pleadings, proceeded to charge 
 the jury. 
 
 The jury found a verdict in favor of the plaintiff for $9,000; and a 
 motion for a new trial, on the minutes, having been refused, the de- 
 fendant appealed from the judgment entered on the verdict on the 
 following ground : "Because his Honor erred in allowing the wit- 
 nesses, Dr. E. G. Simpson and Col. John G. Williams, to state to the 
 jury their opinions as to the damages inflicted upon the plaintiff by 
 breach of contract of marriage by the defendant." 
 
 While much has been written by elementary writers, and in the 
 opinions of the courts, as to the admissibility of the opinions of wit- 
 nesses as evidence, we are not aware of any case in which the precise 
 question raised by this appeal, has been determined. We must, there- 
 fore, resort to the general principles of evidence, and from them 
 deduce the rule applicable to this particular case. 
 
 There can be no doubt that, as a general rule, a witness is not at 
 liberty to express an opinion, but must confine himself to .the state- 
 ment of fact but there is little doubt that this rule is subject to many 
 exceptions. This will be seen by reference to the case of Common- 
 wealth v. Sturtivant, 117 Mass. 122, and the note to that case as 
 reported in 19 Am. Rep. 410, as well as to the case of State v. Pike, 
 40 N. H. 399, reported also in 6 Am. Rep. 533 ; especially the dis- 
 senting opinion of Doe, J., which afterwards received the sanction 
 of the same court in Hardy v. Merril, 50 N. H. 227, 22 Am. Rep. 41
 
 488 CASES ON EVIDENCE 
 
 where the case of the State v. Pike was overruled. In these cases 
 will be found elaborate discussion of the subject and very full col- 
 lections of the authorities. 
 
 In i Whart. Ev. 511, the writer, in discussing this subject, after 
 mentioning many instances in which exceptions to the general rule 
 have been allowed, lays down the following principle: "Whenever 
 a condition of things is such that it cannot be reproduced and made 
 palpable in the concrete to the jury, or when language is not ade- 
 quate to such realization, then a witness may describe it by its effect 
 on his mind, even though such effect be opinion." Again, in section 
 450, the same author, in showing that the exception to the general 
 rule is not confined to the case of the testimony of an expert, speaks 
 of the admissibility of opinions as to the amount of the damages 
 caused by another's act, in these words : "When the thing damaged 
 is one of every-day use, whose depreciation an ordinary observer can 
 estimate, then such an observer may be called to express his opinion 
 of the extent of the damage sustained. If the facts which form the 
 basis of such an opinion can be specified, then they must be stated; if 
 the conclusion is one which the jury can draw, then to the jury must 
 be left the drawing the conclusion. But when, as is often the case, 
 those facts can be best expressed by the damage they cause, then this 
 damage and its extent may be testified to by witnesses." 
 
 In Commonwealth v. Sturtivant, supra, it is said: "The exception 
 to the general rule, that witnesses cannot give opinions, is not con- 
 fined to the evidence of experts, testifying on subjects requiring spe- 
 cial knowledge, skill or learning, but includes the evidence of common 
 observers, testifying to the results of their observation made at the 
 time, in regard to common appearances or facts, and a condition of 
 things which cannot be reproduced and made palpable to a jury. Such 
 evidence has been said to be competent from necessity, on the ground 
 the testimony of experts, as the only method of proving certain 
 facts essential to the proper administration of justice." 
 
 In Hardy v. Merril, it is said : "Opinions of witnesses, derived 
 from observation, are admissible in evidence when, from the nature 
 of the subject under investigation, no better evidence can be obtained." 
 
 From these authorities we deduce the following conclusions : First. 
 That the exception to the general rule, that the opinions of witnesses 
 are not competent evidence, is not confined to the case of expert 
 testimony. Second. That while it is necessary that the witness 
 should first state the facts upon which he bases his opinion, where 
 the facts are such as are capable of being reproduced in language, it
 
 OPINION EVIDENCE 489 
 
 is not necessary to do so where the facts are not capable of reproduc- 
 tion in such a way as to bring before the minds of the jury the con- 
 dition of things upon which the witness bases his opinion. Third. 
 That such evidence is competent from the necessity of the case. 
 
 Now, to apply these principles to the case under consideration : 
 The only question for the jury was as to the amount of damages 
 sustained by the plaintiff, and this question was to be determined by 
 the evidence adduced. The witnesses whose testimony was objected 
 to, were not strangers who were called upon to express an abstract 
 opinion as to the amount of damages which a lady would sustain by 
 the breach of promise of marriage, biU they were intimate acquaintances, 
 who knew well the social position of the plaintiff, her temperament 
 and disposition, and all her surroundings, and from the knowledge 
 thus acquired they formed their estimate of the damages which she 
 had sustained. It is difficult to conceive how it would have been pos- 
 sible for these witnesses to state all the various facts, or reproduce in 
 language the condition of things, upon which they based, their esti- 
 mates, so as to make the same palpable to the minds of the jury. 
 How could they express in language the degree of sensibility of the 
 lady, or the numerous other impalpable things which went to make 
 up their estimate of the amount of damages which she had sustained. 
 We think it was just one of those cases where, the language of the 
 eminent author, Wharton, the "facts can be best expressed by the 
 damage they cause." 
 
 In our judgment, therefore, there was no error in admitting the 
 testimony of these witnesses. 
 
 The judgment of this court is that the judgment of the Circuit Court 
 be affirmed. 
 
 I. C. R. R. CO. v. THE PEOPLE. 
 143 III. 434. (1892) 
 
 This is a petition for a mandamus, filed on April 17, 1891, in the 
 Circuit Court of Alexander County in the name of the People 
 by the State's Attorney of that county, against the Illinois Central 
 Railroad Company to compel that company to cause all of its regular 
 passenger trains coming into the city of Cairo to be brought down to 
 the passenger station at the intersection of Second and Ohio Levee
 
 49/D CASES ON EVIDENCE 
 
 streets in that city, and there stopped a sufficient length of time to re- 
 ceive and let off passengers with safety. 
 
 MR. JUSTICE MAGRUDER delivered the opinion of the court: 
 One of the witnesses of the company, upon the trial below, who was 
 an assistant of appellant's second vice-president, was asked the ques- 
 tion whether the fast mail train was a regular passenger train, but, upon 
 objection made, was not allowed to answer. The refusal of the court 
 to permit him to answer is claimed by the appellant to have been erro- 
 neous, but we think the ruling of the trial judge was correct. The 
 witness was asked to decide the very question, which the court trying 
 the case without a jury was called upon to decide. A witness is not 
 permitted to give his opinion as an expert in reference to a matter, 
 which does not involve a question of science, skill or trade. To deter- 
 mine whether a train is a regular passenger train is not a subject, which 
 "so far partakes of the nature of a science as to require a course of 
 previous habit or study, in order to the attainment of a knowledge of 
 it." (Linn v. Sigbee, 67 111. 75 ; Wight Fire Proofing Co. v. Poczekai, 
 130 id. 139). The opinions of witnesses should not be asked in such a 
 way as to cover the very question to be found by the jury or court. 
 (C. & A. R. R. Co. v. S. & N. W. R. R. Co., 67 111. 142.) Where the 
 matter inquired about requires no special knowledge, and may be de- 
 termined by a jury upon a sufficient description of the facts in regard to 
 it, it is not proper to receive the testimony of experts. (Hopkins v. 
 Ind. & St. L. R. R. Co., 78 111. 32; City of Chicago v. McGiven, id. 
 347; Pennsylvania Co. v. Conlan, 101 id. 93.) 
 
 Judgment affirmed. 
 
 RES INTEE ALIOS.i 
 
 HODGES v. PERCIVAL. 
 132 III. 53. (1890) 
 
 MR. JUSTICE MAGRUDER delivered the opinion of the court: 
 This is an action of case begun by the appellee on February 12, 
 1887, m the Superior Court of Cook county, against the appellant to 
 recover damages for injuries suffered through the falling of an 
 
 i Hughes on Evidence, p. 35.
 
 RES INTER Auos 491 
 
 elevator in a building owned by the appellant. The jury returned 
 a verdict of $1500.00 for the plaintiff below, and judgment was 
 rendered on the verdict. This judgment has been affirmed by the 
 Appellate Court and from the latter court the case is brought before us 
 by appeal. 
 
 In the course of the trial. below, the plaintiff introduced a witness 
 by the name of Ellithorpe, who testified that he had been in the ele- 
 vator business about ten years, that what is known as the air-cushion 
 was in common use in December, 1886, that its object was to prevent 
 injury from the fall of an elevator by confining air at the bottom of 
 the hatchway so as to resist the falling body, that it had been 
 tested and found effective for the prevention of injuries, that such 
 an air-cushion was then (at the time when the witness was testifying) 
 used in the defendant's building, that it was put in in the fall or 
 winter of 1886 after the accident happened. Defendant objected to 
 the statement that an air-cushion had been put in after the accident; 
 the objection was overruled and exception taken. 
 
 The admission of the testimony, that an air-cushion was put in 
 the elevator shaft after the happening of the accident is the only 
 ground for reversal which is presented to our attention by appellant's 
 counsel. We think that the testimony was improper and should have 
 been excluded. 
 
 Evidence of precautions taken after an accident is apt to be in- 
 terpreted by a jury as an admission of negligence. The question of 
 negligence should be determined by what occurred before and at the 
 time of the accident, and not by what is done after it. New measures 
 or new devices adopted after an accident do not necessarily imply that 
 all previous devices or measures were insufficient. A person operat- 
 ing a passenger elevator is bound to avail himself of all new inven- 
 tions and improvements known to him, which will contribute materially 
 to the safety of his passengers whenever the utility of such improve- 
 ments has been thoroughly tested and demonstrated and their adop- 
 tion is within his power, so as to be reasonably practicable. For 
 this reason it was proper to show that a valuable device for securing 
 safety was known to the defendant, and its use neglected by him, be- 
 fore the accident; but it would seem unjust that he could not take 
 additional precautions after the accident without having his acts con- 
 strued into an admission of prior negligence. Persons, to whose neg- 
 ligence accidents may be attributed, will hesitate about adopting such 
 changes as will prevent the recurrence of similar accidents, if they 
 are thereby to be charged with an admission of their responsibility
 
 492 CASES ON EVIDENCE 
 
 for the past. The happening of an accident may inspire a party with 
 greater diligence to prevent a repetition of a similar occurrence, but 
 the exercise of such increased diligence ought not necessarily to be 
 regarded as tantamount to a confession of past neglect. 
 
 We are aware that there is a conflict of authority upon this sub- 
 ject. In Pennsylvania evidence of precautions taken after the ac- 
 cident has been held competent. (Penn. R. R. Co. v. Henderson, 51 
 Penn. 315; Westchester & P. R. R. Co. v. McElwee, 67 id. 311; 
 McKee v. Bidwell, 74 id. 218.) But it has been held, that such evi- 
 dence is not admissible, in New York, Connecticut, Iowa and Min- 
 nesota. (Dougan v. Champlaint Trans. Co., 56 N. Y. i ; Baird v. 
 Daly, 68 id. 547; Salters v. Del. & H. C. Co., 3 Hun, 338; Payne v. 
 Troy & Boston R. R. Co., 9 id. 526; Morrell v. Peck, 24 id. 37; 
 Cramer v. City of Burlington, 45 Iowa 627; Hudson v. C. & N. W. 
 R'y Co., 59 id. 581 ; Morse v. Minneapolis & St. Louis R'y Co., 30 
 Minn. 465; Nalley v. Hartford Carpet Co., 51 Conn. 524.) 
 
 In the last case the Supreme Court of Connecticut reviews the 
 cases in the other States, and, in deciding against the admissibitity 
 of such testimony, uses the following language: "If the subsequent 
 act is made to reflect back upon the prior one, although it is done 
 upon the theory that it is a mere admission, yet it virtually intro- 
 duces into the transaction a new element and test of negligence .which 
 has no business there, not being in existence at the time." Black, 
 in his work on Proof and Pleadings in Accident Cases (page 37, sec. 
 30), announces, as the result of his examination of the authorities, 
 that "precautions taken after an accident are not, in general admis- 
 sible for the purpose of showing prior negligence." 
 
 But it is not every error committed by a trial court which will 
 justify a reversal of the judgment. If it can be plainly seen from 
 the record, that the error complained of could not have possibly 
 worked any injury to the complaining party, and the verdict must 
 have been what it was in spite of such error, then the judgment ought 
 not to be reversed. In this particular case we do not think that the 
 admission of the testimony objected to could have worked any harm 
 to the defendant. 
 
 Judgment affirmed.
 
 RES INTER ALIOS 493 
 
 THE CITY OF DELPHI v. LOWERY, Admx. 
 74 Ind. 520. (1881) 
 
 ELLIOT, J. The questions, which the record of this case presents, 
 arise upon the ruling denying appellant's motion for a new trial. 
 
 William A. Lowery, the appellee's intestate, lost his life by drown- 
 ing in the Wabash and Erie canal, at a point within, or near, the 
 corporate limits of the city of Delphi. There was evidence tending 
 to prove that the intestate's death was attributable to the negligence 
 of the appellant in failing to place barricades about the dangerous 
 place, or to guard it by signals or warnings of danger. There was 
 also evidence tending to show that it was the duty of the city to 
 properly protect passengers from danger, inasmuch as one of the 
 public streets of the city either ran up to and across the dangerous 
 place or terminated in very close and direct proximity to that point. 
 
 Evidence was given by the appellee, that other persons had received 
 injuries at the place where the deceased was drowned, at times anterior 
 to his death. This the appellant contends with vigor and ability was 
 erroneous. There is some conflict in the authorities. In Collins v. 
 The Inhabitants of Dorchester, 6 Cush. 396, such evidence was 
 declared incompetent. It was said to be "Testimony concerning 
 collateral facts, which furnished no legal presumption as to the prin- 
 cipal facts in dispute, and which the defendants were not bound to 
 be prepared to meet." In support of the conclusion of the court, 
 the following authorities were cited t Standish v. Washburn, 21 Pick. 
 237 ; 2 Stark. Ev. 381 ; i Greenl. Ev. sees. 52, 448. The cases of 
 Aldrich v. Pelham, i Gray 510; Kidder v. Dunstable, u Gray, 342; 
 Blair v. Pelham, 118 Mass. 420, assert substantially the same doctrine 
 as Collins v. Dorchester, supra. 
 
 In Darling v. Westmoreland, 52 N. H. 401, the doctrine of Col- 
 lins v. Dorchester is vigorously assailed in an unusually able and 
 elaborate opinion, and the opposite doctrine declared to be correct, 
 both upon reason and authority. In the recent case of Moore v. The 
 City of Burlington, 49 Iowa 136, the court adopted in effect, although 
 not expressly, the rule declared in the New Hampshire case. The 
 Supreme Court of Illinois, declared, in the case of The City of Chi- 
 cago v. Powers, 42 111. 169, that such evidence was competent. It 
 was said in that case: "It is insisted that the court erred in admit- 
 ing evidence that another person had fallen through the same bridge. 
 If this evidence was admissible for any purpose then it was not
 
 494 CASES ON EVIDENCE 
 
 error. The action was based upon the negligence of the city in fail- 
 ing to keep the bridge properly lighted. If another person had met 
 with a similar fate, at the same place, and from a like cause, it would 
 tend to show a knowledge on the part of the city, that there was inat- 
 tention on the part of their agents having the charge of the bridge, 
 and that they failed to provide further means for the protection of 
 persons crossing on the bridge. As it tended to prove this fact, it 
 was admissible; and, if appellants had desired to guard against its 
 improper application by the jury, they should have asked an in^ 
 struction limiting it to its legitimate purpose." In Kent v. The Town 
 of Lincoln, 32 Vt. 591 it was held competent to prove that other 
 persons than the complainant had, at previous times, been injured by 
 the same defect in a highway. A similar ruling was made in the 
 case of Quinlan v. The City of Utica, n Hun 217. This case was 
 affirmed without comment by the Court of Appeals, 74 N. Y. 603. 
 In the City of Augusta v. Hafers, 61 Ga. 48, S. C. 34 Am. R. 95, the 
 doctrine maintained by the cases cited was declared and enforced. 
 The Supreme Court of the United States, in The Grand Trunk R. R. 
 Co. v. Richardson, 91 U. S. 454, held that it was competent for the 
 plaintiff, in an action for injury resulting from fire communicated by 
 the locomotives of a railway company, to prove that, during the summer 
 preceding the burning of the plaintiff's property, fire was often scat- 
 tered from the locomotives of the defendant when passing plaintiff's 
 property. In Hoyt v. Jeffers, 30 Mich. 181, it was held proper to 
 prove that sparks had, at other times than that on which the injury 
 sued for occurred been emitted from a chimney. The doctrine of 
 the cases cited is supported by many adjudicated cases, among them : 
 Aldridge v. The Great Western R. W. Co., 3 M. & G. 515; Huyet 
 v. Philadelphia, etc., R. R. Co., 23 Pa. St. 373 ; St. Joseph, etc., R. R. 
 Co. v. Chase, n Kan. 47; Longabatigh v. The Virginia City, etc., 
 R. R. Co., 9 Nev. 271 ; Penn. R. R. Co. v. Stranahan, 79 Pa. 405 ; 
 Annapolis, etc., R. R. Co. v. Gratt, 39 Md. 115; Dougan v. Champlain, 
 etc., Co., 56 N. Y. i; Field v. The New York, etc., R. R. Co., 32 
 N. Y. 339. 
 
 This court has adopted and enforced this doctrine. In the case 
 of The Pittsburgh, etc., R. W. Co. v. Ruby, 38 Ind. 294, this question 
 was exhaustively discussed, and the point expressly ruled. It was there 
 held that evidence of specific facts was competent for the purpose of' 
 charging the corporation with notice. We are unable to perceive any 
 difference in principle between the case in hand and the class of 
 cases of which those last cited are types. If specific acts are proper
 
 RES INTER Auos 495 
 
 for the purpose of showing notice to the owners of machinery or 
 the employers of servants, it must be competent for the purpose of 
 showing notice to a municipal corporation, that there is a dangerous 
 place within or very near the limits of the highway. The cases direct- 
 ly ruling the point here under immediate mention outweigh the cases 
 in Massachusetts, for the latter are built all upon a single and not 
 very well considered case. The doctrine of the cases in that court 
 cannot be reconciled with the doctrine of the class of cases represented 
 by The Pittsburg, etc., R. R. Co. This last doctrine has been recog- 
 nized as sound by the Supreme Court of Massachusetts, and that 
 court, able and distinguished as it confessedly is, has, it seems to us, 
 thus sanctioned a doctrine inconsistent with that of Collins v. Dor- 
 chester. Gahagan v. Boston, etc., R. R. Co., i Allen 187; Ross v. 
 Boston, etc., R. R. Co., 6 Allen 87. It also seems to us that the doc- 
 trine of Collins v. Dorchester can not be harmonized with Crosby 
 v. Boston, 118 Mass. 71, but we deem it unnecessary to prolong this 
 opinion by a discussion of the conflict between these two cases. 
 
 Reversed on another ground. 
 
 COPPERMAN v. PEOPLE. 
 56 N. Y. 591. (1874) 
 
 CHURCH, C. J. The plaintiff in error was convicted of receiving 
 property, knowing it to have been stolen. He was a pawnbroker, 
 and seems to have been a man of fair standing and reputation. We 
 are restricted to a consideration of the legal questions presented. 
 
 The alleged offense, for which the prisoner was indicted, was com- 
 mitted on the 3Oth of June, 1871, and consisted of receiving two par- 
 cels of sewing silk, of about one pound each, of one Robinson, who 
 had stolen the same from the store of Gardner & Co. Robinson was 
 the principal witness for the people. He was, and had been for a con- 
 siderable period, a clerk in the store of Gardner & Co., and testified 
 that he stole the silk in question from his employers' store and sold 
 it to the prisoner for six dollars, its real value being $17.50. He 
 also testified that he had, on ten or twelve previous occasions during 
 the preceding year, stolen similar goods from his employers, and on 
 the first two occasions pawned the goods, and afterwards sold the 
 pawn tickets to the prisoner, and on the other occasions sold the prop-
 
 496 CASES ON EVIDENCE 
 
 erty in the first instance to him, and in all cases at about the same 
 sum proportionate to the value of the property. The evidence as to 
 prior transactions was given and received upon the question of guilty 
 knowledge, and the exceptions relate to the ruling of the court, of 
 what was said and done upon these occasions. It is a general rule, 
 and one that should be strictly observed, that it is incompetent upon 
 the trial for one offense to prove that the accused has committed 
 another not connected with it. Nor can particular acts of crimi- 
 nality or immorality not connected with the facts constituting the crime 
 for which the accused is being tried be thrown into the scale against 
 him, to prejudice the jury or create a probability of guilt. An ap- 
 parent exception to this rule exists in cases where knowledge of sortie 
 particular fact is an ingredient of the crime, and must be affirma- 
 tively proved. It may be doubted whether such evidence should be 
 called an exception to the general rule. Although facts may be 
 proved not connected with the transaction constituting the crime, to 
 establish guilty knowledge, yet they may be regarded as competent 
 because they tend directly to prove an essential element- of the crime, 
 to-wit, knowledge of a given fact. A familiar instance is the case 
 of passing forged bills or notes. The passing a counterfeit bank bill 
 is not, per se, a crime, but it is essential that the person should know 
 that it is counterfeit, and hence it has been held competent to show 
 that he had passed on other occasions, or had in his possession, 
 similar bills, because such evidence bears directly upon his knowledge 
 of the character of the bill passed, for which he is indicted ; but the 
 strength of such evidence depends upon the number of other bills, 
 and all the circumstances connecting him with them. So it is not 
 per se criminal to receive stolen property, but it is a crime to receive 
 it knowing it to have been stolen. There may be circumstances at- 
 tending the receipt of the property from which alone an inference of 
 such knowledge might be properly made, and within certain restric- 
 tions it has been established, and, I think, properly, that the receiving- 
 of other similar property from the same person, with a guilty knowl- 
 edge, may be given in. evidence upon the question. I agree with the 
 learned counsel for the prisoner, that guilty knowledge is a delicate 
 question, and I concur fully with the position that courts should be 
 cautious in receiving evidence of outside facts upon that question, 
 and that all facts which do not directly bear upon the question should 
 be excluded. In the Coleman case, 55 N. Y. 81, recently decided by 
 this court, it was intended to lay down a strict rule upon this subject, 
 but the principle was recognized that such evidence may be admissible.
 
 RES INTER ALIOS 497 
 
 In the Oddy's Case (2 Dennison C. C. 272), cited by the counsel for 
 the accused, the offer was to prove that the prisoner had other stolen 
 property in his possession. This was clearly incompetent, for the 
 reason stated by Campbell, Ch. J., that "it would not be direct evi- 
 dence of the particular fact in issue, viz., that at the time of his re- 
 ceiving specific articles he knew them to be stolen." Nor would it 
 legitimately tend to prove that the accused knew that an article re- 
 ceived of one person today was stolen, by showing that on some other 
 occasion he received another article from another person, not con- 
 nected with the first, knowing it to have been stolen. Such evidence 
 only tends to create vague and uncertain probabilities. But if a 
 person has frequently received articles of property of a particular 
 kind from another, knowing that such other person stole them from 
 a particular person or place, and he is offered on a subsequent occa- 
 sion similar articles by the same person and under like circumstances, 
 it does directly tend to establish that the articles thus offered were 
 also known to be stolen. It is a natural and necessary inference, 
 and one which every reasonable man would draw. It is an inference 
 derived from the laws of human action. The rule adopted in Reg. 
 v. Dunn (i Moody C. C. 146) was approved in the Coleman case and 
 we see no reason to disturb it. 
 
 Judgment affirmed. 
 
 COMMONWEALTH v. MERRIAM. 
 31 Mass. 518. (1833) 
 
 Indictment for adultery committed by the defendant with Cynthia 
 Blood, in January, 1830. 
 
 At the trial in the Common Pleas, before Strong, J., the marriage 
 of the defendant with Betsy Merriam, who was living, was first 
 proved. Johnathan Snow, a witness on the part of the Common- 
 wealth, then testified that in February, 1830, between nine and ten 
 o'clock in the evening, he was passing the defendant's house, and 
 seeing a light, he stepped up to the window and looked in ; that he 
 saw the defendant in bed ; that Cynthia Blood came in, undressed her- 
 self and got into the same bed; and that soon after the defendant 
 blew out the light. 
 
 Snow and two other witnesses testified respectively to three in-
 
 498 CASES ON EVIDENCE 
 
 stances of improper familiarity between the defendant and Cynthia 
 Blood, one of which was about a fortnight and the others within a 
 year before the adultery proved as above mentioned. 
 
 Many witnesses were called to impeach Snow's general character 
 for veracity, and many to support it in that particular. 
 
 The evidence of improper familiarities was objected to, as not 
 tending to prove the act of adultery to have been committed on the 
 night when Snow testified he saw Cynthia Blood get into the bed 
 where the defendant lay. But the judge permitted the evidence to 
 go to the jury, upon the ground that instances of improper intimacy 
 or familiarity between Cynthia Blood and the defendant, happening 
 a short time previously to the time when the crime was charged to 
 have been committed, were competent evidence. To this opinion the 
 defendant filed exceptions. 
 
 PUTNAM, J. delivered the opinion of the court. Evidence should 
 be excluded which tends only to the proof of collateral facts. It 
 should be admitted if it has a natural tendency to establish the fact 
 in controversy. If the evidence is irrelevant, it should be rejected 
 for two reasons: I. It would have a tendency to mislead the jury 
 from the true subject of the inquiry; and 2. No man is to be expected 
 to go on trial prepared to prove things which are unconnected with 
 the issue. 
 
 The issue upon this indictment was, whether or not the defendant 
 had committed adultery with Cynthia Blood. The government offered 
 the testimony of Jonathan Snow, to prove that the offense was com- 
 mitted with her in February, 1830. The particular day set forth in 
 the indictment was immaterial; the offense might have been proved 
 on that, or any other day prior to the caption of the indictment. 
 
 The evidence, from the nature of the offense, must generally be 
 circumstantial. If the facts stated by Snow, are true, there could be 
 no reasonable doubt of the guilt of the defendant. 
 
 But Snow's general character for truth was impeached by the de- 
 fendant and it was supported by the government. And the court ad- 
 mitted evidence of other instances of improper intimacy between 
 Cynthia Blood and the defendant, happening a short time before Feb- 
 ruary, 1830, as having a tendency to corroborate the testimony of 
 Snow, in regard to the intercourse which he testified had taken place 
 between those persons. To the admission of such evidence the de- 
 fendant objected, and the question is whether it was competent. 
 
 It was argued that the defendant was not to be put upon his trial 
 for every act of his life, but for a particular offense. Be it so; if
 
 RES INTER Auos 499 
 
 the evidence which was received, has a natural tendency to corrob- 
 orate other direct evidence in the case, it would seem to be clearly 
 admissible. 
 
 In 9 PetersdorfF, 149, note, there are some cases which illustrate 
 this subject. Thus, in prosecutions for uttering counterfeit money, 
 evidence that the defendant had previously uttered other counter- 
 feits, or that he had others in his possession, is admissible. Evidence 
 of this kind has uniformly been received as tending to show the 
 scienter. So where several were indicted for a conspiracy to carry 
 on the business of common cheats, it may be proved that similar false 
 representations had been made by the prisoner to others who were 
 in business but who were not named in the record. 
 
 So upon an issue out of chancery to try a question of illegitimacy, 
 after probable evidence of non-access, evidence may be given that 
 the mother was of bad character. The husband and wife had lived 
 apart, she in London, he in Staffordshire, and the plaintiff was born 
 three years after the separation. Chief Justice Raymond allowed 
 evidence that the mother was of bad fame to rebut the presumption 
 of legitimacy, and the jury found the plaintiff to be illegitimate. 
 Pendrell v. Pendrell, 2 Str. 925. 
 
 In the case at bar, after hearing all the evidence concerning the 
 general character of the witness Snow, we think the government might 
 properly introduce the evidence which was objected to. The circum- 
 stances thus proved were such as naturally excite in the mind a belief 
 that a woman who would so conduct herself, would be more likely 
 to commit the fact alleged against her, than if her deportment had 
 been modest and discreet. 
 
 We all think that the objections made by the counsel for the de- 
 fendant cannot prevail, and that the defendant must receive sentence 
 in pursuance of the verdict. 
 
 COMMONWEALTH v. BRADFORD. 
 126 Mass. 42. (1878) 
 
 Coi/r, J. The defendant was indicted for wilfully and maliciously 
 burning a building belonging to his two sons. The second count in 
 the indictment charges an intent thereby to defraud the insurer. At 
 the trial evidence was admitted to support the indictment, against the
 
 500 CASES ON EVIDENCE 
 
 defendant's objection, tending to prove that the defendant set fire 
 to the same mill a few nights before, -and that the fire was then dis- 
 covered and extinguished by a neighbor. 
 
 The evidence was competent on the question of the intent with 
 which the defendant subsequently burned the building, and committed 
 the offense for which he was then tried. It was carefully limited 
 to the single purpose for which it was competent. The unsuccessful 
 attempt to do the same thing, a few days before, was evidence that 
 the burning was wilful and intentional, and not the result of accident 
 or negligence on the part of the defendant. It was sufficiently near 
 to the time of the commission of the offense charged, to justify the 
 inference that the defendant then had a settled purpose in regard to 
 it. It is a rule of criminal law, that evidence tending to prove a 
 similar but distinct offense, for the purpose of raising an inference 
 or presumption that the accused committed the particular act with 
 which he is charged, is not admissible. But there was no invasion of 
 this rule in the admission of this evidence. The intent and disposi- 
 tion with which one does a particular act must be ascertained from 
 his acts and declarations before and at the time ; and when a previous 
 act indicates an existing purpose, which from known rules of human 
 conduct may fairly be presumed to continue and control the defendant 
 in the doing of the act in question, it is admissible in evidence. In 
 many cases it is the only way in which criminal intent can be proved ; 
 and the evidence is not to be rejected because it might also prove 
 another crime against the defendant. The practical limit to its ad- 
 mission is, that it must be sufficiently significant in character, and 
 sufficiently near in point of time, to afford a presumption that the 
 element sought to be established existed at the time of the commission 
 of the offense charged. The limit is largely in the discretion of the 
 judge, and no error in law is here apparent. 
 
 Exceptions overruled. 
 
 TOLL v. STATE. 
 40 Fla. 169. (1898) 
 
 CARTER, J. Plaintiff in error- was convicted in the Criminal Court 
 of Record of Duval county upon an information charging "that one 
 Albert C. Toll, of the county of Duval and State of Florida, on the
 
 RES INTER Auos 501 
 
 ist day of June, in the year of our Lord one thousand eight hundred 
 and ninety-seven, and on divers days and dates between said date 
 and the 9th day of August, A. D. 1897, in the county and state afore- 
 said, did then and there unlawfully and feloniously have, keep, exer- 
 cise and maintain a gaming room and gaming house in the city of 
 Jacksonville for the purpose of gaming and gambling, contrary," etc. 
 The information was filed August 24, 1897, and the trial was begun 
 September 2, 1897. 
 
 The court refused to strike out certain evidence tending to show 
 that defendant kept a gaming room prior and subsequent to the time 
 laid in the information. It is insisted that the offense of having, keep- 
 ing and maintaining a gaming room, is a continuing one; that it was 
 so charged in the information, and that evidence of acts tending to 
 prove it occurred prior and subsequent to the time laid in the infor- 
 mation was inadmissible. Assuming, but not deciding, that the offense 
 charged is a continuing one, we think the motion to strike was prop- 
 erly refused. There was evidence that defendant kept a gaming 
 room, or a room for that purpose, within the time laid in the indict- 
 ment. In Brevaldo v. State, 21 Fla. 789, we held that upon an indict- 
 ment for living in an open state of adultery on a certain day, and 
 on divers other days and times since said date to the date of the find- 
 ing of the indictment, evidence of acts anterior to such time are (is) 
 admissible in evidence as tending to illustrate or explain similar acts 
 within the period laid in the indictment, or to corroborate testimony of 
 such latter actp, but not to convict of a substantive offense committed 
 anterior to such period. We think the rule stated v in the Brevaldo case 
 is applicable to all continuing offenses, and where there is evidence of 
 acts constituting the offense committed within the period laid in the in- 
 dictment, evidence of acts committed prior or subsequent thereto be- 
 fore the finding of the indictment are admissible when they illustrate, 
 explain or corroborate evidence of acts shown by the evidence to 
 have been committed within the period named. 
 
 The judgment of the court below is affirmed.,
 
 502 CASES ON EVIDENCE 
 
 PROVISION CO. v. CITY OF CHICAGO. 
 in III. 651. (1884) 
 
 MR. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the court : 
 This was an action on the case by appellant, against appellees, 
 for damages sustained to property in consequence of the construc- 
 tion of a viaduct, in Eighteenth street, over the tracks of the Pitts- 
 burgh, Fort Wayne and Chicago Railway Company. Judgment was 
 rendered in the trial court, in favor of appellant, against the city of 
 Chicago .alone, for $5,000, and that judgment, having been affirmed 
 on appeal to the Appellate Court for the First District, is brought 
 before us, by the present appeal for review. 
 
 It is contended the Superior Court erroneously allowed the witness 
 Pierce to testify as to the price for which a certain lot or piece of 
 property was sold, without testifying as to the value of that lot or 
 of that here affected; and the witness Crawford to testify as to 
 amounts paid by the Western Indiana Railroad Company for lots 
 lying east of the Chicago river. It does not appear that this prop- 
 erty had a regular market value, like a commercial article, and mere 
 opinions of its value are shown, by the evidence preserved, to be as 
 variant as the different tastes and fancies of the witnesses. From the 
 very necessities of the case, actual sales of property in the vicinity, 
 and near the time, are competent evidence, as far as they go. On 
 cross-examination, all circumstances can be drawn out, showing that 
 the given sale fails, and how much of being a fair criterion of value. 
 We think there was no error in the admission of this evidence. (St. 
 Louis, Vandalia and Terre Haute Railroad Co. v. Haller, 82 111. 208; 
 White v. Hermann, 51 id. 243; Chicago and Western Indiana Rail- 
 road Co. v. Maroney, 95 id. 179.) It is much less likely that such 
 evidence can have produced harm in cases like the present, where, as 
 was here done, the jurors themselves visit the property and form their 
 opinions. 
 
 Judgment affirmed.
 
 TELEGRAMS AND CONVERSATIONS BY TELEPHONE 503 
 
 TELEGRAMS AND CONVERSATIONS BY TELEPHONE.! 
 
 OSKAMP v. GADSDEN. 
 35 Neb. 7. (1892) 
 
 NORVAL, J. Plaintiffs in error brought suit in the court below to 
 recover damages for the alleged breach of contract by the defendant 
 in his refusing to deliver a quantity of hay claimed to have been 
 purchased by them from him. The jury returned a verdict for de- 
 fendant, upon which judgment was entered. 
 
 Error is assigned because the court admitted the testimony of the 
 defendant as to the conversation over the telephone between the 
 witness and Mr. Haines, one of the plaintiffs, as repeated over the 
 wire by Mrs. Cummings, the telephone operator at Fremont. .It is 
 contended that the testimony of the witness, of what the operator 
 repeated to him as the conversation progressed as being said by Mr. 
 Haines, is irrelevant and hearsay. The question thus presented is 
 a new one to this court and there are but few decided cases which 
 aid us in our investigation. Upon principle, it seems to us that the 
 testimony is competent and its admission violated no rule of evidence. 
 
 It was admissible on the grounds of agency. The operator at 
 Fremont was the agent of defendant in communicating defendant's 
 message to Haines, and she was the latter's agent in transmitting or 
 reporting his answer thereto to defendant. The books on evidence, 
 as well as the adjudicated cases, lay down the rule that the state- 
 ments of an agent within the line of his authority are admissible in 
 evidence against his principal. Likewise it has been 'held that when 
 a conversation is carried on between persons of different nation- 
 alities through an interpreter, the statement made by the latter at 
 the time the conversation occurred as to what was then said by the 
 parties is competent evidence and may be proven by calling persons 
 who were present and heard it. This is too well settled to require 
 the citation of authorities. There are certainly stronger reasons for 
 holding the statement made by the operator and testified to by de- 
 fendant is admissible than in the case of an interpreter. Both Haines 
 and defendant heard and understood the operator at Fremont and 
 knew what she was saying, or at least could have done so. Each 
 knew whether his message was being correctly repeated to the other 
 by the operator. Not so where persons converse through an inter- 
 preter. 
 
 Hughes' Pocket Digest of Evidence, pp. 424, 428.
 
 5U4 CASES ON EVIDENCE 
 
 If the testimony objected to was incompetent and hearsay, then 
 the testimony of Haines. relating to the same conversation should, 
 for the same reason, have been excluded. He did not hear what de- 
 fendant said, but testified to what the operator reported as having 
 been said. The operator at Fremont was nqt the agent of the defend- 
 ant alone, but she was plaintiff's agent in repeating their answer to 
 defendant's message. 
 
 That conversations held through the medium of the telephone are 
 admissible as evidence in proper cases, cannot be doubted. Such 
 have been the holdings of the courts in cases where the question 
 has been before them. In a criminal case, People v. Ward, 3 N. Y. 
 Crim. Rep. 483, it was held that where a witness testifies that he 
 conversed with a particular person over the telephone and recognized 
 his voice, it was competent for him to state the communication which 
 he made. 
 
 In Wolfe v. M. P. R. Co., 97 Mo. 473, it was ruled that if the 
 voice was not identified or recognized, but the conversation is held 
 through a telephone kept in a business house or office, it is admissible 
 the effect or weight of such evidence, when admitted, to be deter- 
 mined by the jury. (See Globe Printing Co. v. Stahl, 23 Mo. App. 
 
 45I-) 
 
 Our conclusion is that the court did not err in admitting the tes- 
 timony of the defendant. 
 
 Affirmed. 
 
 NICKERSON v. SPINDEIX. 
 
 164 Mass. 25. 
 
 KNOWLTON, J. There was evidence to show that the plaintiff per- 
 formed the services and incurred the expenses set out in his declara- 
 tion, in superintending the building of a steamer for the defendants 
 and others who were the owners of her, and that he did this at the 
 request of the defendant Spindell, who was the managing agent of 
 the owners. 
 
 When the sender of a telegraphic message takes the initiative, the 
 message as delivered may, as between him and the person to whom 
 it is sent, be treated as the original, in the absence of evidence to
 
 TELEGRAMS AND CONVERSATIONS BY TELEPHONE 505 
 
 show mistake in the transmission of it. Whether we should go further 
 and hold that the telegraph company is so far the agent of the sender 
 as to bind him by their errors in sending it, it is unnecessary in this 
 case to decide. There is much authority in support of this last propo- 
 sition, although the contrary has been held in England. There was 
 no error in the admission of the testimony. See Durkee v. Ver- 
 mont Central Railroad, 29 Vt. 127; Saveland v. Green, 40 Wis. 431; 
 New York & Washington Printing Telegraph Co. v. Dryburg, 35 
 Penn. St. 298; Wilson v. Minneapolis & Northwestern Railroad, 31 
 Minn. 481 ; Anheuser-Busch Brewing Association v. Hutmacher, 127 
 111. 652, 658; Western Union Telegraph Co. v. Shorter, 71 Ga. 760; 
 Howley v. Whipple, 48 N. H. 487; State v. Hopkins, 50 Vt. 316; 
 Smith v. Easton, 54 Md. 138; Henkel v. Pape, L. R. 6 Ex. 7. 
 
 Exceptions overruled. 
 
 WILSON v. COLEMAN & RAY. 
 81 Ga. 297. 
 
 BLANDFORD, Justice. Coleman & Ray sued Wilson for failing to 
 deliver to them three car-loads of Texas rust-proof oats, which, they 
 alleged, they had purchased from Wilson, and which he had agreed 
 to deliver to them at a specified time. A recovery was had by the 
 plaintiffs, and the defendant moved for a new trial, which was refused, 
 and he excepted. 
 
 Another ground of exception is, that the court allowed Coleman 
 to testify as to the demand made by his clerk, through the telephone, 
 on Wilson for the oats, and Wilson's reply as repeated to him by 
 the clerk. This evidence was merely hearsay, and the court erred in 
 admitting it ; but there is plenty of evidence in the record to sustain 
 the verdict, and we will not send the case back for an error of this 
 kind, it being immaterial in the view we take of the case. We think 
 the court was right in refusing a new trial; and the judgment is 
 
 Affirmed.
 
 506 CASES ON EVIDENCE 
 
 SMITH AND WHITING v. EASTON. 
 54 Md. 138. (1880) 
 
 BRENT, J., delivered the opinion of the court. 
 
 The question raised is the admissibility in evidence of the dispatch 
 purporting to come from New York, and offered for the purpose of 
 binding the appellee as promisor to endorsee. 
 
 The appellants proved under a commission to New York City, on 
 April 5th, 1878, that all the messages sent from, and receipts for mes- 
 sages delivered from the office in that city, on February i6th, 1875, 
 had been destroyed. 
 
 The message, if any, sent by James T. Easton, to that office, to be 
 transmitted to Chesapeake City, was the original (Scott & Jarnagin, 
 Law of Tel., sec. 357, and authorities there cited,) and not the mes- 
 sage which was received over the wires at Chesapeake City. The 
 latter must be considered as a copy (Ibid. sec. 361,) and carries with 
 it none of the qualities of primary evidence. Ordinarily the usual 
 course is to show the delivery of the original message of the party, 
 sought to be charged, at the office from which it is to be telegraphed, 
 and then show that it was transmitted and delivered at the place of 
 its destination. But even where the original is produced its authen- 
 ticity must be established. And this either by proof of the hand-writ- 
 ing, or by other proof establishing its genuineness. The destruction of 
 all the messages sent from the office, on the day named, is sufficient 
 foundation for the admissibility of secondary evidence. But this sec- 
 ondary evidence can only be admitted upon proof that the copy offered 
 is a correct transcript of a message actually authorized by the party 
 sought to be affected by its contents. 
 
 In Howley v. Whipple, and others, 48 N. H. 487, a message was 
 sent by telegraph to Montreal, and an answer was very soon received, 
 purporting to come from the party to whom the message was ad- 
 dressed, and to be sent from Montreal. The court refused to admit 
 it, without proof that it was in fact sent by the proper party. It was 
 contended in this case, that the rule, which permits a letter to be 
 admitted, as evidence against a party, when there is no proof of the 
 hand-writing, except the fact that, in due course, it had been received 
 in reply to a letter which had been addressed to the same party, should 
 be applied to telegraphic dispatches. While it was thought it might 
 apply to a dispatch in answer to a communication by letter, it was 
 held to be inapplicable to a dispatch received in reply to a communica-
 
 TELEGRAMS AND CONVERSATIONS BY TELEPHONE 507 
 
 tion sent by telegraph. And this seems to be now the recognized law 
 where both the message sent and the answer are by telegraph. 
 
 In the case of The United States v. Babcock, 3 Dillon, 576, the 
 court refused to allow a telegraphic dispatch to be offered in evidence 
 without proof of the hand-writing of the defendant, or that it was 
 authorized, or sent by him or by his direction. And this we take to be 
 the unquestionable rule. 
 
 Judgment affirmed. 
 
 SHAWYER v. CHAMBERLAIN. 
 113 Iowa 742. (1900) 
 
 The defendant, by written contract, purchased a stock of drugs and 
 certain fixtures of plaintiff December 30, 1898, and refused to carry 
 out its terms, and this is an action for the resulting damages. Verdict 
 and judgment for the plaintiff, and the defendant appeals. Affirmed. 
 
 LADD, J. The defendant insists that the testimony of plaintiff to 
 a conversation with him through the telephone ought to have been 
 excluded, for that it is of too uncertain and easily manufactured a 
 character to be competent. These defects, if they exist, would not 
 justify rejecting such evidence, but merely affect the weight it should 
 receive. This method of communication, of recent origin, is one of 
 the incidents of contemporary history, of which the courts take judi- 
 cial notice. It greatly facilitates business transactions, and there is 
 no better reason for rejecting proof of a conversation over a tele- 
 phone line than of one had without its use. Identity may be estab- 
 lished by means of the hearing or other circumstances quite as readily, 
 though possibly not as certainly, as by sight. Wolfe v. Railway Co., 
 97 Mo. 473 (n S. W. Rep. 49, 10 Am. St. Rep. 331) ; Oskamp v. 
 Gadsen, 35 Neb. 7 (52 N. W. Rep. 718, 17 L. R. A. 440) ; Sullivan 
 v. Kuydendall, 82 Ky. 483. See German Sav. Bank of Davenport v. 
 Citizens' Nat. Bank, 101 Iowa, 530; Davis v. Walter, 70 Iowa 465.
 
 508 CASES ON EVIDENCE 
 
 BANNING v. BANNING. 
 80 Calf. 271. (1889) 
 
 CANCLIFF, C. Action for partition of land. The complaint is in 
 the most general form, alleging that the parties own the land as ten- 
 ants in common, and specifying the undivided portion to which each 
 party is entitled. The answer denies that either of the plaintiffs has 
 an estate in the land, and alleges that the defendant is the sole and 
 exclusive owner, and in the exclusive possession thereof. 
 
 The appeal rests upon judgment roll alone, including the additional 
 findings, and appellant's counsel contend that the findings do not 
 support the judgment, for the reason that they do not show that 
 defendant executed the deeds to the plaintiffs by which plaintiffs 
 claim title. The special and only ground of objection to the sufficiency 
 of the execution of those deeds is, that at the time the deeds were 
 acknowledged the defendant was a married woman, and was not 
 visibly, and therefore not personally, present before the notary at the 
 time he took her acknowledgment through a telephone, she then being 
 three miles distant from him, as appears by the additional findings. 
 
 The answer to this objection is, that in the absence of fraud, duress, 
 accident, and mistake, the certificate of the notary in due form of 
 law is conclusive of the material facts therein stated. The facts 
 stated in the additional findings were not admissible as evidence to 
 dispute the official certificate of the notary; and if admitted should 
 have been disregarded, as they evidently were, by the trial court. 
 
 It is admitted that the certificate of the notary is in due form ; 
 and it is not alleged or pretended by the defendant that she did not 
 volunarily sign and deliver the deeds ; nor that she did not voluntarily, 
 and without the hearing of her husband, acknowledge the execution 
 of them through the telephone, after being informed by the notary 
 of their contents; nor that any deception or fraud was practiced 
 to induce her to execute the deeds; nor even, that the plaintiffs had 
 notice of the manner in which it is alleged that she acknowledged the 
 execution through the telephone. 
 
 These particulars are not stated for the purpose of maintaining 
 that, under any circumstances, an acknowledgment of a deed may be 
 taken through a telephone, but for the sole purpose of showing that 
 there is no pretense of fraud, duress or mistake. 
 
 BELCHER, C. C., and HAYNE, C., concurred.
 
 TELEGRAMS AND CONVERSATIONS BY TELEPHONE 509 
 
 LORD ELECTRIC CO. v. MORRILL. 
 178 Mass. 304. (1901) 
 
 Contract on an account annexed against the lessee for twenty-five 
 years of the Jewelers Building, so called, on the corner of Washington 
 and Bromfield Streets in Boston, to recover for putting in additional 
 electric lights and wires not included in a written contract between 
 the plaintiff and the trustees of that building. Writ dated July 19, 
 1899. 
 
 ' At the trial in the Superior Court, before Sheldon, J., one Driscoll, 
 a witness for the plaintiff, testified that he was the plaintiff's book- 
 keeper, and that he remembered having a conversation over the tele- 
 phone with the defendant. He was then asked by the plaintiff, what 
 the conversation was. The defendant objected to the evidence, where- 
 upon the judge asked the witness "Do you know it was Mr. Morrill?" 
 and the witness answered "Well, I was quite familiar with his voice 
 and I recognized it as such." The judge then admitted the conver- 
 sation and the defendant excepted. 
 
 MORTON, J. This is an action to recover of the defendant his 
 share of the expense of certain electrical work done by the plaintiff 
 in a building called the Jewelers Building on the corner of Washing- 
 ton and Bromfield Streets in Boston. There was a verdict for the 
 plaintiff, and the case is here on the defendant's exceptions to the 
 refusal of the court to rule that on the pleadings and evidence the 
 plaintiff was not entitled to recover, to the admission of a conversation 
 over the telephone with the defendant, and to the judge's charge. 
 
 As to the conversation over the telephone, the witness testified that 
 he recognized the defendant's voice. This was sufficient evidence of 
 identity to justify the court in admitting the evidence. The con- 
 versation does not seem to have been material, but we see no way in 
 which the defendant could have been harmed by it. 
 
 SAVELAND v. GREEN. 
 40 Wis. 431. (1876) 
 
 LYON, J. The telegram received by the plaintiff at Milwaukee 
 from Bohne was read in evidence, against the objection of the de-
 
 5io CASES ON EVIDENCE 
 
 fendant; and the message delivered in the office at Buffalo was not 
 produced, or its absence accounted for. 
 
 The learned counsel for the defendant insist that the latter is the 
 original, and should have been produced; and that the message re- 
 ceived by the plaintiff was but secondary evidence, at most, and could 
 not properly be received until the loss of the original had been proved. 
 
 In a late treatise on the subject (Scott & Jarnagin on the Law of 
 Telegraphs), it is said that "telegraph messages are instruments of 
 evidence for various purposes, and are governed by the same general 
 rules which are applied to other writings." (Sec. 340.) Also, that 
 "the original message, whatever it may be, must be produced, it being 
 the best evidence; and in cases of its loss, or inability to produce it 
 from other cause, the next best evidence the nature of the case will 
 admit of, must be furnished. If there is a copy of the message exist- 
 ing, it should be produced ; if not, the contents of the message should 
 be shown by parol testimony." (Sec. 341.) We believe the above 
 extracts contain a correct statement of the law, and so hold. 
 
 It only remains to determine which was the original message, that 
 delivered to the telegraph company by Bohne at Buffalo, or that 
 received by the plaintiff from the telegraph office in Milwaukee. 
 
 Discussing a similar question in Durkee v. Vt. C. R. R. Co., 29 Vt. 
 127, Redfield, Ch. J., stated the law as follows: "In regard to the 
 particular end of the line where inquiry is first to be made lor the 
 original, it depends upon which party is responsible for its trans- 
 mission across the line, or, in other words, whose agent the telegraph 
 is. The first communication in a transaction, if it is all negotiated 
 across the wires, will only be effective in the form in which it reaches 
 its destination. In such case, inquiry should first be made for the 
 very dispatch delivered. In default of that, its contents may be shown 
 by the next best proof." (p. 140.) To the same effect are Trevor 
 v. Wood, 36 N. Y. 307, and Dunning v. Roberts, 35 Barb. 463. In 
 Howley v. Whipple, 48 N. H. 487, it was sought to prove that a 
 person was in Montreal on a given day, by showing that a telegram, 
 purporting to have been sent by him from that place on that day, was 
 received at a town in New Hampshire. It was held that the message 
 received did not prove the fact that the supposed sender thereof was 
 then in Montreal. The decision was doubtless correct. But the court 
 in that case recognized the correctness of the rule laid down in the 
 cases above cited. 
 
 After a careful consideration of the question, and after full exam- 
 ination of all the adjudications we can find bearing upon it, we have
 
 TELEGRAMS AND CONVERSATIONS BY TELEPHONE 511 
 
 reached the conclusion that the law applicable to this case is correctly 
 stated by Judge Redfield in Durke v. Vt. C. R. R. Co., supra. 
 
 The same principle is also laid down in Scott & Jarnagin on Tele- 
 graphs, as follows: "Sec. 345. In all cases where the company can 
 be considered as the agent of the sender of the message, in contro- 
 versies arising out of the communication by telegraph between the 
 sender and the person to whom the message is addressed, the message 
 received by such person must be regarded as the original. If it 
 differs from the message delivered for transmission, by which the 
 sender has suffered damage, he must look to his agent, the telegraph 
 company, for indemnity. In such controversies between the sender 
 and receiver, the message received is the best evidence." 
 
 By the Court. 
 
 Judgment affirmed. 
 
 MILES v. ANDREWS. 
 153 III. 262. (1894) 
 
 MR. JUSTICE BAKER delivered the opinion of the court: 
 This was an action of assumpsit, by appellants, against appellees, 
 upon three promissory notes. The declaration contained three special 
 counts, each describing one of the notes in suit, and also the common 
 counts. The defendants filed two special pleas: First, that the notes 
 were given without any good or valuable consideration; and second, 
 that the sole and only consideration upon which they were executed 
 was for money won by plaintiffs from defendant Robert B. Andrews 
 in a certain speculation on the market price of grain, and defendant 
 Wells Andrews signed the notes as surety. On the trial the jury found 
 for the defendants, and judgment was rendered on the verdict. Ap- 
 pellants appealed to the Appellate Court, where that judgment was 
 affirmed. A reversal is urged here upon the ground that the trial 
 court admitted improper evidence, and gave improper instructions to 
 the jury on behalf of the defendants. 
 
 Wells Andrews also testified : "Prior to signing these notes my son 
 had asked me to sign them. My son and I the.n went to the telephone 
 office together, and then Robert went to the telephone and called for 
 P. B. and C. C. Miles, arid they rang, and he says, 'Philo, is that you?' 
 Did not hear the answer. Then Robert said, 'I have been down to
 
 512 CASKS ON EVIDKXCK 
 
 see uncle Johnny to go on the notes, and he said he had got sick and 
 tired of gambling in these options, and would not go on the note, but 
 father would,' and then turned around and said, 'Philo says it is all 
 right.' " The witness did not hear the answers, and did not of his 
 own knowledge know that Robert was at the time talking to Philo, 
 if to any one. Counsel for appellants insist that this testimony was 
 incompetent. Robert Andrews testified that he talked to Philo B. 
 Miles at the time spoken of by his father. The conversation being 
 thus shown to have been between two of the parties to the suit, and 
 upon the subject-matter of the litigation, was, we think, competent, 
 though perhaps entitled to little weight. 
 
 Judgment affirmed. 
 
 SULLIVAN, &c., v. KUYKENDALL. 
 82 Ky. 483. (1885) 
 
 JUDGE HOLT delivered the opinion of the court. 
 
 By the terms of a verbal contract for the sale of personal property, 
 the appellants, Sullivan & Co., were to estimate and receive it within 
 ten days after notice from the appellee, Kuykendall, that it was ready. 
 
 In view of another trial of the case it is proper that we should 
 pass upon what seems to us to be a new question as to the competency 
 of certain testimony; at least we have been unable to find any direct 
 authority upon it. 
 
 The appellee, upon going to the place, on February 9, 1880, where 
 the property was to be received, did not find the appellants, or any one 
 representing them. 
 
 He thereupon went to a telephone office at Morgantown, Kentucky, 
 for the purpose of communicating with the appellants at Bowling 
 Green, Kentucky; and not being accustomed to the use of the instru- 
 ment he got the operator to talk for him. 
 
 He first directed him to call for the appellant, Sullivan, and he 
 did so, the Bowling Green operator reporting back that he would 
 send for him to come to the office. Presently the Morgantown oper- 
 ator told the appellee that Sullivan was at Bowling Green office and 
 desired to know what was wanted, and thereupon a conversation took 
 place, Sullivan using the instrument himself while the Morgantown
 
 TELEGRAMS AND CONVERSATIONS BY TELEPHONE 513 
 
 operator talked for the appellee, and told him what Sullivan said as 
 it came over the wire. 
 
 The latter testifies that on that day he had a conversation over 
 the telephone with some one at Morgantown, and upon the same 
 subject to which the appellee says the conversation related; but they 
 differ widely as to what was said. The Morgantown operator, being 
 introduced as a witness, testifies that upon the day named he had a 
 conversation upon that subject with some one at Bowling Green, 
 whom the operator there told him was Sullivan; but that he does not 
 recollect what was said. Under this state of case the court below 
 permitted the appellee to prove, by himself and two other persons 
 who were present at the time, what the Morgantown operator re- 
 ported to appellee, while the conversation was going on over the wire, 
 as being said by Sullivan. 
 
 It is certain that the latter did talk over the wire, because he says 
 so. The appellee did not pay the telephone charge, and it does not 
 appear who did, save the Bowling Green operator reported to the 
 Morgantown one that Sullivan would do so; and the latter is silent 
 upon this point. 
 
 It would, beyond question, have been competent to prove, by the 
 Morgantown operator, what Sullivan said to him; but whether his 
 report to the appellee of what Sullivan was saying, made as the 
 conversation progressed, is competent or falls within the domain of 
 incompetent hearsay testimony, is a question of importance in view 
 of the astonishing growth of the business to which it relates, and 
 one not free from difficulty. 
 
 In the case of a telegram, the original must usually be produced 
 in evidence, or its loss shown, before its contents can be proven or 
 the copy delivered by the operator to the party receiving the message 
 used, unless it be where the copy becomes primary testimony by the 
 telegraph company being the agent of the sender. 
 
 In the use of the telephone, however, the parties talk with each 
 other as if face to face; and, save where a mere message is sent, 
 there is no written evidence of what has passed. By inventive means 
 they are brought together for the transaction of business. 
 
 It is a well settled rule that where one, through an interpreter, 
 makes statements to another, the interpreter's statement made at the 
 time of what was so said, is competent evidence against the party. 
 
 The interpreter need not be called to prove it, but the interpreter's 
 statement, made at the time, may be proven by third persons who 
 werej>resent and heard it. (Camerlin v. Palmer Co., 10 Allen 539;
 
 5 14 CASES ON EVIDENCE 
 
 Schearer v. Harber, 36 Ind. 536; i Greenleafs Ev., section 183; i 
 Phillips' Ev. 519, side-page.) 
 
 The reason of this rule is that the interpreter is the agent of both 
 parties, and acting at the time within the scope of his authority, and 
 we have been unable to draw any satisfactory distinction between this 
 case and the one under consideration. 
 
 Subject to various qualifications, the old rule, that a party must 
 produce the best evidence within his power to prove a fact, should 
 govern. But as business expands by the aid of new inventions, wider 
 scope must be given to the rules of evidence. There is no need, 
 however, of any departure or innovation in this case, because it is a 
 well settled rule of evidence that the statements of an agent, when 
 acting within the scope of his agency, are competent against his 
 principal. 
 
 When one is using the telephone, if he knows that he is talking to 
 the operator, he also knows that he is making him his agent to repeat 
 what he is saying to another party; and, in such a case, certainly the 
 statements of the operator are competent, being the declarations of 
 the agent, made during the progress of the transaction. 
 
 If he is ignorant whether he is talking to the person with whom 
 he wishes to communicate or with the operator, or even any third 
 party, yet he does it with the expectation and intention on his part 
 that in case he is not talking with the one for whom the information 
 is intended, that it will be communicated to that person; and he 
 thereby makes the person receiving it his agent to communicate what 
 he may have said. This should certainly be the rule as to an operator, 
 because the person using a telephone knows that there is one at each 
 station whose business it is to so act; and we think that the neces- 
 sities of a growing business require this rule, and that it is sanctioned 
 by the known rules of evidence. 
 
 Judgment reversed.
 
 JOINT CRIME AND ONE ACQUITTED 515 
 
 JOINT CRIME AND ONE ACQUITTED. 
 
 STATE v. RINEHART. 
 
 106 N, C. 787. (1890) 
 
 
 
 Indictment for fornication and adultery. Verdict of guilty. Judg- 
 ment and appeal. 
 
 DAVIS, J. After stating the facts : When two persons are tried 
 jointly for the commission of an offense that requires the joint act 
 of the two to commit, and one of them is acquitted, there cannot be 
 a verdict of guilty as to the other. 
 
 The defendants are charged with fornication and adultery, and, 
 as the offense charged is a joint one, if one of the parties in the 
 joint trial be acquitted, or if one of them has been previously acquitted 
 on a separate trial, it operates as an acquittal of the other, and there 
 can be no judgment as to either. State v. Mainor, 6 Ired. 340; State 
 v. Parham, 5 Jones, 416. 
 
 This has been the ruling in North Carolina, though the doctrine 
 held by us has been fully reviewed in Texas where it is repudiated, 
 and it is held that the acquittal of one does not per se operate as an. 
 acquittal of the other. Alonzo v. State, 15 Tex. Appl. 378. The 
 same has been held by the Supreme Court of Tenn. State v. Cald- 
 well, 8 Baxter 576. 
 
 It may well be doubted whether, when one of the parties has con- 
 fessed and admitted guilt, or there is competent evidence to convict 
 as to one and not the other, it would not be more in accord with 
 reason to permit the jury to render a verdict of guilty as to the one 
 admitted or proved to be guilty and return a verdict of not guilty, 
 because not proved as to the other, than to require them to say not 
 guilty as to both, contrary to the admitted or clearly proven facts. 
 Under such a rule no innocent person would ever be punished, and no 
 injustice could be done, unless it be an injustice to convict and pun- 
 ish the guilty. While it is well settled that the admissions or con- 
 fessions of one defendant are competent as evidence against the 
 party making the admissions, or confessions, it is equally well set- 
 tled, both by judicial decisions and by statute (The Code, sec. 1041), 
 that such admissions, or confessions, "shall not be received in evidence 
 against the other." 
 
 Affirmed.
 
 516 CASES ON EVIDENCE 
 
 STATE v. CALDWELL. 
 
 
 
 67 Tenn. 576. (1876) 
 
 FREEMAN, J. Defendant with a woman named Green, were jointly 
 indicted for open and notorious lewdness. The parties severed for 
 trial, and the woman was acquitted. A plea was filed in bar to the 
 further prosecution on the part of defendant on the ground that the 
 acquittal of the woman operated as equivalent to an acquittal of the 
 man, as the offense could only be committed by two persons. The 
 plea was demurred to, but the demurrer overruled. The attorney- 
 general declining to take issue on the plea, the defendant was dis- 
 charged and the State appealed. 
 
 We think the court erred in refusing to sustain the demurrer. The 
 State might fail to be able to make proof of the offense in the trial 
 of one party from many causes, yet might be able to make proof 
 on the trial of the other. We so held at Nashville some time since, 
 and approve the holding. The acquittal of one could not show the 
 other was not guilty. 
 
 Reverse the judgment and remand the case to be further proceeded 
 with. 
 
 ALONZO v. STATE. 
 15 Tex. All. 378. (1884) 
 
 WILLSON, J. J. Defendant and one Lydia Huberick were jointly 
 charged by information with living together in adultery, defendant 
 being unmarried, and said Lydia being a married woman. Lydia 
 Huberick severed from her co-defendant upon the trial and was tried 
 first, the trial resulting in her acquittal. When the defendant's case 
 was subsequently called for trial he filed a special plea of former 
 acquittal, in substance setting forth that the information charged 
 a joint offense against Lydia and himself; that they were charged 
 with adultery with each other; that a severance was granted; that 
 Lydia had been tried and acquitted for said offense; and that her 
 acquittal in law operated as an acquittal also of himself of the said
 
 JOINT CRIME AND ONE ACQUITTED 517 
 
 t 
 
 charge. On motion of the county attorney, this plea was stricken out, 
 and this action of the court is assigned as error. 
 
 In North Carolina it has been held that "after the acquittal of 
 one of the defendants (in a joint charge of adultery), there could 
 be no judgment against the other. The crime charged on these per- 
 sons could not be committed but by both of them ; and upon a verdict 
 that one of them was not guilty, it appears conclusively that the 
 other could not be. It is exactly like the case of riots, conspiracies 
 and principal and accessory which we find in the books. The farthest 
 the courts have gone is to allow one of the parties to be tried by 
 himself and convicted and then judgment is given against that party, 
 because as to him the guilt of the other party is found, as well as 
 his own. But when the one has been previously tried and acquitted 
 or when both are tried together and the verdict is for one, the other 
 cannot be found guilty, for he cannot be guilty, since a joint act is 
 indispensable to the crime in either, and the record affirms that there 
 was no such joint act." (State v. Mainor and Wilkes, 6 Iredell, 
 N. C. 340; State v. Parham, 5 Jones. N. C. 416.) 
 
 We cannot give our assent to the doctrine of the above cited cases, 
 nor to the reasoning of these decisions upon which the same are 
 founded. We think the reasoning is based upon false premises and 
 is fallacious. While it is true that, to constitute adultery, there 
 must be a joint physical act, it is certainly not true that there must 
 be a joint criminal intent. The bodies must concur in the act, but 
 the minds may not. While the criminal intent may exist in the mind 
 of one of the parties to the physical act, there may be no such in- 
 tent in the mind of the other party. One may be guilty the other 
 innocent, and yet the joint physical act necessary to constitute adultery 
 may be complete. Thus, if one of the parties was, at the time of 
 committing the physical act, insane, certainly such party has com- 
 mitted no crime; but it certainly cannot be contended that the other 
 party, who was sane, has committed no crime. So, if one of the 
 parties was mistaken as to a matter of fact, after exercising due 
 care to ascertain the truth in relation to such fact, which fact, had it 
 been true, would have rendered the alleged criminal act legal and 
 innocent, the party so acting under such mistake of fact would be 
 innocent of crime. (Penal Code, Art. 15; Watson v. The State, 13 
 Texas Ct. App. 76.) But, suppose the other party was not mistaken 
 as to such fact, but, on the contrary, well knew the true fact which 
 rendered the connection illicit, would this party be regarded as guilty 
 of no offense because the mistaken party was innocent?
 
 518 CASES ON EVIDENCE 
 
 If the North Carolina rule is correct, it must apply also to forni- 
 cation, bigamy and incest. Now, suppose a father and his daughter 
 are indicted for incestuous intercourse with each other. Upon the 
 trial of the daughter it is conclusively proved that at the time of 
 committing the physical act she was an idiot, or that she was wholly 
 ignorant of the relationship existing between herself and her father, 
 without any fault of hers; of course in either of these cases she must 
 be acquitted. Would it not be monstrous to hold that because of 
 her innocence her acquittal the beastly father must go unpunished 
 for his unnatural crime? Such cannot be the law, and such, we 
 believe, is not the law as declared by the weight of authority. 
 
 In Missouri, it has been held, in a case of incest where one party 
 had knowledge of the relationship and the other was ignorant of it, 
 that the former may be convicted and the latter acquitted. (State v. 
 Elliss, 74 Mo. 385.) 
 
 We therefore hold that the court did not err in sustaining the 
 motion of the county attorney to strike out the special plea of former 
 acquittal filed by the defendant. The acquittal of his co-defendant 
 could in no manner affect the question of his guilt or innocence, and 
 the case myst be considered without reference to such former ac- 
 quittal of his co-defendant. 
 
 Reversed and remanded on another ground. 
 
 Note. Jurors are bound by oath to render a verdict according to the 
 evidence. Hence, in the case of a joint crime requiring two persons to 
 commit, if the evidence is sufficient to convict one and insufficient to con- 
 vict the other a verdict of guilty as to the former and not guilty as to the 
 latter is perfectly consistent.
 
 PART IV. 
 REAL EVIDENCE. 1 
 
 CONTINENTAL CASUALTY CO. v. WYNNE. 
 36 Okla. 325. (1912) 
 
 Action by Frank E. Wynne against the Continental Casualty Com- 
 pany. Judgment for plaintiff, and defendant brings error. Affirmed. 
 
 BREWER, C. This is a suit on an accident insurance policy, and 
 was brought by Frank E. Wynne, as plaintiff, against the Continental 
 Casualty Company, a corporation, as defendant, in the District Court 
 of Cleveland county, September 19, 1908. We shall refer to the 
 parties as they were known in the trial court. 
 
 The next objection (. e., that it was error to permit plaintiff to 
 show the jury the parts of his person that is, his shoulder and 
 collar bone alleged to have been injured and broken) is likewise with- 
 out merit. We think ordinarily where the question of an injury, or 
 its extent or permanency, is in issue that this would be proper. City 
 of Kingfisher v. Sparel Altizer, 13 Okla. 121, 74 Pac. 107; Wigmore 
 on Ev. vol. 3, sec. 222, and note; Jones on Ev. (2nd ed.) 396-398. 
 For a discussion of the principle involved, see C. R. I. & P. Ry. Co. 
 v. Hill, Post, 129 Pac. 13. But it was peculiarly proper in this case 
 because of a provision of the policy sued on. In part 3 numerous 
 things are mentioned, the happening of any one of which, it is stipu- 
 lated, shall reduce the amount payable to one-tenth of the amount 
 which would otherwise be payable under the policy. One of these 
 things causing such reduction is: "Where the accidental injury 
 makes no visible contusion or wound on the exterior of the body of 
 insured." Therefore, regardless of whether this testimony would 
 have been otherwise competent, it certainly was both competent and 
 material in this case to show that the injury had left its visible mark 
 on the body of the insured; and we can think of no proof so satis- 
 factory in showing the same as the exposure of the part alleged to have 
 been seriously wounded and injured. 
 
 Affirmed. 
 
 i Hughes on Evidence, p. 165. 
 
 519
 
 520 CASES ON EVIDENCE 
 
 GRAND LODGE B. of R. T. v. RANDOLPH. 
 186 III. 89. (1900) 
 
 CARTER, J. The appellee brought suit in assumpsit in the Circuit 
 Court of St. Clair County against the appellant, a fraternal beneficial 
 society of this State, on a certificate of membership, to recover the 
 amount stipulated in the constitution of the society for a total perma- 
 nent disability. 
 
 There was much controversy on the trial over the question whether 
 or not appellee was totally and permanently disabled, but that ques- 
 tion of fact has been conclusively settled in his favor. 
 
 It is contended, however, that the trial court erred in its rulings 
 upon the admission and exclusion of evidence, and we have carefully 
 examined the evidence and the questions thus raised but do not find 
 that any error was committed. For example, it is contended that 
 the court erred in refusing to allow the witness Holmes to exhibit his 
 injured ankle to the jury. The purport of the testimony of the wit- 
 ness was that his ankle had been crushed and injured as seriously 
 as the plaintiff's leg had been, and that it had so far healed that he 
 was still able to perform his duties in the train service of the rail- 
 road company. Certain medical witnesses for the plaintiff had tes- 
 tified, in effect, that a fractured leg never gets well, and that a 
 person who had suffered such a fracture would be disabled from per- 
 forming train service upon railroads. The' defendant sought to dis- 
 pute such testimony by the personal experience of Holmes and by 
 the exhibition of his leg to the jury. The court permitted a liberal 
 examination of this witness, and allowed the defendant to elicit from 
 him all proper testimony tending not only to contradict the testimony 
 given on behalf of the plaintiff, but tending to prove that notwith- 
 standing plaintiff's injury he was not totally and permanently disabled 
 from engaging in railroad train service, as alleged. But it is obvious 
 that the point in issue was the extent of the plaintiff's and not of the 
 witness' injuries, and that to have permitted the close scrutiny re- 
 quested, into the nature and extent of the injury to the witness' ankle, 
 would have raised a collateral issue and diverted the minds of the 
 jury from the issues submitted to them. 
 
 Judgment affirmed.
 
 REAL EVIDENCE 521 
 
 UNION PACIFIC RAILWAY COMPANY v. BOTSFORD. 
 141 U. S. 250. (1890) 
 
 The original action was by Clara L. Botsford against the Union 
 Pacific Railway Company, for negligence in the construction and 
 care of an upper berth in a sleeping car in which she was a passenger, 
 by reason of which the berth fell upon her head, bruising and wound- 
 ing her, rupturing the membranes of the brain and spinal cord, and 
 causing a concussion of the same, resulting in great suffering and 
 pain to her in body and mind, and in permanent and increasing in- 
 juries. Answer, a general denial. 
 
 Three days before the trial (as appeared by the defendant's bill of 
 exceptions) "the defendant moved the court for an order against the 
 plaintiff, requiring her to submit to a surgical examination, in the 
 presence of her own surgeon and attorneys, if she desired their pres- 
 ence; it being proposed by the defendant that such examination 
 should be made in manner not to expose the person of the plaintiff in 
 any indelicate manner; the defendant at the time informing the court 
 that such examination was necessary to enable a correct diagnosis of 
 the case, and that without such examination the defendant would 
 be without any witnesses as to her condition. The court overruled 
 said motion, and refused to make said order, and upon the sole ground 
 that this court had no legal right or power to make and enforce such 
 order." 
 
 To this ruling and action of the court the defendant duly excepted, 
 and after a trial at which the plaintiff and other witnesses testified 
 in her behalf and which resulted in a verdict and judgment for her 
 in the sum of $10,000, sued out this writ of error. 
 
 MR. JUSTICE GRAY. The single question presented by this record 
 is whether, in a civil action for an injury to the person, the court, 
 on application of the defendant, and in advance of the trial, may 
 order the plaintiff, without his or her consent, to submit to a surgical 
 examination as to the extent of the injury sued for. We concur with 
 the Circuit Court in holding that it had no legal right or power to 
 make or enforce such an order. 
 
 No right is more sacred, or is more carefully guarded, by the com- 
 mon law than the right of every individual to the possession and con- 
 trol of his own person, free from all restraint or interference or 
 otherwise, unless by clear and unquestionable authority of law. As 
 well said by Judge Cooley, "The right to one's person may be said
 
 522 CASES ON EVIDENCE 
 
 to be a right of complete immunity ; to be let alone." Cooley on Torts 
 29. 
 
 The inviolability of the person is as much invaded by the compul- 
 sory stripping and exposure as by a blow. To compel any one, and 
 especially a woman, to lay bare the body, or to submit it to the touch, 
 of a stranger, without lawful authority, is an indignity, an assault 
 and a trespass ; and no order or process, commanding such an expos- 
 ure or submission, was ever known to the common law in the admin- 
 istration of justice between individuals, except in a very small num- 
 ber of cases, based upon special reasons, and upon ancient practice, 
 coming down from ruder ages, now mostly obsolete in England, and 
 never, so far as we are aware, introduced into this country. 
 
 In former times, the English courts of common law might if they 
 saw fit, try by inspection or examination, without the aid of a jury, 
 the question of the infancy, or the identity of a party; or, on an 
 appeal of maihem, the issue of maihem or no maihem; and in an 
 action of trespass for maihem, or for an atrocious battery, might, 
 after a verdict for the plaintiff, and on his motion, and upon their 
 own inspection of the wound, super znsum vulneris, increase the 
 damages at their discretion. In each of those exceptional cases, as 
 Blackstone tells us, "it is not thought necessary to summon a jury 
 to decide it," because "the fact, from its nature, must be evident to 
 the court, either from ocular demonstration or other irrefragible 
 proof," and, therefore, "the law departs from its usual resort, the 
 verdict of twelve men, and relies on the judgment of the court alone." 
 The inspection was not had for the purpose of submitting the result 
 to the jury, but the question was thought too easy of decision to need 
 submission to a jury at all. 3 Blackstone's Com. 331-333. 
 
 The only purpose, we believe, for which the like writ was allowed 
 by the common law, in a matter of civil right, was to protect the 
 rightful succession to the property of a deceased person against fraud- 
 ulent claims of bastards when a widow was suspected to feign her- 
 self with child in order to produce a supposititious heir to the estate, 
 in which case the heir or devisee might have this writ to examine 
 whether she was with child or not, and, if she was, to keep her under 
 proper restraint till delivered, i Bl. Com. 456; Bac. Ab. Bastard, A. 
 In cases of that class, the writ has been issued in England in quite 
 recent times. In re Blakemore, 14 Law Journal (N. S.) Ch. 336. 
 fiut the learning and research of the counsel for the plaintiff in error 
 have failed to produce an instance of its ever having been considered.
 
 EVIDENCE 523 
 
 in any part of the United States, as suited to the habits and condition 
 of the people. 
 
 So far as the books within our reach show, no order to inspect 
 the body of a party in a personal action appears to have been made, 
 or even moved for, in any of the English courts of common law, at 
 any period of their history. 
 
 Within the last fifteen years, indeed, as appears by the cases cited 
 in the brief of the plaintiff in error, a practice to grant such orders 
 has prevailed in the courts of several of the Western and Southern 
 States, following the lead of the Supreme Court of Iowa in a case de- 
 cided in 1877. The consideration due to the decisions of those courts 
 has induced us fully to examine, as we have done above, the precedents 
 and analogies on which they rely. Upon mature advisement, we 
 retain our original opinion that such an order has no warrant of law. 
 
 Judgment affirmed. 
 
 McQUIGAN v. D. L. & W. R. R. CO. 
 129 N. Y. 50. (1891) 
 
 Appeal from an order of the General Term of the Supreme Court 
 in the fourth judicial department, made April 28, 1891, which af- 
 firmed an order of the Special Term denying a motion by defendant 
 for an order directing the plaintiff in an action for personal injuries, 
 to submit to a physical examination by surgeons to be appointed by 
 the court, and for the appointment of a receiver, under whose direc- 
 tion such examination should take place. 
 
 ANDREWS, J. The sole question presented by this record is whether 
 the Supreme Court has power in advance of the trial of an action for 
 a personal and physical injury to compel the plaintiff on an applica- 
 tion made in behalf of the defendant to submit to a surgical ex- 
 amination of his person by surgeons appointed by the court with a 
 view of enabling them to testify on the trial as to the existence and 
 extent of the alleged injury. The question is not new in the courts, 
 although so far as we know it was first presented in 1868 before a 
 judge of the New York Superior Court at Special Term in the case 
 of Walsh v. Sayre (52 How. Pr. 334), who affirmed the existence 
 of the power. The contrary was held by the General Term of the 
 third department in Roberts v. Ogdensburgh & Lake Champlain Rail-
 
 524 CASES ON EVIDENCE 
 
 road Co. (29 Hun, 154). In 1877 the Supreme Court of Iowa in the 
 case of Schroeder v. C. R. I. & P. R. Co. (47 Iowa 375), sustained 
 the doctrine that the court had an inherent right to grant a compulsory 
 order that the plaintiff submit to such examination, and this decision 
 has been followed by the courts of several of the western and south- 
 ern states, and in others the power has been denied. The same ques- 
 tion was considered in the United States Supreme Court in the recent 
 case of Union Pacific Railroad Co. v. Botsford (141 U. S. 250), and the 
 court (two judges dissenting) decided adversely to the claim that the 
 court had power to compel such examination. The opinions of the sev- 
 eral courts which have passed upon the question present very fully the 
 considerations bearing upon it. We concur in the view taken by 
 the Supreme Court of this state, and the Supreme Court of the United 
 States, and we can add very little to the full discussion to be found 
 in the opinions of those courts. 
 
 The order should be affirmed. 
 
 All concur. 
 
 Order affirmed. 
 
 HAYNES v. TRENTON. 
 123 Mo. 326. (1894) 
 
 BARCLAY, J. This is an action to recover compensation for per- 
 sonal injuries sustained by plaintiff. It is based on defendant's 
 alleged negligence in omitting reasonable care to keep a sidewalk in 
 proper condition for public use. 
 
 MACFARLAND, J. It appears from the record, that during the trial, 
 plaintiff was permitted to exhibit to the jury his injured leg. This 
 was done while plaintiff was under examination as a witness in his 
 own behalf. The evidence tended to prove that plaintiff had previ- 
 ously sustained an injury to the same leg at or near the same place. 
 In a former trial, experts had been permitted to examine the leg and 
 testify as to its condition and the probable permanency of the injuries. 
 
 After plaintiff had shown his leg to the jury on this trial, and 
 evidence had been offered tending to prove that the injuries were 
 greater than they appeared on the former trial to have been, de- 
 fendant, as a part of the cross-examination of plaintiff, asked that 
 physicians, who had previously examined the leg, might be permitted
 
 REAL EVIDENCE 525 
 
 to make a further examination and give their opinion as to its con- 
 dition as compared with that when previously examined. This re- 
 quest the court refused, and in doing so we think it committed re- 
 versible error. 
 
 The leg, when shown to the jury, became evidence in the case 
 which may have carried with it great weight, particularly in the 
 matter of the damage sustained. This evidence thus put into the 
 case was open to attack by the opposite party in any manner which 
 may have tended to reduce its probative force. When, for example, 
 a piece of machinery or material, the character or quality of which 
 is in issue, is exhibited to the jury, it is always competent for the 
 opposite party to have experts examine it and give the jury their 
 opinion of the quality of the material and the sufficiency of the machin- 
 ery. When admitted in evidence, and its damaging effect has been 
 accomplished, it can not be withdrawn until the party affected by it 
 has had opportunity to apply every test for the purpose of overcom- 
 ing its force and effect. 
 
 No reason can be urged why a different rule should be applied 
 when an injured limb is the subject of inquiry. Defendant had the 
 undoubted right in this case, at any time after the injuries had been 
 shown to the jury, to have physicians examine the injured leg and 
 testify, as experts, to its character and probable permanency. 
 
 The question was not as to the right of defendant to have an ex- 
 amination of the injuries made, but as to the right to test the effect 
 and reduce the weight of evidence introduced by plaintiff. 
 
 BLACK, C. J., and BRACE, J. concur. 
 
 CITY OF SOUTH BEND v. TURNER. 
 156 Ind. 418. (1900) 
 
 HADLEY, J. Suit by appellee to recover damages for personal in- 
 juries. 
 
 The first ground urged for a new trial is the refusal of the court, 
 upon appellants' motion, to order a physical examination of the 
 plaintiff. 
 
 The overruling of this motion presents a question of some difficulty, 
 and upon which the courts of the country are not entirely agreed. 
 It is one, too, that has but recently engaged the attention of the courts
 
 526 CASKS ON EVIDENCE 
 
 of last resort. The fundamental principle, however, is an ancient 
 doctrine of the common law, limited, it is true, to a few classes of 
 cases, among them mayhem and divorce cases, wherein impotency 
 was charged; but as the sources of evidence have been extended 
 to parties and in many other ways, its application has been expanded 
 to meet new conditions. The doctrine rests upon the principle that 
 justice is the object of judicial investigation, and that courts charged 
 with its administration, as a necessary means of attaining that end, 
 have inherent power to require the production of the most infallible 
 evidence. That its application to personal injury cases is a modern 
 practice does not disprove its common law origin. 
 
 Beginning with the case of Loyd v. Hannibal, etc., R. Co., 53 Mo. 
 509, decided in 1873, there have followed many adjudications upon 
 the power of the trial court to order a physical examination of the 
 plaintiff in suits for personal injuries upon request of the defendant. 
 In this first case, the power, upon slight consideration, was denied. 
 In 1877, in the well considered case of Schroeder v. Chicago, etc., 
 R. Co., 47 Iowa 375, the power was affirmed. Following this lead, 
 the states of Alabama, Arkansas, Georgia, Kansas, Kentucky, Michi- 
 gan, Missouri, Minnesota, Nebraska, Pennsylvania, Ohio, Texas, and 
 Wisconsin have reasserted the rule as announced in the Iowa case. 
 
 These cases assert the doctrine that courts are instituted by the 
 state to administer impartial justice to contending parties. In such 
 contests it is the duty of the court to bestow upon the litigants equal 
 and exact justice. This cannot be done without the court first ob- 
 taining the exact and full truth concerning the matters in controversy. 
 Hence from this duty of the court to dispense exact justice is essen- 
 tially implied all power necessary to its performance, which includes 
 the power to make subservient to its order all persons and things 
 that will afford the most reliable evidence. In quasi recognition of 
 this power it is the law of this State, and other states so far as we 
 have observed, that the court may permit the plaintiff in both civil 
 and criminal cases to exhibit to the jury such weapons, implements, 
 clothing, and wounds upon his person, or upon the person of the 
 prosecuting witness, as are asserted to be the means, or effects, of the 
 violence complained of. 
 
 The cases above cited as affirming the existence of the power estab- 
 lish the following propositions : ( i ) That trial courts have the power 
 to order the medical examination by experts of the injured parts of a 
 plaintiff who is seeking to recover damages therefor; (2) that a de- 
 fendant has no absolute right to demand the enforcement of such an
 
 REAL EVIDENCE 527 
 
 order, but the motion therefor is addressed to the sound discretion 
 of the trial court; (3) that the exercise of such discretion is review- 
 able on appeal, and correctible in cases of abuse ; (4) that the examina- 
 tion should be applied for and made before entering upon the trial, 
 and should be ordered and conducted under the direction of the 
 court, whenever it fairly appears that the ends of justice require a 
 more certain ascertainment of important facts which can only be dis- 
 closed, or fully elucidated, by. such an examination, and such an 
 examination may be made without danger to the plaintiff's life or 
 health, or the infliction of serious pain; (5) that the refusal of the 
 motion, when the circumstances appearing in the record present a 
 reasonably clear case for the examination under the rules stated is 
 such an abuse of discretion in the trial court as will operate to reverse 
 a judgment for the plaintiff; (6) that such an order may be enforced, 
 not by punishment as for a contempt, but by delaying or dismissing 
 the proceeding. 
 
 For error of the court in overruling the motion, the appeal must 
 be sustained. Judgment reversed, with instructions to grant appel- 
 lant's motion for a new trial. 
 
 THE A. T. & S. F. R. R. CO. v. THUL. 
 29 Kan. 466. (1883) 
 
 VALENTINE, J. This action was brought by John Thul for dam- 
 ages. 
 
 Upon the trial, the plaintiff introduced his evidence, and rested. 
 The evidence tended to prove the plaintiff's entire case. It showed 
 the manner in which he was injured, and the nature, character and 
 extent of the injury. And the evidence, as well as the plaintiff's 
 petition, showed that it was the injury to the plaintiff's eyes of which 
 he principally complained. The plaintiff himself was a witness in 
 the case, and testified in his own behalf. After the plaintiff rested 
 his case, the defendant requested the court to have the plaintiff sub- 
 mit himself to the examinaion of Dr. A. D. Williams, who was then 
 present, from St. Louis, and whom it was stated the defendant would 
 call as a witness. This request was made in the following words, to 
 wit: "If the court please, we ask that the plaintiff in this case, John 
 Thul, submit himself to the examination of Dr. Williams, a witness
 
 528 CASES ON EVIDENCE 
 
 we shall call for the defense, now here from St. Louis." This re- 
 quest was objected to by the plaintiff, in the following words, to wit : 
 ''We object, under the ruling of the 53rd Missouri Report." The 
 court below sustained the objection, in the following words, to wit: 
 ''The objection is sustained." And to this ruling of the court the 
 defendant excepted. Counsel for the defendant then addressed the 
 court as follows: 
 
 "What we want to do, if the court please, is, to have this plaintiff 
 submit himself to the examination of Drs. Jones, Redden, Stormont, 
 and Williams of St. Louis, whom we propose to produce as witnesses 
 on the stand; and we ask permission and order of the court that so 
 many doctors as we may desire may have an opportunity to make an 
 examination of the plaintiff's eyes in the presence of this court and 
 jury." 
 
 To this the counsel for plaintiff responded as follows : "We ob- 
 ject." And the court then answered as follows: "The objection is 
 sustained." To which ruling of the court the defendant again ex- 
 cepted. 
 
 That portion of the 53rd Missouri Report upon which the plaintiff 
 made the objection, reads as follows: 
 
 "The proposal of the court to call in two surgeons, and have the 
 plaintiff examined during the progress of the trial as to the extent 
 of her injuries, is unknown to our practice and to the law. There 
 was abundant evidence on this subject on both sides: any opinion 
 of physicians or surgeons at that time would have only been cumu- 
 lative evidence at best, and the court had no power to enforce such 
 an order." Loyd v. H. & St. J. Railroad Co., 53 Mo. 509, 515, 516.) 
 
 The objection, we would think from the facts of the present case 
 and from this citation, was based upon the grounds that such a prac- 
 tice is unknown to the law, and that the court had no power to en- 
 force the order for such an examination. We think it could not have 
 been because there was already abundant evidence upon the subject in 
 the case, for at the time the request was made no physician or surgeon 
 or medical expert of any kind had testified in the case; and indeed at 
 the close of the evidence no physician or surgeon or medical expert 
 had testified in the ca>e except Dr. Williams, and he could not tes- 
 tify intelligently upon the subject, for the reason that he had made 
 no personal examination of the plaintiff. 
 
 In criminal cases a personal inspection of the defendant is gen- 
 erally not allowable, for an order of the court compelling the de- 
 fendant to submit to a personal examination would virtually be com-
 
 REAL EVIDENCE 529 
 
 pelling the defendant to "be a witness against himself" which is not 
 allowable under sec. 10 of the Bill of Rights, of our constitution. 
 However, where the examination is only for identification it is some- 
 times allowable. 
 
 It was shown in the present case by the testimony of Dr. Williams 
 that the nature, the extent and the permanency of the injury to the 
 plaintiff's eyes could not be determined with any reasonable degree 
 of accuracy except by a careful examination, made by some oculist 
 or person who had made diseases and affections of the eyes a special 
 study; and we would naturally suppose that such would be the case, 
 independent of the testimony of Dr. Williams. Hence it would seem 
 that in a case like the present the evidence of some such expert who 
 had made such an examination would be an almost indispensable 
 necessity; but such evidence in many cases could not be obtained 
 unless the plaintiff were first compelled by an order of the court to 
 submit himself to a personal examination by some such expert. Now 
 is such evidence to be lost and justice possibly defeated, or may the 
 court order that such an examination may be had? We favor the 
 proposition contained in the latter portion of this alternative. We 
 would think that the defendant in a case like the present would be 
 entitled as a matter of right, upon a proper application and upon 
 a proper showing, to have an order made by the court compelling 
 the plaintiff to submit himself to a personal examination, for the 
 purpose of ascertaining the nature, character, extent and permanency 
 of his injuries; but of course the court should exercise a sound 
 judicial discretion in making such an order. The right to the order, 
 being founded upon necessity, would not of course extend beyond 
 the necessities of the case. If sufficient evidence of this kind had 
 already been introduced, the court of course would not be bound -to 
 make the order for the purpose of obtaining other merely cumulative 
 evidence. This principle will perhaps explain the ruling of the Mis- 
 souri court in the case of Loyd v. The H. & St. J. Rid. Co., ante, 
 for the court in that case in deciding the question says that "There 
 was abundant evidence upon the subject on both sides; any opinion of 
 physicians or surgeons at that time would have only been cumulative 
 evidence at best." The court of course would not be required to 
 order an examination of the plaintiff by a greater number of ex- 
 perts than was actually necessary for the purpose of justice, and it 
 would not be required to make the order unless the proposed experts 
 were really competent to make the examination. The court would
 
 530 CASES ON EVIDENCE 
 
 also have the right to exercise its discretion in other particulars as 
 suggested by the decision in the Iowa case. 
 
 As before stated, we think the court below in refusing to make any 
 order in the present case, did so solely upon the grounds that such a 
 practice is unknown to the law, and that the court had no power to 
 enforce such an order. In this we think the court below was mis- 
 taken. We think the order should have been made; and that the 
 court had ample authority to enforce the same if it had been made 
 and resisted. 
 
 Reversed and remanded for new trial. 
 
 STATE OF IOWA v. HARVEY. 
 112 Iowa 416. (1900) 
 
 LADD, J. It is enough now to say that the evidence was such as 
 to leave the question of defendant's guilt of begetting complainant's 
 child, then 9 months old, at the least doubtful. Her story implicating 
 him, appears not very probable, and her admission of having had 
 intercourse with Waller a year previous to its conception, and sleep- 
 ing alone in a room accessible to the latter continually up to that 
 time, indicates, notwithstanding her denial of repetition, the possibil- 
 ity of its having been his offspring. So that the introduction of the 
 immature child in evidence "for the jury to look at; to examine as to 
 the identity and resemblance between the baby and putative father" 
 as stated by counsel for the state may well have played an im- 
 portant part in settling the controversy. The color of its eyes and 
 hair, its complexion, the contour of the brows and shape of hands, 
 any or all of which may have related back three or four generations, 
 doubtless were given weight in making this comparison. What they 
 were we have no means of knowing, nor does this record disclose in 
 what respects these differed from or resembled the hair, eyes, com- 
 plexion, brows, or hands of defendant, or of Waller. Thus, the jury 
 based their verdict in part at least, on their individual knowledge of 
 facts, or opinions resting on facts, of which this court, on appeal, can 
 acquire no information, making of themselves "silent witnesses in the 
 case, burdened with testimony unknown to both parties, and in respect 
 to which no opportunity for cross-examination or correction of errors, 
 if any, could be afforded either party." See Close v. Samm, 27 Iowa
 
 REAL EVIDENCE 531 
 
 507; Washburn v. Railway Co., 59 Wis. 370 (18 N. W. 328). In 
 such a case might a new trial ever be ordered because of the insuffi- 
 ciency of the evidence? Nevertheless in 'this court in State v. Smith 
 54 Iowa 104, held that a child 2 years and I month old might be ex- 
 hibited to the jury, though to exhibit one of three months had been 
 adjudged an error in State v. Danforth, 48 Iowa 43. While conced- 
 ceding that "resemblances often exist between persons who are not 
 related, and are wanting between persons who are, "the ruling seems 
 to rest on the proposition that "what are called 'family resemblance' 
 are sometimes so marked as scarcely to admit of a mistake." With 
 respect to proper age, it was said that a child which is only 3 month's 
 old has that peculiar immaturity of features which characterizes an 
 infant during the time that it is called a 'babe'. A child 2 years old 
 or more has, to a large extent, put off that peculiar immaturity." 
 If this is to be the criterion, then, surely, a child of 9 months is too 
 immature to afford aid to the jury in settling its paternity. True, 
 resemblances then are frequently imagined. But what one will con- 
 strue as a similarity, another, with the same knowledge of the parties 
 between whom the comparison is made, will be unable to detect. If 
 alike in some respects, they differ in others. It is all a matter of 
 notion, fancy or guesswork, and ought to be given the slightest weight 
 in determining an issue fraught with such grave consequences. In 
 People v. Carney, 29 Hun, 47 the court, observing that children of 
 the same family have eyes and hair of different colors, declared 
 that it is "a dangerous doctrine to permit a child's paternity to be 
 questioned or proven by the comparison of the color of its hair or 
 eyes with that of the alleged parent." In Hanawalt v. State, 64 Wis. 
 84 (24 N. W. 489), the exhibition of a child under a year old was 
 held to have been improper, the court saying, "In any case this 
 kind of evidence is inherently unsatisfactory, as it is all a matter of 
 general knowledge that different persons, with equal opportunities of 
 observation, will arrive at different conclusions, even in the case of 
 mature persons, where a family likeness will be fully developed if 
 there be any; and, when applied to the immature child, its worth- 
 lessness as evidence to establish the fact of parentage is greatly en- 
 hanced, and is of too vague, uncertain, and fanciful a nature to be 
 submitted to the consideration of a jury." As opposed to such ex- 
 hibitions, see, also, Clark v. Bradstreet, 80 Me. 466 (15 At. 56, 6 Am. 
 St. Rep. 221); Risk v. State, 19 Ind. 152; Reitz v. State, 33 Ind. 
 187; Ingram v. State, 24 Neb. 33 (37 N. W. 943). Without express- 
 ing an opinion as to the correctness of State v. Smith, supra, this court
 
 532 CASES ON EVIDENCE 
 
 is not prepared to extend the rule there approved, and sanction the 
 exhibition of a child under 2 years of age to the jury,- as affording 
 any aid in ascertaining its parentage; and in this class of cases, where 
 it is well known, the feelings and sentiments so often enter into the 
 contest the exhibition of the fruit of the unlawful relation cannot 
 have been otherwise than extremely prejudicial. An exception may, 
 however, exist where the parents are alleged to be of different races. 
 Garvin v. State, 52 Miss. 207; Warlick v. White, 76 N. C. 176. In 
 Gilmanton v. Ham, 3 N. H. 108, and Finnegan v. Dugan, 14 Allen, 
 197, the age of the child exhibited does not appear, while comparison 
 at any age was upheld in Grant v. State, 50 N. J. Law, 490. (14 At. 
 600), and State v. Woodruff, 67 N. C. 89. See also, Jones v. Jones, 
 45 Md. 151. These decisions seem to have been influenced somewhat 
 by the ruling of Lord Mansfield in the Douglas Case, before the house 
 of lords in 1769, allowing resemblance of adults to be shown. That 
 marks of family resemblance often exist between adults and even 
 mature children may readily be conceded, but it does not follow that 
 this is generally true of nursing or immature babes, with unsettled 
 features, and peculiar characteristics undeveloped. 
 
 Reversed. 
 
 MARCY v. BARNES. 
 82 Mass. 161. (1860) 
 
 Action of contract. Trial and verdict for the plaintiff in this court 
 before Hoar, J. 
 
 MERRICK, J. This is an action to recover the contents of the 
 promissory note declared on, purporting to be signed by all the de- 
 fendants. Zephaniah Baker & Co. were defaulted, and Moses Barnes 
 alone interposed any defense. In his answer, he denied the genuine- 
 ness of the signature of his name which appears upon it, and alleged 
 that it had been fraudulently placed there. This constituted the issue 
 to be determined; and it was conceded at the argument by the coun- 
 sel of both parties that the precise question which arose and was 
 contested upon the trial was whether the name of Moses Barnes was 
 affixed to the note before or after it came into the possession of the 
 plaintiff. 
 
 The magnified photographic copies of the genuine signatures of the
 
 EVIDENCE 533 
 
 defendant, and of the disputed signature, which was submitted to the 
 inspection of the jury, were, we think, in connection with the testi- 
 mony of Mr. Southworth, admissible in evidence. Assuming it to 
 be true, as he testified, which yet was a fact first to be considered 
 and determined by the jury, that the copies were accurate in all 
 respects, excepting only in relation to sex and color, they were capable 
 of affording some aid in comparing and examining the different speci- 
 mens of handwriting which were exhibited in the trial. It is not dis- 
 similar to the examination with a magnifying-glass. Proportions are 
 so enlarged thereby to the vision, that faint lines and marks, as well 
 as the genuine characteristics of handwriting which perhaps could not 
 otherwise be clearly discerned and appreciated, are thus disclosed to 
 observation, and afford additional and useful means of making com- 
 parisons between admitted signatures and one which is alleged to be 
 only an imitation. Under proper precautions in relation to the pre- 
 liminary proof as to the exactness and accuracy of the copies pro- 
 duced by the art of the photographer, we are unable to perceive any 
 valid objection to the use of such prepared representations of original 
 and genuine signatures as evidence competent to be considered and 
 weighed by the jury. 
 
 Exceptions sustained on another ground. 
 
 SMITH v. LEHIGH VALLEY R. R. CO. 
 177 N. Y. 379. (1904) 
 
 Appeal from a judgment of the Appellate Division of the Supreme 
 Court in the fourth judicial department, entered July 13, 1903, modi- 
 fying and affirming as modified a judgment in favor of plaintiff 
 entered upon a verdict and affirming an order denying a motion for a 
 new trial. 
 
 This action was brought to recover damages for the death of plain- 
 tiff's intestate alleged to have been caused by the negligence of de- 
 fendant. 
 
 PARKER, Ch. J. We are also of the opinion that the court erred 
 in admitting in evidence the photograph of deceased. The action 
 was to recover for pecuniary injuries resulting from deceased's death. 
 (Code Civil Pro. sec. 1904.) Such injuries are to be compensated 
 for on the basis of the monetary value of the services of deceased
 
 534 CASES ON EVIDENCE 
 
 to her husband and children. Into such a case the personal element 
 does not enter, for the law does not compensate for grief or sorrow, 
 but only for the actual pecuniary loss. The introduction in evidence 
 of the photograph of a handsome woman could not be expected to 
 accomplish any other result than to introduce the personal element 
 for the consideration of the jury. Certainly the language employed 
 in Lipp v. Otis Brothers & Co. (161 N. Y. 559, 564) would seem 
 to be applicable to the introduction of this photograph : "Clearly, the 
 testimony we have been considering could not render any service 
 in the case other than to awaken the sympathies, and thus influence 
 the judgment of the jurors in the direction of a greater award, nor 
 is it reasonable to assume that any other result was expected from 
 it." In that case this court reversed a judgment obtained by a father 
 as sole next of kin, for pecuniary injuries resulting from his son's 
 death. No one except the father was entitled to recover, and yet 
 plaintiff was permitted to question a brother of deceased as to broth- 
 ers, sisters, nephews and nieces of deceased, and their necessities 
 testimony which pointed out opportunities plaintiff would have for 
 making charitable use of any moneys left after satisfying his own 
 necessities. The reason for the decision in that case calls for a de- 
 cision in this that evidence of such a character should not be received 
 in cases where the personal element is not permitted by the statute to 
 enter, as in this case. 
 
 The judgment should be reversed and a new trial granted, with 
 costs to abide the eVent. 
 
 THE CITY OF OTTAWA v. ROZETTA GILLILAND. 
 63 Kan. 165. (1901) 
 
 GREENE, J. The defendant in error commenced this action against 
 the city of Ottawa to recover damages for personal injuries which 
 she claims she sustained by reason of having been tripped or thrown 
 on a defective sidewalk. In the court below she recovered judgment. 
 The plaintiff in error, the defendant below, filed its motion for a new 
 trial .alleging all the grounds mentioned in the statute. 
 
 Counsel for plaintiff in error present another question which will 
 likely arise in a new trial of this cause, and for this reason it demands 
 the attention of this court at this time. Upon the trial, defendant
 
 REAL EVIDENCE 535 
 
 requested the court to appoint two reputable physicians and make an 
 order that the plaintiff below submit to an examination by them, for 
 the purpose of ascertaining the location and extent of her physical 
 injuries. To this the plaintiff below objected, which objection was 
 sustained by the court, and the defendant below alleges this as error. 
 
 In actions for personal injuries, the exact location and extent of 
 the injury is frequently the very question in dispute, the fact to be 
 ascertained. While the court in the exercise of its discretion should 
 protect the feelings and sensibilities of all litigants, the rights of the 
 parties and the ascertainment of the truth is the chief object of a trial. 
 The purpose of a trial is to mete out exact justice. This cannot be 
 accomplished when the truth is suppressed, and this may be done, if 
 the court has not the power to ascertain what the truth is. 
 
 In an action for personal injuries, the injured party may call physi- 
 cians, to whom he may expose his person, not for the purpose of 
 effecting a cure, but for the purpose of using this expert testimony to 
 assist him in the trial of his case. He may also expose the injured 
 portion of his person to the jury, observing the rules of decency. 
 Should the litigant be permitted to withhold the truth or the means 
 of ascertaining what the truth is simply because, in the ascertainment 
 of the truth, he may conceive the idea that an indignity is being of- 
 fered? That is not an indignity which is not so intended. May he 
 be permitted to present so much of the truth as he desires and as he 
 thinks to his interest and withhold the remainder? This would cer- 
 tainly be his privilege if the court does not possess the power to make 
 an order that will develop the exact truth. It is suggested by some of 
 the authorities which hold contrary to the views herein expressed, 
 that the rule would operate harshly upon delicate and modest females. 
 We think such may safely rely upon the courts of this country. An 
 examination should not be ordered needlessly, or where there might 
 be a shock to one's modesty or feelings of delicacy. We only decide 
 that the court has the power ; it should be exercised according to the 
 sound discretion of the presiding judge. It is safer in the adminis- 
 tration of justice to trust to the courts to protect the sensibilities of 
 the parties in such examinations, so far as it is possible to do so, and 
 beyond that to hold them subordinate in importance and sacredness 
 to the interest of justice than to hold that the party to a litigation 
 has it within his power to develop so much of the facts as may appear 
 to be to his interest and then stop the investigation. 
 
 The great weight of authority' seems to favor this view. In the 
 ascertainment of the physical condition of the litigants in divorce ac-
 
 536 CASES ON EVIDENCE 
 
 tions, a physical examination was allowed at common law. (Devan- 
 bagh v. Devanbagh, 5 Paige 553, 28 Am. Dec. 443 ; Newell v. Newell, 
 9 Paige 25.) The authorities supporting this doctrine in actions for 
 personal injuries are numerous and ample. 
 
 We are of the opinion that the trial court has the power, in actions 
 for personal injuries, to require the plaintiff to submit to a private 
 physical examination by a board of physicians selected by the court; 
 that such power should be exercised cautiously and only when neces- 
 sary to a full determination of the facts, and with every care possible 
 to protect the feelings and sensibilities of the party. In this case, 
 the court did not abuse its discretion. 
 
 Reversed on other grounds. 
 
 STATE v. ANICA GARRETT AND LUCY STANLEY. 
 71 N. C. 85. (1874) 
 
 Indictment for murder, tried at Fall Term, 1873, of the Superior 
 Court of Washington county, before his Honor, Judge Moore. 
 
 The prisoners were charged with the murder of Alvina Garrett, a 
 girl of fourteen years of age ; on the trial, Lucy Stanley was acquitted. 
 
 The evidence for the state established that on the 26th of August, 
 1873, the prisoners made an out-cry that the deceased came to her 
 death by her clothes accidentally catching fire while she was asleep; 
 and when the witness reached the house where the body of the girl, and 
 where the prisoners were, Anica Garrett told the witness that "she" 
 Anica, "was asleep when she was awakened by the deceased scream- 
 ing ; that she went to her, her clothes were still burning, and in attempt- 
 ing to put out the flames, she Anica, burnt one of her hands." 
 
 By Dr. Walker, the examining physician on the Coroners inquest, it 
 was proved that the body of the deceased girl was not burned before, 
 but after death, there being no serum in the blisters, &c. 
 
 The prisoner, Anica, while under arrest, and very much agitated be- 
 fore the Coroner, and after the jury had rendered their verdict against 
 her, in their presence, was ordered by the Coroner to unwrap her hand 
 she alleged had been burnt, and show it to Dr. Walker, so that it might 
 be seen if it had been burned or not. This she did, and there was no in- 
 dication whatever of any burn upon it. This evidence was objected to 
 by the counsel for the prisoner because it was in substance compelling 
 the prisoner to furnish evidence against herself; and that being under
 
 REAL EVIDENCE 537 
 
 arrest, and alarmed, nothing which she had said or done while under 
 arrest, and at the Coroner's command, was admissible in evidence . 
 against her, she not having been cautioned and informed df her rights 
 according to law. 
 
 The court ruled that anything the prisoner said at the inquest was 
 inadmissible, but that the actual condition of her hand, although she 
 was ordered by the Coroner to unwrap it and exhibit to the doctor, was 
 admissible as material evidence to contradict her statement to the wit- 
 ness on the night of the homicide and before she was arrested. To this 
 ruling, counsel for prisoner excepted. 
 
 The jury returned a verdict of guilty. Rule for a new trial, granted 
 and discharged. Judgment of death and appeal by prisoner. 
 
 BYNUM, J. The prisoner objected to the admissibility of the evi- 
 dence as to the condition of her hand and relied upon the case of the 
 State v. Jacobs, 5 Jones, 259. 
 
 The distinction between that and our case is that in Jacobs' case, the 
 prisoner himself, on trial, was compelled to exhibit himself to the jury, 
 that they might see that he was within the prohibited degree of color, 
 thus he was forced to become a witness against himself. This was held 
 to be error. 
 
 In our case, not the prisoners, but the witnesses, were called to prove 
 what they saw upon inspecting the prisoner's hand, although that in- 
 spection was obtained by intimidation. 
 
 The prisoner had alleged that she had her hand burned in endeavor- 
 ing to extinguish the fire upon the deceased, and at the Coroner's in- 
 quest she carried her hand wrapped up in a handkerchief and thus con- 
 cealed it from view. She was made to unwrap and show her hand to 
 the physician, which thus exposed, upon examination, showed no indi- 
 cation of a burn. It was evidently a fraud adopted to give countenance 
 and support to her story, and the Coroner was justified in exposing a 
 trick upon the public justice of the country. 
 
 The later cases are uniform to the point that a circumstance tending 
 to show guilt may be proved, although it was brought to light by decla- 
 ration, inadmissible, per se, as having been obtained by improper in- 
 fluence. Arch. Crim. PI., 131, and note by Waterman, State v. John- 
 son, 67 N. C. 55. Familiar illustrations are where the accused is, by 
 force, made to put his foot in a track, or allow the foot to be measured, 
 where he is by duress compelled to produce stolen goods, or to dis- 
 close their hiding place, and they are there found. In these cases the 
 facts thus brought to light are competent evidence though the declara-
 
 538 CASES ON EVIDENCE 
 
 tions of the accused, made at the time, are excluded as having been 
 obtained by improper influence. 
 
 We have, care fully examined the whole record, and we find no de- 
 fect therein. 
 
 There is no error. This will be certified to the Court below that 
 further proceedings be there had, according to law. 
 
 Judgment affirmed. 
 
 PER CURIAM. 
 
 STATE v. LINKHAW. 
 69 N. C. 214. (1873) 
 
 Defendant was indicted for disturbing a religious congregation. 
 The evidence as detailed by several witnesses was substantially this : 
 Defendant is a member of the Methodist Church; he sings in such a 
 way as to disturb the congregation ; at the end of each verse, his voice 
 is heard after all the other singers have ceased. One of the witnesses 
 being asked to describe defendant's singing, imitated it by singing a 
 verse in the voice and manner of defendant, which "produced a burst 
 of prolonged and irresistible laughter, convulsing alike the spectators, 
 the Bar, the jury and the court." 
 
 There was a verdict of guilty. Judgment, and appeal by the de- 
 fendant. 
 
 SETTLE, J. The defendant is indicted for disturbing a congregation 
 while engaged in divine worship, and the disturbance is alleged to con- 
 sist in his singing, which is described to be so peculiar as to excite 
 mirth in one portion of the congregation and indignation in the other. 
 
 From the evidence reported by his Honor who presided at the trial, 
 it appears that at the end of each verse, his voice is heard after all 
 the other singers have ceased, and that the disturbance is decided and 
 serious ; that the church members and authorities expostulated with 
 the defendant about his singing and the disturbance growing out of it; 
 to all of which he replied that he would worship his God, and that as 
 part of his worship it was his duty to sing. It was further in evidence 
 that the defendant is a strict member of the church and a man of 
 most exemplary deportment. 
 
 "It was not contended by the State upon the evidence that he had 
 any intention or purpose to disturb the congregation; but on the con-
 
 REAL EVIDENCE 539 
 
 trary, it was admitted that he was conscientiously taking part in the 
 religious services." 
 
 This admission by the State puts an end to the prosecution. It is 
 true, as said by his Honor, that a man is generally presumed to in- 
 tend consequences of his acts, but here the presumption is rebutted by 
 a fact admitted by the State. 
 
 It would seem that the defendant is a proper subject for the dis- 
 cipline of his church, but not for the discipline of the courts. 
 
 Venire de novo. 
 
 PER CURIAM. 
 
 OSBORNE v. CITY OF DETROIT. 
 32 Fed. Rep. 36. (1886) 
 
 BROWN, J. The plaintiff in this case obtained a verdict of $10,000 
 for personal injuries received by her in falling upon a defective side- 
 walk upon the north side of Church street in this city, between Mich- 
 igan and Trumbull avenues. Defendant now moves for a new trial 
 upon the following grounds. 
 
 That the court erred in permitting the exhibition of the plaintiff and 
 her condition to the jury by Dr. Gaylord. The doctor, who had not 
 been sworn, exhibited the plaintiff to the jury, and thrust a pin into 
 the right side of her face, her right arm and leg, and, from the wit- 
 ness' failing to wince, the jury were asked to infer that there was a 
 complete paralysis of her right side. Objection was made to this upon 
 the ground that the doctor was not sworn as to the instrument he was 
 using, nor was the plaintiff sworn to behave naturally while she was 
 being experimented upon. It is argued that both the doctor and plain- 
 tiff might have wholly deceived the court and jury without laying 
 themselves open to a charge of perjury, and that plaintiff was not 
 even asked to swear whether the instrument hurt her when it was used 
 on the left side, or did not hurt her when used on the right side; in 
 short, that there was no sworn testimony or evidence in the whole 
 performance and no practical way of detecting any trickery which 
 might have been practiced. We know, however, of no oath which 
 could be administered to the doctor or the witness touching this exhi- 
 bition. So far as we are aware, the law recognizes no oaths to be 
 administered upon the witness stand except the ordinary oath to tell
 
 540 CASES ON EVIDENCE 
 
 the truth, or to interpret correctly from one language to another. The 
 pin by which the experiment was performed was exhibited to the jury. 
 There was nothing which tended to show trickery on the part of the 
 doctor in failing to insert the pin as he was requested to do, nor was 
 there any cross-examination attempted from the witness on this point. 
 Counsel were certainly at liberty to examine the pin and to ascertain 
 whether in fact it was inserted in the flesh, and having failed to ex- 
 ercise this privilege, it is now too late to raise the objection that the 
 exhibition was incompetent. It is certainly competent for the plain- 
 tiff to appear before the jury, and, if she had lost an arm or a leg by 
 reason of the accident, they could hardly fail to notice it. By parity 
 of reasoning, it would seem that she was at liberty to exhibit her 
 wounds if she chose to dp so, as is frequently the case where an ankle 
 has been sprained or broken, a wrist fractured, or any maiming has 
 occurred. I know of no objection to her showing the extent of the 
 paralysis which has intervened by reason of the accident, and evidence 
 that her right side was insensible to pain certainly tended to show this 
 paralyzed condition. In criminal cases it has been doubted whether 
 the defendant could be compelled to make profert of his person, and 
 thus, as it were, make evidence against himself. The authorities upon 
 this subject are collated in 15 Cent. Law J. 2, and are not unequally 
 divided, but we know of no civil case where the injured person has 
 not been permitted to exhibit his wounds to the jury. 
 
 In Schroeder v. Railroad Co., 47 Iowa, 375, it was held not only that 
 the plaintiff would be permitted, in actions for personal injuries to ex- 
 hibit his wounds or injuries to the jury, but that he might be required 
 by the court, upon proper application therefore by the defendant, to 
 submit his person to an examination for the purpose of ascertaining 
 the extent of such injuries, and upon refusal might be treated as in 
 contempt. See, also, Mulhado v. Railroad Co., 30 N. Y. 370. 
 
 Judgment on the verdict. 
 
 STATE v. ISAACSON. 
 8 So. Dak. 6p. (1895) 
 
 FULLER, J. Under Sec. 6884 f the Comp. Laws, plaintiff in error 
 was indicted for, and upon the trial found guilty of the offense of ma- 
 liciously exposing a poisonous substance, with the intent that the same
 
 REAL EVIDENCE 541 
 
 should be taken by an animal, to wit, a certain horse. 
 
 Over the objection of counsel for the accused the prosecuting wit- 
 ness and owner of the horse mentioned in the indictment was allowed 
 to testify as follows : "As soon as the horse died, Andrew Melander 
 and myself cut the horse open and took out the contents of his stom- 
 ach. I administered some of the contents of the stomach of said horse 
 to a hen on the nth day of May, 1895, and the hen died in ten or 
 twelve minutes from the effects thereof." We think the evidence as 
 to what he did was admissible. A non-expert, shown to be familiar 
 with evidentiary facts, may, when the expression of an opinion is not 
 involved, ordinarily state the result of his observations with reference 
 to such facts. An ordinary nonprofessional witness in possession of 
 his faculties, who takes a section from the stomach of a horse, and 
 feeds it to a hen, which dies in ten minutes after eating the same, 
 may testify as to such facts, when material, for the same are as observa- 
 ble to him as a professional witness. The objection, as made, did not 
 go to the qualification of ,the witness, but was specifically directed to 
 the evidence "relating to the administration of said contents to said 
 hen," and not to the opinion of the witness as to the cause of the hen's 
 death ; and as no motion was made to strike out such evidence, coun- 
 sel's contention concerning the same cannot prevail. 
 
 A regardful examination of the record as presented discloses no 
 prejudicial error, and the judgment of conviction is affirmed. 
 
 JONES v. ROYSTER GUANO COMPANY. 
 6 Ga. App. 506. (1909) 
 
 Jones brought suit against the Royster Guano Co. seeking to re- 
 cover damages for the erection and maintenance by the defendant of 
 a fertilizer factory near his home in such a manner as to create a 
 nuisance. 
 
 The hydrochloric acid gas, sulphuric acid gas, flourine gas, and 
 other gases generated in the factory killed vegetables in the plaintiff's 
 garden, and corn and other crops growing in his field, and he had be- 
 come discouraged and had stopped trying to grow anything on his 
 land. Just about the time the corn would begin to tassel it would be 
 attacked by the gases and other substances from the factory and killed. 
 The flowers in the yard had been dwarfed and killed.
 
 542 CASES ON EVIDENCE 
 
 The defendant's testimony tended to show that this was one of the 
 largest fertilizer factories in the southern states, and probably the best 
 equipped. It is equipped with the very best obtainable condensers 
 for the purpose of preventing the escape of gases and fumes, and 
 every possible precaution is taken to keep the factory from being ob- 
 jectionable and offensive to people living in the community. It is ab- 
 solutely impossible to condense all the gases, and, when the wind is 
 strong, some of them escape into the surrounding atmosphere, and to 
 some extent affect vegetable and plant life. 
 
 RUSSELL, J. The evidence was in sharp conflict as to every mate- 
 rial issue in the case, both as to the manner in which the factory was 
 operated and as to the extent of the damage suffered by the plaintiff 
 in and around his premises. The defendant denied that the gases, 
 fumes, etc., had killed any vegetation about the factory as claimed by 
 the plaintiff's witnesses. Over the objection of the plaintiff the judge 
 allowed the jury to make a personal inspection of the defendant's 
 factory and of the plaintiff's premises. The plaintiff excepts to this 
 ruling. This was a matter resting in the sound discretion of the trial 
 judge. County of Bigg v. Reese, 115 Ga. 346. 
 
 Reversed on another ground. 
 
 THE PEOPLE v. JAMES HOPE. 
 62 Cat. 291. (1882) 
 
 Appeal from a judgment of conviction and from an order denying 
 a new trial in the Superior Court of the City and County of San Fran- 
 cisco. 
 
 SHARPSTEIN, J. Among the articles exhibited in the presence of 
 the jury was a "cylindrical steel bar about half an inch in diameter and 
 about eight inches long, which he (the witness exhibiting it) said he 
 had made for the purpose of screwing upon it the said coupling or 
 sockets one of which was found in the hole over the bank vault and 
 the other in the trunk of the defendant. The court, against the ob- 
 jection of the counsel of appellant, permitted the witness "to make 
 experiments in the presence of the jury with the couplings or sockets 
 attached to said cylindrical bar." The ground of the objection was 
 that the cylindrical bar was not in evidence. It had not been formally 
 offered in evidence, and the counsel for the prosecution stated that
 
 REAL EVIDENCE 543 
 
 they did not intend to offer it in evidence. But the witness had ex- 
 hibited it on the witness stand, and had stated that he had it made for 
 the purpose of screwing "said coupling or sockets" upon it. The ob- 
 ject of screwing "said coupling or sockets" upon it is not stated, nor 
 to us apparent. Still, in support of the correctness of the ruling of 
 the court below we are bound to presume, unless the contrary appears, 
 that the object was a legitimate one. Perhaps the use to which the 
 coupling or sockets might be put, could be made more clear by screw- 
 ing them upon said cylindrical bar. It was not objected that the wit- 
 ness was not an expert, and we are unable to determine from anything 
 before us that it was not necessary for him to use said cylindrical bar 
 in order to elucidate and illustrate clearly the character of the "coup- 
 ling or sockets" which had been admitted in evidence. It was not only 
 proper, but of the first importance, that the prosecution should show 
 that the implements found on the vault, and in the appellant's trunk, 
 were "burglars' tools." And we must presume that it was for that 
 or some other legitimate object that the witness was permitted to ex- 
 periment with some of them in the presence of the jury, and that he 
 was allowed to use an instrument of his own for the purpose of mak- 
 ing the experiment better understood than it otherwise would be. The 
 objection to the question put to the witness Aiken was properly over- 
 ruled. ' 
 
 Judgment and order affirmed. 
 
 PEDIGO v. COMMONWEALTH, 
 /oj Ky. 41. (1898) 
 
 , J. Appellant was indicted jointly with Worth Wilson for 
 burning the stock barn of L. W. Preston, on March 10, 1897, anf ^ 
 having been given a separate trial, was found guilty and sentenced to 
 three years' confinement in the penitentiary. 
 
 Upon the trial, Preston testified that, at ten minutes of nine in the 
 evening, he discovered the fire coming through the barn from the 
 southwest corner; and that he thereupon "telegraphed to Neighbors, 
 at Elizabethtown, and got his bloodhound, that arrived the next day 
 at noon, and carried him to the rear of the southwest corner of the 
 barn; and the dog took a track and went in a south direction to the 
 lane, and went down the lane three panels, and crossed the fence
 
 544 CASES ON EVIDENCE 
 
 through the place of Spencer into the street, and then up the street 
 toward the dormitory, and up to the house of Nan Tunstel's, opposite 
 the dormitory. The dog was then taken to the alley that leads out of 
 the street, east, from the one on which the dormitory is situated ; and 
 the dog took a track then, and followed it up that street through the 
 plank fence through Mr. Joe Smith's, following a path into the Knox 
 road, out that road to Dolph Depp's gate, crossed the fence in a low 
 place near the gate, and then through the swamp into the field toward 
 my barn that was burned." 
 
 It is difficult to lay down a general rule as to the introduction of 
 testimony of this kind. It is matter of common knowledge, of which 
 courts are authorized to take notice, that dogs of some varieties (as 
 the bloodhound, foxhound, pointer and setter) are remarkable for the 
 acuteness of their sense of smell, and for their power of discrimina- 
 tion between the track they are first laid on and others which may cross 
 it; but it is also matter of common knowledge that all dogs do not pos- 
 sess this power in the same degree, and that some dogs of purest ped- 
 igree prove worthless upon trial. 
 
 After a careful consideration of this case by the whole court, we 
 think it may be safely laid down that, in order to make such testimony 
 competent, even when it is shown that the dog is of pure blood and of 
 a stock characterized by acuteness of scent and power of discrimina- 
 tion, it must also be established that the dog in question is possessed 
 of these qualities, and has been trained or tested in their exercise in 
 the tracking of human beings, and that these facts must appear from 
 the testimony of some person who has personal knowledge thereof. 
 We think it must also appear that the dog so trained and tested was 
 laid on the trail whether visible or not, concerning which, testimony 
 has been admitted at a point where the circumstances tend clearly to 
 show that the guilty party had been or upon, a track which such cir- 
 cumstances indicate to have been made by him. When so indicated, 
 testimony as to trailing by a bloodhound may be permitted to go to the 
 jury for what it is worth as one of the circumstances whichrnay tend 
 to connect the defendant with the crime of which he is accused. When 
 not so indicated, the trial court should exclude the entire testimony in 
 that regard from the jury. 
 
 For the reasons stated, the judgment is reversed and the cause re- 
 manded, with directions to award appellant a new trial, and for further 
 proceedings consistent with this opinion.
 
 REAL EVIDENCE 545 
 
 DAVIS v. STATE. 
 
 46 Fla. 138. (1903) 
 s 
 
 COCKRELI,, J. Charlie Davis was indicted in one count for breaking 
 and entering a dwelling house with intent to commit the felony of lar- 
 ceny. The indictment charged that at the time of such breaking and 
 entering the defendant was armed with a dangerous weapon and also 
 that he made an actual assault upon a person who was lawfully in said 
 dwelling. He was convicted and sentenced to life imprisonment. 
 
 Testimony was admitted over the defendant's objection as to the 
 action of two dogs in following the supposed trail of the burglar from 
 the scene of the crime. As this case is to be reversed on another point, 
 we need not determine its admissibility, but think it proper to notice 
 certain requirements in the introduction of such evidence. The ad- 
 judged cases on this point are few but uniform in admitting such evi- 
 dence under proper conditions. Pedigo v. Commonwealth, 103 Ky. 
 41, 44 S. W. 143, 42 L. R. A. 432, S. C. 82 Am. St. Rep. 566; Hodge 
 v. State, 98 Ala. 10, 13 So. 385; Simpson v. State, in Ala. 6, 13 So. 
 572. But in order that such testimony be admissible there must be 
 preliminary proof of such character as to show that reliance may rea- 
 sonably be placed upon the accuracy of the trailing attempted to be 
 proved. Their should first be testimony from some person who has 
 personal knowledge of the fact that the dog used has an acuteness of 
 scent and power of discrimination which have been tested in the track- 
 ing of human beings. The intelligence, training and purity of breed 
 are all proper matters for consideration in determining the admissibil- 
 ity of such evidence, as is also the behavior of the dog in following the 
 track pointed out. In the record before us there is no proof of the 
 breed of the dogs, and while there is proof that they had been trained 
 for six months, there is no proof that they were trained in the tracking 
 of human beings. It is questionable whether this is sufficient. 
 
 Reversed on another ground.
 
 546 CASES ON EVIDENCE 
 
 BROTT v. STATE. 
 70 Neb. 395. (1903) 
 
 SULLIVAN, C. J. George W. Brott was charged with burglary and 
 convicted. The trial court received as evidence of guilt the fact that 
 bloodhounds, after being taken to the place where the Berime was 
 committed, appeared to trail the burglar to defendant's house. The 
 competency of this evidence is the only question necessary to consider 
 in disposing of the case. The conduct of the dogs was perhaps, 
 rightly received, in connection with an admission made by Brott, as 
 evidence tending to prove that he committed the crime charged in 
 the information; but it was also received as proof of independent 
 crimes which the state brought to the attention of the jury, to which 
 the admission did not relate. The only evidence of these independent 
 crimes was the inference afforded by the conduct of the dogs. If such 
 evidence is incompetent the conviction can not stand. The argu- 
 ment of the attorney general is that the bloodhound has an excep- 
 tionally fine perception of scent; that, in following a trail and discrim- 
 inating between smells, he seldom or never errs; and that knowledge 
 of his extraordinary aptitude is so nearly universal that courts 
 will act upon it without proof. The bloodhound has, of course, 
 a great reputation for sagacity, and there is a prevalent belief that, 
 in the pursuit and discovery of fugitive criminals, he is practically 
 infallible. It is a common accepted notion that he will start from 
 the place where a crime has been committed, follow for miles the 
 track upon which he has been set, find the culprit, confront him and, 
 mirabile dictu, by accusing bay and mien, declare, "Thou art the 
 man." This strange misbelief is with some people apparently incor- 
 rigible. It is a delusion which abundant actual experience has failed 
 to dissipate. It lives on from generation to generation. It has still 
 the attractiveness of a fresh creation. "Time writes no wrinkle on 
 its brow." But it is, nevertheless, a delusion, an evident and obvious 
 delusion. The sleuthhound of fiction is a marvelous dog, but we find 
 nothing quite like him in real life. We repudiate utterly the sugges- 
 tion that there is any common knowledge of the bloodhound's capacity 
 for trailing, which would justify us in accepting his conclusion as 
 trustworthy under circumstances like those disclosed by the present 
 record. 
 
 The judgment is reversed, and the cause remanded for further 
 proceedings. 
 
 Reversed.
 
 EVIDENCE 547 
 
 COUNTY OF BIBB v. REESE. 
 j/5 Ga, 346. (1902) 
 
 SIMMONS, C. J. Mrs. Reese brought her action against Bibb county, 
 alleging that the officers and agents of the county had damaged her 
 by cutting down the road-bed in front of her premises in such a man- 
 ner as to render ingress and egress impossible, and to greatly injure 
 the value of her property. Upon the trial of the case the plaintiff 
 proved that her property had been injured, and the jury returned a 
 verdict in her favor for $1,500. The county made a motion for a new 
 trial on various grounds, which was refused, and it excepted. 
 
 One ground of the motion for a new trial complains that the court 
 below erred in directing, over objection of counsel for the defendant, 
 that the jury be taken to view the premises alleged to have been dam- 
 aged. It appears that, in compliance with a request of counsel for the 
 plaintiff, the court directed the sheriff and a bailiff to procure car- 
 riages and take the jury to the premises, the judge accompanying them 
 in another carriage. This is the first time that the question here pre- 
 sented has ever* been squarely before this court for determination. 
 From an investigation of the subject we find that prior to the act ap- 
 proved February 25, 1784 (Cobb's Dig. 721), adopting as the law of 
 Georgia the common law and such statute law of England, with cer- 
 tain exceptions, as was in force in the colony before the Revolution, 
 it was the law of England that the judge, in all real and mixed ac- 
 tions, might in his discretion allow the jury to view the premises. The 
 statute of Anne, c. 16, sec. 8, recognized the right of trial by view, and 
 prescribed the mode of procedure to be had therein. Considerable dif- 
 ficulty having been experienced through a misunderstanding of the 
 meaning of the statute referred to, "in 1757, Lord Mansfield and the 
 other judges took it upon themselves to remedy this state of affairs, 
 and declared that they were clearly of the opinion that a view should 
 not be granted unless the court were satisfied that it was proper and 
 necessary." 26 Cent. L. J. 436. See also i Co. Lit. 158 b; 5 Bac. 
 Abr. (title juries) 372; Stearns on Real Actions, 102; 2 Tidd. Pr. 796; 
 Andres Steph. PL sec. 109; i Thomp. Tr. sees. 875 et seq.; 22 Enc. 
 PI. & Pr. 1053 et seq.', Springer v. Chicago (111.) 35 Am. & Eng. Cas. 
 180, 186; and the well-written article in 26 Cent. L. J., above cited, in 
 which the question is fully discussed and the authorities collected. It 
 seems that at common law this right of the judge to permit the jury 
 to view the premises existed only in real and mixed actions, and did
 
 548 CASES ON EVIDENCE 
 
 not extend to personal actions and criminal actions without the con- 
 sent of both parties. The legislature of this State having in 1784 
 adopted the common law of England as it existed prior to 1776, in- 
 cluding this right of trial by view in the discretion of the trial judge, 
 and no repealing statute ever having been passed, that law is still of 
 force in Georgia; as much so as if the legislature had expressly 
 enacted it. The present case being an action to recover damages to 
 land, the trial judge had the right, with or without the consent of the 
 parties, to direct the jury to view the premises. The reason for al- 
 lowing the judge this authority is fully set out in some of the cases 
 above cited, especially in the case of Springer v. Chicago, from the 
 Illinois Supreme Court. But whatever the reasons may be, whether 
 good, bad or indifferent, it is the law of this State, the courts are 
 bound by it, and this court has no power to reverse a trial judge for 
 adhering to it, unless there has been an abuse of discretion. It was, 
 therefore, not error for the court below to allow the jury to view the 
 premises in the present case. 
 
 Reversed on another ground. 
 
 PETERSON & LOTT v. LOTT. 
 ii Ga. App. 5jd. (1912) 
 
 RussELL, J. This was a claim case. The property involved was 
 personal property. It is assigned as error that the court permitted 
 the jury, over the objection of the plaintiff in fi. fa., to go out into 
 the court-yard and view the mule which had been levied on and which 
 was claimed. At common law an inspection is permitted where the 
 subject-matter of the suit is real or mixed property, but the jury could 
 not view personal property if such was the subject of litigation. 
 Inasmuch as by our adopting statute of 1784 the common law became 
 of force in this State, it would seem that a trial court is not author- 
 ized, as a matter of judicial discretion, to have personal property, 
 where such personal property is the subject-matter of the action, 
 inspected by a jury. Perhaps the consent of both parties will be such 
 a waiver of the error that neither could except. But it is our opinion 
 that if either party objected it would be ground for a new trial. 
 At common law the right to demand a view appertained only to real 
 and mixed actions. "In the United States," as said by Mr. Thomp-
 
 REAL EVIDENCE 549 
 
 son, in his work on Trials (sec. 881), "the subject is one generally 
 of statutory regulations, and it has been held not competent for the 
 court to order a view against the objection of a party, except in 
 cases where the view is authorized by statute." It is further pointed 
 out by Mr. Thompson that the courts proceed upon the conception 
 that it is more in consonance with the theory and method of judicial 
 trials that the jury should base their finding solely upon sworn tes- 
 timony, taken in open court, or upon depositions taken as provided 
 by law. Only four States in the Union (one of which is Georgia) 
 have failed to regulate the matter by statute ; Alabama, Louisiana, and 
 Maryland being the other three. 
 
 As the case of Jones v. Royster Guano Company, 6 Ga. App. 506, 
 in which the question was involved, was, like the case of County of 
 Bibb v. Reese, supra, an action to recover damages to land, the ruling 
 in the latter case was cited and followed. But in the present case 
 the property (which one party desired the jury to view, and to the 
 view of which the other party objected) was personal property (a 
 mule), and as a view of personal property was not permitted by the 
 common law, the judge erred in overruling the objection and in per- 
 mitting the view. It would seem to be in the interest of justice that 
 all avenues for entry of truth should be permitted, and that the jury 
 should be given the very fullest opportunity to know the exact truth 
 in regard to every material matter involved in a legal investigation ; 
 and, for ourselves, we see no reason for any valid distinction between 
 a view of real property and personal property, other than the greater 
 liability of the latter to be subject to alteration and change and even 
 this could be controlled by evidence as to whether there had been 
 any alteration of the subject-matter or not. But, as was remarked 
 by Chief Justice Simmons in County of Bibb v. Reese, supra, the 
 adoption of the common law fixed the status of the law of Georgia 
 upon the subject, and, in the absence of any legislation authorizing 
 the court to permit a view of personal property, which is the subject 
 of dispute, it is error to direct the jury to view the property, especially 
 if either party objects. 
 
 Judgment reversed.
 
 PART V. 
 DOCUMENTARY EVIDENCE. 
 
 ALTERATIONS.! 
 
 WOOD v. STEELE. 
 6 Wall (73 U. S.) 80. (1867) 
 
 SWAYNE, J. The action was brought by the plaintiff in error upon 
 a promissory note, made by Steele and Newson, bearing date October 
 nth, 1858, for $3,720, payable to their own order one year from 
 date, with interest at the rate of two per cent, per month and in- 
 dorsed by them to Wood, the plaintiff. 
 
 Upon the trial it appeared that Newson applied to Allis, the agent 
 of Wood, for a loan of money upon the note of himself and Steele. 
 Wood assented, and Newson was to procure the note. Wood left 
 the money with Allis to be paid over when the note was produced. 
 The note was afterwards delivered by Newson, and the money paid 
 to him. Steele received no part of it. At that time, it appeared on 
 the face of the note that "September" had been stricken out and 
 "October nth" substituted as the date. This was done after Steele 
 had signed the note, and without his knowledge or consent. These 
 circumstances were unknown to Wood and Allis. Steele was the 
 surety of Newson. It does not appear that there was any contro- 
 versy about the facts. The argufhent being closed, the court in- 
 structed the jury, "that if the said alteration was made after the 
 note was signed by the defendant, Steele, and by him delivered to the 
 other maker Newson, Steele was discharged from all liability on said 
 note." The plaintiff excepted. The jury found for the defendant, 
 and the plaintiff prosecuted this writ of error to reverse the judgment. 
 Instructions were asked by the plaintiff's counsel, which were re- 
 fused by the court. One was given with a modification. Exceptions 
 were duly taken, but it is deemed unnecessary particularly to advert 
 to them. The views of the court as expressed to the jury, covered 
 the entire ground of the controversy between the parties. 
 
 The state of the case, as presented, relieves us from the necessity 
 of considering the questions, upon whom rested the burden of proof, 
 
 iHughes on Evidence, p. 203. c;c;o
 
 ALTERATIONS 55 1 
 
 the nature of the presumption arising from the alteration apparent 
 on the face of the paper, and whether the insertion of a day in a blank 
 left after the month, exonerates the maker who has not assented to it. 
 
 Was the instruction given correct? 
 
 It was the rule of the common law as far back as the reign of 
 Edward III, that a rasure in a deed avoids it. The effect of al- 
 terations in deeds was considered in Pigot's case, and most of the 
 authorities upon the subject down to that time were referred to. 
 In Master v. Miller, the subject was elaborately examined with ref- 
 erence to commercial paper. It was held that the established rules 
 apply to that class of securities as well as to deeds. It is now settled, 
 in both England and American jurisprudence, that a material altera- 
 tion in any commercial paper, without the consent of the party 
 sought to be charged, extinguishes his liability. The materiality of 
 the alteration is to be decided by the court. The question of fact 
 is for the jury. The alteration of the date, whether it hasten or delay 
 the time of payment, has been uniformly held to be material. The 
 fact in this case that the alteration was made before the note passed 
 from the hands of Newson, cannot affect the result. He had no 
 authority to change the date. 
 
 The grounds of the discharge in such cases are obvious. The agree- 
 ment is no longer the one into which the defendent entered. Its 
 identity is changed; another is substituted without his consent; and 
 by a party who had no authority to consent for him. There is no 
 longer the necessary concurrence of minds. If the instrument be 
 under seal, he may well plead that it is not his deed; and if it be not 
 under seal, that he did not so promise. In either case, the issue must 
 necessarily be found for him. To prevent and punish such tamper- 
 ing, the law does not permit the plaintiff to fall back upon the contract 
 as it was originally. In pursuance of a stern but wise policy, it annuls 
 the instrument, as to the party sought to be wronged. 
 
 The rules that where one of two innocent persons must suffer, he 
 who has put it in the power of another to do the wrong, must bear 
 the loss, and that the holder of commercial paper taken in good faith 
 and in the ordinary course of business, is unaffected by any latent 
 infirmities of the security, have no application in this class of cases. 
 The defendant could no more have prevented the alteration than 
 he could have prevented a complete fabrication; and he had as little 
 reason to anticipate one as the other. The law regards the security, 
 after it is altered, as an entire forgery with respect to the parties who
 
 552 CASES ON EVIDENCE 
 
 have not consented, and so far- as they are concerned, deals with it 
 accordingly. 
 
 The instruction was correct and the 
 
 Judgment is affirmed. 
 
 GREENFIELD SAVINGS BANK v. STOWELL et al. 
 123 Mass. 196. (1877) 
 
 Contract against Cyrus A. Stowell, Timothy D. Richardson and 
 Charles Stowell, upon the following promissory note, in which the 
 words in Roman letters were printed, and those in italics written, 
 and purporting to be signed by the defendants and by George W. 
 Bardwell, whose name appeared first among the signers: 
 
 Greenfield Mass. Sept. 2^>th, 1874. 
 
 "$467. 
 
 "For value received, I promise to pay the Greenfield Savings Bank 
 or order, four hundred and sixty seven dollars on demand with in- 
 terest at the rate of seven 3-10 per centum per annum payable semi- 
 annually on the first days of June and December of each year." 
 
 GRAY, C. J. This action is brought upon a promissory note, signed 
 by George W.\ Bardwell, Cyrus A. Stowell, Timothy D. Richardson 
 and Charles Stowell, appearing in its present condition, and alleged 
 in the declaration, to be a note for $467. Cyrus A. Stowell and 
 Timothy D. Richardson only defend the action. It is agreed that 
 the note is upon a blank printed form; that, as originally prepared 
 and signed by Bardwell, and signed by the defendants at his request, 
 it was a note for $67; that Bardwell afterwards, without the author- 
 ity or knowledge or expectation of the defendants, fraudulently pre- 
 fixed the figure "4" to the figures "67" and the words "four hundred 
 and" to the words "sixty-seven," and in that form, and with no mark 
 or indication or alteration, negotiated it to the plaintiff, who lent him 
 $467 thereon. 
 
 The plaintiff contends that the defendants were negligent in sign- 
 ing the note with such blanks as enabled the fraudulent alterations 
 to be made without danger of detection, and are therefore liable 
 to an innocent holder for value upon the note as so altered. But 
 after deliberate advisement, and careful examination of the authori-
 
 ALTERATIONS 553 
 
 ties cited in the learned arguments at the bar, we are of opinion that 
 this position cannot be maintained. 
 
 It is a general rule of our law, that a fraudulent and material 
 alteration of a promissory note, without the consent of the party 
 sought to be charged thereon, whether made before or after the de- 
 livery of the note, renders the contract wholly void as against him, 
 even in the hands of one who takes it in good faith and without 
 knowledge or reasonable notice of the alteration. Hall v. Fuller, 
 5 B. & C. 750; S. C. 8 D. & R. 464. Warrington v. Early, 2 El. & 
 Bl. 763. Wood v. Steele, 6 Wall. 80. Angle v. Northwestern Ins. 
 Co., 92 U. S. 330. Fay v. Smith, i Allen 477. Draper v. Wood, 
 112 Mass. 315. Citizens' National Bank v. Richmond, 121 Mass. 
 no. 
 
 Judgment for defendants. 
 
 WARDER, BUSHNELL & GLESSNER COMPANY v. 
 WILLYARD. 
 
 46 Minn, 537. (1891) 
 
 COLLINS, J. This was an action originally brought in justice's 
 court, to recover the sum of $40 alleged to have become due on No- 
 vember i, 1889, as an installment of the agreed price of a harvesting- 
 machine sold and delivered by plaintiffs to defendant. The latter, 
 by his answer, admitted the sale and delivery, but averred that, in 
 accordance with the terms therewith, he executed and delivered to 
 the plaintiffs his three negotiable promissory notes, each payable to 
 their order, aggregating in amount the stipulated price of the ma- 
 chine; one of the same being for $40, maturing November i, 1889, 
 and having been given for the identical instalment to recover which 
 the action had been instituted. He further alleged that, after the 
 making and delivery of said note, the plaintiffs, without the knowl- 
 edge or consent of defendant, wilfully and fraudulently altered the 
 note by changing the amount of the same from $40 to $45. On these 
 pleadings the parties proceeded to trial, although the plaintiffs made 
 and filed a so-called reply, in which the execution, delivery and 
 alteration of the note for $40 were admitted. It was further averred 
 therein that the alteration was not wilful or fraudulent, and that 
 it was made without plaintiffs' knowledge or consent. The plaintiffs
 
 554 CASES ON EVIDENCE 
 
 had a judgment, from which an appeal on questions of law alone 
 was taken to the District Court, all of the proceedings and the evi- 
 dence being returned. The appeal here is from a judgment in plain- 
 tiffs' favor in the last-named tribunal. 
 
 The paper styled a "reply" was unauthorized as a pleading in the 
 case, and, as such, must be treated as a nullity. 
 
 As the plaintiffs could not maintain an action upon the materially- 
 altered promissory note, they were compelled to resort to the original 
 consideration as a foundation for their claim; and the question then 
 arose, and is now presented, of their right to recover on the indebted- 
 ness for which the note was given. From an examination of the au- 
 thorities, it appears to be well settled that a recovery is not permitted, 
 in any form of action, where the holder of a written security or 
 evidence of a debt has altered or changed the instrument in a mate- 
 rial part, to his own advantage and with intent to defraud his debtor. 
 The law is stated to be that, when the holder of a bill or note fraudu- 
 lently alters its legal effect, he not only destroys the instrument by 
 thus destroying its legal identity, but he also extinguishes the debt 
 for which it was executed and delivered. Daniel, Neg. Inst. sec. 
 i4ioa; Rand. Com. Paper, sec. 1763; Chalm. Dig. Bills & N. art. 249; 
 Chit. Bills, looq, and cases cited in each of these volumes. 
 
 We are very clearly of the opinion that, if the alteration of the 
 instrument be a material one, it is presumed to have been fraudulently 
 made, and it is incumbent upon the holder to explain it. The act is 
 apparently fraudulent. It is wrongful, and naturally indicates a 
 wrongful intent which requires an explanation to excuse it. The 
 holder of a note or bill which has been altered in a material part must 
 be required to show that the change was made innocently, or for a 
 proper purpose, or by a stranger, or it would follow that, when the 
 most glaring forgeries have been committed by alterations of nego- 
 tiable instruments, the maker or the party sought to be charged would 
 have to discover the fraudulent motive of the forger, and establish it 
 by proof. The party in default, and who ordinarily must have knowl- 
 edge of all the circumstances attending the alteration, must bear the 
 burden of explaining it, and of extricating himself. Daniel, Neg. 
 Inst. sees. 1412, 1413, and Rand. Com. Paper, sec. 1785, with cases 
 cited; Milbery v. Storer, 75 Me. 69; Croswell v. Labree, 81 Me. 44; 
 Robinson v. Reed, 46 Iowa 219. 
 
 Judgment reversed.
 
 ALTERATIONS 555 
 
 WILSON v. HAYES et al. 
 40 Minn. 531. (1889) 
 
 This action was brought in the District Court for Crow Wing 
 County, and was tried by Sleeper, J., certain issues as to the fact of 
 time, etc., of the alteration of the note mentioned in the opinion being 
 submitted to a jury. Plaintiff appeals from an order by Holland, J., 
 refusing a new trial. 
 
 MITCHELL, J. On August 27, 1885, plaintiff loaned to defendant 
 Douglas $5,000, for which the latter executed his promissory note, 
 secured by a mortgage on certain real estate upon which he had 
 executed a prior mortgage to the Minneapolis Loan & Trust Com- 
 pany. It had been previously agreed between plaintiff and Douglas 
 that plaintiff was "to take an assignment" of the prior mortgage, and 
 that Douglas should have three years in which to redeem the property. 
 In September, 1885, Wilson indorsed and sold Douglas's note to the 
 Bank of Minneapolis, but made no formal assignment of the mort- 
 gage. Wilson not having obtained any assignment of the Loan & 
 Trust Company's mortgage, and default having been made in its 
 conditions, the company foreclosed and bid in the property on the 
 23rd of July, 1887, an ^ subsequently transferred the certificate of 
 sale to defendant Hayes, who was a judgment creditor of Douglas, 
 junior to both mortgages. Shortly before the expiration of the time 
 of redemption, Wilson applied to Hayes for an assignment of the 
 certificate of sale, which the latter refused to give. Thereupon Wil- 
 son repurchased Douglas's note from the Bank of Minneapolis, filed 
 his intention to redeem as mortgagee, and on July 25, 1888, presented 
 to the sheriff who made the sale his mortgage and affidavit required 
 by statute, and tendered the proper amount of money, and demanded 
 a certificate of redemption. The sheriff, at the instance and direc- 
 tion of Douglas and Hayes, refused to accept the money or allow 
 plaintiff to redeem. Hayes now claims to own the property under 
 the foreclosure of the trust company mortgage. Plaintiff brings this 
 action to enforce his right of redemption. 
 
 The last and principal defense is that Wilson fraudulently altered 
 the note secured by the mortgage, after its execution, by erasing 
 the word "annually" and inserting the word "quarterly," so as to 
 make the interest payable quarter-yearly instead of yearly, thereby 
 destroying the instrument and extinguishing the debt. Plaintiff in- 
 terposed a reply putting in issue the alteration, and further alleg-
 
 556 CASES ON EVIDENCE 
 
 ing (as we may fairly construe it in the absence of any specific 
 objection to the pleading) that Douglas had ratified the note in its 
 present condition by paying interest on it, with full knowledge of all 
 the facts. Upon this issue as to the alteration of the note the court 
 submitted certain questions to the jury, their answers to which were 
 in substance that the note was altered after its execution, without 
 the knowledge or consent of Douglas, by some one to the jury un- 
 known, but by and with the knowledge and authority of Wilson. 
 
 The court, at the request of defendants, and against plaintiff's 
 objection, instructed the jury, that in the absence of any evidence 
 as to when the alteration was made, it would be their duty to find 
 that it was made after delivery; that such was the presumption of 
 law, in the absence of explanation ; and that the burden of proof 
 was upon plaintiff, as holder, to show that it was made before execu- 
 tion. This instruction, in various forms, was repeated and em- 
 phasized, and is here assigned as error. The question of presumption 
 and burden of proof, where interlineations or erasures appear on the 
 face of an instrument, is one upon which there is a wilderness of 
 authorities and much conflict of opinion. Any attempt to cite or con- 
 sider the innumerable cases on this question would be both imprac- 
 ticable and useless. The rule adopted by some authorities is that the 
 presumption, in the absence of evidence to the contrary, is that the 
 alteration was made before execution, and therefore that no explana- 
 tion is required in the first instance; while others hold, in accordance 
 with the instruction of the trial court in this case, that the presump- 
 tion of law is that the alteration was made after delivery, and there- 
 fore the burden is upon the holder to explain it, and show that it 
 was made under circumstances that would not invalidate the instru- 
 ment. In addition to these two leading and opposing views, different 
 courts have adopted certain intermediate or compromise rules, none 
 of which need be here referred to, except one, seemingly adopted 
 by some very eminent courts, to wit, that the alteration raises a pre- 
 sumption against the instrument when it is suspicious ; otherwise, 
 not. But this furnishes no definite rule by which to determine when 
 it is not. Who is to determine, and by what test, whether the altera- 
 tion is suspicious? And, if held suspicious, when must it be explained, 
 before or after it is admitted in evidence? Evidence as to when, 
 by whom, and with what intent, an alteration was made may be 
 one or both of two kinds, extrinsic or intrinsic; the latter being that 
 furnished by the inspection of the instrument itself, such as its ap- 
 pearance, the nature of the alteration, etc. These things, considered
 
 ALTERATIONS 557 
 
 in ..connection with the relation of the parties to the instrument may 
 often constitute important evidence. And it seems to us that the rule 
 just referred to amounts to nothing more than saying that in some 
 cases this intrinsic evidence may tend to prove that the alteration 
 was made after delivery, and therefore throw the preponderance on 
 that side, unless the holder of the instrument produces extrinsic 
 rebutting evidence. Thus construed, we would find no special fault 
 with the rule. But it is incorrect to call this a presumption of law, 
 it is simply an inference of fact drawn from evidence in the case. 
 
 The doctrine that the presumption of law is that the alteration was 
 made after delivery, and that the burden is on the holder in the first 
 instance to explain it, seems to us to be unsound as well as harsh. 
 Presumptions of law, if indulged in, should be in favor of innocence 
 rather than guilt. Moreover, all disputable presumptions of law are 
 based upon the experienced course of human conduct and affairs, 
 and are but the result of the general experience of a connection be- 
 tween certain facts ; the one being usually found to be the companion 
 or effect of the other. Hence such presumptions ought to be con- 
 formable to the experience of mankind, and the inferences which, 
 in the light of that experience, men would naturally draw from a 
 given state of facts. 
 
 The mere existence of an interlineation or erasure in an instrument 
 would not naturally or ordinarily produce an inference in the minds 
 of men that it had been fraudulently altered after execution. Indeed, 
 unless the alteration was of such a suspicious character as to furnish 
 intrinsic evidence to the contrary, we think the natural inference 
 would be that it was a legitimate part of the instrument, and was 
 made at or before its execution. We are therefore of opinion that 
 the correct rule is that the burden is upon the maker to show that 
 the alteration was made after delivery; or, perhaps, to state the 
 proposition with more precision, the proof or admission of a signature 
 of a party to an instrument is prima facie evidence that the instru- 
 ment written over it is his act and this prima facie evidence will stand 
 as binding proof, unless the maker can rebut it by showing by evi- 
 dence that the alteration was made after delivery; and that the ques- 
 tion when, by whom and with what intent, the alteration was made, 
 is one of fact, to be submitted to the jury upon the whole evidence, 
 intrinsic and extrinsic. 
 
 Many authorities, however, while admitting that the general rule 
 is that the law presumes that an alteration in an instrument is a 
 legitimate part of it until the contrary appears, hold that this rule
 
 558 CASES ON EVIDENCE 
 
 does not extend to negotiable securities. Most of the text-books seem 
 to lay this down as the law, but at the same time admit that-the oppo- 
 site view has the sanction of eminent judicial authority. 
 
 Our conclusion, therefore, is that the instruction of the court below 
 was erroneous, and for that reason the order refusing a new trial 
 must be 
 
 Reversed. 
 
 WADE v. WITHINGTON. 
 83 Mass. 561. (1861) 
 
 Contract by the indorsee against the maker of a promissory note 
 for one hundred and forty dollars. The answer denied the making 
 of the note, and averred that it had been fraudulently altered after 
 it was signed, by the addition of the words "and forty," so as to make 
 it appear to be a note for one hundred and forty dollars instead of 
 for one hundred dollars. 
 
 BIGELOW, C. J. The only point on which the plaintiff now insists 
 in support of his exceptions is, that the judge omitted to instruct the 
 jury, that if the alteration in the note was such that it could not be 
 detected on a careful scrutiny, it would not be a defense against 
 the note in the hands of the plaintiff, who was an indorsee for a 
 valuable consideration. But we do not understand such to be the 
 rule of law. On the contrary, the well settled doctrine, is, that a 
 material alteration in a bill or note, after its execution and delivery 
 to the payee, or after its endorsement, vitiates the instrument except 
 as against parties consenting to the alteration. Master v. Miller, 4 
 T. R. 320. S. C.,2 H. Bl. 140. Chit, on Bills (8th ed.) 204. Davis 
 v. Jenney, i Met. 221. Fay v. Smith, ante, 477. This doctrine rests 
 on the principle that parties can be held liable only on their con- 
 tracts as originally made and entered into by them. The identity of 
 the instrument with that which was executed by the defendant is an 
 essential element in every action upon a wrtten contract, from which 
 his assent to its terms may be fairly presumed. If this is changed 
 by a material alteration without the privity of the party liable upon 
 it, it ceases to be his contract. It is a mistake to suppose that any 
 different rule in this particular is applicable to promissory notes and 
 bills of exchange from that which governs deeds and other con-
 
 ALTERATIONS 559 
 
 tracts. The law in giving peculiar sanction to negotiable paper in 
 order to secure its free circulation and to protect bona fide holders for 
 value who receive it before its maturity, does not go to the extent of 
 holding a party liable on a contract into which he never entered, and 
 to which he has not given his assent. 
 
 The case of Young v. Grote, 4 Bing. 253 ; S. C., 12 Moore 484, 
 on which the plaintiff relies, is very different from the case at 
 bar. There a check was filled up by the agent of the drawer for 
 a certain amount, and afterwards altered by him to a much larger 
 sum before it was passed into circulation, or had become a binding 
 contract in the hands of a bona fide holder. It was held that the 
 banker who paid the check for the larger amount had a right to retain 
 against the drawer the full sum paid by him, because the check was 
 drawn in so improper and careless a manner as to enable an agent of 
 the drawer to practise a fraud on an innocent party. This decision 
 rests on the principle that where one of two innocent parties is to bear 
 a loss, it must fall on him who employed a dishonest agent and care- 
 lessly furnished him with the means of committing a fraud. The same 
 principle was recognized by this court in the early case of Putnam v. 
 Sullivan, 4 Mass. 45, where indorsers were held liable on a promissory 
 note, which they had left in blank with their clerk, and who had per- 
 mitted the note to be filled up and put in circulation for a purpose dif- 
 ferent from that for which it was intrusted to his possession. These 
 are cases, where parties have been held liable on a negotiable check 
 and note fraudulently filled up and put in circulation by their agents, 
 to whom they were intrusted with the signatures in blank. But they 
 rest on a very different principle from that applicable to notes and bills 
 which have been fraudulently altered in material particulars by third 
 persons, holding no relation of agency to the parties, and after they 
 have been executed and delivered as binding contracts. In such cases, 
 the parties to the note have a right to say that it was not the contract 
 into which they entered. 
 
 Exceptions overruled.
 
 560 CASES ON EVIDENCE 
 
 BUSS v. McINTYRE et al. 
 18 Vt. 466. (1846) 
 
 Trespass quare clausum fregit. Plea, the general issue, and trial by 
 jury, Redfield, J., presiding. 
 
 On trial it appeared, that the plaintiff, on the first day of May, 1844, 
 was the owner of the premises described in his declaration, consisting 
 of a clothier's shop, dwelling house and out buildings, and that on that 
 day he conveyed them by deed to one Johnson, and delivered to him 
 the possession ; that Johnson continued to occupy the premises under 
 the deed until the fourteenth day of August, 1844, when he re-con- 
 veyed the premises to the plaintiff and took from him a lease of the 
 premises for the term of nine years, reserving a rent, and continued 
 in possession of the premises, under the lease, until the twenty first 
 day of October, 1844. The plaintiff claimed, that the lease, as exe- 
 cuted, contained a clause securing to him the right of re-entry upon 
 the premises, in case of non-performance by Johnson of certain stip- 
 ulations in the lease, and that that clause had been erased by Johnson, 
 without the knowledge or consent of the plaintiff. The erasure was 
 apparent upon the lease; but it was claimed by the defendant, that it 
 was made before the lease was executed. 
 
 Upon these facts the county court instructed the jury, that the plain- 
 tiff was not entitled to maintain this action ; to which decision, the 
 plaintiff excepted. 
 
 WILLIAMS, Ch. J. In this case the court decided, upon the evidence, 
 that the plaintiff was not entitled to recover. It appears to us, that 
 the case should have been submitted to the jury ; and, if the facts were 
 as claimed by the plaintiff, he was entitled to recover. There was ap- 
 parent, on the lease executed by the plaintiff to Johnson, a material 
 alteration and erasure, by which the estate of Johnson was enlarged. 
 The right of the plaintiff to re-enter was erased, and the situation of 
 the grantor and grantee was materially changed. If this alteration 
 and erasure were made by Johnson, under whom the defendants acted, 
 the plaintiff had a right to recover; and whether, it was so altered by 
 him is a question which should have been submitted to the jury. 
 
 The plaintiff claimed a right to re-enter, on being denied the rights 
 secured to him by the stipulations in the lease. These rights were se- 
 cured to him by that clause in the lease, which is erased. In this view, 
 alone, it was important to have that fact passed upon by the jury. 
 
 But, moreover, if this erasure was made by. Johnson, it destroyed
 
 ALTERATIONS 561 
 
 all his future rights under that lease. And although it might not di- 
 vest an estate already vested, and might not have operated on his acts 
 committed before the alteration was made (questions, however, which 
 are not now to be decided) in odium spoliatoris he must be considered 
 as having destroyed the evidence of his title fraudulently and thereby 
 lost all his subsequent claim under and by virtue of the same, either to 
 retain the possession, or preclude the plaintiff from entering on the 
 premises leased. 
 
 The judgment of the county court is therefore reversed. 
 
 DOVER v. ROBINSON et al. 
 64 Me. 183. (1874) 
 
 BARROWS, J. Upon the testimony here reported the question seems 
 to be whether the inhabitants of a town can maintain an action against 
 the sureties upon a collector's bond originally given in the penal sum 
 of twenty-five hundred dollars when said penal sum has been altered 
 by the principal in the bond, since its delivery, with the knowledge and 
 consent of the selectmen of the town, from twenty-five hundred to 
 twenty-five thousand dollars, without the knowledge of the sureties, 
 and in the absence of all proof of a subsequent ratification by them. 
 The proposition that these are facts sufficient to sustain the sureties' 
 plea that such altered bond is not their deed, would seem to admit of 
 little doubt. It is not a case of spoliation by a stranger. 
 
 To sustain the present suit against the sureties we have a written 
 obligation which has been vitiated as an instrument of evidence by the 
 deliberate intentional act of the plaintiff's agents, an act done appar~ 
 ently to secure themselves from the blame which might attach to them 
 for their carelessness in accepting an inadequate security, but an act 
 which has effectually deprived the town for which they acted of any 
 right of action against these sureties upon this bond, as if they had 
 never executed any bond at all. It is not their deed. But there is an- 
 other view which is equally fatal to the plaintiffs' case. The plaintiff 
 town presents itself here in this very suit in the attitude of ratifying 
 this act of their selectmen. 
 
 Plaintiffs have leave to discontinue as to the sureties.
 
 562 CASES ON EVIDENCE 
 
 McMURTREY, Admr. v. SPARKS. 
 71 Mo. App. 126. (1897) 
 
 BOND, J. This suit is upon the following note: 
 
 "$400. June Qth, 1895. 
 
 "Six months after date I promise to pay to the order of J. E. 
 McMurtrey, administrator of the estate of J. P. McMurtrey, four 
 hundred dollars, at eight per cent. This note given in lieu of one 
 nearly debarred. Value received with interest at eight per cent 
 per annum. WILLIAM SPARKS." 
 
 The answer averred that plaintiff with intent to make valid what 
 he deemed invalid, had altered the date of note without defendant's 
 knowledge or consent and hence the note was not executed by de- 
 fendant. The cause was submitted to the court without a jury. There 
 was an agreed statement of facts, to wit: "It is admitted by counsel 
 that the note was originally dated on the ninth day of June, 1895, 
 that the date was changed by plaintiff, the holder, to June 17, 1895, 
 and then changed back again to its original date, June 9, 1895, and 
 that the change was made by plaintiff for the reason that plaintiff 
 thought the note was illegal, having been made upon Sunday; that 
 the plaintiff was afterward informed that he was mistaken and he 
 changed it back to the original date. It is further admitted that the 
 change was made on the note without the knowledge or consent of the 
 defendant, and after it had been signed by defendant and delivered." 
 There was proof that the note in question was one given in considera- 
 tion for one heretofore made by defendant to plaintiff's intestate, 
 which was "nearly out of date." There was a verdict and judgment 
 for defendant, from which plaintiff appealed. 
 
 The first point urged on this appeal is, that the changes in the date 
 of the note shown in the agreed statement of facts did not avoid it 
 as to defendant. The change of the date of a note is a material one, 
 and when made by the payee without the consent of the maker, the 
 note is no longer valid against the latter. Moore v. Hutchinson, 69 
 Mo. 429; Bank v. Fricke, 75 Mo. 178; Aubuchon v. McKnight, I Mo. 
 212; Wood v. Steele, 6 Wallace (U. S.) 80. A clear and comprehen- 
 sive statement of the law on this subject is contained in the following 
 language of Justice Swayne: "It is now settled in both English and 
 American Jurisprudence, that a material alteration in any commercial 
 paper, without the consent of the party sought to be charged, extin- 
 guishes his liability. The materiality of the alteration is to be decided 
 by the court. The question of fact is for the jury. The alteration of
 
 ALTERATIONS 563 
 
 the date, whether it hasten or delay the time of payment, has been uni- 
 formly held to be material." 
 
 Since the rule is that material alterations of notes and bills annul 
 the obligations against unconsenting parties, it follows that their lia- 
 bility can only be restored by a new agreement with them. In other 
 words, being released from the paper by one alteration thereof, they 
 can not be rebound by another, made without their knowledge or con 
 sent. The point under review is therefore ruled against appellant. 
 
 It is, however, urged that the changes of the date of the note in 
 question were not alterations, but mere spoliations, and do not there- 
 fore prevent a recovery on the original contract. A material change in 
 a bill or note made by a person interested therein, is an alteration. 
 Changes in such instruments by strangers or persons having no bene- 
 ficial interest therein, are spoliations. Spoliations do not annul the 
 rights and obligations of the parties to the contract. State v. McGon- 
 igle, 101 Mo. 366, 367. In the case at bar the plaintiff administrator 
 either had no right to take the note, or he had the right to fix its date, 
 amount, rate of interest and other essential elements. He did take the 
 note payable to himself, and brings this action to collect it. As payee 
 and party to the note and plaintiff in a suit to enforce it, he is con- 
 cluded from averring a want of interest in its proceeds. A party 
 with whom a contract is made and who seeks to enforce its obligations, 
 can not in such proceeding aver his want of interest in the contract 
 or its subject matter. The administrator of a decedent is the title 
 holder of the personal assets of the estate for the purposes of admin- 
 istration, and has a pecuniary interest in them for the commission al- 
 lowed him by law. The plaintiff in this case was not a stranger to the 
 note, and the first change made by him in its date was a material al- 
 teration, not a spoliation, which avoided the instrument against the 
 maker. The judgment in this case is affirmed. Judge BIGGS concurs; 
 Judge BLAND not sitting. 
 
 GREEN v. SNEED. 
 101 Ala. 205. (1892) 
 
 John H. Sneed sued Andrew H. Green in detinue for the possession 
 of certain personal property, to which he claimed title under and by 
 virtue of a mortgage executed by the defendant, the law day of which
 
 564 CASES ON EVIDENCE 
 
 had passed. The defendant's testimony showed that the plaintiff had 
 filled a blank in the mortgage by inserting a larger amount than that 
 agreed on by the parties and contemplated by the defendant when he 
 authorized the plaintiff to fill in the blank. On the trial of the cause 
 there w<as a verdict for the defendant; but on motion of the plaintiff 
 for a new trial, the court set aside the judgment, and granted a new 
 trial, on the ground that the verdict was contrary to the evidence. To 
 the ruling of the court annulling the judgment and granting a new 
 trial the defendant duly excepted, and now brings this appeal, and 
 assigns such ruling as error. 
 
 McCXELLAN, J. The evidence is free from conflict that Sneed was 
 authorized to fill the blank left in the mortgage executed by Green to 
 him, by inserting therein the amount of the former's debt against the 
 latter, after deducting therefrom the proceeds of certain two bales of 
 cotton, and adding thereto the costs of a former suit between the par- 
 ties. There is conflict in the testimony as to whether the mortgagee 
 also had authority to add to the debt costs and attorney's fees incurred 
 by him in the former suit, and insert the aggregate of all these items 
 in the blank space left in the instrument. For the purposes of this 
 appeal, however, it will be conceded that the mortgagee was author- 
 ized to include and insert as a part of the amount intended to be se- 
 cured the sum paid his attorney for services in the previous litigation. 
 A satisfying preponderance of the evidence fixes the amount of the 
 debt balance at one hundred and twenty-five dollars ($125). It was 
 shown without conflict that the attorney's fee in question was $18, 
 and the costs of the former suit amounted to $8.65. The total of these 
 sums is one hundred, fifty-one dollars and sixty-five cents. The bal- 
 ance of the debt which the mortgagee claimed to be due was $138.24. 
 Adding to this the attorney's fee and court costs, the total is $164.89. 
 No phase or tendency of the evidence shows a greater total than this, 
 and this sum, $164.89, on the aspects of the testimony most favorable 
 to the plaintiff, marks the extremest limit of the amount he was author- 
 ized to insert in the instrument. The amount actually inserted by or 
 for him was $167.10; $2.21 in excess of his authority, if the evidence 
 in his own behalf is to be taken as true, and $15.45 in excess of the 
 amount which, according to a preponderance of the testimony, he was 
 authorized to insert in the blank. 
 
 The general proposition that any material alteration of an instru- 
 ment after its execution, without the maker's consent, avoids it and 
 discharges him from all obligation depending upon it is not contro- 
 verted in this case. Montgomery v. Crossthwait, 90 Ala. 334, 6 So.
 
 ALTERATIONS 565 
 
 Rep. 82. Nor can it be doubted in principle or upon authority that a 
 material and, as between the original parties to the instrument, a vitia- 
 tion alteration may consist in the rilling of a blank, which the promisee 
 is authorized to fill in a certain way, by the insertion therein of matter 
 not covered by the authorization, i Am. & Eng. Encyc. of Law 518; 
 Toomer v. Rutland, 57 Ala. 379. And as any change of the amount 
 intended to be evidenced by a writing, whereby it becomes nominally 
 a promise to pay either a greater or less sum than that originally ex- 
 pressed is a material, and, therefore, vitiating alteration ( i Am. & Eng. 
 Encyc. of Law, 508), so, in principle, where the amount is left blank 
 and the promisee is authorized to insert a given sum, or the true ag- 
 gregate of several specified items, the respective amounts of which are 
 fixed but not at the time known to the parties, and he inserts a differ- 
 ent amount, as here, in excess of the true aggregate of all the items 
 intended to be embraced, and the like vitiation consequences must 
 ensue. 
 
 The court below confined the application of these principles to 
 cases in which the alteration is made with a fraudulent intent, and, 
 finding no such intent to have actuated the plaintiff in this instance, 
 held that the mortgage was a valid security for the amount really due, 
 notwithstanding a different and excessive amount had been inserted in 
 it. The distinction is not well taken. The question of intent is not 
 involved. As is well said by counsel : "The motive with which the 
 change is made, or the unauthorized filling of the blank is done, is not 
 material. It is not because the thing done is actual fraud, but because 
 a contrary rule would open too great a door for fraud," and because, 
 we may add, that the alteration changes the legal identity of the paper 
 and causes it to speak a language differing in legal effect from that 
 which it originally spoke, a result which would ensue however pure 
 the intent with which the alteration was made, that the law holds the 
 instrument, as between the original parties and those nominally ac- 
 quiring rights under it with notice of the alteration, to be null and void 
 for all purposes, i Am. & Eng. Encyc. of Law, 518, 520; Glover v. 
 Robbins, 49 Ala. 219; Toomer v. Rutland, 57 Ala. 379; Montgomery 
 v. Crossthwait, 90 Ala. 573. 
 
 Where the alteration or unauthorized filling of blanks is free from 
 all covinous intent, the result of an honest mistake or miscalculation, 
 it may be that the promisee can recover on the original consideration : 
 he certainly could not do even this if he made or consented to the 
 change for any fraudulent purposes i Am. & Eng. Encyc. of Law, 
 526; White v. Haas, 32 Ala. 430 but here the action is not on the
 
 566 CASKS ON EVIDENCE 
 
 original consideration for which the mortgage was executed, but the 
 right of recovery, the title asserted by the plaintiff in this action of 
 detinue, depends upon the validity of the paper itself, which in legal 
 contemplation ceased to be the instrument which the defendant exe- 
 cuted the moment it was altered as shown by the uncontroverted evi- 
 dence, and its emasculation is none the less complete because of the 
 absence of evil intent on the part of the plaintiff in committing the act 
 which destroyed it. 
 
 The evidence not only authorized the jury to find for the defendant, 
 but it showed, without conflict or room for adverse inference, that the 
 muniment of title upon which the plaintiff relied for recovery was 
 utterly infirm and invalid, and hence the jury could not have found 
 other than they did under the law of the case. 
 
 It is clear that the trial court erred in setting aside the verdict and 
 granting a new trial. The judgment to that effect is reversed and an- 
 nulled, the motion for new trial is overruled and denied, and the ver- 
 dict and judgment for defendant as returned and rendered in the court 
 below is left in full force. 
 
 Reversed and remanded. 
 
 ANNA AMES v. ANNA M. BROWN & HUSBAND. 
 22 Minn. 257. (1875) 
 
 Plaintiff brought this action in June, 1874, in the Court of Common 
 Pleas of Hennepin County, praying that a certain mortgage from her- 
 self to one Spencer, together with the sheriff's certificate of sale to 
 Spencer, on foreclosure of the mortgage, and the assignment of such 
 certificate from Spencer to the defendant, Anna Maria Brown, might 
 be adjudged null and void, that the sale be set aside, and the mort- 
 gage, certificate and assignment might be cancelled of record as a cloud 
 upon her title. The ground on which this relief was asked was that 
 the number of the section in the description of premises contained in 
 the mortgage was inserted after it had been executed and delivered 
 by plaintiff. 
 
 CORNELL, J. The modern rule is well settled that an alteration of a 
 deed or written instrument, even though in a material part, by a mere 
 stranger, without the privity, knowledge, or consent of the party in- 
 terested, will not render it void. Waring v. Smyth, 2 Barb. Ch. 119,
 
 ALTERATIONS 567 
 
 and note. In this case no privity existed between Spencer, the mort- 
 gagee, and S. C. Gale, who made the alteration for the sole purpose of 
 conforming the mortgage to the intention of the parties, and to cor- 
 rect a mistake which he, as the scrivener of the mortgagor, had com- 
 mitted in drawing it, and which he innocently supposed he had the right 
 to do. i Greenl. Ev. sec. 189. That such alteration was never made 
 by the procurement, consent, or knowledge of Spencer is fully estab- 
 lished as a fact by the finding of the court. Hence what, in the ab- 
 sence of such rinding, would be the presumption growing out of the 
 relation of principal and agent between Spencer and Gale & Co., of 
 which firm S. C. Gale was a member, is a matter of no importance. 
 But the special character of the agency of Gale & Co. gave them no 
 authority to tamper with the security of their principal, or to destroy 
 it, much less could any such authority be claimed in favor of any in- 
 dividual member of the firm. Their custody of the paper, for a spe- 
 cific purpose, cannot be deemed such a possession by the principal as 
 would charge him with any knowledge of, and presumed assent to, 
 their unauthorized and illegal acts, and make him responsible for their 
 consequences. U. S. v. Hatch, i Paine (C. Ct.), 336. It follows that 
 S. C. Gale must be regarded as a stranger, whose unauthorized act in 
 altering the mortgage in no way affected the legal or equitable rights 
 of the mortgagee or his assignees. 
 
 Judgment affirmed. 
 
 FULLER v. GREEN. 
 64 Wis. 159. (1885) 
 
 This action was commenced to recover the amount of a promissory 
 note given by the respondent to one George H. Rice. The note had 
 been transferred by Rice to one A. J. Woodward, in whose name the 
 action was originally commenced. Woodward died after the action 
 was commenced, and the present appellants, his executors, were sub- 
 stituted as plaintiffs. 
 
 There was no dispute as to the fact that the defendant executed the 
 note and delivered it to Rice. On the trial in the court below two de- 
 fenses were relied upon to defeat the action: (i) That after the note 
 had been delivered by the defendant to Rice, it had been altered with- 
 out his knowledge or consent by adding thereto the name of N. Fred-
 
 568 CASES ON EVIDENCE 
 
 cricks as an attesting witness to the note; and, (2) that the note was 
 fraudulently obtained from the defendant without any consideration 
 therefor. 
 
 Upon the first point the evidence tended strongly to show that 
 when the note was executed and delivered by the defendant to Rice, 
 N. Fredericks' name was not placed on the same as an attesting wit- 
 ness, but that he was present when the note was made and delivered 
 by the defendant to Rice. When the note was produced in evidence, 
 Fredericks' name was written thereon as an attesting witness ; when 
 it was placed there does not appear. The proof shows that it was done 
 without the knowledge or consent of the defendant. 
 
 Upon the first point, as to the alteration of the note, the learned 
 circuit judge instructed the jury as follows : 
 
 "It is claimed by the defendant that the note in suit has been altered 
 since it was made and executed by the defendant, by one N. Fred- 
 ericks affixing his name as a witness to the same without the consent 
 or knowledge of the defendant, and that the note in consequence is 
 void. 
 
 "Upon this point I instruct you that, if you find and believe from 
 the evidence that George H. Rice, the payee of this note, or any other 
 holder of the same, jdid, without the knowledge, consent, or request 
 of the defendant, fraudulently, and with a view to gain some improper 
 advantage, procure Mr. N. Fredericks to affix his name to the note 
 in question as a subscribing witness to the same after the same was 
 made, executed, and delivered to Rice by the defendant, then the af- 
 fixing of such name of Fredericks to the note, under the circumstances, 
 constitutes a material alteration of the same rendering it void in 
 Rice's hands, as well as in the hands of the plaintiff, and your verdict 
 must be for the defendant." 
 
 TAYLOR, J. The old rule of law in England that any alteration, 
 whether material or immaterial, and whether made by a party inter- 
 ested in the contract or by a stranger, rendered the contract void, was 
 long since abandoned ; and the reasonable rule has now become firmlv 
 established that an alteration of a contract which will render it void 
 must be made by a party thereto or with his knowledge or consent; 
 and, further, the alteration must be material; that is, the alteration 
 must in some way change the legal effect thereof as between the 
 parties thereto. The insertion or addition of words in or to a con- 
 tract, or the erasing of words therefrom, which do not change the 
 legal effect thereof in any respect, does not render the contract void, 
 and is an immaterial alteration. Williams v. Starr, 5 Wis. 534;
 
 ALTERATIONS 569 
 
 Schwalm v. Mclntyre, 17 Wis. 240; Matteson v. Ellsworth, 33 Wis. 
 488; North v. Henneberry, 44 Wis. 306; Krouskop v. Shontz, 51 Wis. 
 204, 206 ; Palmer v. Largent, 5 Neb. 223 ; Aldous v. Cornwall, 9 Best 
 & S. 607; Marson v. Petit, I Camp. 82; Trapp v. Spearman, 3 Esp. 
 57 ; Sanderson v. Symonds, I Brod. & B. 426 ; S. C, 4 Moore 42 ; 
 Catton v. Simpson, 8 Ad. & El. 136; Gardner v. Walsh, 5 El. & Bl. 
 83; Truett v. Wainwright, 4 Oilman 411; 2 Parsons on Cont. (6th 
 ed.) 718-720; Granite R. Co. v. Bacon, 15 Pick. 239; Langdon v 
 Paul, 20 Vt. 217; Huntington v. Finch, 3 Ohio St. 445; Nichols v. 
 Johnson, 10 Conn. 192; Humphreys v. Crane, 5 Cal. 173. 
 
 The .affixing of the name of Fredericks as an attesting witness to 
 the note in question does not change the liability of the maker thereof 
 in any respect. It has no effect in extending his liability under the 
 statute of limitations, nor does it under our laws facilitate or inter- 
 fere in any way with its proof. Under our law the production of the 
 note proves its execution, unless the signature be first denied under 
 oath by the maker. When there is no dispute as to the genuineness 
 of the maker's signature, and therefore no necessity for the person 
 claiming under it making proof of its execution, the fact that the 
 note has or has not an attesting witness is wholly immaterial. 
 
 If the alteration be wholly immaterial, and in no way changes the 
 liability of the maker of the note, it seems to us wholly immaterial 
 with what intent such alteration was in fact made. 
 
 BY THE COURT. The judgment of the Circuit Court is reversed 
 and the cause remanded for a new trial. 
 
 FISHER v. KING. 
 153 Pa. St. 3. (1893) 
 
 DEAN, J. On January 18, 1890, judgment was entered in this 
 case on a single bill, dated July i, 1889, w ^ tn warrant of attorney 
 in the sum of seven hundred and fifty dollars ($750), payable two 
 years after date with interest at five per cent. The obligor is Henry 
 King, this appellant; the obligee Frederick Fisher, appellee who as- 
 signed the judgment to Bromley & Burns as collateral security for 
 a loan of two hundred and twenty-five dollars ($225). 
 
 As to the second averment, that there was a material alteration 
 of the instrument after delivery, the evidence shows' only the parties
 
 57O CASES ON EVIDENCE 
 
 to it were present when it was sealed and delivered by King to Fisher; 
 Fisher then left the house with the bill and called upon Robert T. 
 King, brother of defendant, who wrote his name in the place where 
 should appear the name of a witness. If this was willfully done, 
 with the knowledge and consent of Fisher, even though no additional 
 liability was thereby imposed on the obligor, it avoided the instru- 
 ment. The application of this rule does not, in case of willful 
 alteration, depend on the injury done in the particular case, but 
 as is said in Neff v. Horner, 63 Pa. 330, its true ground is public 
 policy, to insure the protection of instruments against fraud and 
 substitution. And it has been held to be a material alteration to 
 cause the name of a person to be placed on a note as a witness who 
 was in no respect a witness to any part of the transaction. Homer 
 v. Wallis, ii Mass. 312. If there be a material alteration by the 
 payee, after delivery, willfully, however innocent the intention, or 
 however slight the prejudice to the maker, the instrument is avoided. 
 If there was no willful alteration, there is no reason for enforcing 
 the rule, that the alteration shall avoid the instrument. The pur- 
 pose of the rule is to take away the motive for alteration by a for- 
 feiture, a penalty, which punishes the offender and deters others. 
 But to inflict such a severe penalty for the blunder of an ignorant 
 man accomplishes not the purpose of the law ; no guilt is reached, for 
 none exists ; other blunders are not deterred, for a forfeiture does 
 not dispel ignorance. We are, therefore, of the opinion that under 
 the facts of this case the law does not call for a forfeiture of the 
 obligation. 
 
 GLEASON v. HAMILTON. 
 I 3 8N.Y. 353 . (1893) 
 
 Appeal from judgment of the General Term of the Supreme Court 
 in the fourth judicial department, entered upon an order made May 
 13, 1892, which affirmed a judgment in favor of plaintiff, entered 
 upon a decision of the court on trial at Special Term, and affirmed 
 an order denying a motion for a new trial. 
 
 This was an action for the foreclosure of a mortgage executed 
 by defendant to -plaintiff. 
 
 PECKHAM, J. We ought not to reverse it and send the case back
 
 ALTERATIONS 57 1 
 
 for a new trial when there is sufficient evidence, wholly uncon- 
 tradicted and perfectly credible, to prove beyond any doubt that 
 the plaintiff ought to recover. The plaintiff was wholly ignorant 
 of the alteration attempted to be made in the mortgage and so re- 
 mained until after the commencement of this action. The action it- 
 self is brought to foreclose the mortgage for non-payment of paper 
 which confessedly it was originally given to secure. The attorney, 
 who wrote in the addition to the mortgage as it originally was exe- 
 cuted, had no power as agent of the plaintiff to make any alteration 
 in the instrument by which its validity should be avoided. While 
 the high character of the attorney who directed the addition might 
 render it entirely plain that there was no intention of making any 
 fraudulent alteration, and while the evidence seems to pretty clearly 
 show there was not in fact the slightest wrongful intent in directing 
 the alteration, and that it was done for the purpose of thereafter 
 securing the assent of the defendant to the alteration, yet no such 
 assent was secured and this act of the attorney for the plaintiff can- 
 not properly, as we think, operate as if it had been an alteration 
 made in a material part of the mortgage by the plaintiff himself, 
 or by his attorney or agent with his knowledge or by his authority 
 expressed or implied. 
 
 The act of the attorney did not and ought not to bind the plaintiff 
 in this case. 
 
 Many cases have arisen since the decision of Pigot's Case (u Coke 
 47), where it was held that a material alteration made by a stranger 
 to a deed, and without the privity of the obligee, did, nevertheless, 
 invalidate the instrument. As late as the years 1843, an d 1844, this 
 decision was treated with respect by the English courts. (Davidson 
 v. Cooper, n M. & W. 778, 798; S. C. in Exchequer Chamber, 13 id. 
 342.) 
 
 But there has been since that period a departure from this rule 
 even in England (see Aldrous v. Cornwell, 3 Q. B. (L,. R.) 573, A. D. 
 1868) while in our state the cases referred to in the opinion delivered 
 in the General Term in this case, and those cited in the briefs of 
 counsel before this court, show that when an alteration is not made 
 by a party to the instrument and in a material matter, the altera- 
 tion is of no effect and the original validity of the instrument re- 
 mains. (Casoni v. Jerome, 58 N. Y. 315, 321,; Smith v. Kidd, 68 id. 
 130, 141; Martin v. Ins. Co., 101 id. 498; Town of Solon v. Bank, 
 114 id. 134.)
 
 572 CASES ON EVIDENCE 
 
 In Vermont the same rule obtains. (Bigelow v. Stilphen, 35 Vt. 
 
 521.) 
 
 See, also, in other states. (Robertson v. Hay, 91 Penn. St. 242; 
 Hunt v. Gray, 35 N. J. Law 227; Nickerson v. Sweet, 135 Mass. 514; 
 Brooks v. Allen, 62 Ind. 401.) 
 
 Upon the ground that the plaintiff was not in any manner re- 
 sponsible for the attempt, unknown to him, to enlarge the liability 
 of the mortgagor by the proposed alteration, and because the plaintiff 
 seeks only to enforce the mortgage as it was originally executed, we 
 affirm the judgment appealed from. 
 
 All concur, except ANDREWS, Ch. J., not voting. 
 
 Judgment affirmed. 
 
 DAVIS, STEELE & CO. v. EPPLER et al. 
 38 Kan. 629. (1888) 
 
 Action to recover upon a promissory note. 
 
 HOLT, C. The most serious question in this case is, whether the 
 writing of the words "Waive notice and protest" on the back of 
 the note before maturity, over the names of Farrell and Eppler, was 
 such an alteration as to relieve the defendant Eppler of his liabil- 
 ity as indorser. It is proven that Eppler never consented to such 
 addition ; on the other hand, it is also well established by the evi- 
 dence that such writing was not made with the intention of creating 
 any greater liability on the part of Eppler and it is beyond question 
 that the indorsement was a substantial change in the contract between 
 Eppler and plaintiffs; it changed his contingent liability to an abso- 
 lute one. (Dan. Neg. Ins., sec. 1390; Farmer v. Rand, 14 Me. 225; 
 Andrews, Adm'x v. Sims, Adm'r, 33 Ark. 771.) 
 
 We believe it would be a dangerous rule to allow written con- 
 tracts, more especially negotiable paper, to be altered without the 
 consent of the maker, or the parties who are bound by the indorse- 
 ment. It is intended that such instrument shall pass into the hands of 
 those who may become interested in them, without addition or altera- 
 tion, and without the fear that they may have been altered. The facili- 
 ties for making alterations are numerous, and the difficulty of prov- 
 ing them great; all means should be employed to impress a sense of
 
 ALTERATIONS 573 
 
 their inviolability upon the minds of those who have them in their 
 possession. 
 
 It is the policy of the law to allow no tampering with written 
 instruments. The holder of a note has no right to alter it without 
 the consent of all the parties interested, and such unwarranted al- 
 teration should make it null in his hands, no matter how pure his 
 motives may have been in making the alteration. (Bank of Spring- 
 field v. Fricke, 75 Mo. 178; Moore v. Hutchinson, 69 id. 429; Neff 
 v. Horner, 63 Pa. St. 327; Fraker v. Cullum, 21 Kan. 556; Horn v. 
 Xewton City Bank, 32 id. 518.) 
 
 For the reasons given herein, we recommend that the judgment of 
 the court below be affirmed. 
 
 By the court it is so ordered. 
 
 All the Justices concurring. 
 
 CROSWELL v. LABREE. 
 81 Me. 44. 
 
 This was an action on a promissory note, of which the following 
 is a copy: 
 "$85.00 Monson, Aug. 8th, 1883. 
 
 One year after date I promise to pay to the order of J. G. Timber- 
 lake or bearer Eighty-five no-ioo dollars at my house with interest, 
 value received. 
 
 I. D. LABREE." 
 
 The note was written by filling out a printed blank. The defense 
 was that the words "or bearer" had been written in after the note 
 had been completed, signed and delivered by the maker, and without 
 his knowledge or consent. The presiding justice instructed the jury, 
 that, "to constitute a defense by this alleged alteration, you must 
 be satisfied that the -words 'or bearer' were written in by some per- 
 son after the note was made and delivered, for a fraudulent pur- 
 pose, with an improper motive, for the purpose of changing the char- 
 acter of the contract and changing the obligation of the maker; 
 because if the words were written in by mistake, without the improper 
 motive, without the fraudulent intent, they may be disregarded, and 
 they would not affect the contract at all." 
 
 PETERS, C. J. The note in controversy contains the promise of
 
 574 CASES ON EVIDENCE 
 
 the defendant to pay, "to the order of" J. G. Timberlake "or bearer," 
 a sum of money, and was indorsed by the payee to the plaintiff. 
 The defense at the trial was an alleged unauthorized alteration of 
 the note by inserting it in the words "or bearer." 
 
 The judge at the trial ruled that, if the alteration, though unau- 
 thorized, was made innocently, without any fraudulent or improper 
 motive, it would not avoid the note. That was correct and is well 
 borne out by the principle established in Milbery v. Storer, 75 Me. 
 69. 
 
 The further instruction was given that the burden of proof was 
 on the defendant (the maker) to satisfy the jury that the note was 
 improperly altered. We are of opinion that this instruction was 
 not correct. The act of alteration was apparently fraudulent. A 
 wrongful act naturally indicates a wrongful intent, and requires ex- 
 planation to excuse it. The holder of a note must show that an 
 alteration proved or admitted was made innocently. Otherwise it 
 would follow that, in the case of the most glaring forgeries by altera- 
 tion of negotiable paper, the party sought to be charged thereon 
 must explain the motive of the forger. In the case cited it is de- 
 clared that alteration is prima facie evidence of fraudulent intent, but 
 that it may be rebutted and disproved. 
 
 The alteration in the present instance was a material one. It under- 
 took to foist a contract on the maker not made by him. It changed 
 the obligation as an instrument of evidence. Chadwick v. Eastman, 
 53 Mo. 12; Hewins v. Cargill, 67 Me. 554. It is held in Dodge v. 
 Haskell, 69 Me. 429, that the burden is on the plaintiff to explain 
 any apparent material alteration of a note, so far as it does not suffi- 
 ciently explain itself to the minds of the jury. 
 
 Exceptions sustained. 
 
 SEWING MACHINE CO. v. DAKIN. 
 86 Mich. 581. (i8pi) 
 
 CHAMPLIN, C. J. This is an action on a bond given by Milo H. 
 Dakin as principal, and Aaron T. Bliss and Anthony Byrne as sure- 
 ties, to the plaintiff, to secure any indebtedness incurred by Dakin to 
 the plaintiff while acting as its agent in selling sewing-machines.
 
 ALTERATIONS 575 
 
 The only questions presented by the record are: 
 
 1. Was the insertion of the words "attorney's fees" a material 
 alteration, if inserted after the bond was executed? 
 
 2. If inserted by Van Ness after it was executed, and before 
 it was forwarded by him to the plaintiff for acceptance or rejection, 
 did it render the bond invalid in the hands of the plaintiff? 
 
 Clearly the alteration by the insertion of the words "attorney's 
 fees" was immaterial. An alteration, to be material, must be in a 
 material part of the instrument, and affect the rights and liabilities 
 of the parties thereto, i Amer. & Eng. Cyc. Law, 505. 
 
 The penalty of this bond is $1,000, no more and no less; and 
 no recovery can exceed that amount. Bishop v. Freeman, 42 Mich. 
 533; Odd Fellows v. Morrison, id. 523; Spencer v. Perry, 18 id. 
 394. The damages including the interest, where it is proper to allow 
 it to be assessed under the conditions, cannot exceed the penalty; and 
 if they equal the penalty, they can only draw interest from the date 
 of judgment. In this case, as in the other cases under the statute, 
 the recovery and judgment would be for the penalty of the bond, 
 and the further judgment that the plaintiff have execution for the 
 damages assessed. The promise to pay ten per cent, attorney's fees 
 is no part of the penalty of the bond, and by no possibility can it 
 affect the judgment to be rendered upon the bond, nor the amount of 
 damages to be assessed. 
 
 Second. If any alteration was made after the execution of the 
 bond, it was done by Van Ness, and although he was the agent of the 
 plaintiff, and received and forwarded the bond in question to the 
 plaintiff for its approval or rejection, yet there is no testimony in 
 this record tending to show that he was expressly or impliedly author- 
 ized to make any alteration in the bond. 
 
 The rule of law is that, when an alteration is made by a third 
 party, it is an act of spoliation, and the alteration, although material, 
 cannot invalidate the written instrument; and when the spoliation 
 is done by the agent of one of the parties, it will not avoid the 
 contract if the agent had no express or implied authority to do it. 
 i Am. & Eng. Cyc. Law, 505 ; Van Brunt v. Eoff, 35 Barb. 501 ; Col- 
 lins v. Makepeace, 13 Ind. 448; Hunt v. Gray, 35 N. J. Law, 227.; 
 Bigelow v. Stilphen, 35 Vt. 521; Miller v. Reed, 3 Brant, Cas. 51; 
 S. C., 27 Penn. St. 244; Terry v. Hazlewood, i Duv. 104. The 
 declaration counts upon the bond as being in a penalty of $1,000, 
 and assigns breaches of the conditions. It follows that the bond
 
 5/6 CASES ON EVIDENCE 
 
 would be a valid instrument in the hands of the plaintiff for what 
 it was before the alteration was made. 
 
 The errors assigned must be overruled, and the judgment affirmed, 
 with costs of both courts. 
 
 MERRITT v. BOYDEN & SON. 
 ipi ///. ijd. (1901) 
 
 This is an action of assumpsit, brought by the appellees against 
 the appellant, Merritt, and one L. Silverman on a note made by Sil- 
 verman and Merritt, which note was payable to their own order and 
 endorsed by them in blank. The declaration contains a special count 
 on the note, and the common counts. The following is a copy of 
 the instrument sued upon: 
 "$1300.00 Kewanee, 111. Oct. 4, 1897. 
 
 "One year after date I promise to pay to the order of ourselves 
 thirteen hundred dollars at Kewanee, 111. Value received, with inter- 
 est at the rate of seven per cent per annum. 
 
 Endorsed : 
 
 L. SILVERMAN. L. SILVERMAN, 
 
 H. CLAY MERRITT. H. CLAY MERRITT." 
 
 Default was entered against Silverman. Merritt pleaded the gen- 
 eral issue, and denial of the execution of the note sued on, sworn 
 to by him. The jury rendered a verdict in favor of the plaintiffs 
 for the sum of $1519.92, upon which judgment was entered on March 
 27, 1900. An appeal from this judgment was taken to the Appellate 
 Court, and it has there been affirmed. The present appeal is from 
 such judgment of affirmance. 
 
 MAGRUDER, J. When the note, sued upon in this case, was signed 
 and endorsed by the appellant, Merritt, and L. Silverman, Silverman 
 took the note, and through his action or that of others acting for 
 him, the note was sold and delivered to the appellees, Boyden & Son. 
 The proof tends to show and such proof is substantially undisputed 
 that the appellees purchased the note in good faith without notice 
 of any defect in it, and paid therefor the sum of $1300.00. 
 
 The defense, made by the appellant in the trial court, was based 
 upon two theories: First, that the words, "one hundred" were writ- 
 ten in the body of the note before the word "dollars," and that the
 
 ALTERATIONS 577 
 
 word "one," was in some way erased, or taken out of the note, and 
 the word "thirteen" was written in its place before the word "hun- 
 dred;" second, that, when the note was signed and endorsed by the 
 appellant the word "one," was not in the body of the note, but that 
 there was a blank space before the word, "hundred," and that in 
 this blank space and before the word "hundred," the word "thirteen," 
 was written. Whether the note was altered in the one or the other 
 of the modes thus stated, the proof tends to show, and is substantially 
 undisputed that the change was not made by the appellant, Merritt, 
 or by any one authorized by him to make it, and that he knew nothing 
 about the change, and had no intimation of it, until about the time 
 the note fell due. 
 
 First If the note was altered by the erasure of the word "one" 
 in the body of it and the insertion of the word "thirteen" in the 
 place of the word "one" before the word "hundred," then the altera- 
 tion amounted to a forgery, and the appellant is not liable upon 
 the note, even though the appellees were bona fide purchasers thereof 
 for value without notice or knowledge of the change. If the amount 
 named in a note is raised by erasing what is written such altera- 
 tion is a material one, and the note is thereby vitiated, so as to be- 
 come void. When a note is changed materially either by a payee 
 or transferee, not only is it vitiated and destroyed in the hands of 
 the party responsible for the alteration, but no recovery can be had 
 upon it against the maker by a person into whose hands it has come 
 after the change was made, even though the latter be a bona fide 
 endorsee for value without notice of the alteration. (2 Am. & Eng. 
 Encyc. Law, 2nd ed. pp. 193, 255, 257; 3 Randolph on Commercial 
 Paper, 2nd ed. sec. 1754.) Where a note is complete at the time when 
 it is signed by the maker, its subsequent alteration by raising the 
 amount thereof through obliteration of the same by the use of any 
 chemical process, or other ingenious device, without the knowledge 
 or consent of the maker, will discharge him from liability upon the 
 note. (Burrows v. Klunk, 70 Md. 460.) "When a negotiable instru- 
 ment is materially altered, no recovery can be had thereon against 
 any one, who became a party thereto prior to the alteration, even 
 though he be a bona fide holder without notice." (4 Am. & Eng. 
 Encyc. of Law, 2nd ed. p. 332; Angle v. Northwestern Mutual Life 
 Ins. Co., 92 U. W. 340). In Burwell v. Orr, 84 111. 465, we said: 
 "The alteration of the instrument, on which the suit was brought 
 was material, and, under the circumstances, must be presumed to 
 have been made by or with the consent of the holder. If so, the
 
 5/8 CASES ON EVIDENCE 
 
 whole instrument, by the alteration, became ipso facto void. No 
 subsequent indorsement even to a bona fide purchaser for value, could 
 give validity to a void instrument." (Pahlman v. Taylor, 75 III. 
 629.) The rule seems to be well settled that, in case of a material 
 alteration of a note, it becomes invalid even in the hands of a sub- 
 sequent endorsee for value. (Wade v. Withington, i Allen 561; 
 Commonwealth v. Emigrant Industrial Savings Bank, 98 Mass. 17.) 
 The trial court, in instructing the jury upon the trial below an- 
 nounced the law in regard to the effect of a material alteration, as it 
 is above stated. 
 
 Judgment affirmed. 
 
 WILLARD v. OSTRANDER. 
 51 Kan. 481. 
 
 Action by Ostrander against Willard for conversion. Judgment 
 for plaintiff. 
 
 ALLEN, J. This action was brought by the defendant in error, 
 as plaintiff below, to recover the value of 1,500 Merino sheep which 
 he alleges he owned, and the defendant took and converted to his 
 own use. The defendant admitted the taking of the sheep, but jus- 
 tified the act as having been done by virtue of a chattel mortgage 
 given by the plaintiff to him on the 2nd day of September, 1885, 
 on the sheep in controversy, to secure the sum of $3,850.50, accord- 
 ing to the terms of four promissory notes. To this answer the plain- 
 tiff replied, denying the execution of the mortgage as set out in 
 defendant's answer, but admitting that he executed a chattel mort- 
 gage on the same sheep, and alleging that a material change had 
 been made therein by the defendant without the consent of the plain- 
 tiff, by inserting the word "wool" ; also alleging that the sheep mort- 
 gaged were purchased from the defendant, and the mortgage given 
 to secure the purchase price; that said sheep were warranted to be 
 sound, healthy and free from disease; that they were in fact diseased, 
 having a contagious disease commonly known as "mange," "scab," 
 or "itch;" that various damages had been sustained by the plaintiff 
 by reason of such disease; that the consideration of such notes had 
 failed. 
 
 Much is said in the briefs, and the point was vigorously pressed on
 
 ALTERATIONS 579 
 
 the oral arguments, as to the materiality of the word "wool" in the 
 mortgage. Plaintiff in error contends that a mortgage of the sheep 
 necessarily covers their wool. The question is not free from difficulty. 
 (See Jones, Ch. Mort., sees. 149-151, and cases therein cited; Bryant 
 v. Penneil, 61 Me. 108.) Without attempting to carefully review all 
 the authorities, we think, as between the parties to the action, a mort- 
 gage on the sheep would include the "wool," but that after the "wool" 
 \vas clipped, if sold to a purchaser for value without notice, he would 
 get a title free from the lien' of the mortgage. If this conclusion be 
 correct, the insertion of the word "wool" would be a material altera- 
 tion. If the mortgage was in fact altered after its execution, the al- 
 teration must have been by the mortgagee, or by his direction, to im- 
 pair its validity; and it will not be presumed that an agent entrusted 
 with the possession of the security was directed by the mortgagee to 
 make such an alteration, but that fact must be shown by proof. (Lan- 
 genberger v. Kroeger, 48 Cal. 147; 17 Am. Rep. 418). Some other 
 questions are urged on our consideration, but as they are not likely to 
 arise on another trial, we do not feel called on to specially mention 
 them. 
 
 For the errors of the court in instructing the jury, the judgment 
 must be reversed and a new trial ordered. 
 
 DERBY v. THRALL. 
 44 Vt. 413. (1872) 
 
 Assumpsit upon common counts. Plea, the general issue. 
 
 Upon the trial, it appeared that one Wilson had arranged with the 
 plaintiff for the purchase of a rifle, in part payment for which he was 
 to give a note for $22, with surety, and that Wilson procured the de- 
 fendant to become such surety by agreeing that in the purchase of the 
 rifle he should act as the agent of the defendant, and the rifle be the 
 property of the defendant until the note should be paid. That the 
 plaintiff was commonly called Frank, when called by given name. 
 That Wilson procured a note to be drawn, dated April 23, 1869, for 
 $22, payable in the month of October, then next, to Franklin Derby, 
 supposing that to be the plaintiff's name, and the defendant signed 
 the note as surety. That Wilson took the note to the plaintiff and 
 the plaintiff noticed that the name of the payee was Franklin instead
 
 580 CASES ON EVIDENCE 
 
 of Francis E. Derby, and that Wilson then consented that the plain 
 tiff might alter the name of the payee from Franklin Derby to Fran- 
 cis E. Derby, and the planitiff did so alter it and took it in payment 
 for the rifle, and that the defendant did not know of the alteration. 
 The plaintiff offered the note in evidence, in connection with the proof 
 of these facts. The defendant objected. The court overruled the ob- 
 jection and admitted the note in evidence, and upon these facts ren- 
 dered judgment for the plaintiff for the amount of the note with in- 
 terest. To each of these decisions, the defendant excepted. 
 
 PIERPOINT, Ch. J. It appeared from the exceptions that the note 
 on which the plaintiff seeks to recover, was given for a rifle purchased 
 by one Wilson of the plaintiff; that the defendant signed the note to 
 the plaintiff, as surety for said Wilson ; that Wilson procured the note 
 to be drawn, and had it made payable to Franklin Derby, supposing 
 that to be the plaintiff's name, as he was commonly called Frank. 
 After the note had been signed by the said Wilson and the defendant, 
 Wilson took it to the plaintiff, who noticed that it was payable to 
 Franklin instead of Francis E. Derby, the plaintiff's name. Wilson 
 then consented that the plaintiff should alter the name of the payee 
 from Franklin to Francis E., and the plaintiff did so without the 
 knowledge of this defendant. 
 
 The defendant now claims that such alteration of the note, without 
 his consent, invalidates the instrument as to him, and discharges his 
 liability. Whether it is to have such effect depends upon the nature 
 of the alteration. Was it a material or an immaterial alteration? The 
 alteration having been made by a party to the note if it is material it 
 invalidates it, otherwise not. 
 
 It appears from the case that the plaintiff is the person to whom the 
 note was given for property purchased of him, and this was under- 
 stood by all the parties. This defendant knew, when he signed the 
 note, what it was given for, and to whom it was intended to be made 
 payable. He intended to sign a note payable to the plaintiff, and sup- 
 posed he had done so. It turned out that Wilson had mistaken the 
 given name of the plaintiff, and he consented that the plaintiff should 
 make the alteration so as to make the note just what Wilson and the 
 defendant supposed it was when they executed it. The change made 
 no alteration in the liability or obligation of the makers. It neither en- 
 larged, diminished, or varied that obligation. There was no change 
 in the party to whom the obligation was assumed. The only effect of 
 the alteration was to correctly describe the party to whom the promise 
 was in fact understandingly made.
 
 ALTERATIONS 581 
 
 In the second volume of Parson on Notes and Bills, p. 560, it is said, 
 "Adding the names in full of a firm to a bill drawn by them in the 
 firm name, has been held no alteration, as being in effect only adding 
 the Christian names of the drawees, whose surnames had been affixed 
 to the bill before acceptance. So if the surname of the payee be in- 
 terlined subsequent to the delivery, and it be proved that the note was 
 originally given to this payee, the alteration is immaterial. So where 
 a note made payable to a partnership under one name is endorsed by 
 a surety, and afterwards altered by the maker and payee, without the 
 knowledge of the surety, so as to be to the same firm under another 
 name, the alteration is immaterial and does not discharge the surety." 
 And various authorities are cited in support of these propositions, and 
 the same author after a full examination of the cases, draws therefrom 
 the following conclusion: "Wherever neither the rights nor interests, 
 duties nor obligations of either of the parties are in any manner 
 changed, the alteration is immaterial." 
 
 Applying these principles to the case before us, it is very clear that 
 the judgment of the county court was right, and must be 
 
 Affirmed. 
 
 HAGAN v. MERCHANT'S & BANKER'S INS. CO. 
 81 Iowa 321. (1890) 
 
 Action upon a policy of insurance against loss by fire. The petition 
 alleges the issuing of the policy, the loss of the property by fire, the 
 value thereof, and notice and proof of loss within sixty days. 
 
 GIVEN, J. On the trial, plaintiff offered in evidence the policy, and 
 copy of application attached, to which defendant objected, on the 
 ground that it was apparent on the face of the instruments that they 
 had been changed ; wherefore the burden was on plaintiff to account 
 for the change before he could introduce the instruments in evidence, 
 and also upon the ground that plaintiff confessed the change in his re- 
 ply, and had not offered evidence tending to avoid it. This objection 
 was overruled. The defendant asked an instruction to the effect that, 
 if the jury found that there was ground for suspicion on the face of 
 the instruments that the policy had been altered as alleged, then the 
 burden was upon the party offering it in evidence to show "when 
 such alleged alteration was performed, by whom, and the intent with
 
 582 CASES ON EVIDENCE 
 
 \vhich done." This instruction was refused, and one given that "the 
 burden of establishing that the words were added to one or both of the 
 places alleged after delivery of the policy rests upon the defendant. 
 The overruling of said objection, the refusal to instruct as asked, and 
 the instruction given, are assigned as error. 
 
 The books are full of diverse decisions as to whether, on the pro- 
 duction of a written instrument, which obviously has been altered,' it 
 is incumbent upon the party offering it in evidence to explain its ap- 
 pearance. Some hold that an alteration apparent on the face of the 
 writing raises no presumption either way; some that it raises a pre- 
 sumption against the writing, and, therefore, requires some explana- 
 tion to make it admissible ; others hold that it raises such presumption 
 only when the apparent alteration is suspicious; and yet others, that it 
 is presumed, in the absence of explanation, that the alteration had 
 been made before delivery. The authorities are so numerous that we 
 refrain from citing any, but refer to the American and English Ency- 
 clopedia of Law under "Alteration of instruments," where many of the 
 authorities sustaining these different views are cited. This question 
 was incidentally noticed, but not passed upon, in Jones v. Ireland, 4 
 Iowa 69 ; Ault v. Fleming, 7 Iowa 143 ; Wilson v. Harris, 35 Iowa 
 507; and Wing v. Stewart, 68 Iowa 13. These cases were disposed 
 of upon other grounds, and the question before us has never been di- 
 rectly passed upon by this court. The issues involved in this defense 
 are whether the policy was altered as alleged, and, if so, whether after 
 delivery to plaintiff and without authority of the defendant. In Jones 
 v. Ireland, supra, it was held to be a question of fact for the jury 
 whether there had been an alteration as alleged. The instrument was 
 certainly competent evidence as bearing upon this question, and was 
 therefore, proper to go to the jury, but the contention is whether the 
 plaintiff was entitled to offer it without explanatory proofs. 
 
 If the appearance of the instrument or other testimony tended to 
 support the charge of alteration, it was the duty of the court to sub- 
 mit the issue to the jury; but if the instrument or other proofs did not 
 so tend, then the issue should be withheld, as in any other case where 
 there is no testimony tending to support the allegation. No complaint 
 is made of the action of the court in submitting the issue, and we may 
 assume, therefore, that the appearance of the instrument does tend to 
 support the charge of alteration. The questions as to whether there 
 were alterations, and, if so, whether fraudulent, were fairly before the 
 jury, and the instruments were competent evidence upon those issues. 
 Question is made whether it was necessary for the plaintiff to offer the
 
 ALTERATIONS 583 
 
 policy in support of his action. We think upon the pleadings it was 
 not. The execution of the paper was not denied only in the sense that 
 it was not the policy issued by the defendant, "for that the same has 
 been changed and altered, without their knowledge or consent, since 
 its delivery."- This is not such a denial of the execution of the instru- 
 ment as is contemplated in section 2730 of the revised Code. It is con- 
 tended that the plaintiff, in his reply, confessed the alteration and 
 pleaded in avoidance that it was altered before delivery. The reply 
 will not admit of such construction. It expressly denies alteration, 
 and, in the sentence where it is claimed an avoidance is pleaded, it is 
 said that plaintiff does not admit that any change was made. If this 
 question rested upon pleadings alone, we would say, under the general 
 rule, that the burden was upon the defendant to establish his allega- 
 tions that the instruments were altered after delivery, and without its 
 authority. We think there was no prejudicial error in admitting the 
 instruments over defendant's objections; for, if they had not been in- 
 troduced by the plaintiff, they certainly would have been introduced 
 by the defendant in support of its defense of alteration. 
 
 Our conclusion is, upon an examination of the whole case, that the 
 judgment of the district court should be 
 
 Affirmed. 
 
 COMMONWEALTH v. BANK. 
 98 Mass. 12. (1867) 
 
 Bill of interpleader filed by the attorney general, pursuant to c. 19 
 of the Resolves of 1866, against the Emigrant Industrial Savings 
 Bank, a corporation under the laws of New York, and William S. 
 Houghton, for the purpose of determining whether five bonds of the 
 Commonwealth, for one thousand dollars each dated October i, 1861, 
 and issued by virtue of the St. of 1861, c. 216, had not been made void 
 as against the Commonwealth, by reason of a material alteration 
 thereof; and, if not, then what were the respective rights of the re- 
 spondents in and to the same, in the manner provided by the resolve. 
 
 HOAR, J. This case is one of great practical importance, and pre- 
 sents a question of much interest to the owners of a species of securi- 
 ties in which very large amounts of property are invested. Both par- 
 ties have strong claims to the consideration of the court, and come
 
 584 CASES ON EVIDENCE 
 
 before us with equities which make a decision against either painful. 
 We have in effect to decide which of two innocent parties shall suffer 
 a considerable loss; and their rights are found to depend upon the 
 application of principles in a manner which may lead to very impor- 
 tant consequences. 
 
 Upon the evidence reported, we have no difficulty in finding the prin- 
 cipal facts in issue. The five bonds which form the subject of the 
 controversy are shown by satisfactory proof to be the same which 
 were stolen from Mr. Houghton in May, 1863. On the 7th of No- 
 vember, 1863, they were received by the Emigrant Industrial Savings 
 Bank in the usual course of business, for a valuable consideration, 
 and without notice, express or implied, of any defect in the title which 
 the bank then acquired, and without any reasonable cause to question 
 their genuineness. In the interval of time between these dates the 
 numbers of the bonds had been fraudulently altered ; by whom, it does 
 not appear; but the natural inference would be, by the thief, or some 
 one in privity with him. 
 
 These bonds were payable to the holder or bearer, and were nego- 
 tiable instruments which would pass by delivery. The important ques- 
 tions which we have to decide are, I. Is the alteration of the numbers 
 upon the bonds a material alteration? 2. If not, is it such an altera- 
 tion as, if made with a fraudulent purpose, will discharge the contract, 
 so that it will be invalid in the hands of a bona fide holder for a val- 
 uable consideration, without notice, whose title is acquired after the 
 alteration ? 
 
 No case has been cited in which such an alteration has ever been 
 held to be material, and we are not aware that any can be found. We 
 think the change of the numbers was not a material alteration of the 
 bonds. 
 
 The remaining question involves a point of greater difficulty. It 
 has been held that an immaterial alteration, if made with a fraudulent 
 intent, will avoid a written instrument. I Greenl. Ev. sec. 568 ; 2 Par- 
 sons on Notes & Bills, 572, and cases there cited. But it is to be 
 noticed that each of these text writers gives as the reason of the rule, 
 that the party who loses the benefit of the writing has wilfully and 
 wrongfully destroyed the identity of the contract. But if the rule is 
 not thus limited in its application, and if the attempt to perpetrate a 
 fraud may be justly punished by a loss of his right to enforce the 
 contract, it remains to be considered whether the incapacity to sue 
 will follow the instrument into the hands of an innocent holder, who 
 has taken it in good faith. It has indeed been decided in the case of
 
 ALTERATIONS 585 
 
 a material alteration of a note, that it becomes invalid even in the 
 hands of a subsequent indorsee for value. Wade v. Withington, i 
 Allen 561. But the opinion in that case was put upon the express and 
 only ground that the identity of the contract was destroyed; that the 
 indorsee had not received the note which the promisor made. We do 
 not find that it has ever been held that even a fraudulent alteration 
 of a paper upon which a contract is written, leaving the language of 
 the contract, in form and substance, unchanged, and not affecting the 
 manner of its legal proof, would so far affect the validity of the con- 
 tract as to make it invalid in the hands of an innocent holder, wholly 
 ignorant of the fraud. The general rule is that he who is guilty of a 
 fraud shall not be permitted to avail himself of it. If the rule is ex- 
 tended further, and if, on grounds of public policy, it should be held 
 that one who claims title under the fraudulent person shall only suc- 
 ceed to his rights, it is difficult to see the just application of the prin- 
 ciple to the case at bar. The innocent holder of a negotiable security 
 payable to bearer does not take his title from that of any previous 
 holder, but under the original contract of the promisor, as construed 
 by the law. The thief who stole these bonds had no title to them what- 
 ever. The innocent holder does not claim under him, in form or sub- 
 stance. The promisor may have parted with them without considera- 
 tion, but that makes no difference. The promise to pay to the bearer 
 or holder attaches to the possession for value without notice of the 
 unaltered contract. 
 
 The numbers placed upon these bonds gave the Commonwealth 
 means of checking or detecting an over-issue of them, perhaps some 
 security against forgery, and the means of tracing the particular in- 
 strument through successive changes of ownership. To the owners 
 of the bonds after they were issued they afforded the means of iden- 
 tifying their property. But this might have been done by a private 
 mark upon the back of the paper or by the stamping of the owner's 
 name upon it. We cannot think that the fraudulent removal of such 
 a mark of identification could affect the rights of parties not privy to 
 the fraud, nor affected with notice of it. The case is wholly different 
 from those cited in argument, of securities tainted with usury, and the 
 like, where a statute makes the contract void, into whosesoever hands 
 it may come. Here is no statute impediment. Nor is the holder met 
 with the difficulty that, though without his own fault, he has failed to 
 receive the contract which the promisor made. He is innocent of any 
 fraud ; he has the contract unchanged in form and with nothing added 
 or taken away which affects its obligation or proof. It is a question
 
 586 CASES ON EVIDENCE 
 
 of the policy of the law which discountenances fraud but seeks to inflict 
 the penalty for it only on the fraudulent; and which protects the free 
 circulation of negotiable paper. 
 
 "\Ye are of the opinion that the Emigrant Industrial Savings Bank 
 has established its title to the bonds in question against the Common- 
 wealth, and is entitled to a decree accordingly. 
 
 Note. With respect to the proof of alterations the decisions are In hope- 
 less conflict. There are at least six different views as regards presumptions. 
 These six views, as stated in Hughes on Evidence are as follows: "(1) a 
 presumption exists that the alteration was made contemporaneously with, 
 or before, the execution of the instrument; (2) a presumption exists that 
 it was made after the execution of the instrument; (3) no presumption 
 exists in any case as to the time when it was made; (4) no presumption 
 exists as to the time when it was made if no suspicious circumstances are 
 apparent on the face of the instrument, but where there are suspicious 
 circumstances connected with it there is a presumption that it was made 
 after the execution of the instrument; (5) as a general rule, it is pre- 
 sumed to have been made contemporaneously with the execution of the in- 
 strument, but if any ground of suspicion is apparent upon the face of the 
 Instrument the law presumes nothing; (6) the presumption, if any, which 
 arises, depends upon the character of the instrument." And, as stated in 
 Hughes on Evidence, "The first of these views is based largely on the 
 presumption of innocence, and is recognized in numerous decisions (Lewis 
 v. Watson, 98 Ala. 479, 39 Am. St. Rep. 82; Hagan v. Merchants' Ins. Co., 
 81 la. 321, 25 Am. St.' Rep. 493; Hunt v. Gray, 35 N. J. L. 27; Brand v. 
 Johnrowe, 60 Mich. 210). The second view is supported by comparatively 
 few decisions, and it has been severely criticised. It still obtains, however, 
 in a few jurisdictions, and seems to be confined for the most part to nego- 
 tiable instruments. The third view is supported by many decisions (Merritt 
 v. Boyden, 191 111. 136, 60 N. E. R. 907; Simpson v. Davis, 119 Mass. 269, 
 20 Am. Rep. 324; Martin v. Tuttle, 80 Me. 207, 14 Atl. R. 207). The fourth 
 view is supported by decisions of several leading courts (Smith v. United 
 States, 69 U. S. 219; Powell v. Panks, 146 Mo. 620; Alabama etc., Land Co. 
 v. Thompson, 104 Ala. 570, 53 Am. St. Rep. 80; Bradley v. Dells Lumber 
 Co., 105 Wis. 245; Collins v. Ball, 82 Tex. 259). The fifth view, according 
 to Reynolds, is the American rule (Reynolds' Steph. Evid., art 89). While 
 the sixth view is supported by Stephen, Taylor and Greenleaf, as well as by 
 many decisions (Bailey v. Taylor, 11 Conn. 531, 541; Boothby T. Stanley, 34 
 Me. 515, 516)."
 
 THE BEST EVIDENCE RULE 58; 
 
 THE BEST EVIDENCE EULE.1 
 
 CERNY v. GLOS. 
 261 III. 331. (1914) 
 
 CARTWRIGHT, J. The circuit court of Cook County entered a de- 
 cree setting aside a tax deed to Jacob Glos, one of the appellants, and 
 a quit-claim deed executed by him to Emma J. Glos and A. H. Glos, 
 the other appellants (as clouds upon the title of John Vaclav Cerny, 
 the appellee, to lot 90 in Claflin's subdivision of block I of Johnston 
 & Lee's subdivision of the south-west quarter of section 20, township 
 69 North, range 14, in Cook county, and the record has been brought 
 to this court by appeal. 
 
 We find it impossible to affirm the decree in this case. The appel- 
 lee, having alleged title to the lot, asked the court to set aside a tax 
 deed as a cloud on his title, and his ownership being denied by the an- 
 swers, he was required to prove that he was the owner of the lot. , Un- 
 less a party shows title to land where the title is in issue, it is not for 
 him to complain that there is a cloud upon the title. (Wing v. Sher- 
 rer, 77 111. 200; Walker v. Converse, 148 id. 622; Glos v. Goodrich, 
 175 id. 20; Glos v. Kenealy, 220 id. 540; Coel v. Glos, 232 id. 142.) 
 The only evidence that appellee had title consisted of a certified copy 
 of a deed dated August 12, 1909, from a master in chancery to him, 
 and the copy was objected to on the ground that no sufficient founda- 
 tion had been laid for the introduction of secondary evidence. Section 
 36, of chapter 30 of the Revised Statutes fixes the conditions upon 
 which a certified copy of a record of a deed may be read in evidence, 
 and there was no attempt whatever to comply with the conditions 
 there prescribed. So far as appeared, the master's deed was in exist- 
 ence and in the possession of another party in the same city where the 
 case was heard. The tax deed and the deed from Jacob Glos to the 
 other appellants were all proved by certified copies, and each copy was 
 objected to for want of a sufficient foundation for its introduction. 
 The court erred in admitting the copies in evidence and making them 
 the basis of its decree (Scott v. Bassett, 174 111. 390; 186 id. 98, and 
 194 id. 602; Glos v. Talcott, 213 id. 81.) We are not authorized to 
 disregard rules prescribed by the General Assembly for the admission 
 
 i Hughes on Eridence, p. 217.
 
 588 CASES ON EVIDENCE 
 
 of secondary evidence, and every citizen is entitled to the benefit of 
 such rules. 
 
 The decree is reversed and the cause is remanded. 
 
 Reversed and remanded. 
 
 POST v. LELAND. 
 184 Mass. 601. (1904) 
 
 LATHROP, J. This is an action of contract under the St. of 1890, c. 
 437, against brokers, to recover various sums of money paid by the 
 plaintiff to the defendants as margin for the purchase of certain se- 
 curities bought and afterwards sold by the defendants. The case was 
 sent to an auditor, who found for the defendants. It was afterwards 
 tried in the Superior Court before a jury. A verdict was returned 
 for the defendants, and the case is before us on the plaintiff's excep- 
 tions to the exclusion of evidence, and to the refusal to give certain 
 instructions requested. We will consider these in their order. 
 
 The first exception relates to the refusal of the judge to admit 
 secondary evidence of the contents of letters from the defendants to 
 the plaintiff. The plaintiff testified in the first place that he had re- 
 ceived the letters, but that they might be lost, he did not know. Then 
 he testified that he had not any letters, which he subsequently quali- 
 fied by saying: "We did not bring the letters here." There was no 
 attempt to show that any search had been made for the letters or that 
 they were lost, and the judge rightly excluded secondary evidence of 
 their contents. 
 
 Exceptions overruled. 
 
 TRAINOR v. LEE, CITY TREASURER. 
 34 R. I. 345. (1912) 
 
 PARKHURST, J. This is an action of the case to recover the sum of 
 four hundred and forty-three dollars and twenty-one cents ($443.21), 
 for services rendered by the plaintiff as Chief of Police, Town Ser-
 
 THE BEST EVIDENCE RULE 589 
 
 geant, and Dog Officer of the town of Cranston and the city of Crans- 
 ton. 
 
 The next exception relates to the testimony offered by the defend- 
 ant's counsel, that there was no appropriation made by any proper 
 authority, from which payment of the plaintiff's claim could properly 
 be made. Defendant's counsel offered himself as a witness as to the 
 facts, without attempting to produce, or to account for the lack of, 
 record evidence on this point, where it was quite evident that such 
 record evidence would and should have been produced, if it existed. 
 It is quite manifest that it would have been error to allow him to offer 
 his oral evidence of such matters. 3 Elliot Ev. sec. 1942; Owings v. 
 Speed, 5 Wheat. 420 ; Hutchinson v. Pratt, 1 1 Vt. 402 ; Gilbert v. New 
 Haven, 40 Conn. 102; Morrison v. Lawrence, 98 Mass. 219, 221. This 
 exception is overruled. 
 
 We find no error; the exceptions alleged by the defendants are all 
 overruled, and the case is remitted to the Superior Court, with direc- 
 tion to enter judgment upon the verdict for the plaintiff. 
 
 EASTMAN v. DUNN. 
 34 R. I. 419. (1912) 
 
 PARKHURST, J. This is an action of assumpsit brought in the Su- 
 perior Court for the Counties of Providence and Bristol, April 29, 
 1909, by Albert F. Eastman against William J. Dunn and Daniel C. 
 O'Connor, to recover damages for breach of an express contract set 
 forth in the plaintiff's declaration in two counts. 
 
 Exception 9. This was an exception to the admission in evidence 
 of a copy of a letter which the plaintiff testified he wrote to each of 
 the defendants and sent to them by registered mail. It was objected 
 to on two grounds first, because it was not the best evidence and no 
 notice had been given to the defendants to produce the original, and 
 second, because it was written by the plaintiff himself and had no rele- 
 vancy except as proof of the truth of a claim made by him in it; in 
 other words, because it was manufactured testimony. We are of the 
 opinion that the letter was properly admitted; it was a duplicate car- 
 bon copy without erasure or alteration of a letter proved to have been 
 sent by registered mail to each of the defendants, and appears upon its 
 face to be only a notice to them that the plaintiff would be obliged to
 
 590 CASES ON EVIDENCE 
 
 resort to law for the protection of his rights. It does not purport to 
 set forth the terms of any contract between the parties and cannot be 
 regarded as self-serving. Nor, in view of the fact that the letter was 
 a mere notice intended to ascertain definitely if possible whether the 
 defendants would carry out their agreements with the plaintiff with- 
 out in any way stating what those agreements were, do we think it 
 was necessary that the defendants be notified to produce the original ; 
 it seems to us to come within the exception to the rule regarding sec- 
 ondary evidence, to the effect that a notice of claim may be proved 
 by parol or by the duplicate and the original need not be required. 25 
 Am. & Eng. Encyc. of Law (25 ed.) p. 171 ; Eagle Bank v. Chapin, 
 3 Pick. 180; Penn &c. R. Co. v. Braxton, 34 Fla. 479. 
 
 COM. UNION ASSUR. CO., LTD. OF LONDON, ENG., v. 
 
 WOLFE. 
 
 41 Okla. 342. (1914) 
 
 Action by C. Dale Wolfe, trustee of the estate of D. A. Trotter & 
 Co., against the Commercial Union Assurance Company Limited, of 
 London, England. Judgment for plaintiff, and defendant brings er- 
 ror. Affirmed. 
 
 Opinion by GALBRAITH, C. D. A. Trotter & Co., a partnership, 
 were the insured. After the loss upon the policy in suit, the insured 
 were adjudged bankrupts, and the plaintiff, C. Dale Wolfe, was elected 
 and qualified as trustee, and, as such, prosecuted the action on the pol- 
 icy, and recovered a judgment, from which the defendant appealed. 
 
 The remaining assignments complain of the rulings of the court in 
 admitting oral testimony over the objection of the insurance company 
 to prove the value of the stock of merchandise destroyed by the fire. 
 Plaintiff was permitted to prove by the insured that the value of the 
 stock of goods at the time the policy was written was $2,600; that the 
 amount of goods purchased between that time and the date of the fire 
 was $600; that the amount of his cash sales between the date of the 
 policy and the loss was about $600. This witness was corroborated 
 as to the value of the stock at the time of the fire by another witness. 
 who was formerly in partnership with the insured, and owning a half 
 interest in the business, and who sold out some four months before 
 the policy was written, but was familiar with the stock and its value
 
 THE BEST EVIDENCE RULE 591 
 
 from that time up to the fire. This, it seems, was the best evidence 
 available for showing the amount of the loss in the absence of the 
 books, which, it had been shown, could not be produced, because they 
 had been lost or stolen, and through no fault or negligence of the in- 
 sured. This character of testimony was competent. Its weight was 
 for the jury. Secondary evidence is admissible in the absence of pri- 
 mary evidence, especially where the absence of primary evidence is 
 satisfactorily accounted for. 
 
 '"And the one general rule that runs through all the doctrine of trial 
 is this, that the best evidence the nature of the case will admit of shall 
 always be required, if possible to be had; but if not possible, then the 
 best evidence that can be had shall be allowed." (3 Blackstone, p. 
 368.) 
 
 "Where there are no books or inventories, or they have been de- 
 stroyed, secondary evidence is admissible to show the value of the de- 
 stroyed property." (Cooley's Briefs, Law of Ins., p. 3123.) 
 
 "Merchants engaged in different lines of business, who saw a stock 
 of insured goods before it was destroyed by fire may testify as to the 
 value of such stock, although their testimony is not as satisfactory as 
 might be desired." (Graves v. Merchants & Bankers' Mfg. Co., 82 
 Iowa 637, 31 Am. St. R. 507.) 
 
 The effect of this testimony was to show that the loss sustained 
 exceeded $2,000, the amount of the policy being $1,500, and it was 
 sufficient to sustain the verdict of the jury for the full amount of the 
 policy. 
 
 The record shows that the trial court gave every instruction to the 
 jury which the insurance company requested, and that every possible 
 phase of their contention in this suit was fairly presented to the jury 
 in the instructions by them, and, there being ample evidence in the 
 record to sustain the verdict of the jury, we see no reason why the 
 judgment appealed from should not be 
 
 Affirmed. 
 
 WATSON v. LAWRENCE. 
 134 La. 194. (1914) 
 
 BREAUX, C. J. This suit involves the possession of notes, aggre- 
 gating, exclusive of interest, exactly $2,000. 
 
 Interveners' demand was rejected in the District Court.
 
 592 CASES ON EVIDENCE 
 
 In the Court of Appeal the court decided that there should have 
 been a nonsuit on the intervention. 
 
 The ground of the Court of Appeal for the conclusion was that 
 the certificate of marriage was the best evidence of the marriage, 
 and, until it was produced, or its absence explained, the evidence of 
 eyewitnesses to the ceremony and all other evidence, was secondary 
 and not the best evidence. 
 
 The vital question here is whether there was a legal marriage of 
 the mother of interveners to John Lawrence. 
 
 The onus of proof of the alleged marriage was with the interveners. 
 
 Evidence in support of the alleged marriage, said the court, consists 
 of the depositions of several witnesses, including the mother of the 
 interveners Mrs. Julian Lawrence, taken in Illinois, who testified 
 that she had in her possession a marriage certificate, "which she at- 
 tached to her answer." 
 
 Interveners in the District Court offered the deposition of this 
 witness and the asserted certificate. 
 
 Objected to by plaintiff because certificate was not authenticated, 
 and objection to the testimony urged because it was an attempt to 
 prove marriage by^ parol; that there was a certificate of marriage 
 which could be obtained. 
 
 According to the decisions heretofore cited, parol evidence of per- 
 sons present, or within whose knowledge beyond question there was 
 a marriage, is considered as direct or primary evidence. 
 
 The full text of the opinion does not convey the meaning that proof 
 of marriage is to be considered in the same light as evidence relating 
 to proof of the title to realty and testimony relating to written agree- 
 ments. 
 
 The fact of marriage may be established by oral testimony of per- 
 sons who were present at the ceremony. Encyc. of Evidence, vol. 8, 
 
 P- 465- 
 
 For reasons stated, it is ordered, adjudged, and decreed that the 
 judgment of the District Court is annulled, avoided, and reversed as 
 between plaintiff on the one hand and the interveners, and as between 
 interveners and the defendant. 
 
 It is further ordered, adjudged, and decreed that the judgment of 
 the Court of Appeals is avoided, annulled, and reversed as between 
 the interveners on the one hand and the plaintiff and intervener on 
 the other, and the defendant and intervener on the other. The case 
 is remanded to the District Court, to be further proceeded with' in 
 accordance with the views before expressed.
 
 THE; BEST EVIDENCE RULE 593 
 
 BORNSTEIN v. BERLINER. 
 184 III. A pp. 5/p. (1912) 
 
 McSuRELY, J. Lena Bornstein, hereinafter called plaintiff, ob- 
 tained a judgment for $600 against Ella Berliner and Isaac Berliner, 
 hereinafter called defendants, in a suit alleging breach of covenants 
 of warranty contained in a warranty deed of a 30 acre farm in Michi- 
 gan conveyed by defendants to plaintiff. We are asked to reverse 
 this judgment. 
 
 The only thing for this court to pass upon is the question of the 
 proof by the defendants of the alleged abandonment of the strip by 
 the railroad. This question was one for the jury to determine. How- 
 ever, we think the Trial Court erred in excluding certain material 
 and competent testimony upon this point. A. S. Miller, called on 
 behalf of defendants, was asked concerning a sale of part of the 
 right of way of the Kalamazoo and Lake Michigan Railway Com- 
 pany, the witness acting at the time as agent for the latter company. 
 It was sought to show by him that another company had purchased 
 a portion of the right of way of the K. & L. M. Ry. Co., as tending 
 to show abandonment of the intention by the Kalamazoo Company 
 to construct its railroad upon the right of way in question. It was 
 also sought to show by the same witness statements made by the 
 president of the K. & L. M. Ry. Co. with reference to the use of 
 the right of way. The court sustained objections to this testimony 
 for the reason, as stated by the court, that the contents of any writ- 
 ten document could not be shown by parol evidence. We do not 
 understand that defendants were seeking to prove the contents of a 
 written document, but only the fact of transactions touching portions 
 of the right of way of the Kalamazoo Company. We believe the 
 defendants were entitled to have the jury consider such transactions, 
 together with the statements of the president of the Kalamazoo Com- 
 pany touching the plans and intentions of this company with refer- 
 ence to its right of way. The rulings of the court in this regard 
 constituted prejudicial error. 
 
 As the case must therefore be remanded, we refrain from com- 
 menting upon other points suggested in the briefs of counsel. 
 
 Reversed and remanded.
 
 594 CASES ON EVIDENCE 
 
 SHARP v. HAMILTON. 
 12 N. J. L. i op. (1830) 
 
 DRAKE, J. This cause was tried at the Sussex Circuit, in Novem- 
 ber, 1828. The defendant confessed lease, entry, and ouster. 
 
 The plaintiff also gave some evidence of the possession of the 
 defendant, and obtained a verdict for one moiety of the disputed 
 premises. This verdict is sought to be set aside. 
 
 Francis Hamilton, after testifying that Benjamin Hamilton took 
 possession under him in 1815, on cross-examination said, that "he 
 inferred that defendant went into possession under witness because 
 there was an agreement respecting the premises between witness and 
 defendant." And the agreement being in writing, and not produced, 
 gave rise to a motion to overrule Francis Hamilton's testimony ; which 
 the court refused to do. The fact that he actually took possession 
 was one entirely independent of the agreement, and the testimony as 
 to that simply, was clearly without objection. There is more plausi- 
 bility in requiring the writing as the best evidence to shew under 
 whom he took possession, and whether under witness or not. But the 
 evidence sought to be overruled was not as to the particular manner or 
 terms of the holding, but merely under whom he took, or held. And it 
 appears to me too strict where the witness swears to a change of 
 possession, and that it was by his permission or consent, or that 
 the defendant took under him, to overrule that evidence because 
 there may be a written lease not produced; and especially where 
 the party offering the evidence is a stranger to the contract. It is 
 every day's practice, in actions of ejectment, to shew that one per- 
 son held, or holds, under another, by the payment of rent, or even 
 by an acknowledgment of the tenant, without any enquiry whether 
 there is a written contract unless, there be an attempt to shew fur- 
 ther particulars of that contract. In the action for use and occu- 
 pation, the question assumes a different aspect. There the tenancy 
 is directly put in issue. It lies at the foundation of the plaintiff's 
 action to shew that the defendant held by his permission; and if 
 there be a writing, that must be produced, not merely to shew the 
 fact of the holding, but that its contents may be looked into to 
 ascertain the quantum of damages to be recovered. 
 
 Rule discharged.
 
 THE BEST EVIDENCE RULE 595 
 
 COMMONWEALTH v. BLOOD. 
 77 Mass. 74. (1858) 
 
 Complaint on St. 1855, c. 215, sec. 24, for keeping intoxicating 
 liquors with intent to sell them in this commonwealth. 
 
 Upon the trial the government witnesses testified to going with a 
 search warrant to the house of the defendant, and that the defendant 
 was not there while they were in the house. The district attorney 
 asked a witness, "Where did you go while there?" The defendant 
 objected to any evidence of what the witness did in his house in his 
 absence; but the court ruled that the question might be put. 
 
 The witnesses then went on to detail their acts in the house, and 
 testified that they found on the premises intoxicating liquors and 
 five jugs. The district attorney asked, if these jugs were labelled. 
 The defendant objected to this. The court overruled this objection, 
 and admitted the following answer, which was objected to by the 
 defendant, "The jugs were labelled with pieces of leather marked 
 with what was in them." The district attorney then asked, "What 
 marks were on the labels?" To this the defendant objected. The 
 court overruled this objection, and the witness answered, "The mark 
 on the label was rye whiskey." The jugs were not produced, nor 
 the labels, nor any reason given for not producing them. 
 
 MERRICK, J. The several rulings of the presiding judge, to which 
 exceptions were taken at the trial, appear to us to have been correct. 
 
 The jugs ajid decanters of which a description was taken are well 
 known implements of traffic in that branch of trade; and it was com- 
 petent therefore to give evidence, in support of the prosecution, of 
 their appearance and the particular places in the dwelling-house in 
 which they were found. The labels on the jugs do not come within 
 any class of written instruments, the contents of which cannot be 
 proved without producing the original paper or document, or account- 
 ing for its loss or unavoidable absence; I Greenl. Ev. sec. 90; and 
 the testimony therefore concerning them was unobjectionable. 
 
 Exceptions overruled.
 
 596 CASES ON EVIDENCE 
 
 RUMBOUGH v. SOUTHERN IMPROVEMENT COMPANY. 
 112 N. C. 751. (1893) 
 
 Civil action, heard before Hoke, J., and a jury at Spring Term, 
 1892, of Madison Superior Court. There was a verdict for the plain- 
 tiff, and from the judgment thereon defendant appealed. 
 
 BURWELL, J. The plaintiff's action is founded upon a draft drawn 
 in his favor by W. E. Watkins for the sum of $950 and accepted 
 by said Watkins in the name of the defendant corporation. 
 
 It appears from the statement of the case on appeal that some of the 
 declarations of the president of defendant company, as to the authority 
 of Watkins to accept this draft, as we understand the record, were 
 contained in a letter written by him, and the objection was made 
 that the contents of the letter should not be spoken of, because it 
 was not produced, nor was its non-production properly accounted for. 
 
 If its contents were to be used as proof of a contract on the part 
 of the company that it would acknowledge and pay the draft, then 
 it was very clearly improper to allow the witness to speak of the 
 contents, the letter not being produced, unless its loss was accounted 
 for according to the rules of law, for, in that view of the matter, 
 this was to allow parol testimony to establish what was contained in 
 a written agreement without first proving that the writing was lost 
 or destroyed. 
 
 Inasmuch as the defendant is entitled to a new trial for the error 
 above pointed out, we do not deem it necessary to consider any other 
 of the numerous exceptions taken by its counsel. 
 
 New trial. 
 
 C. & N. W. R. R. CO. v. INGERSOLL. 
 65 III. 399. (1872) 
 
 MCALLISTER, J. This was an action on the case, in the County 
 Court of De Kalb County, by appellees against appellant as common 
 carrier, for breach of duty in not delivering a quantity of wheat and 
 barley shipped by the former, in cars of the latter, at Malta, in said 
 county, to be safely and securely carried to Chicago, and delivered 
 to H. S. Eaton, consignee.
 
 THE BEST EVIDENCE Rui,s 597 
 
 'The third point arising is that there was error in excluding sec- 
 ondary evidence offered by appellant, of the contents of a written 
 contract between the parties, under which, as was claimed, the grain 
 in question was shipped. The evidence of loss of original was this: 
 The station agent of appellant obtained it from appellees at Malta; 
 then he delivered it into the hands of another person to take it to 
 Chicago and deliver it to "the general freight agent, Wheeler, who 
 was the proper custodian of it. He had an office in Chicago, where 
 he usually kept papers, books, and documents belonging to his de- 
 partment, which, with the contents was burned October 9, 1871. 
 Neither the messenger who took it from the station agent at Malta, 
 nor Wheeler, nor any witness who ever saw it in Wheeler's possession 
 or in his office, was called as a witness. Now from the facts that 
 the station agent at Malta gave it to a messenger to take it to 
 Wheeler, and the burning of his office, the court was called to pre- 
 sume that the messenger delivered it to Wheeler, and the latter put 
 it in his office, and that it remained there, and was therefore destroyed 
 with the office. This is not a sufficient foundation for secondary 
 evidence. Wheeler should have been called to show that he received 
 and placed it in his office, and that it was there at the time the office 
 was burned. The court must be satisfied by sufficient evidence, that 
 the paper is destroyed or cannot be found. Mariner v. Saunders, 5 
 Gilm. 113, and cases there cited. 
 
 Judgment reversed on another ground. . 
 
 THE CHICAGO, KANSAS & NEBRASKA RAILWAY 
 COMPANY v. BROWN. 
 
 44 Kan. 384. (1890) 
 
 VALENTINE, J. This action was brought before a justice of the 
 peace in Pratt county, by J. H. V. Brown, against the Chicago, 
 Kansas & Nebraska Railway Company, for injuries alleged to have 
 been received by the plaintiff through the negligence of one of the 
 employes of the railway company. 
 
 The case was taken to the District Court of Pratt County, where 
 it was tried before the court and a jury, and judgment was rendered 
 in favor of the plaintiff and against the defendant for $109.41 ; and
 
 598 CASES ON EVIDENCE 
 
 the defendant, as plaintiff in error brings the case to this court for 
 review. 
 
 It is further claimed that the court below erred in permitting 
 Brown, over the objections and exceptions of the defendant, to tes- 
 tify with regard to certain "time-checks." Brown was not only a 
 section-man, but he also acted as the clerk for the section foreman, 
 Shanahan, keeping his books, making out time-checks, etc. One of 
 the questions presented and litigated in the court below in this case, 
 was whether the plaintiff was at the time of the accident working 
 for the Chicago Kansas & Nebraska Railway Company, or for the 
 St. Joseph & Iowa Railroad Company; and to prove that he and all 
 the other section-men on that railroad were working for the Chicago, 
 Kansas & Nebraska Railway Company, he testified, over the objec- 
 tions and exceptions of the defendant, that all the time-checks were 
 made out in the name of the Chicago, Kansas & Nebraska Rail- 
 way Company, and this he testified to without any further foundation 
 for the introduction of such testimony than that he did not have 
 such time-checks in his possession or under his control. No evidence 
 was introduced that they were lost or destroyed, or that any search 
 had ever been made for them, or that any notice had been given 
 to either of the foregoing railroad companies, or to anyone else, to 
 produce them. We think this was error. (Brock v. Cottingham, 
 23 Kan. 383, 388, 389, and cases there cited.) 
 
 The judgment of the court below will be reversed, and the cause 
 remanded for a new trial. 
 
 All the Justices concurring. 
 
 COONROD v. MADDEN. 
 126 Ind. 197. (1890) 
 
 COFFEY, J. This was a suit by the appellee against the appellant 
 upon a promissory note. Answer: Payment. Reply: General de- 
 nial. Trial by the court finding and judgment for the appellee, over 
 a motion for a new trial for the full amount of the note with reason- 
 able attorney's fee. The assignment of error calls in question the 
 propriety of the ruling of the Circuit Court in overruling the motion 
 for a new trial. 
 
 On the trial of the cause the appellant introduced and read in evi-
 
 THE BEST EVIDENCE RUI<E / 599 
 
 dence a certain check executed by him to the appellee, and also tes- 
 tified that such check was given and received in part payment of the 
 note in suit. 
 
 The appellee, over the objection of the appellant, was permitted by 
 the court to testify that the check was received by him in part pay- 
 ment of another and different note from the one in suit, giving the 
 date and amount of said note, and its rate of interest. He also tes- 
 tified that the appellant had paid the note to him in full, and that it 
 had been surrendered to the appellant. 
 
 The objection to this evidence, stated by the appellant to the court 
 at the time of its introduction, was that it was secondary, and that 
 the appellee could not give evidence of the contents of such note 
 without first proving its loss, or serving notice upon the appellant 
 to produce it in court to be used as evidence in the cause. 
 
 It is undoubtedly the general rule that before parol evidence can 
 be received of the contents of a written instrument, it must be shown 
 that such instrument is lost or destroyed, or that such instrument 
 is in the hands of the party against whom the evidence is offered, 
 and that upon proper notice so to do he has failed to produce the 
 original in court to be read in evidence. Smith v. Reed, 7 Ind. 242; 
 Mumford v. Thomas, 10 Ind. 167; Manson v. Blair, 15 Ind. 242; 
 Anderson, etc., Co. v. Applegate, 13 Ind. 339; Frazee v. State, 58 
 Ind. 8; McMakin v. Weston, 64 Ind. 270. 
 
 But there is a well defined and well established exception to this 
 general rule. The general rule has no application where the writ- 
 ten instrument is merely collateral to the issue; as where the parol 
 evidence relates to matters distinct from the instrument of writing, 
 although the same fact could be proved or disproved by the writing. 
 Wood Practice Evidence, p. 4. 
 
 In the case of Daniel v. Johnson, 29 Ga. 207, it was held that 
 payment might be proved by parol to have been made in promissory 
 notes, without the production of the notes. The rule is that where 
 the parol evidence is as near the thing to which the witness testifies 
 as the written evidence, then each is primary. Wharton Law of 
 Evidence, sec. 77. 
 
 In this case had the note upon which the appellee claimed the 
 check read in evidence had been applied, been produced -in court, the 
 parties would have been as far from the real controversy between 
 them as they were before its production, namely, the question as to 
 whether the check was applied on that note or the note in suit. For
 
 6oo CASES ON EVIDENCE 
 
 this reason we think the case falls within the exception to the gen- 
 eral rule above stated. 
 
 Affirmed. 
 
 AUSTIN v. GALLOWAY. 
 73 W. Va. 231. (1913) 
 
 WILLIAMS, J. John P. Austin, sheriff of Mason county and as 
 such administrator of Lucy Stallard, deceased, recovered a judg- 
 ment against John Galloway for $173.46, and he was awarded this 
 writ of error thereto. The action was upon a note dated i6th of 
 October, 1907, and payable to plaintiff's intestate one day after date, 
 signed John Galloway. Defendant demurred and pleaded non est 
 factum and non assumpsit. The demurrer was overruled and on 
 the issues of fact the jury found for plaintiff. 
 
 After suit was brought plaintiff's attorney sent the note to the 
 attorney in Kentucky representing the administrator of Lucy Stallard 
 in that state for the purpose of proving its due execution by defend- 
 ant, by witnesses in Kentucky whose depositions were to be taken, 
 and which were thereafter taken to be used as evidence over the 
 objection of defendant, and this is assigned as error. Its loss is 
 accounted for by proof of the following facts. After the depositions 
 were taken they were sealed and addressed to the clerk of the Cir- 
 cuit Court of Mason County as registered mail; but, at the request 
 of the West Virginia attorney, the note was not filed as an exhibit 
 with the depositions, and was mailed to him in a separate envelope, 
 not as registered matter. That night the post office burned, and all the 
 letters were destroyed, except registered matter which the postmaster 
 had placed in an iron safe. This is sufficient accounting for the loss 
 of the note to make secondary proof admissible. Before sending the 
 note to Kentucky, the plaintiff's attorney had made a copy of it. His 
 testimony shows that the copy is an exact copy of the original. In 
 view of these facts it was not error to admit the copy of the note 
 as evidence. Secondary evidence is admissible when primary evidence 
 is not to be had. Snyder v. Bridge Co., 65 W. Va. I. 
 
 Reversed and remanded on other grounds.
 
 THE BEST EVIDENCE RULE 60 1 
 
 REDUS v. MATTISON. 
 30 Okla. 720. (1912) 
 
 RossER, C. The defendant in error, M. M. Mattison, hereinafter 
 called plaintiff, brought this action against W. R. Redus, plaintiff in 
 error, hereinafter called defendant, in the justice court of Porter town- 
 ship, Wagoner county, Okla., to recover an amount alleged to be 
 due him for getting out certain stone used in defendant's building in 
 Tullahassee, Oklahoma. There was a judgment for plaintiff in the 
 justice court. The defendant appealed to the County Court of 
 Wagoner County, where the case was trietl before a jury, and there 
 was a verdict and judgment for plaintiff for $63.45. 
 
 The defendant assigns as error the action of the court in permitting 
 the plaintiff to testify as to the contents of an order signed by defend- 
 ant, for certain stone of the class known as "dimension stone." It 
 was shown by the plaintiff that he produced the written paper at the 
 trial in the justice court, identified it and introduced it in evidence, 
 and it was shown that he had not had it since, and that he and his 
 attorney had been unable to find it, though they had endeavored to 
 do so. Upon this showing, it was proper to admit evidence of its 
 contents. 
 
 The evidence in the case is ample to sustain the verdict, and there 
 being no material error in the case it should be affirmed. 
 
 By the Court : It is so ordered. 
 
 All the Justices concur. 
 
 CORONA KID CO. v. LICHTMAN. 
 84 N. J. L. 363. (1912) 
 
 KAUSH, J. This writ of error brings under review a judgment of 
 $23,000 obtained by the plaintiff below against the defendant below, in 
 an action for trover and conversion. The main controversy between 
 the parties related to the ownership of certain portions of horsehides 
 sent by the Corona Kid Manufacturing Company, the assignor (for 
 whose use the plaintiff sues,) to one Albert Guiges, for tanning. 
 
 Another reason urged upon us by the plaintiff in error for a reversal 
 of the judgment, is that the trial judge, against the defendant's ob-
 
 6o2 CASES ON EVIDENCE 
 
 jection, permitted the plaintiff to introduce in evidence certain sheets 
 of ordinary yellow foolscap which appeared from the testimony of 
 Elliott, who had been the bookkeeper of Guiges and general manager 
 of the office, to be copies made by him of a ledger of a private set of 
 books, which contained, among other entries, itemized accounts of 
 the sales by Guiges to the defendant, the dates when made and the 
 goods consigned, a classification of the articles, the number of pounds, 
 the price per pound and the extensions. The object of this testimony 
 was manifestly to establish with some degree of certainty the amount 
 of goods belonging to the plaintiff, which came into the possession of 
 the defendant. The witness Elliot further testified that he had per- 
 sonal knowledge of the consignments recorded in the ledger; that he 
 had made up and presented to the defendant statements of the item- 
 ized accounts as they appeared upon the ledger and of which the 
 yellow sheets were a true copy and which itemized accounts being ex- 
 amined and checked off by the defendant were paid by him. The 
 defendant did not deny the accuracy of the itemized accounts pre- 
 sented to him; nor did he attempt to controvert the testimony of the 
 witness regarding his, the defendant's conduct, respecting the same. 
 When at the trial, the defendant was called upon by the plaintiff to 
 produce these original itemized accounts, he excused their non-produc- 
 tion upon the plea that they had been lost or destroyed. It is obvious 
 that the defendant's acceptance of the statements of account as true 
 accounts of the transactions between him and Guiges, relating to the 
 purchase of the plaintiff's property by the defendant Guiges, evidenced 
 as this was by the defendant checking off the items of the statements 
 and paying them, rendered these statements the best and primary evi- 
 dence of the facts stated therein, in like manner as would have re- 
 sulted if a letter had been written by the defendant, embracing the 
 items of account, acknowledging that he had received the same and 
 sent his check in payment therefor. It appearing from the defendant's 
 statement in court that the original itemized statements were lost or 
 destroyed, under the well known rule of evidence, the plaintiff was en- 
 titled to give secondary evidence of their contents. As the yellow 
 sheets were testified to by Elliott as being a true copy of the original 
 itemized accounts, both the original statements and the copy having 
 been made by him, the copy was admissible as secondary evidence. 
 
 The judgment -will be affirmed.
 
 THE BEST EVIDENCE RULE 603 
 
 MOREY v. HOYT. 
 62 Conn. 542. (1893) 
 
 TORRENCE, J. This is an action to recover damages for the wrong- 
 ful conversion and detention of personal property. It was originally 
 brought against George A. Hoyt, but during its pendency he died and 
 his executors entered to defend. 
 
 From the record it appears that Hoyt leased certain land in Stam- 
 ford in this state, with buildings and machinery thereon, to a New 
 York corporation for the term of five years from May I, 1881. This 
 was done by a written lease in the ordinary form, executed by both 
 parties and dated the I9th of January, 1881. 
 
 Hoyt had written a letter to his tenant to the effect that the tenant 
 might make certain changes and alterations in and upon the leased 
 premises, and that Hoyt would make no claim to any machinery 
 which the tenant might put into or upon the same. The plaintiff 
 called a witness who testified that at a certain interview between him- 
 self, Hoyt, and one of the plaintiffs, the witness, at the request of 
 Hoyt, read aloud a portion of the letter. He was then asked to 
 state the part which he had read aloud and in substance whether 
 Hoyt had or had not admitted that the statements in such portion were 
 true. The defendants objected to any oral statements of the contents 
 of the letter, on the sole ground that such evidence was secondary and 
 inadmissible until it had been shown that the letter itself could not 
 be produced. The court admitted the evidence. 
 
 The evidence was claimed as an admission of the contents of a writ- 
 ing by one whose admissions were relevant. It was claimed as primary 
 and not secondary evidence. If it was primary evidence the objec- 
 tion taken is not tenable. The rule that the oral admissions of a 
 party against himself and those claiming under him, although relat- 
 ing to the contents of a writing, are primary evidence, seems to be 
 well established, whatever we may think of its wisdom. So far as 
 we are aware this court has never had occasion to consider this rule, 
 but elsewhere the weight of authority is in its favor. It is established 
 in England, as shown by the authorities cited. "Primary evidence 
 means the document itself produced for the inspection of the court, 
 or an admission of its contents proved to have been made by a party 
 whose admissions are relevant." Stephen's Digest art. 64; Earle v. 
 Picken, 5 Car. & P. 542; Slatterie v. Poole, 6 Mees. & Wels. 664; 
 The Queen v. Basingstoke, 14 Q. B. 611; i Taylor's Ev. sec. 410;
 
 604 CASES ON EVIDENCE 
 
 And it seems to be the prevalent rule in this country. I Greenl. Ev. 
 (i6th ed.) sec. 96; Smith v. Palmer, 6 Cush. 513; Loomis v. Wad- 
 ham, 8 Gray 557; Blackington v. City of Rockland, 66 Me. 332; 
 Wolverton v. The State, 16 Ohio 173; Edgar v. Richardson, 33 Ohio 
 Wt. 581; Edwards v. Tracy, 62 Penn. St. 374; Taylor v. Peck, 21 
 Gratt. ii. 
 
 The wisdom of this rule is questioned by Judge Taylor in his work 
 on evidence and from the cases cited in a note to the paragraph from 
 Greenleaf cited above it would seem that the courts in Ireland dissent 
 from it, as do also the New York courts. The weight of authority, 
 however, as before stated, seems to be in its favor, and we see no 
 reason why it should not be applied in a case like the one at bar. 
 
 New trial on other grounds. 
 
 WISEMAN v. N. P. R. R. CO. 
 20 Ore. 425. (1891) 
 
 On March 19, 1890, the plaintiff J. J. Wiseman commenced an 
 action in the Circuit Court of the State of Oregon for the county of 
 Multnomah, against the defendant to recover the sum of $398.72, 
 the value of certain household goods claimed to have been lost by 
 defendant in transit. On the trial, the plaintiff gave evidence tending 
 to prove the issues on his part and then rested. 
 
 BEAN, J. By section 691 Hill's Code, it is provided that "there 
 shall be no evidence of the contents of a writing other than the writing 
 itself, except in the following cases. * * * 
 
 "When the original cannot be produced by the party by whom the 
 evidence is offered, in a reasonable time, with proper diligence, and 
 its absence is not owing to his neglect or default." This section is a 
 declaration of the common law rule. The theory upon which sec- 
 ondary evidence of the contents of a writing is admissible is that 
 the original writing cannot be produced by the party by whom the 
 evidence is offered within a reasonable time by the exercise of rea- 
 sonable diligence. The question is always one of diligence in the 
 effort to procure the original. No precise rule has been or can be 
 laid down as to what shall be considered a reasonable effort, but the 
 party alleging the loss or destruction of the document is expected tc 
 show "that he has in good faith exhausted in a reasonable degree all
 
 THE BEST EVIDENCE RULB 605 
 
 the sources of information and means of discovery which the nature 
 of the case would naturally suggest and which were accessible to 
 him." (i Greenl. on Ev. sec. 558; Simpson v. Ball, 3 Wall. 460; 
 Johnson v. Arnwine, 42 N. J. L. 451; Kelsay v. Hanmer, 18 Conn. 
 310.) Thus in Mariner v. Saunders, 5 Gilm. 117, the court says: 
 "From the nature of the subject, there is some difficulty in laying 
 down a general rule defining the extent and vigilance of the search 
 which a party must make before the court may conclude that the 
 paper is destroyed or lost. As a general rule, however, we may say 
 that when, from the ownership, nature or object of a paper it has 
 properly a particular place of deposit, or where from the evidence it 
 is shown to have been in a particular place or in particular hands, 
 then that place must be searched by the witness proving the loss, or 
 the person produced into whose hands it has been traced. The ex- 
 tent of the search to be made in such place or by such person must 
 depend in a great degree upon the circumstances. Ordinarily, it is 
 not sufficient that the paper is not found in its usual place of deposit, 
 .but all papers in the office or place should be examined. On the 
 whole, the court must be satisfied that the paper is destroyed and 
 cannot be found. It is true, the party need not search every possible 
 place where it might be found, for then the search might be inter- 
 minable, but he must search every place where there is a reasonable 
 probability that it may be found." This rule is founded on reason 
 and justice, and to require any less degree of diligence would be to 
 defeat the object of reducing agreements to writing. As was said in 
 Rankin v. Crow, 19 111. 629 : "The party wishing to avail himself of 
 the benefit of such secondary evidence should be required to make 
 at least the same effort that it is expected the party would make if 
 he were to lose the benefit of the evidence if the instrument were 
 not found." 
 
 The degree of diligence which shall be considered necessary, in any 
 case will depend upon the character and importance of the document, 
 the purposes for which it is expected to be used, and the place where 
 a paper of that kind may naturally be supposed to be found. If the 
 document be a valuable and important one, which the owner would 
 be likely to preserve, a more diligent search will be required than if 
 the document is of little or no value. The purposes for which it is 
 proposed to use it on the trial will also have an important bearing in 
 determining the degree of diligence required. If the cause of action 
 or defense is founded on the supposed writing, the party offering the 
 evidence will be required to show a greater degree of diligence in
 
 606 CASES ON EVIDENCE 
 
 the attempt to produce the original than if it is desired to be used as 
 proof in some collateral matter. The proof of search and proof of 
 loss required is always proportionate to the character and value of 
 the paper supposed to be lost. (American Life Ins. Co. v. Rosen- 
 agle, 77 Pa. St. 507.) 
 
 The existence and contents of the supposed contract, as well as the 
 claim of defendant based upon it, is denied by the plaintiff in the case 
 at bar. The issue thus being joined, its execution and contents were 
 very material to defendant in establishing its defense. Indeed, de- 
 fendant seeks to exempt itself from liability solely by reason of this 
 contract. 
 
 The fact that the person to whose possession the paper was traced 
 resided out of the state, did not excuse defendant from a diligent 
 effort to procure it. 
 
 Judgment of the court below is therefore affirmed. 
 
 THE PEOPLE v. HENKLE. 
 256 III 584. (1912) 
 
 FARMER, J. In the year 1911 the school directors of district No. 
 155 levied a school tax for educational purposes of $1.50 on the $100 
 valuation which was extended against the property lying in said high 
 school district. In the same year the board of education of the high 
 school levied a tax of $7,000 for educational purposes and $16,000 
 for building purposes, which was extended against all the property 
 embraced in the high school district, including the portion of district 
 No. 155 which lies in the township high school district. 
 
 Three objections are urged to the validity of the tax levied by the 
 board of education of the high school district. 
 
 The second objection is, fhat the building tax was illegal and void 
 because no authority had been given the board of education to erect 
 a building at any election called for that purpose where the statutory 
 notice required for such election had been given. The record of the 
 board of education showed that on June 8, 1909, an election was 
 ordered to be held on June 19, 1909, for the purpose of voting on 
 the question of building a township high school building, and the 
 secretary was instructed to post notices of said election in the man- 
 ner required by law. It was shown by the poll-books of said elec-
 
 THE BEST EVIDENCE RULE 607 
 
 tion that on that date 230 votes were cast for building a township 
 high school and five against it. The records of the board do not 
 show that notice of the election had been given as required by stat- 
 ute, and appellant contends that this was fatal to the validity of the 
 levy for building purposes. A printed copy of the notice of the elec- 
 tion was offered in evidence, and members of the board testified the 
 notice was posted in three of the most public places in the district, 
 as required by law. It was also shown that a copy of the notice, 
 with the certificate of the secretary of the board of its having been 
 posted ten days prior to the election, had been among the records 
 of the board and was used in evidence and made an exhibit in 
 former litigation in which the high school district was involved, but 
 the certificate of posting could not be found. It was competent to 
 prove the loss of the certificate of posting, and the fact that the notice 
 had been posted, by parol evidence, and the uncontradicted testimony 
 showed that the notice had been posted in the manner required by law. 
 (i Elliott on Evidence, sec. 216, 15 Cyc. 326.) 
 
 Judgment affirmed. 
 
 RISHER v. MADSEN. 
 94 Neb. 72. (1913) 
 
 SEDGWICK, J. The plaintiff brought this action in ejectment in the 
 District Court for Douglas County to recover the possession of five 
 lots in block 74, in Denson, an addition to the city 01 Omaha. The 
 answer was a general denial. The trial resulted in a verdict and 
 judgment for the defendant, and the plaintiff has appealed. 
 
 Mrs. Risher testified that in 1901 she received a letter from the 
 defendant ; that it came by mail in the usual way ; that she had made 
 diligent search for the letter and was unable to find it ; that she knew 
 by whom it was signed, and that the defendant's signature appeared 
 on the letter ; and that she was able to state the contents of the letter. 
 This she was asked to do, but, upon objection, her evidence was ex- 
 cluded. This evidence was apparently excluded on the ground that 
 Mrs. Risher was not in position to know the signature of the defend- 
 ant, but she testified positively that she did know his signature, and 
 there was no attempt to cross-examine her as to her means of knowl-
 
 608 CASES ON EVIDENCE 
 
 edge, and in the absence of such cross-examination we think the evi- 
 dence should have been admitted. 
 
 Reversed. 
 
 POST v. LELAND. 
 184 Mass. 601. (1903) 
 
 LATHROP, J. This was an action of contract under the St. of 1890, 
 c. 437, against brokers, to recover various sums of money paid by 
 the plaintiff to the defendants as margin for the purchase of certain 
 securities bought and afterwards sold by the defendants. The case 
 was sent to an auditor who found for the defendants. It was after- 
 wards tried in the Superior Court before a jury. A verdict was re- 
 turned for the defendants, and the case is before us- on the plaintiff's 
 exceptions to the exclusion of evidence, and to the refusal to give cer- 
 tain instructions requested. We will consider these in their order. 
 
 The first exception relates to the refusal of the judge to admit 
 secondary evidence of the contents of letters from the defendants 
 to the plaintiff. The plaintiff testified in the first place that he had 
 received letters, but that they might be lost, he did not know. Then 
 he testified that he had not any letters, which he subsequently qualified 
 by saying: "We did not bring the letters here." There was no at- 
 tempt to show that any search had been made for the letters or that 
 they were lost, and the judge rightly excluded secondary evidence of 
 their contents. 
 
 Exceptions overruled. 
 
 FEDERAL CHEMICAL CO. v. JENNINGS. 
 112 Miss. 514. (1916) 
 
 COOK, P. J. This is a suit on an open account. Appellee, in this 
 case, entered into a written contract with appellant to act as its agent 
 at Hebberville, Ky. By the terms of this contract appellant shipped 
 to appellee, upon his order, three tons of fertilizer. The contract 
 provided that appellee was to sell this fertilizer to the farmers of
 
 THE BEST EVIDENCE Rui^ 609 
 
 his vicinity, and when ,sold on time he agreed to take the purchaser's 
 notes and indorse the same to the appellant. The contract provides 
 for reports, discounts, etc. The record further shows that appellee, 
 before he sold the balance of the fertilizer, had a fire, and therefore 
 wanted to cancel his contract, and deliver the fertilizer on hand to 
 appellant, or some substituted agent of appellant. There is evidence 
 that some correspondence was had on this subject. 
 
 There is no possible doubt that appellant should have recovered 
 judgment in this case but for the incompetent testimony which the 
 court, over the objections of appellant, permitted to go to the jury. 
 
 Appellee, defendant below, contended that he had been released 
 by appellant. He testified that this release was made by letter; that 
 the letter was in his desk in Kentucky. Appellant objected to this 
 testimony for obvious reasons. The court, however, overruled the ob- 
 jection, stating, "I could not by any manner or means control a paper 
 that is in Kentucky." It seemed to have been the court's opinion that 
 oral evidence of the contents of a writing could be given, when it 
 appeared that the writing was without the territorial jurisdiction of 
 the trial court. It will be observed that there was no effort to prove 
 that the letter was lost, destroyed, or misplaced; and if lost, or mis- 
 laid, there was no effort made to show that it could not be found 
 after a diligent search, but on the contrary, the location of the letter 
 was fixed. Later on the objection was renewed and again overruled, 
 the judge remarking, "It is out of the jurisdiction of the court." So 
 far as our investigations lead, this ruling of the trial judge was unique 
 and announces a brand new rule of evidence. We find ourselves 
 unable to go with the judge, and must decline to indorse his reasoning. 
 
 Reversed and remanded. 
 
 SMITH v. BROWN. 
 151 Mass. 338. (1890) 
 
 Contract on a judgment. At the trial in the Superior Court, before 
 Blodgett, J., the jury returned a verdict for the plaintiff; and the 
 first named defendant alleged exceptions. 
 
 DEVENS, J. At the trial, the plaintiff put in evidence the record of 
 a judgment such as that declared on, recovered by him against Brown 
 and Griffiths in New York, and called Shaver, who was a member
 
 6io CASES ON EVIDENCE 
 
 of the bar of New York who produced a press copy of an alleged 
 assignment of the judgment to Brown and Griffiths, dated February 
 3, 1887, having previously testified that he had last seen the original 
 in February, 1881, and that the same was lost. 
 
 The defendant excepted to the admission of the press copy produced 
 by Shafer, upon the ground that it was not competent evidence to 
 prove the assignment of the plaintiff's judgment. He contends that 
 a more satisfactory kind of secondary evidence existed, known to the 
 plaintiff before the trial, and that no evidence was given that a search 
 had been made for the assignment alleged to have been lost, and 
 therefore that the evidence was inadmissible. We understand that 
 the first of these objections refers to the formal assignment filed in the 
 court ; but the testimony of Shafer, who is a lawyer, afforded evidence 
 that might well satisfy the judge that this could not be taken from 
 the files of the court, and it was also but a second assignment, which 
 would have been inoperative had the first been really made, although 
 it might have furnished evidence for the files of the court of the 
 transfer. If there are several sources of information of the same fact, 
 it is not ordinarily necessary to show that all have beep exhausted be- 
 fore secondary evidence can be resorted to. I Greenl. Ev. sec. 84. 
 It was sufficient to prove the loss of the instrument upon which the 
 plaintiff relied ; this being done, he was entitled to prove its contents 
 by the secondary evidence of a press copy. Goodrich v. Weston, 102 
 Mass. 362. Whether there was sufficient evidence of the loss of the 
 assignment of which secondary evidence was admitted, was a ques- 
 tion of fact for the presiding judge. Unless his finding was based 
 upon an error of law, or upon evidence which, as matter of law, was 
 insufficient to sustain the finding, it would not be here open to revision. 
 Brigham v. Coburn, 10 Gray 329, 331. Commonwealth v. Morrell, 
 99 Mass. 542. Walker v. Curtis, 116 Mass. 98. The evidence of 
 Shafer was positive as to the losses of the assignment. He did not 
 expressly testify that he had made search, but this is implied from his 
 statement. The defendant did not see fit to cross-examine upon this 
 point, and there is no rule which requires that there should be affirma- 
 tive evidence of a search under such circumstances. If satisfied 
 to give credit to the witness, the judge was authorized to hold the loss 
 of the instrument sufficiently proved, and then to admit the secondary 
 evidence of the press copy. 
 
 Exceptions overruled.
 
 THE BEST EVIDENCE RULE 611 
 
 KING v. RANDLETT. 
 33 Cal. 318. (1867) 
 
 This was an action to recover the possession of two and one-half 
 undivided sixteenth shares of the Independent Tunnel Mining Claims 
 in Plader county. The plaintiff, in the complaint, alleged title in 
 himself, and an ouster by the defendant. The plaintiff, in the state- 
 ment of his cause at the commencement of the trial, stated his title 
 to the demanded premises to be derived by purchase by deed or bill 
 of sale. The plaintiff stated, as a witness in his own behalf, that 
 the deed or bill of sale was lost, and, under the objection and excep- 
 tion of the defendant, gave testimony of its contents. 
 
 The testimony of the witness, Deiner, was offered to show title to 
 the demanded property in the plaintiff; the defendant objected to its 
 introduction, on the grounds of incompetency and irrelevancy, and 
 excepted to its admission. 
 
 SANDERSON, J. The plaintiff having obtained his alleged interest 
 in the Independent Tunnel Company's claim by purchase, which pur- 
 chase was evidenced by a bill of sale or deed, was bound to produce 
 his deed or bill of sale, for the purpose of proving his title that 
 being the best evidence or prove its loss for the purpose of laying 
 a foundation for the introduction of secondary evidence as to its 
 contents. (Patterson v. Keystone Mining Company, 30 Cal. 365.) 
 The evidence-of the loss was insufficient. It showed that in all proba- 
 bility the bill of sale was left in the plaintiff's store at Yorkville at 
 the time the plaintiff sold out and delivered possession of the store 
 and its contents to his nephew. His nephew, at the time of the trial, 
 was in the county and in reach of the process of the court, yet he 
 was neither called as a witness as to what had become of the bill of 
 sale, nor does it appear, that he was ever questioned by the plaintiff 
 touching the missing document. It is true that the plaintiff searched 
 the store about a year after the nephew took possession, but that was 
 not sufficient. Under the circumstances detailed by the plaintiff, 
 which are very similar to those presented in the case just cited, in- 
 quiry should have been made of the nephew for the missing docu- 
 ment in order to sufficiently establish its loss. It does not appear 
 that any search was made for the purpose of this trial. 
 
 Judgment reversed and a new trial ordered.
 
 612 CASES ON EVIDENCE 
 
 MATHES v. LUMBER CO. 
 173 Mo. Ap. 239. (1913) 
 
 FARRINGTON, J. The plaintiff recovered judgment against the de- 
 fendant for the sum of $668.40 in a suit instituted in Stone county 
 and afterwards removed on change of venue to Lawrence county. 
 
 Plaintiff offered testimony to show the acts, declarations and con- 
 duct of the unknown inspector in order to prove that he was an agent 
 of the defendant. Plaintiff also offered evidence, which was ad- 
 mitted by the trial court, to show that the shipper or his agent, 
 under the rule of the railroad company, must sign before the railroad 
 company will bill the cars out, and that this unknown inspector signed 
 the name of the Switzer Lumber Company and took the numbers 
 of the cars, and that the ties were shipped. The plaintiff testified 
 that the ties were billed out to the Great Western Railroad Com- 
 pany. The railroad agent testified that it is the custom of railroad 
 companies that buy ties to send their inspector at the time the ties 
 are loaded for the purpose of making an inspection. No offer of the 
 bills of lading was made by the plaintiff, nor was there any showing 
 that plaintiff was unable to procure the originals or copies of the 
 bills of lading in these shipments. Neither was the printed rule of 
 the railroad company, which the railroad agent testified to with ref- 
 erence to the shipper or his agent signing, offered by the plaintiff, nor 
 was there a showing made that plaintiff was unable to procure the 
 printed rule for use as evidence. There was no evidence offered to 
 show that the defendant knew the unknown inspector was represent- 
 ing it on this or any other occasion, before or after; it was the first 
 dealing the plaintiff ever had with the alleged agent or with the de- 
 fendant. 
 
 Appellant assigns as error the action of the trial court in permit- 
 ting the contents of the bills of lading to be shown by the oral 
 testimony of the man who was the agent of the railroad company 
 at the time the cars are alleged to have been shipped out, , and also 
 the action of the trial court in permitting this agent to testify con- 
 cerning the contents of the printed rule of the railroad company 
 to the effect that the company requires the shipper or his agent to 
 sign before the cars are shipped. 
 
 This contention is well made for the reason that there is no show- 
 ing whatever that the bills of lading and the printed rule of the rail- 
 road company were lost or that it was beyond the power of the plain-
 
 THE BEST EVIDENCE RULE . 613 
 
 tiff to produce them; in fact, there is nothing in the record to show 
 any effort on the part of the plaintiff to obtain them for use at the 
 trial. The contents of a writing that is unaccounted for cannot be 
 shown by oral testimony (Morton v. Heidorn, 135 Mo. 609; City of 
 St. Louis v. Arnot, 94 Mo. 275 ; Merrill Chem. Co. v. Nickells, 66 
 Mo. App. i, c. 692; Houck v. Patty, 100 Mo. App. 302.) 
 
 Appellant insists that there is no competent evidence in this record 
 showing that there was anyone representing it at the time the ship- 
 ment was made who could bind it for the 1671 ties or any proceeds 
 or benefits from them, or that it in any way ratified the acts of the 
 person or persons who converted these ties that belonged to the 
 plaintiff. 
 
 It is shown that a copy of the letter written by the appellant to 
 the respondent on October 7, 1909, together with a copy of the letter 
 which appellant had previously received from respondent, was sent 
 by appellant to Wolf but this in no way shows that Wolf was ap- 
 pellant's agent. The natural and probable course for appellant to 
 pursue, having purchased the 5,000 ties from Wolf and afterwards 
 being informed that some ties had been converted belonging to the 
 man from whom the 5,000 were purchased by Wolf, and it appear- 
 ing that this man was charging appellant with the wrongful taking, 
 would be for appellant to immediately convey the full particulars to 
 its vendor. 
 
 The record wholly fails to establish an agency or ratification. 
 Entertaining this view, we must hold that the Trial Court erred in ad- 
 mitting the testimony herein alluded to, and in refusing to give de- 
 fendant's peremptory instruction. The judgment is reversed and 
 the cause remanded for a new trial. 
 
 All concur. 
 
 HOBLIT v. HOWSER. 
 171 III. App. ip. (1912) 
 
 PHILBRICK, J. The only question at issue in this case, being one 
 of fact, is whether or not the appellant Hoblit had either actual or 
 constructive notice, such as would have put him upon inquiry of this 
 mortgage; and if he had then he is bound thereby. Watkins tes- 
 tified that the entire transaction between Hoblit and himself was
 
 614 CASES ON EVIDENCE 
 
 carried on by correspondence, that in the letters written by Watkins 
 to Hoblit he notified Hoblit of the existence of this indebtedness to 
 Howser and notified him that this mortgage was made to secure that 
 indebtedness and that it was a lien upon these premises. Hoblit does 
 not deny the carrying on of these negotiations by correspondence, 
 but denies that any such notice was given him by Watkins. The 
 deposition of Watkins was taken in California and read in the trial, 
 and in that deposition the contents, or substance of the contents of 
 the letters which passed between Watkins and Hoblit was testified 
 to by Watkins ; and it is insisted by appellant that no sufficient founda- 
 tion was laid for the introduction of this testimony on the part of 
 Watkins. The record discloses, however, that Watkins had either 
 destroyed or had mislaid all of these letters, that he never had any 
 supposition or knowledge that they would ever be of any value or 
 that there would ever be any necessity for their use, and that they 
 were destroyed in the natural course of business after the transaction 
 was closed, that he had made diligent search in the places where 
 such letters were usually kept or would usually be found, that he has 
 no knowledge of the existence or whereabouts of the letters now, and 
 that he is unable to find or produce them. This preliminary proof 
 made by complainant was sufficient to authorize the admission of 
 secondary evidence of the contents of these letters, and the court 
 did not err in admitting it. 
 
 Decree affirmed. 
 
 TRUSSING v. JACKSON. 
 208 III. 85. (1904) 
 
 BOGGS, J. This was an action for libel, against the plaintiff in 
 error by the defendant in error. The declaration charged that the 
 plaintiff in error composed and caused to be published in the Chicago 
 Times-Herald, a daily newspaper published in the city of Chicago, a 
 certain false, scandalous, defamatory and libelous article, set forth 
 in haec verba, with appropriate innuendoes, in the declaration. 
 
 The plaintiff in error filed the plea of not guilty, and the cause was 
 submitted for trial before the court and a jury. The jury returned a 
 general verdict finding the plaintiff in error to be guilty and assess- 
 ing the damages of defendant in error at the sum of $20,000.
 
 THE BEST EVIDENCE RUI,E 615 
 
 We think, however, the plaintiff iir error has lawful right to com- 
 plain of an erroneous ruling of the court as to the admissibility of 
 evidence. It was sought to maintain the action against the plaintiff 
 in error as the author of the alleged libelous publication which ap- 
 peared in the Chicago Times-Herald. He was in nowise connected 
 with the management, control or publication of the newspaper and had 
 no interest therein. The action was against him on the alleged 
 ground that he was the author of a statement, in the form of a letter 
 which appeared as a part of the publication, and that he had given or 
 permitted one Varian, a reporter of the newspaper, to take, the letter 
 under such circumsances as that he should be held to have procured 
 it to be published. The cause was tried before the court and a jury. 
 
 We think the objection preferred by counsel for the plaintiff in 
 error called upon the court to rule whether the printed publication 
 was admissible in evidence without the production of the writing 
 of which the plaintiff in error was the author and which it was as- 
 serted had been reproduced in the printed article, and which, so re- 
 produced, constituted the alleged libel. 
 
 The rule is, in order to let in secondary evidence of the contents of 
 a written instrument the person in whose possession it was lost must 
 be produced unless shown to be impossible, in which case search 
 among his papers must be proved, if that can be done. In all events 
 search must be made for the paper with the utmost good faith, and 
 be as thorough and vigilant as if the rule were that all benefit of the 
 paper would be lost unless it be found. Mariner v. Saunders, 5 Gilm. 
 113; Sturge v. Hart, 45 111. 103; Chicago and Northwestern Railway 
 Co. v. Ingersoll, 65 id. 399; Williams v. Case, 79 id. 356; 4 111. Cyc. 
 Dig. pp. 524, 526, 527. 
 
 In Clifford v. Drake, no 111. 135, the notes made by a reporter of 
 a newspaper of the conversation had with the defendant, and the article 
 prepared by the reporter, from the notes, for publication, were held 
 to be primary evidence, and the rule was there recognized that the 
 printed article was secondary evidence, and was competent to be re- 
 ceived in evidence only after proof had been made excusing the pro- 
 duction of the primary evidence. We think this rule has the support 
 of the greater weight of authority. In 18 American and English 
 Encyclopedia of Law (2nd ed. p. 1076) the rule deducible from the 
 authorities is stated as follows : "In an action for libel the publication 
 itself is, of course the best evidence of the charges made in it, and the 
 original document containing the defamatory matter must be pro- 
 duced, if possible; but where the original has been destroyed or lost
 
 616 CASES ON EVIDENCE 
 
 beyond a reasonable hope of finding it, or is in the hands of an ad- 
 verse party who refuses to produce, secondary evidence of the con- 
 tents is admissible." 
 
 Reversed and remanded. 
 
 BOWLAND v. MCDONALD. 
 
 82 Kan. 84. (1910) 
 
 PORTER, J. The plaintiff brought this action in forcible detainer, 
 alleging that he is the owner of lands in Rawlins county, consisting 
 of 240 acres, and that the defendant unlawfully and forcibly keeps 
 him out of the possession of a strip of land seven feet wide along the 
 north side thereof. The defendant is a Kansas corporation, engaged 
 in conducting a telephone business, and claims that the strip of land 
 in question is a part of a public highway, and that it has a right to 
 place its telephone poles there so long as the same do not materially 
 interfere with public travel. The case was tried to a jury, and at 
 the close of the evidence the court instructed a verdict for the plain- 
 tiff. Judgment was rendered upon the verdict, and the defendant 
 appeals. 
 
 The record of Rawlins county, including the road records, were de- 
 stroyed by fire December 5, 1905. The defendant, therefore, sought 
 by secondary evidence to show that from 1886 a sixty-foot road had 
 been established along this line. The principal claim of error is 
 that the court ruled out its evidence offered for that purpose. The 
 defendant first offered in evidence what is known as the George A. 
 Ogle atlas of Rawlins county, containing a plat of the township where 
 the land in controversy is located showing this road to be sixty feet 
 wide, and also offered to prove by the person who claimed to have 
 made the plat for the publishers of the atlas that he made it from 
 the original road records before they were destroyed. An objection 
 to the evidence was sustained. The defendant also offered evidence 
 for the purpose of showing that this road sixty feet in width had 
 been worked at the public expense long prior to 1897 and had been 
 traveled by the public since the year 1886; and then contended that, 
 having proved this condition there is a presumption that the road 
 'overseer of that district as well as the county clerk had performed 
 their several duties under the act of 1897. The court refused to per-
 
 THE BEST EVIDENCE RULE 617 
 
 mit the proof. It was manifest error to exclude the testimony. The 
 destruction of the road record of the county having been shown, the 
 evidence offered by the defendant for the purpose of proving the 
 existence of a sixty-foot road was clearly the best evidence that could 
 be obtained. 
 
 For the error in excluding the testimony offered the judgment is 
 reversed and the cause remanded for another trial. 
 
 SMITH, CAREY & CO. v. LIVE STOCK CO. 
 92 Kan. 5. (1914) 
 
 SMITH, J. The principal ground of error urged on the rehearing 
 is the admission over appellant's objection of the affidavit and tes- 
 timony of William McDermott, intervener, as to the contents of a 
 letter written by him to E. D. Small in reply to an application for the 
 original loan of $10,000; the contention on the part of the appellant 
 being that the loan was made to the Small brothers, and that the 
 name of the Atchison Live Stock Company as indorsed on the back 
 of the note by one of the Small brothers, as manager of the Atchison 
 Live Stock Company as security. On the other hand, the appellee 
 contends that the loan was made to the Atchison Live Stock Company 
 and the note was secured by the Small brothers, individually, as 
 securities. 
 
 The letter of E. D. Small, one of the partners and an officer of the 
 Atchison Live Stock Company, applying for the loan, and the reply 
 of Mr. McDermott thereto constituted the contract antecedent to the 
 execution of the note for the loan. This letter was produced in evi- 
 dence and was clearly an application of the Small brothers for the 
 loan. McDermott's contention is that in his letter, replying to the 
 application, he proposed to make the loan to the Atchison Live Stock 
 Company and that the loan was consummated in accordance therewith 
 to the corporation. It is conceded that the note for the loan was 
 signed on the face by the individual members of the firm of Small 
 Brothers and was indorsed on the back, "Atchison Live Stock Com- 
 pany, by J. D. Small, Mgr." 
 
 After procuring an order for the inspection of the books, papers, 
 etc., as indicated in the former decision, the appellee took the depo- 
 sition of E. D. Small, in the State of California, to which place
 
 618 CASES ON EVIDENCE 
 
 Small had removed. Neither the plaintiff nor the receiver appeared 
 at the taking of the deposition, but on the trial made full objections 
 to each question and answer as incompetent, immaterial and irrelevant, 
 which objections were overruled. 
 
 Xo evidence was given by the witness in his deposition nor was 
 he asked whether he had made any search for the letter or made 
 any attempt to find it or when or where he last had it or saw it. 
 
 Relying upon this proof of the loss of the letter, the intervener 
 was allowed, over the objection of the appellant, to introduce his 
 affidavit setting forth, from recollection, a copy of his letter. He also 
 went upon the witness stand and testified orally, in substance, to the 
 same effect. The appellant objected and excepted on the ground 
 that it was secondary evidence and that no proper foundation had 
 been laid that the primary evidence could not have been procured, 
 and that there was no evidence that the original evidence was either 
 lost beyond recovery or was destroyed. The objection should have 
 been sustained. 
 The judgment is reversed and the case is remanded for a new trial. 
 
 HARBISON-WALKER REFRACTORIES CO. v. SCOTT. 
 i 
 
 185 Ala. 641. (1914) 
 
 Action by Dixie Davis Scott against the Harbison-Walker Refrac- 
 tories Co. From a judgment for plaintiff defendant appeals. Af- 
 firmed. 
 
 MCCLELLAND, J. The action was for damages to property in con- 
 sequence of setting off of explosives in and about quarrying stone. 
 The appellee was the plaintiff, and the appellant the sole defendant. 
 
 The court properly declined, on objection by plaintiff to allow de- 
 fendant to show that Burrows conveyed the lot to W. J. Scott, 
 and not to the plaintiff. The deed was the best evidence of the fact. 
 
 There is no error in the record. The judgment is 
 
 Affirmed.
 
 THE BEST EVIDENCE RULE 619 
 
 GLOS v. CESSNA. 
 207 III. 69. (1904) 
 
 CARTWRIGHT, J. On December 6, 1902, appellee, Sarah Louise 
 Cessna, filed in the office of the clerk of the Circuit Court of Cook 
 County her application to the court to register her title to a lot in 
 Chicago pursuant to an act concerning land titles, in force May i, 
 1897. 
 
 On the hearing before the examiner the applicant offered in evi- 
 dence an abstract of title and also a book of abstracts, both of which 
 were objected to by appellant. According to the report of the ex- 
 aminer, he stated, in reply to the objections, that the abstract was 
 good for the purpose of satisfying him as to the applicant's title 
 but not as proof of title against the objection of appellant, and that 
 the book of abstracts was the property 'of the recorder of deeds, and 
 the reference was made to him as examiner in order that he might 
 have at his disposal the public records in the office of the recorder, 
 and he would let the books go in subject to the objection. There was 
 no evidence that the original deeds which appeared in the alleged 
 abstract were lost or destroyed or that the abstract book was on file 
 in the office of the recorder. The book was not identified in any way, 
 and there was nothing to show that it was a public record, if it would 
 have been admissible when so proved. The act for registering title 
 may be of a progressive nature, but not to the extent of abrogating 
 rules of evidence and permitting the introduction of abstracts with- 
 out proper foundation being laid. (Glos v. Hallowell, 190 111. 65.) 
 
 Reversed and remanded. 
 
 .EMPIRE CO. v. LINDENMEIR. 
 54 Colo. 497. (1913) 
 
 SCOTT, J. The defendants in error on the nth day of May, 1907, 
 and who were at that time the owners of certain lots and buildings in 
 the city of Fort Collins, entered into a written contract with the Cole- 
 Potter Construction Company, a corporation, for the construction of 
 a theater building on the said premises. Under the contract the con- 
 struction company was to provide all the materials and perform all
 
 62O CASES ON EVIDENCE 
 
 the work to be performed under the contract and specified therein. 
 The work and material were to be in accord with the plans and speci- 
 fications of the architect, E. H. Moorman, named in the agreement, 
 and which plans and specifications were declared to be a part of the 
 contract. But it was expressly agreed: 
 
 "It is further understood and agreed by the parties hereto, that any 
 and all drawings and specifications prepared for the purpose of this 
 contract by the said architect are and remain his property, and that 
 all charges for the use of the same, and for the services of said archi- 
 tect, are to be paid by the said owner." 
 
 The only errors complained of and discussed in the briefs, and 
 which we are therefore justified in considering, are (a) the admission 
 of oral testimony upon the, hearing concerning the plans and specifica- 
 tions referred to in the original contract, the original and no copy of 
 which could be produced at the trial, (b) error of the court in the al- 
 lowance of the $703.35, interest, and (c) the rendition of judgment 
 without proof of the payment of the lien judgments. 
 
 In regard to the first contention, it will be noticed that the plans and 
 specifications were under the contract, to be and remain the property 
 of the architect. It seems also, that no copy of these was recorded 
 with or as a part of the contract, and also that the original nor a copy 
 was attached to the contract. The architect testifies concerning the 
 disposition and loss of the plans and specifications as follows: 
 
 "I did have the original plans and specifications of that building, 
 but I can't find them. I made a search for them very carefully. O. 
 Who had these plans and specifications? A. The original drawings 
 are always found on file or supposed to be on file, in the architect's 
 office." 
 
 The rule of this court in this respect seems to be : 
 
 That a particular instrument existed, is the most material inquiry; 
 the facts of its existence and the contents of it are matters to be tried 
 by the jury; the loss of it must be made out to the satisfaction of the 
 court. The law exacts nothing unreasonable in such a case. If parol 
 proof of the loss establishes the fact with reasonable certainty, that is 
 sufficient. No precise rule can be safely laid down upon this subject, 
 further than this, that diligent search and inquiry should be made of 
 those places or persons in whose custody the law presumes the instru- 
 ment to be. Hobson v. Porter, 2 Colo. 28; Londoner v. Stewart, 3 
 Colo. 47; Hetson v. Davenport, 4 Colo. 169. 
 
 The law does not, however, require direct and positive evidence of 
 the loss or destruction of the document, but requires only such evi-
 
 THE BEST EVIDENCE RULE 621 
 
 dence as will raise a reasonable inference of its loss or destruction. 
 17 Cyc. 543. 
 
 There was no error in the admission of the contract exclusive of the 
 plans and specifications referred to therein. 
 
 Modified and affirmed. 
 
 KITZA v. OREGON SHORT LINE R. CO. 
 III. App. 609. (1912) 
 
 SMITH, J. This action was brought by appellant, Michael Kitza, 
 against the Oregon Short Line Railroad Company in the Municipal 
 Court of Chicago, to recover damages caused by the negligence of the 
 railroad company in failing to safely carry sheep from Ketchum, 
 Idaho, to Chicago, Illinois. The declaration consists of six counts. All 
 the counts, except the fourth, declare on a verbal or common law con- 
 tract of shipment. The fourth count declares upon a written agree- 
 ment between the plaintiff and defendant. 
 
 At the close of the evidence the trial court instructed the jury to 
 return a verdict in favor of the defendant, and judgment was entered 
 upon the verdict so returned. Appellant, plaintiff below, prosecutes 
 this appeal to reverse the judgment. 
 
 Several grounds are urged for the reversal of the judgment. We 
 deem it necessary to the decision of the case, as represented by the rec- 
 ord, to consider and discuss only one feature of the case; namely that 
 the contract between the parties was a written contract and it was not 
 put in evidence, but recovery was sought upon an alleged agreement 
 shown not to be the final contract which was entered into between the 
 parties. 
 
 From the testimony of the appellant himself it appears that he told 
 the agent at Ketchum, Idaho, after the sheep had been delivered to the 
 carrier at that point: "Well, we are shipping to Chicago. 'Well, all 
 right,' he says. He made a contract out. He handed it to me and I 
 signed it. Yes, I looked it over. Q. Did you read it? A. Yes." The 
 plaintiff further testified that he kept his contract until he reached 
 Omaha, where he exchanged it for a return ticket. The question is 
 thus presented by the record whether a plaintiff may recover upon an 
 oral or common law contract, consisting of words spoken at the time 
 of shipment, whe^i a written contract was entered into between the
 
 622 CASES ON EVIDENCE 
 
 parties at the time of the shipment and before the freight started upon 
 its route. In our opinion there can be no such recovery. The law is 
 well settled that where oral negotiations or conversations are subse- 
 quently embodied in a written contract, the written contract supersedes 
 the oral one, and is the contract, and the only contract. There cannot 
 be an oral contract and a written contract subsisting between the par- 
 ties where, subsequent to the conversation or negotiations, the contract 
 is embodied in writing. This is the ordinary rule, and it applies in 
 cases of shippers and carriers as well as between other parties. Hut- 
 chinson on Carriers, 3 Ed., Sees. 167, 168, 171 ; 6 Cyc., pp. 416, 420, 
 427 ; Richmond & D. R. R. Co. v. Shomo, 90 Ga. 496. 
 
 The burden of proof was upon appellant to prove the contract upon 
 which the shipment was made. This he failed to do, and he cannot 
 recover upon a contract which did not exist. The plaintiff availed him- 
 self of the benefits of the written contract, which he says was entered 
 into, and yet he occupied the attitude in the trial court of seeking to 
 avoid its terms and conditions by basing his case upon an oral contract 
 of shipment. 
 
 It is urged that there is no evidence of a written contract, whether 
 the paper which the plaintiff signed was a contract or otherwise, and 
 that the court cannot assume that the paper signed by the plaintiff was 
 a contract. The answer to that contention is that the court was not 
 required and this court is not required to make any such assumption. 
 The plaintiff himself proved by his testimony that a written contract 
 was entered into; that he read the contract and signed it. For the 
 purpose of this case, therefore, it is shown without controversy that 
 a written contract was entered into for the shipment of the sheep in 
 question at the initial point of shipment and before the actual transit of 
 the shipment was commenced. It appears from the evidence of the 
 plaintiff that he had been engaged in the sheep business in Idaho for 
 twenty-seven years, during which time he had shipped mainly to the 
 Chicago market ; and that he accompanied one or two shipments a 
 year to Chicago over the route of the defendant company; and the 
 plain inference is that he knew clearly the terms and conditions of the 
 contract. He states positively that he read it. There is, therefore, no 
 question in the case as to any illegal provisions in the contract of ship- 
 ment for the contract is not before the court. The record is silent as 
 to its terms and provisions. We think the evidence shows clearly the 
 knowledge and assent of the plaintiff to this written contract, and 
 whatever right of recovery he may have, if any, must be based, so far 
 as this case is concerned, upon the terms and provisions of the contract
 
 THE BEST EVIDENCE RULE 623 
 
 which subsisted between the parties for the shipment of the stock in 
 question. 
 
 We are of the opinion that under the facts and circumstances dis- 
 closed by the evidence in this case, a common carrier may require a 
 contract of shipment to be in writing. It appears that the stock was 
 to be transported beyond the terminus of the defendant company, and 
 required the stock to be delivered to a connecting line of transporta- 
 tion, and we see no reason why it would not be perfectly proper and 
 legal for the defendant to require the contract of shipment to be in 
 writing, especially in view of the fact that the Interstate Commerce 
 law requires the carrier to issue a bill of lading or receipt. It has been 
 expressly held that a carrier may require a written contract. Texas 
 Mexican C. Rwy. Co. v. Gallagher, 70 S. W. 897 ; Ft. Worth & D. C. 
 Ry. Co. v. Wright, 58 S. W. 846; C. R. I. & P. R. R. Co. v. Colby, 69 
 Xeb. 572. 
 
 The evidence in this case shows that it was customary for the de- 
 fendant company to require a written contract in every instance, and 
 this custom was of long standing and was well known to plaintiff. 
 
 The evidence shows very clearly as we have stated above, that the 
 contract between the parties was not offered in evidence. Plaintiff 
 could not recover upon a contract which did not exist; and the court 
 did not err in directing a verdict for the defendant. The judgment is 
 affirmed. 
 
 Affirmed. 
 
 CONN. FIRE INS. CO. v. MOORE. 
 154 Ky. 18. (1913) 
 
 Opinion of the court by William Rogers Clay, Commissioner Re- 
 versing. 
 
 Plaintiff, Mona M. Moore, was engaged in the millinery business 
 in the town of Clinton, Kentucky. On March 28, 1911, the Connecti- 
 cut Fire Insurance Company issued to her a policy insuring her stock 
 against fire in the sum of $500. During the life of the policy her 
 stock of goods was destroyed by fire. She brought this action to re- 
 cover the amount of the policy. A trial before a jury resulted in a 
 verdict and judgment in her favor in the sum of $500. The insurance 
 company appeals.
 
 624 CASES ON EVIDENCE 
 
 The policy sued on provides that "the sum for which this company 
 is liable pursuant to this policy shall be payable sixty days after due 
 notice, ascertainment, estimate, and satisfactory proof of the loss have 
 been received by this company." The fire occurred on November 24, 
 1911. Suit was brought on January 22, 1912. Among the defenses 
 interposed by the company was a plea in abatement, based on the fact 
 that suit was prematurely brought. To avoid the effect of this plea 
 plaintiff alleged that before the commencement of the action defendant 
 had denied all liability under the policy, and had thereby waived proof 
 of loss. The proof offered by plaintiff on the question was the testi- 
 mony of Earnest Reid, who stated that he had read a letter from the 
 defendant to its local agent, J. M. Kemp, denying liability under the 
 policy. Reid made a copy of the letter, and was permitted, over the 
 objection of the defendant to read the copy. Defendant's agent testi- 
 fied that he delivered the letter to defendant's attorney. Where a 
 party desires to introduce proof of the contents of a letter in the pos- 
 session of the adverse party, the proper practice is to serve notice on 
 the adverse party to produce the letter. In the event of his failure to 
 do so, other evidence of the contents of the letter is not admissible. 
 Heilman Milling Co. v. Hotaling, 21 K. L. R. 950. In this case there 
 was no notice to the defendant to produce the letter, and proof of the 
 contents of the letter should not have been admitted. 
 
 Judgment reversed and cause remanded for a new trial consistent 
 with this opinion. 
 
 BROCK v. SATCHELL. 
 130 La. 853. (1912) 
 
 SOMMERVILLE, J. The first of these two suits, which have been con- 
 solidated, was brought by Mr. Brock to have a tax title, under Act No. 
 82 of 1884, confirmed, and to have him declared the owner of certain 
 real estate. He made Charles Satchell or his heirs defendants, and 
 had them cited through a curator ad hoc. 
 
 There was judgment in his favor, from which judgment Mrs. Eliza- 
 beth S. Morris as the sole surviving heir of her father and mother, 
 Mr. and Mrs. Charles Satchell, prosecutes this appeal, as a party in 
 interest. She was not a formal party to the suit in the trial court ; but
 
 THE BEST EVIDENCE RULE 625 
 
 she assigns in this court certain errors appearing on the face of the 
 record, and she asks for a reversal of the judgment appealed from. 
 
 The judgment will be reversed. 
 
 The plaintiff, Richard Brock, was the defendant in a suit by H. F. 
 Lewis & Co., Limited, to compel him to take the title referred to. He 
 made a pretense of refusing the title on various grounds, and which 
 we sustained in 123 La. I, 48 So. 563. Notwithstanding the judgment 
 in his favor, Mr. Brock accepted the title from H. F. Lewis & Co., 
 Limited, and then filed this suit, asking for a judicial confirmation of 
 the title which he had just judicially declared to be invalid, null and 
 void. The curator ad hoc, whom he had appointed to represent the 
 real owner of the property, filed an answer, in which he denied the ti- 
 tle of his principal. On the trial, plaintiff did not produce and file a 
 copy of the title which he was asking to have confirmed. He did not 
 file the title which he had acquired from H. J. Lewis & Co. Limited. 
 He offered no competent evidence whatever to prove title to real es- 
 tate. His only offers of evidence, as disclosed by the record and the 
 docket entries, were a certificate from the register of conveyances, 
 showing that a copy of the act of sale, under Act No. 82 of 1884, to 
 D. Negrotto had been registered, and two ex parte affidavits, one 
 showing that the assessors had erred in the description of the property 
 sold, and the other, by plaintiff himself, that he and his authors had 
 had possession of the property involved for an indefinite time. The 
 plaintiff and the curator ad hoc failed to inform the trial court that 
 we had decided that the title sued upon was null and void. 
 
 The conveyance certificate did not prove title in plaintiff, or in 
 any one else. The two ex parte affidavits were incompetent to prove 
 title; and they did not even cover the matter of title in their scope. 
 They contain the parol statements of the witnesses, and cannot be used 
 to establish title to real estate. They should have been objected to 
 on the ground of incompetency by the curator ad hoc, and the objec- 
 tion would have been sustained. Had the title under Act No. 82 of 
 1884 been produced and filed, the district judge would have seen as 
 we had in 123 La. i, 48 So. 563, that that title did not refer to the 
 property claimed in plaintiff's petition.
 
 626 CASES ON EVIDENCE 
 
 MOON v. HARRIS. 
 122 Minn, 138. (1913) 
 
 DIBELL, C. At the November, 1912, general election the contestant, 
 C. O. Moon and the contestee, J. O. Harris, were rival candidates for 
 the office of register of deeds of Beltrami county. The contestee, Har- 
 ris, was declared elected by the county canvassing board by a ma- 
 jority of five. The contestant, Moon, appealed to the District Court. 
 Upon trial had he was declared elected by a majority of three. The 
 contestee appeals from the order denying his motion for a new trial. 
 
 The contestee claims that the court was in error in finding that the 
 contestant received a plurality of the votes cast. 
 
 The official returns are evidence of the votes cast. The presumption 
 is that they correctly state the result of an accurate count of the bal- 
 lots. The testimony of the precinct officers tended to show that the 
 precinct returns were correctly made and were at the time of the trial 
 in the condition when made. This evidence was offered to repel the 
 attack made upon their integrity, because of the careless method of 
 their keeping after their return to the county auditor. The contestant, 
 however, necessarily relied upon the legal presumption of their accu- 
 racy. There is no presumption that a recount would show a gain or 
 loss either for Moon or for Harris. The presumption is to the con- 
 trary. To make a successful contest it was necessary for Moon by a 
 recount of the ballots, to change the result declared by the canvassing 
 board to a result in his favor. It was not necessary to recount every 
 precinct of the county. It was necessary that he go far enough to 
 show errors in the returns of certain precincts, which, when corrected 
 and added to the presumptively correct official returns, gave him a 
 plurality. And so when by a recount of the 65 precincts he reduced 
 Harris' vote by 3, and increased his vote by 5, thus reducing the plural- 
 ity of Harris on the recount precincts to 15, and used the official re- 
 turns of Grant Valley and Frohn, where he had a plurality of 18 he 
 was elected by a plurality of three. 
 
 This result was reached by the trial court, and correctly, unless 
 such suspicion attached to the keeping of the ballots and returns as 
 required their exclusion, and this is a claim made by the contestee. 
 
 The contestee claims that the ballots and returns were so carelessly 
 kept and with so much opportunity of being tampered with, that they 
 should not be received in evidence to overturn the finding of the 
 county canvassing board.
 
 THE BEST EVIDENCE RULE 627 
 
 The court found that the blue envelopes, containing the county 
 ballots of the precincts of Frohn and Grant Valley, "were surrepti- 
 tiously removed from the county auditor's vault by some person whose 
 identity the evidence does not disclose." They disappeared during the 
 progress of the recount. 
 
 There were a number of irregularities in the keeping of the ballots, 
 in the way of stringing them, and in sealing them, and in returning 
 them to the county auditor, and in keeping them after they were re- 
 turned. Some seals were missing from the envelopes or were broken 
 or were mutilated. The court specifically found that "the ballots were, 
 when recounted by the inspectors, and when received in evidence 
 herein, in the same condition as when counted by the judges of elec- 
 tion." The difference between the total vote shown by the returns and 
 upon the recount w r as only two. In referring to the ballots the trial 
 court, in its memorandum, said: 
 
 "I am fully satisfied that they are intact and genuine, and that they 
 are the identical ballots cast by the voters and are now in the same 
 condition in every respect as when voted. This conclusion is based 
 upon all of the testimony of the case, including that of two of the in- 
 spectors, as well as upon my own careful inspection of the envelopes 
 and ballots." 
 
 The books are replete with cases stating, in one form or another, 
 that the ballots are the primary or the best evidence in a contest of an 
 election ; but that to overcome the result of an official canvass by a re- 
 sort to the ballots it must be shown that they are intact and genuine 
 and have not been tampered with. Newton v. Newell, 26 Minn. 529 ; 
 Stemper v. Higgins, 38 Minn. 222; Caldwell v. McElvain, 184 111. 552; 
 Hartman v. Young, 17 Ore. 150, 20 Pac. 17, 2 L. R. A. 596, n Am. St. 
 787 ; Albert v. Twohig, 35 Neb. 563. 
 
 The question whether the ballots have been so preserved that they 
 may be safely used to defeat the result shown by the returns is a ques- 
 tion of fact the decision of which is with the trial court. The court 
 found that the ballots and the returns, when offered in evidence, were 
 in their original condition. It was in a better position than we can be 
 for making a correct finding; and we hold that it was properly made. 
 
 It is likely true that in some jurisdictions ballots kept as these were 
 would not be allowed in evidence to overturn the result of an official 
 canvass and that a contestant as close to the ballots as Moon was would 
 not be permitted to overturn the official count by their use. We think 
 that under the finding the trial court was right in receiving them. 
 
 The election was very close. A slight change in the two uncounted
 
 628 CASES ON EVIDENCE 
 
 precincts would give the election to Harris; but the presumption is 
 against such change. A slight tampering with the ballots might bring 
 the same result ; but the finding is that there was no tampering. The 
 finding of the trial court that Moon was elected by a majority of three 
 is supported by the evidence. 
 
 Order affirmed. 
 
 CHEEVER v. CONGDON. 
 34 Mich. 296. (1876) 
 
 GRAVES, J. This action was brought at the instance of David Cong- 
 don as guardian of Henry Congdon, a minor on the bond given by Ed- 
 ward H. Congdon as executor of Elisha Congdon, deceased, to recover 
 an amount the minor was entitled to from the estate of Elisha Cong- 
 don, and which amount the Probate Court had ordered should be paid 
 to him. The case was tried by the court without a jury. The defense 
 was, that after attaining majority, Henry Congdon, who had been the 
 ward of David, as before stated, settled the whole matter with Ed- 
 ward, the executor, and received from the latter in cash and note the 
 entire amount due him. To make out this defense the defendants 
 called Henry Congdon and he swore positively to the accord and sat- 
 isfaction, and that it occurred in January, 1872. In the same connec- 
 tion he was asked by defendants when he became twenty-one years 
 old. The plaintiff's counsel objected that the witness was incompetent 
 to prove his own age until it should be shown that better evidence was 
 not attainable. 
 
 The court overruled the objection and the witness answered that he 
 became twenty-one on the 24th of December, 1870. 
 
 The objection was not well based. The witness was clearly compe- 
 tent. The only question about the testimony called for from him was 
 confined to its value as evidence, and that was a matter to be consid- 
 ered by the judge in making up his findings of facts. 
 
 On the conclusion of the evidence the court found that the settle- 
 ment was made as claimed, and as a consequence that the defense was 
 established. 
 
 The judgment should be affirmed with costs. 
 
 The other justices concurred.
 
 THE BEST EVIDENCE RULE 629 
 
 COMMONWEALTH v. STEVENSON. 
 142 Mass. 466. (1886) 
 
 Complaint for unlawfully selling intoxicating liquors to a minor, 
 on January 20, 1886. Trial in the Superior Court before Thompson, 
 J., who allowed a bill of exceptions, in substance as follows : 
 
 The government introduced as a witness one Rollins and asked him 
 where he was born. His answer was, "In Boston." The district at- 
 torney then asked him how old he was. To this question the defendant 
 objected ; but the judge permitted the question to be answered, against 
 the defendant's exception. The witness answered that he was twenty 
 years old on May 15, 1885. 
 
 HOLMES, J. We see no sufficient reason why a person should not 
 be allowed to testify to the date of his birth, if that question is fairly 
 open on the exceptions. The certificate which is made evidence by the 
 Pub. Sts. c. 32, sec. n, K hearsay, and no more likely to be accurate 
 than the sworn statement of the party concerned, based, as it must be 
 on family tradition, and fortified by his knowledge of himself. 
 
 Exceptions sustained on another ground. 
 
 HILL v. ELDRIDGE. 
 126 Mass. 234. (1879) 
 
 Contract on an account annexed for goo-Is sold and delivered. An- 
 swer: i. A general denial. 2. Infancy, and that the goods sold were 
 not necessaries. 
 
 At the trial in the Superior Court, before Gardner, J., without a 
 jury, the only question in issue was that of the defendant's infancy. 
 The defendant was a witness, and, against the plaintiff's objection, was 
 permitted to testify that, when the goods were purchased, he was six- 
 teen years of age, and that, at the time of the trial, he was twenty- 
 three years of age. It appeared that the defendant's father was dead 
 at the time of the trial, but it did not appear whether his mother was 
 living or not. The defendant was the only witness as to his age, and 
 no other evidence was offered in relation thereto. The judge found 
 for the defendant ; and the plaintiff alleged exceptions to the admission 
 of the defendant's evidence.
 
 630 CASES ON EVIDENCE 
 
 v 
 
 BY THE COURT. This case does not present the question whether a 
 person can be permitted to testify to the precise day of his birth. It is 
 quite clear that one may testify, from his own knowledge of himself, 
 whether he was twenty-one or sixteen years of age at a certain time 
 (which was the only material point upon which the testimony of the 
 defendant appears to have been admitted), and that such weight may 
 be given to his testimony as the court or the jury trying the case may 
 think it entitled to receive. See Cheever v. Congdon, 34 Mich. 296; 
 Watson v. Brewster, i Penn. St. 381, 383; State v. Cain, 9 W. Va. 
 
 559, 570- 
 
 Exceptions overruled. 
 
 FIRST NATIONAL BANK v. JAMIESON. 
 63 Ore. 594. (1912) 
 
 The First National Bank of Bandon brought this action against C. 
 E. Jamieson alone to recover upon a promissory note, executed in its 
 favor by him and one Dunklee. 
 
 Defendant answered, admitting the execution of the note, but al- 
 leged that he signed merely as an accommodation maker, and that this 
 was known to plaintiff that thereafter the note was fully paid and sat- 
 isfied by the sale and transfer to plaintiff by Mrs. F. Dunklee of cer- 
 tain chattels of the agreed value of $450, which were accepted in full 
 satisfaction of the note, said transfer being made to C. R. Wade, at- 
 torney and agent for the bank. 
 
 Plaintiff replied, denying the new matter alleged in the answer, and 
 alleging that the transfer by Mrs. Dunklee to Wade was in trust to 
 sell the property and apply the proceeds, so far as they would go, to 
 the payment of the note, and not otherwise, and alleged that at the 
 time Mrs. Dunklee made the transfer she did not own the property 
 she assumed to sell, but had previously sold it to one J. P. Tuppers, 
 who recovered the same by an action at law, and that nothing had been 
 realized from the security. The execution of the note was admitted 
 and defendant introduced a bill of sale from Fenetta Dunklee to C. 
 R. Wade of the goods mentioned in the answer. Said bill of sale was 
 upon its face an unconditional transfer to Wade as trustee for the 
 bank. The defendant then offered oral testimony tending to show that 
 the intent of such bill of sale was to liquidate the note. Wade testi-
 
 THE BEST EVIDENCE RULE 631 
 
 fied, on rebuttal, that at the time of the transaction a written memo- 
 randum was made by him showing the purpose of the bill of sale; 
 that he made two copies on the typewriter at the same time, each 
 signed by himself, each written by the same impression of the type- 
 writer, and each absolutely identical; that he kept one of these dupli- 
 cates for his own use and gave the other to Mrs. Dunklee, marking 
 his, "office copy," To the introduction of this instrument the defend- 
 ant objected, and the objection was overruled. The admission of this 
 testimony is assigned as error. 
 
 McBRiDE, J. The memorandum amounted to a declaration of trust 
 on the part of Wade, and being an exact counterpart of the one given 
 to Mrs. Dunklee, made by the same impression of the instrument, and 
 signed at the same time, it was as much an original as the one delivered 
 to Mrs. Dunklee. It was a duplicate and therefore admissible as an 
 original. 17 Cyc. 517; Missouri Pac. Ry. Co. v. Heidenheimer, 82 
 Tex. 195 (17 S. W. 608, 27 Am. St. 861) ; State v. Allen, 56 S. C. 
 495 (35 S. E. 204) ; Nelson v. Blakely, 54 Ind. 29. 
 
 The judgment is affirmed. 
 
 Affirmed. Rehearing denied. 
 
 HAY v. FIRE CLAY CO. 
 179 Mo. App. 567. (1913) 
 
 This is a suit on a contract of employment alleged to have been en- 
 tered into between plaintiff and defendant corporation for the render- 
 ing of services by plaintiff to defendant. The finding and judgment 
 were for plaintiff and defendant prosecutes the appeal. 
 
 NORTONI, J. It appears the unsigned writing introduced in evidence 
 was typewritten and that used on the trial was a carbon copy. The 
 witness Crawford testified that what is known both as an original and 
 a carbon copy were made at the same time, and the carbon copy was 
 furnished to plaintiff by him. Plaintiff approved it as setting forth the 
 terms of the agreement, and it seems retained this carbon copy. The 
 original, made at the same time as the carbon copy was neither pro- 
 duced nor called for, and the witness did not know its whereabouts. 
 Because of this alone, it is urged the court erred in receiving the car- 
 bon copy in evidence, but we are not so persuaded. Such carbon copies 
 are made by the same imprint as the original and there is essentially
 
 632 CASES ON EVIDENCE 
 
 indited thereon the identical matter. Such being true, if the original 
 copy accurately reveals the statements therein, the carbon copy does 
 likewise. Therefore, carbon copies so made are regarded rather as 
 originals and, as such, primary evidence under the rule of evidence 
 here invoked, for they essentially partake of this quality in the process 
 of inditing their contents. It is clear the writing was not objection- 
 able as secondary evidence because it was a copy. (See Wright v. 
 Chicago, B. & Q. R. Co., 118 Mo. App. 392, 94 S. W. 555; Bond v. 
 Sandford, 134 Mo. App. 477, 114 S. W. 570.) 
 The judgment should be affirmed. It is so ordered. 
 
 GLADSTONE LUMBER COMPANY v. KELLY. 
 64 Ore. 163. (1913) 
 
 The plaintiff, Gladstone Lumber Company, a corporation, in its own 
 right and as assignee of sundry claims of others, recovered judgment 
 against the firm of Kelly & Mahoney. While the partnership was in- 
 debted on the original claims Kelly conveyed to his wife certain real 
 property, the record title of which theretofore was in the name of 
 them both jointly. An execution having been issued on the judg- 
 ment and returned unsatisfied, the plaintiff began this suit against 
 Kelly and his wife to set aside the conveyance mentioned, on the 
 ground that the husband had made it with intent to hinder, delay and 
 defraud his creditors, and particularly the plaintiff here. 
 
 BURNETT, J. On behalf of the plaintiff the only testimony about 
 where the real ownership of the premises in dispute was vested came 
 from the defendant husband, whom the plaintiff called as a witness. 
 The plaintiff having thus vouched for his credibility, he testified very 
 clearly that the money invested in the land was his wife's separate 
 property, coming to her from the estate of her former husband; that 
 he himself did not invest anything whatever therein ; that, without his 
 wife's knowledge or consent, he took the title of the property in the 
 names of them both; and that as soon as the fact came to her notice 
 she demanded of him a reconveyance of the property to her in sev- 
 eralty. To contradict him, although he was the plaintiff's own wit- 
 ness, an attorney of a bonding company was called by plaintiff, and, 
 over the objection of defendant was allowed to testify, without pro- 
 ducing the writing, that in an application made by Kelly and his part-
 
 THE BEST EVIDENCE RULE 633 
 
 tier to the company for a building bond, in a transaction occurring 
 long before the indebtedness in question arose, a statement in writing 
 was made of the property of the applicants, in which it was set out 
 that the defendant Kelly, the husband, was the owner of the tract in 
 question. This property statement was not shown to have come to the 
 knowledge of the wife, and was not signed by her, although she exe- 
 cuted the building bond in connection with that statement. Even this 
 was not proven, except by the attorney witness. No showing is made 
 of any diligence to produce the original writing, or the bond which the 
 defendant wife is said to have signed, except the statement of the 
 witness that a few days before the trial he had forwarded them to 
 the home office of the company in New York ; hence the testimony on 
 that subject was inadmissible under the rule laid down in Wiseman v. 
 N. P. R. R. 20 Ore. 425 (68 Pac. n, mi ; 93 Am. St. 748) ; Price v. 
 Wolfer, 33 Ore. 15 (52 Pac. 759). 
 
 The decree in favor of the defendants was right, and must be af- 
 firmed. 
 
 MR. JUSTICE BEAN concurs in the result. 
 
 C., ST. L. & N. O. R. R. CO. v. BENEDICT'S AM'R. 
 154 Ky. 675. (1913) 
 
 CLAY, C. John Benedict, while riding in the caboose of a local 
 freight train owned and operated by the Illinois Central Railroad 
 Company, lessee of the Chicago, St. Louis & New Orleans Railroad 
 Company, was killed by a collision between that train and a train ap- 
 proaching from the rear. His administrator brought this action 
 against the two companies to recover damages for his death. The trial 
 resulted in a verdict and judgment in his favor for $12,500. The rail- 
 road companies appeal. 
 
 During the progress of the conductor's examination he denied that 
 the boy was on the train with his knowledge and consent. He was 
 then asked if he had not told plaintiff, Mr. Benedict, on the Sunday 
 after the accident near Ernest Reed's store that John was on his way 
 to Fulton that day to get a job as flagman and that he (conductor) was 
 trying to help him get that job, and was taking him to Fulton that day 
 for that purpose. The conductor denied making the statement, and 
 the evidence was received without objection. Later on plaintiff, Bene-
 
 634 CASES ON EVIDENCE 
 
 diet, was called and testified that the witness, at the time and place, 
 made such a statement to him. This testimony was objected to, and 
 it is earnestly insisted that the court erred in permitting it to go to 
 the jury. It is true, as argued by counsel for defendants, that the 
 statement is not a part of the res gestae. It is equally true that it is 
 the general rule that admissions or declarations of an agent made after 
 the completion of the transaction are not admissible against the prin- 
 cipal, but in the present case the question was: Was decedent on the 
 train with the knowledge and consent of the conductor? The con- 
 ductor repeatedly stated that the decedent was not on the train with 
 his knowledge and consent. Whether or not he was there with his 
 knowledge and consent was not a collateral fact, but one of the main 
 facts in issue. Having denied knowledge and consent, it was compe- 
 tent to show statements to the contrary for purposes of impeachment. 
 The evidence complained of was of this character, and the court ad- 
 monished the jury that the admitted evidence was not substantive evi- 
 dence and had no bearing on the merits of the case, but that the jury 
 should consider it only as affecting the credibility of the conductor. 
 With this admonition the evidence was clearly admissible. 
 
 While the engineer in charge of the colliding engine was on the 
 stand, he stated that the air pumps of the engine were defective. He 
 was asked if he had notice of the condition of the air pumps. 
 He stated that he had, and was then asked where he got the notice. He 
 stated that he had gotten it from a report made by the engineer han- 
 dling the engine just before the accident, and filed in the round-house 
 at Mounds, Illinois. The further question was asked: "What did 
 that report state with reference to that engine?" Over the objections 
 of the defendants, the witness was permitted to state that the air pump 
 was in a bad condition, and did not make enough air to supply the 
 train. In this connection it is insisted that there was a failure to show 
 that the record in question was made in the regular course of business, 
 and a failure to introduce the person making the record. It is also 
 insisted that it was not proper to introduce secondary evidence of the 
 record. In answer to the last objection the record discloses the fact 
 that several days prior to the trial a written notice was served on the 
 defendants asking them to produce the record in question, and a rule 
 was also asked requiring them to do so. The defendants failed to pro- 
 duce the record. If, then, the record was competent at all, oral evi- 
 dence of its contents was certainly admissible. We do not think that 
 the record in question is to be considered in the same light as entries 
 in books. One of the material questions in the case was, Was the
 
 THE; BEST EVIDENCE RULE 635 
 
 engine in a defective condition, and if so, was this condition known 
 to the defendants and their agents, or could it have been known by 
 them by the exercise of ordinary care We think the evidence was 
 competent as bearing on the question of notice. It is true that after 
 the report was filed, the engine could have been repaired. This fact, 
 however, does not render such evidence inadmissible. Having shown 
 that the engine was in a defective condition, and that this fact was 
 brought home to the defendants and their agents, the defendants could 
 still show that the engine was repaired and that the alleged defective 
 condition did not exist at the time of the accident. 
 
 Judgment affirmed. 
 
 EDWARDS v. TRACY. 
 62 Pa. St. 376. (1869) 
 
 SHARSWOOD, J. The defendants were sued in the court below as 
 partners. Daniel Tracy, George H. Benton and Edward B. Beebe 
 were in business under the firm name of Tracy, Benton & Co. The 
 goods of the plaintiffs were sold and delivered to them. 
 
 The plaintiffs offered to prove the declarations of Daniel Tracy, one 
 of the defendants, that Vandervier and Thorn were members of the 
 firm of Tracy, Benton & Co., not in the presence of either Vandervier 
 or Thorn, to be followed by acts and declarations of Vandervier and 
 Thorn, or one or either of them, to the same effect. This offer was 
 rejected by the court, an exception was taken by the plaintiffs, and it 
 forms the subject of the ist assignment of errors. 
 
 The declarations of a party to the suit as to the existence of a part- 
 nership are unquestionably competent to prove him to have been a 
 member of the alleged firm, and who were admitted by him to have 
 been the persons composing it. Such declarations are not, however, 
 competent evidence against the others, and it is the duty of the court 
 so to instruct the jury. Taylor v. Henderson, 17 S. & R. 453; John- 
 ston v. Warden, 3 Watts 101 ; Haughey v. Strickler, 2 W. & S. 411 ; 
 Lenhart v. Allen, 8 Casey 312; Bowers v. Still, 13 Wright 65; Cross- 
 grove v. Himmelrich, 4 P. F. Smith 203. The same rule has been ap- 
 plied to the admissions of a defendant not served with process, and 
 not, therefore, a party to the issue: Porter v. Wilson, i Harris 641. 
 The objection taken below was that the acts and declarations of Van-
 
 636 CASES ON EVIDENCE 
 
 dervier and Thorn should have been first given in evidence to charge 
 them; but it is plain that the same objection would have been equally 
 good against their separate declarations to connect the others with 
 them. The acts or declarations of each must, in the nature of things, 
 be given in evidence separately and successively; otherwise, nothing 
 of the kind would be available but a joint declaration by all together. 
 Practically, it would exclude all such evidence. If A admits that he 
 is a partner with B and B admits that he is a partner with A, it is 
 evidence of a partnership as to both: Drennen v. House, 5 Wright 
 30, and it matters not which declaration is first offered. Nor does 
 the fact that there was an agreement in writing between the defend- 
 ants prevent the admission of this species of testimony. This was ex- 
 pressly so held in Widdifield v. Widdifield, 2 Binney 245. "Might not 
 evidence be given," asks Chief Justice Tilghman, "of their confession 
 of a general partnership subsequent to the articles, or of their acting 
 in such a manner as was inconsistent with anything but a general part- 
 nership? How are the world to know anything about the instruments 
 of writing made in secret between persons in trade?" We think there 
 was error, therefore, in the rejection of this offer. 
 
 The 2nd error assigned is in rejecting a letter written by Daniel 
 Tracy to third persons for the purpose of showing a partnership with 
 Vand'ervier and Thorn. But this letter, or a copy of it, should have 
 been attached to the bill of exceptions by a pro ut, in order to enable 
 this court to see whether it did tend to show that for which it was 
 offered: Stafford v. Stafford, 3 Casey 144; Gratz v. Gratz, 4 Rawle 
 411 ; Rice v. Groff, 8 P. F. Smith 116. It is true that this is not the 
 reason stated by the learned judge for the rejection; but as Mr. Jus- 
 tice Kennedy remarks in Gratz v. Gratz, it would not be right to test 
 the admissibility of evidence by the insufficiency of the reason assigned 
 by the court below for rejecting it. A right judgment is not to be 
 reversed on account of a wrong reason given for rendering it. 
 
 Reversed. 
 
 PETERS & ROBERTS FURNITURE CO. v. QUEEN CITY 
 
 INS. CO. 
 
 63 Ore. 382. (1912) 
 
 This is an action by the Peters & Roberts Furniture Company, a 
 corporation, against the Queen City Fire Insurance Company, of
 
 , THE; BEST EVIDENCE RULE 637 
 
 Sioux Falls, South Dakota, a corporation, to recover on a fire insur- 
 ance policy. The cause was tried before a jury, resulting in a verdict 
 and judgment in favor of plaintiff for $2,406.61, from which defend- 
 ant appeals. 
 
 BEAN, J. The bill of exceptions also discloses that counsel for plain- 
 tiff objected to the introduction of evidence tending to show that the 
 policy of insurance was issued on the condition that the Spring Gar- 
 den policy should be canceled, and on the further condition that the 
 policy spoke for itself, and could not be contradicted by parol testi- 
 mony. The policy was introduced in evidence by plaintiff, and con- 
 tains the clause, "Other concurrent insurance permitted." The policy 
 does not purport to limit the amount of such concurrent insurance, 
 and we think the testimony in regard to the cancellation of the Spring 
 Garden policy was in direct contradiction to the terms of the policy in 
 suit. Neither does the policy contain any clause or condition that it 
 should be approved by one W. E. Thomas, or any third person. We 
 think that the testimony offered, tending to show that Mr. Thomas 
 had not approved the policy, was incompetent, under the familiar rule, 
 that, where parties have plainly reduced their contract to writing, all 
 the terms and conditions thereof will be presumed to be included in 
 the memorandum. 
 
 The defendant also assigns as error the ruling of the court in re- 
 ceiving secondary evidence of the contents of the proof of loss without 
 producing the original. It is shown by the evidence that the originals 
 of these documents were in the possession of defendant at the com- 
 pany's home office in South Dakota. Defendant claims that the notice 
 to produce the same did not allow sufficient time to do so. Under Sec- 
 tion 782, L. O. L. a party is permitted to introduce secondary evidence 
 of a writing which is in the custody of the adverse party, if he fails 
 to produce the same after reasonable notice to do so. It has been held 
 that where it is apparent from the face of the pleadings that a writ- 
 ing in the custody of one party will be required at the trial of the 
 cause, by the other party, the pleadings themselves are sufficient notice 
 to that party to produce the document at the trial, and, if he fails to do 
 so, secondary evidence as to its contents is admissible. Wigmore, Evi- 
 dence, sec. 1305; Continental Life Ins. Co. v. Rogers, 119 111. 474 (10 
 N. E. 242; 59 Am. Rep. 810) ; Zipp v. Colchester Rubber Co., 12 S. 
 D. (80 N. W. 367). It was but a reasonable expectation that, when 
 the action was brought against the defendant upon the policy the 
 officers of the company would have the documents relating to the is- 
 sues, at the place of trial, so that the same might be produced upon two
 
 638 CASES ON EVIDENCE 
 
 or three days notice. We cannot say that there was prejudicial error 
 in this ruling. 
 
 The defendant also assigns as error the receiving of secondary evi- 
 dence of the contents of two policies of concurrent insurance, without 
 producing the originals. It is shown by the testimony of the local 
 agents of the insurance companies, whose policies were sought to be 
 produced, that the originals were in London, England, and in Phila- 
 delphia, Pa. Both plaintiff and defendant in this case allege that there 
 was other concurrent insurance upon the property covered by the pol- 
 icy in question. In ascertaining the amount, both parties were inter- 
 ested. Under such circumstances, a showing that the writing is outside 
 of the State should be a sufficient excuse for the nonproduction of the 
 original documents to permit secondary evidence. Mr. Justice BEAN 
 in Wiseman v. N. P. R. R. Co., 20 Ore. 425, at page 429 (26 Pac. 272, 
 at page 274; 23 Am. St. Rep. 135), says: 
 
 "The degree of diligence which shall be considered necessary, in any 
 case will depend upon the character and importance of the document, 
 the purposes for which it is expected to be used, and the place where a 
 paper of that kind may naturally be supposed to be found. If the doc- 
 ument be a valuable and important one, which the owner would be 
 likely to preserve, a more diligent search will be required than if the 
 document is of little or no value. The purposes for which it is pro- 
 posed to use it on the trial will also have an important bearing in de- 
 termining the degree of diligence required. If. the cause of action or 
 defense is founded on the supposed writing, the party offering the evi- 
 dence will be required to show a greater degree of diligence in the at- 
 tempt to produce the original than if it is desired to be used as evidence 
 in some collateral matter." 
 
 The evidence of the contents of these policies was offered upon a 
 collateral question in which both parties were interested. Therefore, 
 under such circumstances, secondary evidence of their contents was 
 admissible upon the showing of diligence made. These last two ques- 
 tions were peculiarly for the trial judge to finally determine. Wig- 
 more, Evidence, sec. 1253. 
 
 It does not appear that the admission of this testimony was injuri- 
 ous to any substantial right of defendant, and therefore does not 
 amount to reversible error in any event. Koshland v. Hartford Ins. 
 Co., 31 Or. 402 (49 Pac. 866) ; Krewson v. Purdo, 15 Or. 589 (16 
 Pac. 480); Hudson v. Goodale, 22 Or. 68, 73 (29 Pac. 70). 
 
 Affirmed.
 
 THE BEST EVIDENCE RULE 639 
 
 HOLLOMAN v. SOUTHERN RY. CO. 
 172 N. C. 272. (1916) 
 
 The action was brought for the recovery of certain knitting mill 
 machinery which was shipped from Raleigh, N. C., to the plaintiff at 
 Kernersville, N. C. When the machinery arrived at Kernersville it 
 was found to be in a damaged condition, and plaintiff refused to re- 
 ceive it, according to plaintiff's version of the facts, unless the de- 
 fendant would take a qualified receipt for it, showing its bad condition, 
 which defendant declined to do. The machinery was, therefore, placed 
 in defendant's warehouse. Plaintiff brought suit in Guilford Superior 
 Court to recover damages for the injury to the machinery, and got a 
 judgment for $1,500. 
 
 WALKER, J., after stating the case: The plaintiff, in brief, states 
 his contention as follows : 
 
 "The judgment in this case is clearly erroneous in adjudging that 
 the defendant is entitled to recover storage charges, because: 
 
 "i. The defendant's right to recover storage charges is dependent 
 upon notice of the arrival of the shipment in accordance with the rules 
 of the Corporation Commission ; and there was no competent evidence 
 to prove such notice. 
 
 "2. The defendant was estopped from asserting the right to claim 
 storage charges. 
 
 "3. The court decided as a matter of law that the right to charge 
 storage had not been waived." 
 
 We are of the opinion that none of these several contentions should 
 prevail. There was ample evidence that notice of the arrival of the 
 machinery was properly given. This was done by postal card prop- 
 erly addressed and mailed and presumed to have been received by the 
 plaintiff, in the absence of evidence that it was not. Model Mill Co. 
 v. Webb, 164 N. C. 87; Trust Co. v. Bank, 166 N. C. 112. It has 
 been held that where the consignee has actual notice that the goods 
 have arrived and that the carrier is ready to deliver them at his depot, 
 it dispenses with any formal written notice of the fact; nor could he 
 demand it, 4 R. C. L., p. 755 ; Normile v. N. P. Railroad Co., 67 L. 
 R. A., 271 ; but we do not decide as to this view, as we have held that 
 sufficient notice was given. Plaintiff objected to oral evidence in re- 
 gard to mailing the postal card announcing the arrival of the ma- 
 chinery ; but this position is not tenable, as the mailing and contents 
 of the postal card are matters collateral to the issue and not the sub-
 
 640 CASES ON EVIDENCE 
 
 ject-matter of the litigation. It was held in Ledford v. Emerson, 138 
 N. C. 502, that the rule excluding parol evidence as to the contents 
 of a written instrument applies only in actions between parties to the 
 writing, when the enforcement of any obligation created by it is sub- 
 stantially the cause of action, i Greenleaf on Ev., 275, 279; Pollock 
 v. Wilcox, 69 N. C. 50; Reynolds v. Magness, 24 N. C. 26; Garden v. 
 McConnell, 116 N. C. 875; Belding v. Archer, 131 N. C. 287; S. v. 
 Credile, 91 N. C. 640; Jones v. Call, 93 N. C. 170. The last two cases 
 related to notices, and it was there held that the rule requiring the pro- 
 duction of the writing itself as the best proof of what it contains does 
 not extend to mere notices, which persons are not expected to keep. 
 I Greenleaf on Ev., sec. 561. 
 There was no error in the rulings of the court. 
 
 BUTLER v. MAIL & EXPRESS PUB. CO. 
 171 N. Y. 208. (1902) 
 
 Appeal from a judgment of the Appellate Division of the Supreme 
 Court in the first judicial department, entered November 14, 1900, 
 affirming a judgment in favor of plaintiff entered upon a verdict and 
 an order denying a motion for a new trial. 
 
 CuixEN, J. The complaint-alleges that on twenty-nine different oc- 
 casions the defendant, in consideration of one hundred dollars paid to 
 it by the plaintiff, agreed to give him a hundred dollars worth of ad- 
 vertising in a paper published in New York City known as the Mail 
 and Express; that the defendant thereafter refused to do any adver- 
 tising for the plaintiff or to return to him the money so paid; and 
 judgment was demanded for the recovery of the sum of $2,900, 
 with interest. The defendant answered alleging that the sums paid 
 by the plaintiff were paid, not in consideration of advertising there- 
 after to be furnished, but in satisfaction of a judgment that the de- 
 fendant had recovered against the plaintiff. 
 
 At the close of the evidence the defendant moved to dismiss the com- 
 plaint on the ground that the alleged agreement to give the plaintiff 
 advertising space was without consideration. The motion was denied 
 and the defendant excepted. The trial court submitted four questions 
 of fact to the jury, the first of which was : "Was there an agreement 
 of compromise between the plaintiff and the defendant by which it
 
 THE BEST EVIDENCE RULE 641 
 
 was agreed that if the plaintiff would pay the amount included in the 
 judgment, the defendant would, as the payments were made, issue due 
 bills for advertising for the different amounts paid?" The others re- 
 lated to the payments by the plaintiff, the issue by the defendant of the 
 due bills for advertising and the defendant's refusal to perform, all of 
 which were foundjn favor of the plaintiff. Thereupon the court di- 
 rected a general verdict for the plaintiff. The judgment entered on 
 that verdict was unanimously affirmed by the Appellate Division and 
 an appeal from such affirmance taken to this court. 
 
 The unanimous affirmance below precludes us from passing upon 
 the appellant's exceptions to the denial by the trial court of the motion 
 to dismiss the complaint. Nor is the interesting question whether the 
 special findings of the jury were sufficient to authorize the direction of 
 a general verdict by the trial court presented to us, because the record 
 shows no exception to that direction. There is, however, an exception 
 to the admission of evidence which we deem fatal to the judgment. 
 The plaintiff, against the objection and over the exception of the de- 
 fendant, was allowed to testify to the contents of an alleged written 
 stipulation by which he was to be permitted to pay the defendant's 
 claim at the rate of $500 a month, either in money or by furnishing 
 advertising to that amount. The making of such a stipulation was de- 
 nied by the defendant. The plaintiff testified that he had last seen the 
 stipulation with Messrs. Ormiston & Dorset, his attorneys in the ac- 
 tion against him. He stated that the attorneys had promised to send it 
 to him if they found it, but no evidence was produced to show that the 
 stipulation had been lost or that at the time of the trial it was not in 
 the possession of Ormiston & Dorset and could not be produced. We 
 do not see that there is any thing to be said in defense of the ruling 
 by which this testimony was admitted. 
 
 The judgment appealed from should be reversed, and new trial 
 granted, co'sts to abide the event. 
 
 GROCERY CO. v. BRADFORD. 
 70 W. Fa. 496. (1912) 
 
 Action by the Star Grocery Company against W. Bradford and an- 
 other. Judgment for plaintiff, and defendants bring error. 
 
 POFFENBARGER, J. The bond constituting the basis of this action
 
 642 CASES ON EVIDENCE 
 
 and given by a tfaveling salesman to secure faithful performance of 
 his written contract with his principal, contains, in the obligatory 
 clause thereof, the name of the salesman, described as principal, and 
 the condition recites his employment, his duty to collect accounts for 
 his employer and the existence of an article of agreement between 
 them, giving its date, but is signed by the two defendants herein only 
 as sureties. 
 
 Wilson defaulted and left the country. His successor as salesman 
 for the territory he had traveled called upon the customers of his em- 
 ployer and obtained from them evidence of the collections made by 
 Wilson in the form of invoices receipted by him and checks in pay- 
 ment of invoices, made payable to his employer and collected by him, 
 after his endorsement of his employer's name by him as agent. These 
 receipted invoices and checks were admitted as evidence of liability on 
 the bond. A statement in the handwriting of Wilson, showing a bal- 
 ance against him of $460.75, for which he gave his check, together with 
 the protested check, were also introduced as evidence, supplemented 
 by proof of lack of funds in the bank on which the check was drawn 
 to pay it. In one instance, the customer testified to the payment of a 
 bill not accounted for by Wilson. In all the instances in which checks 
 appeared to have been given and endorsements made by Wilson, his 
 hand writing was proved. In addition to this evidence, the bookkeeper 
 of the employer, with the books in his possession and at hand, testified 
 to the delivery and shipment of all the goods, the purchase money of 
 which was shown to have been collected as aforesaid. Admissibility 
 and sufficiency of this evidence are challenged on account of its alleged 
 secondary character. It is unnecessary to enter upon an inquiry as to 
 the classification of evidence referred to in the brief. The receipts, 
 checks and statement in the handwriting of the principal constitute 
 admissions by him, made within the period of his employment and in 
 the course thereof, and are admissible against the sureties, according 
 to all authority and sufficient, in the absence of any contradiction there- 
 of, to fix liability upon them. "Accounts, entries and written state- 
 ments by the principal are prima facie" evidence against his sureties, 
 in some states being conclusive." 32 Cyc. 137. See also Brandt on 
 Suretyship, sees. 798-800; i Greenleaf Ev., sees. 187, 188. To the ad- 
 mission in argument of the admissibility of this evidence against Wil- 
 son, if he were a party, we add these authorities, conclusively showing 
 it to be likewise admissible against its sureties. Clearly admissible, 
 covering the full amount of the recovery and wholly uncontradicted 
 it precludes any possible verdict, other than the one rendered, and,
 
 THE BEST EVIDENCE RULE 643 
 
 therefore, the error, if any, in admitting the testimony of the book- 
 keeper as to the delivery of the goods was obviously harmless. Hence 
 there is no occasion for inquiry as to its admissibility. 
 
 The testimony of McConnanghey, president of the plaintiff company, 
 \vas objected to for lack of documentary proof of his position as pres- 
 ident. According to well settled practice, his own evidence as to that 
 was sufficient to establish it prima facie, because the fact was collateral 
 in character. His office in the corporation was not in issue. The sole 
 purpose of proof of his position was to show how or why he had done 
 certain things and possessed certain knowledge. To establish such a 
 status for such purpose, the highest and best evidence is not required. 
 Generally, it is conceded. In qualifying experts, physicians and law- 
 yers are not required to produce their licenses. Their oral testimony 
 suffices everywhere. 
 
 Affirmed. 
 
 DICKINSON v. WHITE. 
 25 N. Dak. 523. (1913) 
 
 FISK, J. The city of Dickinson sues to recover against J. S. White, 
 its ex-city treasurer, and against his surety, the Northern Trust Com- 
 pany, upon certain official bonds given by the said White as such city 
 treasurer, it being plaintiff's contention that the said White defaulted 
 and failed to account for city funds collected and received by him in 
 his said official capacity. 
 
 The defendant White was not served with process, and made no ap- 
 pearance in the action, and the Northern Trust Company alone ap- 
 peals. 
 
 A jury was waived and the cause tried to the court, resulting in find- 
 ings and conclusions favorable to the plaintiff on the second and third 
 causes of action, but holding that the first cause of action was, at the 
 time this action was commenced, barred by the statute of limitations. 
 
 To prove the alleged shortage under the second count, plaintiff 
 offered in evidence Exhibit 9, purporting to be a report of J..S. White 
 to the city council for March, 1908, and Exhibit 13 which purports to 
 be a receipt by White to the county treasurer, dated March 31, 1908, 
 for taxes. 
 
 To prove the alleged shortage under the third count, plaintiff offered
 
 644 CASES ON EVIDENCE 
 
 in evidence Exhibit 10 purporting to be a report by White to the city 
 council for February, 1909, and Exhibit 14, which purports to be a re- 
 ceipt by White to the county treasurer dated February 23, 1909. Also 
 under the third count plaintiff offered in evidence Exhibit 15, purport- 
 ing to be a warrant for $2,150, the slip showing its deposit to the credit 
 of J. S. White, city treasurer, marked 19, the debit slip of the bank 
 marked Exhibit 20, and the page of the cash book of the city marked 
 Exhibit 21, all of which were objected to. Exhibits 20 and 21 were 
 made February 10, 1910. White ceased to act as city treasurer De- 
 cember 1 6, 1909. 
 
 The purported reports of White to the city council, Exhibits 9 and 
 10, were received in evidence over objection that they were incompetent, 
 not the best evidence, and shown to be mere copies. The books of the 
 city or of White were not produced in court nor offered in evidence. 
 The purported receipts to the county treasurer, Exhibits 13 and 14, 
 were received in evidence over objection that they were incompetent, 
 and no proper foundation laid. 
 
 Assignments numbered i, 2 and 12 relate to certain rulings of the 
 trial court admitting in evidence Exhibits 9, 10, 13, and 14. This proof 
 was offered for the purpose of proving the default of $645.11 alleged 
 in the second cause of action, and the default of $909.88 alleged in the 
 third cause of action. Exhibits 13 and 14 are receipts given by White 
 as city treasurer to the county treasurer for moneys received by the 
 former from the latter. White signed such receipts, and they were 
 shown to be records in the office of the county treasurer. 
 
 These receipts furnish prima facie evidence of the fact that White 
 as city treasurer, received from the county treasurer the amounts 
 therein mentioned. Rev. Codes 1905, sees. 7298 and 7299. It was 
 White's duty to give receipts for moneys thus received. 
 
 Section 2711, Rev. Codes 1905. Appellant's counsel does not contro- 
 vert the correctness of the above proposition; but they contend that 
 this was not the propr method of proving the alleged shortages. Plain- 
 tiff, after introducing the above receipts, offered in evidence Exhibits 
 9 and 10, which consist of reports made by White, as city treasurer, 
 to the mayor and city council of Dickinson on March 31, 1908, and on 
 February 27, 1909, purporting to show the receipts and disbursements 
 made by him as such city treasurer for the months of March 1908, and 
 February, 1909, respectively, and in which reports White accounts and 
 reports for the sum of only $5,640 for moneys received from the 
 county treasurer for taxes in March, 1908, whereas Exhibit 13 shows 
 that he received $6,285.11 making a difference of $645.11 as found by
 
 THE BEST EVIDENCE RULE 645 
 
 the trial court in its fifth finding of fact; and, by Exhibit 10 he ac- 
 counts for and reports as having received from the county treasurei 
 the sum of only $67.20, whereas by the receipt Exhibit 14 he admits 
 that he received $909.88, making a difference of $842.68. Counsel for 
 appellant urge that this method of proving shortages is improper, and 
 that plaintiff should have shown the total amount of money received 
 and expended by White during the terms of the bonds, or either of 
 them and they emphasize the fact that there was no proof offered as 
 to what amount White had paid over and accounted for to his suc- 
 cessor in office, nor of the amount for which he thus should have paid 
 out and accounted for, and that the books of the city were not offered 
 in evidence or produced in court for the purpose of showing these 
 facts. They also contend that Exhibits 9 and 10 were improperly re-, 
 ceived in evidence, as they were not the original records, and were in- 
 competent, and not the best evidence, and no foundation had been laid 
 for their introduction. We think appellant's contentions are untenable. 
 The proof offered by the plaintiff, in the absence of any showing to the 
 contrary, constituted prima facie evidence that White had not ac- 
 counted for the moneys thus received by him as shown by said Ex- 
 hibits 13 and 14, and that there were, therefore, shortages in the sums 
 above mentioned. While the method of proof suggested by appellant's 
 counsel of establishing such alleged shortages would be proper and 
 perhaps preferable, such method is not the sole and only method of 
 proving such facts, and it was perfectly proper for plaintiff to show 
 that White had receipted for specific moneys belonging to the city, 
 and had reported to the mayor and city council lesser amounts than 
 those for which he had thus receipted. As before stated, in the absence 
 of proof to the contrary, this constituted prima facie evidence of the 
 existence of shortages and the amount thereof; and if such shortages 
 had been subsequently made up or adjusted, such fact could have been 
 shown by the defendant: 
 
 Sufficient foundation for the introduction of all of the Exhibits 
 aforesaid was laid by the testimony of White, who identified all of 
 such Exhibits as the receipts and reports made and signed by him, and 
 that the difference in the amounts received, and reported as having 
 been received, has never been made up. Exhibits 9 and 10 are the 
 original reports made by White, as city treasurer, and the objections 
 to their introduction in evidence are clearly untenable. The fact that 
 in making such reports the data therefor were taken or copied from 
 the books kept by him as city treasurer does not render them inad-
 
 646 CASES ON EVIDENCE 
 
 missible as secondary evidence. They were made pursuant to official 
 duty, and were originals, and not mere copies. 
 
 Reversed on another ground. 
 
 PRINGEY v. GUSS. 
 16 Okla. 82. (1905) 
 
 , J, This is an action by the plaintiffs in error against U. 
 C. Guss to declare a resulting trust ; it being the contention of the ap- 
 pellants that the appellee purchased the s. e. J4 of sec. 9, twp. 15, n. of 
 r. 5 east in Lincoln county, Oklahoma, from J. E. Ross, the former 
 owner of the legal title with full knowledge that he had, prior thereto, 
 sold it to these appellants and received a part of the purchase price 
 therefor. The contract of sale under which appellants' claim was 
 signed in duplicate by Joseph C. Pringey, and Mrs. Ida Ross (wife of 
 J. E. Ross), and sent to J. E. Ross for his signature. Pringey never 
 received either of them, but he contends that he received letters from 
 J. E. Ross accepting the terms of the contract, and that he is bound; 
 thereby ; but the letters received by Pringey and offered in evidence do 
 not alone constitute a sale of the land. It is impossible to determine 
 from them what the terms of sale were; hence the absolute necessity 
 on the part of the appellants to prove the contract of sale. The evi- 
 dence clearly showed that the original contracts were last in the pos- 
 session of J. E. Ross who lived at Genoa, Nebraska ; and because Ross 
 lived outside of Oklahoma Territory, the appellants sought to intro- 
 duce a carbon copy of the contracts without any showing of diligence 
 to procure the originals or one of them. The trial court excluded the 
 carbon copy, and finally, when the appellants rested, a demurrer was 
 sustained to the evidence and the cause dismissed at plaintiffs' cost. 
 In both of these rulings the court was correct. Without proving the 
 contract, the plaintiffs could not recover, and they could not use an 
 unsigned carbon copy without first showing diligence to procure the 
 original. 
 
 We do not contend that, where a written instrument is only col- 
 laterally involved, and the original is in the possession of another in a 
 different state, in no circumstances can secondary evidence be admitted 
 to prove its contents ; but where a party can only recover under a con- 
 tract, that is, where the contract itself is directly involved, secondary
 
 THE BEST EVIDENCE RULE 647 
 
 evidence will not be received, until it be first shown that the original 
 is lost, or beyond the control of the party wishing to prove its content ; 
 and the Supreme Court of the United States, in the case of Turner v. 
 Yates, 16 Howard 26, clearly adopted this rule. 
 
 It is true that there are authorities to the contrary, but the rule here- 
 in announced appeals more strongly to our view of what the law ought 
 to be, and we find it supported not only by the Supreme Court of the 
 United States but by other courts of high standing. John Kearney v. 
 The Mayor of the City of New York, 92 N. Y. 617; Shaw v. Mason, 
 10 Kan. 184; Dickenson v. Breeden, 25 111. 167; McGregor v. Mont- 
 gomery, 4 Penn. St. 237 ; Londoner et al. v. Stewart, 3 Colo. 47 ; Wood 
 v. Cullen, 13 Minn. 394. 
 
 The contract not having been proved, the evidence introduced upon 
 the trial was not sufficient to support a judgment in favor of the plain- 
 tiffs, and the demurrer to their evidence was properly sustained. 
 
 The judgment of the lower court is hereby affirmed, at the cost of 
 appellants. 
 
 YOUNG v. THE PEOPLE. 
 
 221 III. 57. (1906) 
 
 HAND, J. The first contention of plaintiffs in error is that the evi- 
 dence is not sufficient to sustain a conviction. Greear admits that he 
 formed a conspiracy with Keefe and McCormick to defraud the book- 
 makers in Chicago, and Young is a confessed gambler. The jury saw 
 and heard them and the witnesses produced by them testify, and while 
 the direct evidence that Young was connected with McCormick and 
 Keefe is very meager, in view of all the circumstances proven on the 
 trial, if no error of law had been committed during the trial we would 
 not reverse the case on the ground that the evidence was not sufficient 
 to sustain the verdict. The only evidence tending to connect Young 
 with McCormick and Keefe, and to show a conspiracy between Young 
 McCormick and Keefe to work the confidence game upon Greear, 
 other than Greear's testimony, was certain evidence in writing of which 
 secondary evidence was admitted upon the trial in the place of the 
 original written evidence, and this secondary evidence, it is claimed by 
 plaintiffs in error, was admitted without a proper foundation being
 
 648 CASES ON EVIDENCE 
 
 laid for its admissipn, and that the admission of such secondary evi- 
 dence constitutes reversible error. 
 
 Greear testified that while in Minneapolis, Keefe showed him two 
 letters purporting to be written to Keefs by McCormick, in one of 
 which McCormick said he wanted Keefe to get a good, honest man 
 with money to go to Chicago and make "sure thing" bets on horse 
 races. When asked where the letter was, he said Keefe destroyed it. 
 He afterwards said Keefe destroyed one letter, and afterwards said 
 Keefe destroyed the letter other than the one containing the statements 
 above referred to. His testimony, when taken as a whole, clearly 
 showed that the last time he saw the letter, if he ever saw such a let- 
 ter, it was in the possession of Keefe. Objection was made to the ad- 
 mission of parol proof of the contents of said letter on the ground that 
 the evidence showed the letter was in the possession of Keefe when 
 last seen by the witness and that Keefe had not been notified to pro- 
 duce the letter upon the trial. The general rule is, that parol evidence 
 cannot be received of the contents of a writing unless a proper founda- 
 tion has been laid for its admission by notifying the party in whose 
 possession the writing is, to produce it upon the trial or by showing 
 that it has been lost or destroyed. No such foundation was here laid 
 with reference to this letter, and the court erred in permitting parol 
 proof of its contents. Holbrook v. Trustees of Schiils, 22 111. 539; 
 Wright v. Raftree, 181 id. 464. 
 
 The court also permitted the State to introduce in evidence a copy 
 of a telegram purporting to have been sent by Keefe from Mankato, 
 Wis., June 13, 1905, to Fred Gondorf (McCormick) at Chicago, re- 
 questing Gondorf (McCormick) to meet Keefe the next day at 10:30 
 at the Majestic Hotel, without proof of the loss of the original tele- 
 gram or even that the copy offered was a copy of the original. The 
 copy introduced was the copy retained by the telegraph company 
 among its files in its Chicago office, and the court seems to have en- 
 tertained the view that such copy was the original. This was not the 
 correct view. It was not shown that 4 Fred Gondorf (McCormick) 
 ever received said telegram, or that it was ever acted upon by either 
 Keefe, McCormick or Young, or that it was signed or sent by Keefe. 
 It was introduced as the admission of Keefe that he knew McCormick 
 and desired to have him meet him. In order to bind Keefe it was nec- 
 essary to show he signed or sent the telegram or that he acted on the 
 telegram after it was received, and the best evidence of the contents of 
 the telegram was the original telegram filed at Mankato, Wis. (Mat-
 
 THE BEST EVIDENCE RULE 649 
 
 teson v. Noyes, 25 111. 481 ; Morgan v. People, 59 id. 58.) It was er- 
 ror to admit in evidence the copy of said telegram. 
 
 When Keefe was arrested, a card was taken from his vest-pocket 
 upon which was written, "L. Y., 3030 Indiana avenue, phone Douglas 
 2685," which were the initials of Louis Young, the number of his resi- 
 dence and the telephone number. The police officer who received the 
 card from the officer who took it from Keefe testified that the last 
 time he saw it, which was four or five days before the trial, he gave 
 it to the assistant State's attorney. Young testified he had never seen 
 the card, knew nothing of its contents or how Keefe came by it. The 
 court, without requiring the production of the card by the assistant 
 State's attorney or proof of its loss or destruction, over the objection 
 of the plaintiffs in error, permitted the police officers to state what was 
 written on the card at the time it was taken from Keefe. This evidence 
 was exceedingly damaging to Young as it tended to connect Keefe with 
 him, and it was error to admit parol proof of what was written on the 
 card without proof of the loss or destruction of the card. Mariner 
 v. Saunders, 5 Gilm. 113; Whitehall v. Smith, 24 111. 166; Wing v. 
 Sherrer, 77 id. 200; Williams v. Case, 79 id. 356 
 
 For the errors of the court in admitting in evidence the copy of said 
 telegram and parol proof of the contents of said letter and the matter 
 written upon said card without the proper foundation having been laid 
 for the admission of secondary evidence, the judgment of the Crim- 
 inal Court will be reversed and the cause remanded to that court for 
 a new trial. 
 
 Reversed and remanded. 
 
 WILSON v. WRIGHT. 
 8 Utah 215. (1892) 
 
 ZANE, C. J. This action was brought to recover the unpaid re- 
 mainder of the price of plaintiff's interest in certain mining claims sold 
 to the defendant. The respondent testified that he sold and conveyed 
 his interest to the defendant on the 27th of October, 1888; that the de- 
 fendant at that time paid him $1,500, and agreed to pay $1,000 more 
 when he should sell the claims or find ore in them ; that defendant did 
 find ore and sold the claims for the sum of $10,000. The defendant 
 testified that he paid the $i ,500 at the time of the sale as the sole con-
 
 650 CASES ON EVIDENCE 
 
 sideration, and that he did not agree to pay any other or further con- 
 sideration. Some time after the $1,500 was paid, the defendant made 
 three different payments to plaintiff, amounting to $300. The plaintiff 
 states that these were made upon the $1,000. But the defendant says 
 they were not so paid; that the money was given to plaintiff at his re- 
 quest and for his accommodation. While there is a conflict in the evi- 
 dence as to the agreement to pay the additional $1,000, we are of the 
 opinion that the weight supports the finding of the jury, which was for 
 the plaintiff for $700, that being the remainder of the $1,000 after de- 
 ducting the $300. On the trial of the cause the defendant testified 
 that he thought the plaintiff's deed to him for the property was left 
 with one Jones, to whom witness sold; that he had made diligent 
 search for it, and that it was not in witness' possession or control. On 
 this preliminary proof defendant's counsel offered a copy of the deed 
 in evidence duly certified by the records, to prove that the considera- 
 tion for the property was $1,500, that being the amount mentioned in 
 the deed. To the admission of the copy in evidence the plaintiff ob- 
 jected, on the ground that the preliminary proof did not show sufficient 
 diligence to find and produce the original. The court sustained the ob- 
 jection, and the defendant excepted, and assigns the ruling of the court 
 as error. The consideration named in the deed being $1,500, it would 
 have corroborated the defendant's testimony, had it been admitted in 
 evidence. The general rule with respect to secondary evidence is "that 
 it is inadmissible until it be shown that the production of primary evi- 
 dence is out of the party's power." The party offering secondary evi- 
 dence must give some reasonable excuse for the absence of the pri- 
 mary. If the primary evidence is a document, its destruction or loss 
 must be shown by at least presumptive evidence. The party must show 
 that he has in good faith exhausted in a reasonable degree all the 
 sources of information and means of discovery which the nature of the 
 case would naturally suggest, and which were accessible to him or that 
 it was out of his power to produce the document. "When the docu- 
 ment belongs to the personal custody of a particular individual, or is 
 proved or may be presumed to be in his possession, he must in gen- 
 eral be. served with a subpoena duces tecum, and be sworn to account 
 for it." i Taylor Ev., pp. 396, 397. i Greenl. Ev. sec. 558. To these 
 general rules there are exceptions. In the trial of title to land the rule 
 in the United States when not changed by statute, is : "It being the 
 general practice in the United States for the grantor to retain his own 
 title deeds, instead of delivering them over to the grantee, the grantee 
 is not held bound to produce them ; but the person making the title to
 
 THE; BEST EVIDENCE RULE 651 
 
 lands is in general permitted to read certified copies from the register 
 of all deeds and instruments under which he claims, and to which he 
 is not himself a party, and of which he is not supposed to have the 
 control." Assuming that this rule is applicable in all cases to the ad- 
 missibility of copies of title deeds certified by the recorder, it does not 
 apply to the case in hand. This defendant is a party to the original 
 deed, and he has the right to its possession, i Greenl. Ev. (4th ed.) sec. 
 665, note 6; Eaton v. Campbell, 7 Pick. 10; Scanlan v. Wright, 13 Pick. 
 523; Woodman v. Coolbroth, 7 Me. 181. Reference is made to 2 
 Comp. Laws Utah, 1888, sec. 2617: "That when any such conveyance 
 or instrument acknowledged or proved, certified and recorded in the 
 manner prescribed by this act, and it shall be shown to the court that 
 such conveyance or instrument is lost, or not within the control of the 
 party wishing to use the same, the record thereof, or the transcript of 
 such record, certified by the recorder under the seal of his office, may 
 be read in evidence without further proof." The preliminary proof 
 does not show that the original deed of which the defendant offered the 
 copy was lost or destroyed. The defendant states that he thought it 
 was left with Mr. Jones, who was at the time of the trial in the city 
 in which the trial was had, and it did not appear that inquiry was made 
 of him at any time. The defendant being the grantee in the deed, he 
 was entitled to its possession, as we have seen ; if he left it with Mr. 
 Jones, presumably he could have obtained it from him by asking him 
 for it. If a party has the legal right to the possession of a document, 
 in a legal sense it is within his control, though he may have left it 
 with an agent or other person, from whom he has a right to receive 
 it by demanding its possession. The defendant should have inquired 
 of Jones for the deed, and if in his possession should have requested 
 the possession or the use of it, and if such request had been refused the 
 defendant could have said that it was not within his control. We hold 
 that the ruling of the court excluding the copy was not error. We find 
 no error in this record, and therefore the judgment of the court below 
 is affirmed. 
 ANDERSON, J., and MINER, J., concurred.
 
 652 CASES ON EVIDENCE 
 
 PITT v. EMMONS. 
 92 Mich. 542. (1892) 
 
 
 
 MONTGOMERY, J. The plaintiffs are dealers in grain at Baltimore, 
 and the defendants conduct a similar business at Detroit. In Septem- 
 ber, 1888, the plaintiffs purchased of the defendants by sample 15 cars 
 of wheat to be delivered. Four cars were delivered, which plaintiffs 
 claim were not equal to sample, and the plaintiffs thereupon refusing 
 to accept more of similar wheat as answering the terms of the con- 
 tract, and the defendant refusing to ship the wheat of the grade 
 claimed by plaintiffs, no more was shipped. This action is brought to 
 recover damages for the alleged failure to fulfill the contract, both be- 
 cause the quality of the wheat was not up to grade, as well as fo.r the 
 failure to deliver the remaining 1 1 cars of the quality contracted. The 
 evidence tended to show that the plaintiffs would have realized a con- 
 siderable profit on the wheat if delivered, and of the quality claimed 
 by them to have been purchased. 
 
 The dispute arises over the question of what in fact' was the sample 
 with reference to which the -contract was made. Considerable corre- 
 spondence passed between the parties. 
 
 The defendants offered in evidence an alleged copy of a postal card 
 claimed to have been sent by them to plaintiffs on the 8th, stating that 
 a sample of wheat had been sent marked "3". It is evident that this 
 postal was of exceeding importance, for if in fact there was such a 
 sample in plaintiffs' hands when the telegrams passed between the par- 
 ties the jury would have been justified in finding that the contract 
 called for the quality of wheat in this last-named sample. The plain- 
 tiffs' testimony had been taken by deposition, and the plaintiffs' office 
 was at Baltimore, and the only notice calling for the production of this 
 postal card was served on the same day the copy was received in evi- 
 dence, against the plaintiffs' objection. The plaintiffs' attorneys dis- 
 claimed any knowledge of the postal card. Under the circumstances, 
 it was error to admit a copy. Furgeson v. Hemingway, 38 Mich. 159; 
 Julius King Optical Co. v. Treat, 72 id. 599 ; Mortlock v. Williams, 76 
 id. 568. 
 
 The judgment will be reversed, with costs, and a new trial ordered.
 
 THE BEST EVIDENCE RULE 653 
 
 MCDONALD v . ERBES. 
 231 in. 295. (1907) 
 
 HAND, J. This was an action of assumpsit commenced by the ap- 
 pellee, against the appellant, in the Circuit Court of Vermilion County. 
 The declaration consisted of the common counts, and the general is- 
 sue was filed, and the trial resulted in a verdict and judgment in favor 
 of the appellee for $2,923.75, which judgment has been affirmed by 
 the Appellate Court for the Third District. 
 
 The judgment, in part, was made up of an item of $900, which was 
 paid by the appellee to E. H. Steiger. The appellee contended said 
 item of $900 was paid to Steiger by him at the request of appellant, 
 and the appellant contended it was paid to Steiger by the appellee for 
 his own benefit. In order to establish his contention the appellant 
 offered in evidence a copy of a written agreement alleged to have been 
 entered into between the appellant and appellee, which, upon the objec- 
 tion of appellee, the court refused to admit, on the ground that no 
 sufficient foundation had been laid for the admission of secondary evi- 
 dence of the contents of said agreement, and the refusal of the court 
 to admit in evidence a copy of said agreement in lieu of the original 
 is the sole ground of reversal relied upon in this court. 
 
 As a foundation for the admission of a copy of said agreement in 
 evidence in lieu of the original, the appellant showed that at the time 
 the agreement was executed it was left in the possession of Steiger, 
 who resided at Oshkosh, Wisconsin, and that it has never been in the 
 possession of either of the parties to the suit, and Steiger testified that 
 if he had the agreement it was at his home in Oshkosh. No effort was 
 made by the appellant to obtain the original agreement prior to the 
 trial, it being his contention that as it appeared the original was be- 
 yond the jurisdiction of the court and in the hands of a third party, 
 the copy thereof was admissible in evidence. The authorities are not 
 in entire harmony upon the question at issue between the parties to 
 this suit. In some jurisdictions the rule is, that where it appears that 
 an instrument in writing is beyond the jurisdiction of the court and in 
 the hands of a third party a copy thereof may be introduced in evi- 
 dence in lieu of the original; while in other jurisdictions the rule is, 
 that a copy cannot be admitted in evidence in lieu of the original un- 
 less it appears, in addition to the facts that the original is beyond the 
 jurisdiction of the court and in the hands of a third party, and that 
 due effort had been made by the party offering the copy to obtain the
 
 654 .CASES ON EVIDEXCE 
 
 original. (2 Elliott on Evidence, sees. 1469, 1470; 25 Am. & Eng. 
 Encyc. of L. 2nd ed. p. 171.) The rule in force in this State, as 
 announced in Dickison v. Breeden, 25 111. 186, Fisher v. Greene, 95 id. 
 284, requires that due effort must be made by the party who offers a 
 copy of a written instrument in evidence when the original is beyond 
 the jurisdiction of the court and in the hands of a third party, to ob- 
 tain the original before the copy will be received in evidence. In the 
 Dickison case a copy of a deed was offered in evidence, which the 
 proof, which was in the form of an affidavit, tended to show was in 
 the hands of the plaintiff's grantor in the State of Indiana. The court 
 held that the plaintiff should have taken the deposition of his grantor 
 and not have relied upon a copy of the deed. In the Fisher case the 
 party who held the original power of attorney resided in the State of 
 New York, and upon his deposition being taken, refused upon request 
 to attach the instrument to his deposition, and it was held that upon 
 such refusal a sworn copy of the power of attorney annexed to the 
 deposition of another witness was properly received in evidence. And 
 in the Bishop case, on page 307, it was said : "Secondary evidence 
 may be offered to prove the substance of a document which it is out. 
 of the power of the party to produce; and this rule applies to papers 
 out of the jurisdiction of the court, provided due effort be made to 
 obtain such papers." 
 
 We think the rule in force in this State the sounder one of the two 
 rules above announced, as under the rule in force in Alabama and some 
 other States it is only necessary to introduce proof that the deed, con- 
 tract or other instrument in writing relied upon is in the hands of a 
 third party outside of the state to entitle a copy thereof to be admitted 
 in evidence. In the Dickison case, on page 187, it was said: "There is 
 much danger in allowing the introduction of copies without fully es- 
 tablishing the fact of the existence, at some time, of an original and of 
 its subsequent loss or destruction, so that after diligent search it could 
 not be found. Justice and the safety of the people require a rigid rule 
 to be applied and enforced in such cases." We think it clear the trial 
 court followed the rule established in this State, and that it did not 
 err in refusing to admit in evidence the copy of said agreement. 
 
 The judgment of the Appellate Court will be affirmed. 
 
 Judgment affirmed.
 
 THE BEST EVIDENCE RULE 655 
 
 COOMBS et al. v. COOK. 
 35 Okla. 326. (1912) 
 
 HAYES, J. Plaintiffs in error brought this action in the court below 
 to quiet title to an undivided half interest in a certain tract of land 
 consisting of 225 acres, situated in McCurtain county in this state, and 
 to obtain a decree of partition. 
 
 The case was tried to the court without a jury. Before any evi- 
 dence was heard, the following stipulation was made in open court: 
 
 "For the purposes of this trial, it is stipulated in open court between 
 attorneys for the plaintiffs and the attorneys for Betsy Cook that the 
 land in controversy was the allotment of Isabel O'Bannon, who was 
 enrolled as a full-blooded Choctaw, and who died intestate in McCur- 
 tain county. It is further stipulated that the defendant Betsy Cook, 
 formerly Betsy Durant, is enrolled opposite enrolment No. 2083 as a 
 full-blood Choctaw, and said certificate is made a part of this stipula- 
 tion. It is further stipulated that David James, Rachel James, and 
 Margaret Keel have conveyed to the plaintiffs their interest in the land 
 described in this petition, which interest depends on the ascertainment 
 of the question of adoption in this case. It is further stipulated that 
 the only issue of law and fact between the defendant, Betsy Cook and 
 the plaintiffs is the fact and sufficiency of the adoption pleaded as a 
 separate answer of Betsy Cook." 
 
 The trial court found the issues generally in favor of Betsy Cook 
 and against the plaintiffs, and found specially that Isabel O'Bannon 
 was a Choctaw Indian, and that in the year 1892 she adopted Betsy 
 Cook, as alleged in her answer in accordance with the laws of the Choc- 
 taw nation; that she died in March, 1907, after having taken as her 
 allotment the land in controversy; that she left surviving her as her 
 kinsmen only the persons named in plaintiffs' petition; and that Betsy 
 Cook, as her legally adopted child, is the sole and only heir to her es- 
 tate, and rendered judgment in her favor accordingly, from which 
 judgment only plaintiffs in error, plaintiffs below, prosecute this appeal. 
 
 All of defendant's evidence, by which the fact of her adoption was 
 established, was parol evidence, made after proof that the records of 
 the court in which the order of adoption was made had been destroyed. 
 Plaintiffs rely for reversal of the cause upon four contentions : First, 
 that the evidence fails to establish that there was ever a record in any 
 court that had jurisdiction; second, that, if such record ever existed, 
 the evidence does not establish that it is lost and cannot be found;
 
 656 CASES ON EVIDENCE 
 
 third, that the contents of such record has not been shown; fourth, 
 that, if the evidence established an adoption under the laws of the 
 Choctaw nation, the statutes of that nation, in so far as made part of 
 the evidence at this trial, fail to show that an adoption of a child has 
 the effect to confer upon it the right to inherit from the adopting par- 
 ent. The first three of these contentions may be discussed together. 
 
 Defendant in error pleaded in her answer and proved the following 
 tribal statute of the Choctaw nation : 
 
 "Any person or persons who may wish to adopt illegitimate or or- 
 phan child or children shall file a petition to that effect with the clerk 
 of the county they may reside in, which shall remain on file for 30 
 days ; and, if no legal or just cause is shown why the petition shall not 
 be granted, then the county judge shall grant the petition and cause 
 the same to be recorded in the county clerk's office, after which the 
 adoption shall be as binding as if done by a special act of the general 
 council." 
 
 Where under the provisions of the statute, an adoption is effected 
 by an order of the court, the records of such court constitute the evi- 
 dence by which such adoption may be established. Quinn v. Quinn, 5 
 S. D. 328, 58 N. W. 808, 49 Am. St. Rep. 875. 
 
 In the absence of proof of such order of adoption by the court, as 
 provided by the statute, no presumption of adoption will arise from 
 the fact that a child has lived with a person, who is not his parent, 
 and has been treated as a child; but, where the records of the court 
 or the adoption papers have been destroyed or lost, proof of the con- 
 tents of such records or papers by parol testimony then may be made, 
 and circumstantial evidence, including acts and declarations of the 
 adopting parent relative to such adoption may be admitted. Naworth 
 v. Hawaorth et al., 123 Mo. App. 303, 100 S. W. 531 ; Moore v. Bry- 
 ant, 10 Tex. Civ. App. 131, 31 S. W. 223; Kennedy v. Borah, 226 111. 
 243, 80 N. E. 767. 
 
 All of the evidence relative to defendant's adoption is practically 
 uncontroverted by plaintiffs. 
 
 One witness by the name of Wilson, who was district judge of the 
 Choctaw Nation for Towson county at the time of the admission of 
 the state, testifies that he had resided in Towson county during his en- 
 tire life; that in 1892, and 1893 his father was county judge of said 
 county; that he had been familiar with the records and affairs of the 
 County Court of that county ; that the records of that court, made from 
 1890 to 1894, were burned; that the county clerk kept said records at 
 his home, as there was no office for them to be kept in at the time;
 
 THE BEST EVIDENCE RULE 657 
 
 and that the clerk's residence was burned and the records of the court 
 destroyed, so that they were never brought back to court. He did not 
 remember the exact date of the fire, but that it occurred along about 
 1894 or 1895. During this time Henry Williams was clerk of the 
 county. Both he and the judge of the County Court at the time of the 
 adoption proceeding have been dead for a number of years. Another 
 witness, who for a number of years was an officer of Towson county, 
 either in the capacity of sheriff, deputy sheriff, or special ranger, testi- 
 fies also that the records of the County Court during the years 1892 
 and 1893 were burned up; the exact date of the fire he could not give, 
 but thought it was about the year 1897, which date he fixed by the fact 
 that on the ist day of October, 1897, he qualified as sheriff of that 
 county. He testifies that, after the burning of the county clerk's resi- 
 dence, the records were never seen by any one. The same witness tes- 
 tifies that he had known both defendant and Isabel O'Bannon prac- 
 tically eyer since the birth of defendant. During the greater portion of 
 said time, he has lived near them. He was in court in the early part 
 of 1892 when Isabel O'Bannon handed to him a petition for the adop- 
 tion of defendant as her child, which witness, upon request of Isabel 
 O'Bannon, handed to the court. Witness did not read the petition then, 
 but did so after it had been spread upon the records of the court. He 
 was present when the court announced its order permitting the adop- 
 tion, and afterwards read the order of adoption upon the records of 
 the court. He could not remember all the content of the record, but 
 does remember that it provided that: "The adoption of such child to 
 be accepted as the adopted child of Mrs. O'Bannon. The proceeding 
 was complete of the adoption of this child, Betsy Durant, to Mrs. 
 O'Bannon." The same witness testifies that, during her entire life 
 thereafter, Isabel O'Bannon treated defendant as her child, and stated 
 that she had adopted her, and that the child would inherit everything 
 she left at her death. Other witnesses testified that they were pres- 
 ent in court when a petition for the adoption was presented, and when 
 an order was made thereon. None of them had read the order as en- 
 tered on the records of the court and was able to testify as to the con- 
 tents of the record ; but all the evidence tends to corroborate the testi- 
 mony of the one witness who testified that he read the order, and that 
 it did decree an adoption. 
 
 We think the foregoing evidence sufficient to establish the existence 
 of the record of adoption and the contents thereof. It is true that 
 defendant does not show that she has made any search for such rec- 
 ord; but the evidence of the foregoing mentioned witnesses, to the
 
 658 CASES ON EVIDENCE 
 
 effect that the records were burned, is corroborated by other evidence. 
 One witness who had married about the time this adoption occurred, 
 testified that he had made a search for the records of the office in order 
 to obtain a copy of his marriage license, and had been unable to find 
 the records ; that they had been burned. It is true that secondary evi- 
 dence as to the contents of records or written instruments is not ad- 
 missible as a general rule, without a showing, on the part of the person 
 offering such evidence, that he has made a diligent effort to locate the 
 written record or instrument, and has been unable to do so because 
 of. the fact they are lost or destroyed, but the law does not require a 
 useless thing; and, where the evidence is sufficient that the record or 
 written instrument has been destroyed by fire, there can be no reason 
 or good purpose subserved by requiring the person offering secondary 
 evidence thereof to make search for such destroyed instrument or rec- 
 ord. 
 
 The judgment of the trial court is accordingly affirmed. 
 
 OVERLOOK v. HALL. 
 81 Me. 348. (1889) 
 
 WALTON, J. The exceptions state that the presiding judge against 
 the objection of the plaintiff, allowed the defendant to prove the con- 
 tents of a letter by secondary evidence, when no notice had been given, 
 before the trial began, to produce the letter. But the exceptions also 
 state that the letter in question was in court, and in the hands of the 
 plaintiff's counsel, and that while the trial was in progress, the de- 
 fendant's counsel gave him notice to produce it, and that the letter 
 not being produced, the defendant was then allowed to prove its con- 
 tents by secondary evidence. 
 
 We think the ruling was correct. We understand it to be now set- 
 tled law, both in England and in this country, that notice before the 
 trial begins is not necessary when the writing is in court and in the 
 hands of the adverse party, or his counsel. The old authorities seem 
 to doubt the propriety of such a relaxation of the rule. But Mr. Ste- 
 phen, in his Digest of the Law of Evidence (art. 68) says that such 
 is now the settled law in England. And the plaintiff's counsel admits 
 that the law is so laid down by Mr. Wharton in his work on evidence.
 
 THE BEST EVIDENCE RULE 659 
 
 And we quote the following statement of the law from Fisher's Eng- 
 lish Digest : 
 
 "The principle on which notice to produce a document is required 
 by law, is merely to give a sufficient opportunity to the opposite party 
 to have the document in court to produce if he likes, and so secure the 
 best evidence of its contents, and if he does not, to enable his adver- 
 sary to give secondary evidence. Therefore, where a party to a suit, 
 or his attorney, has a document with him in court, he may be called 
 to produce it without previous notice, and in the event of his refusing, 
 the opposite party may give secondary evidence." Dwyer v. Collins, 
 7 Exch. 639. And we find a similar statement of the law in the Amer- 
 ican Digest, citing Anon. Anth. (N. Y.) 199; Brown v. Isbell, n Ala. 
 1009; Dana v. Boyd, 2 J. J. Marsh (Ky.) 587. 
 
 Our rule of court establishes no new principle. It merely affirms a 
 well settled rule of the common law. So held in State v. Mayberry, 48 
 Me. 218. And it must be accepted and enforced with such limitations 
 and exceptions as experience has shown to be reasonable and proper. 
 Mr. Stephen in his admirable condensation of the law of evidence (art. 
 68) states these exceptions as follows : 
 
 Notice is not required in order to render secondary evidence admis- 
 sible. 
 
 1. When the document to be proved is itself a notice. 
 
 2. When the action is founded on the assumption that the document 
 is in the possession or power of the adverse party and requires its pro- 
 duction. 
 
 3. When it appears or is proved that the adverse party has ob- 
 tained possession of the original from a person subpoenaed to pro- 
 duce it. 
 
 4. When the adverse party or his agent has the original in court. 
 
 Exceptions overruled. 
 
 JUDKINS v. WOODMAN. 
 81 Me. 351. (i88p) 
 
 WALTON, J. The question is whether, if the mortgagor of a farm, 
 while remaining in possession, cuts a reasonable quantity of wood for 
 his own use as fuel, he can on leaving the farm, remove the. wood for 
 use elsewhere. His right to cut the wood is not denied. His right to
 
 660 CASES ON EVIDENCE 
 
 remove it for use elsewhere is denied. Assuming that the wood was 
 lawfully cut, being reasonable in amount, and in cutting it that no rule 
 of good husbandry was violated, we think that upon leaving the farm 
 the mortgagor would have a right to take the wood with him. When 
 severed from the soil, if rightfully and lawfully severed, the wood 
 would become a mere chattel, and would no more belong to the mort- 
 gagee than hay or grain or fruit harvested from the farm. This rule 
 does not apply to wood or timber unlawfully cut; it applies only to 
 wood lawfully cut for fuel for family use. Such in effect was the 
 ruling of the judge who tried the case, and we think the ruling was 
 correct. 
 
 ' Objection was made to the admission in evidence of a paper said to 
 be a schedule of articles claimed by the mortgagees, and on which the 
 wood in question does not appear. It was objected to on the ground 
 of irelevancy. We think it was admissible upon the same ground that 
 any declaration of a party, written or oral, is admissible. Its proba- 
 tive force, if any, was for the jury. 
 
 Exceptions overruled. 
 
 KNOWLTON v. KNOWLTON. 
 84 Me. 283. (1892) 
 
 PETERS, C. J. In this action the plaintiff declares on a judgment 
 alleged to have- been recovered by him against the defendant, in 1867, 
 before Robert Goodenow, Esquire, a trial justice, now deceased. To 
 enable him to introduce secondary evidence of the contents of the 
 alleged record, it became necessary to first prove that the original had 
 been destroyed or lost. Two places would naturally be suggested as 
 necessary to be searched for the missing record. One is the county 
 clerk's office ; because the statute requires that all official papers of a 
 trial justice shall be deposited after his death by his executor or ad- 
 ministrator in such office. But the record could not be found there. 
 The next inquiry would be of the executor or administrator of the de- 
 ceased justice. The case does not inform us whether there is or ever 
 was any administrator upon his estate. But the plaintiff was allowed 
 to produce as evidence the following affidavit: "I, Lucy B. Goode- 
 now, of Farmington, Maine, on oath depose and say : That I am a 
 daughter-in-law of the late Robert Goodenow of said Farmington.
 
 THE BEST EVIDENCE RULE 661 
 
 That I have in my custody npne of the papers of said Robert Goode- 
 now. 
 
 "That I have heretofore made diligent search for the records kept 
 by him of his proceedings as trial justice and have been unable to find 
 the same. That if said records were in this State I would be likely to 
 know it. That I have no personal knowledge of their whereabouts, 
 but they are undoubtedly in the hands of some one out of the State. 
 Lucy B. Goodenow." 
 
 This affidavit, instead of proving the records lost, proves the con- 
 trary, and that "they are in the hands of some one out of the State." 
 There is in this document a very positive intimation that Airs. Goode- 
 now knows where and in whose hands the papers are. Now the plain- 
 tiff is not excused from further search merely because the papers are 
 shown to be out of the State. Due search requires that he produce 
 them or show a reasonable excuse for his failure to do so. Until that 
 be done proof of their contents cannot properly be received. Whar. 
 Ev. sec. 130, and cases in note. Here the deficiency of proof is not 
 supplied, nor is it in any way legally excused. 
 
 Judgment for defendant. 
 
 WALTON, VIRGIN, EMERY, FOSTER and HASKELL, JJ., concurred. 
 
 HOISTING MACHINERY CO. v. GOELIER IRON WKS. 
 84 N. J. L. 504. (1913) 
 
 TRENCHARD, J. This suit was brought to recover a commission of 
 five per cent for the services of the plaintiff, a mechanical engineering 
 company, in procuring for the defendant, who was engaged in the 
 business of constructing and erecting iron work, a contract with the 
 Harwood Electrical Company. 
 
 Judgment was entered for the plaintiff for the sum of $462.98, be- 
 ing five per cent of $8,432.28, with interest, and the defendant ap- 
 pealed. 
 
 It is first urged as a reason for reversal that the judge erred in per- 
 mitting Charles Goeller, the president of the defendant company, to 
 answer the following question put by the plaintiff's attorney: "Was 
 John Goelier the secretary of the defendant company on August 23rd, 
 1909?" The only objection stated was that such evidence was not the 
 best evidence. We think there was no merit in the contention. The
 
 662 CASES ON EVIDENCE 
 
 incumbency of the office was not in issue, and the fact sought to be 
 proved was collateral in character. Star Grocer Co. v. Bradford, 70 
 W. V. 496; 39 L. R. A. (N. S.) 184; 10 Cyc. 943. 
 'The judgment will be affirmed. 
 
 HIBERNIA SAVINGS AND LOAN SOC. v. BOYD. 
 155 Cal. 193. (1909) 
 
 ANGEU,OTTI, J. This is an action on an alleged judgment for de- 
 ficiency after foreclosure sale of mortgaged premises. A verdict in 
 favor of plaintiff for the amount of such alleged judgment, with in- 
 terest, was rendered by the jury trying the case, in accord with an in- 
 struction of the trial court directing them to so do. This is an appeal 
 by defendant from the judgment entered on such verdict, and from an 
 order denying his motion for a new trial. 
 
 Upon the facts, as established by the admissions of the answer and 
 the uncontroverted evidence given at the trial, the trial court was fully 
 warranted in instructing the jury to find for the plaintiff. 
 
 What we have said disposes of all the points made by appellant, ex- 
 cept the contention that the trial court erred in admitting oral testi- 
 mony to prove the record in the foreclosure case, including the de- 
 ficiency judgment. As we have said, all records appertaining thereto 
 had been destroyed in the general conflagration of April 19-20, 1906, 
 and proof of such destruction was made to the trial court. This con- 
 tention appears to be based on the act of June 16, 1906, providing for 
 the restoration of court records which have been lost, injured, or de- 
 stroyed by conflagration or other public calamity (Stats. 1906, p. 73), 
 which it is claimed provides an exclusive remedy and forbids all other 
 proof of lost judicial records. It is not claimed in the absence of such 
 act oral proof of the records would not have been admissible. A judi- 
 cial record is a public writing (Code. Civ. Prbc., sec. 1894), and section 
 1855 of the Code of Civil Procedure provides in terms that when an 
 original writing has been lost or destroyed and proof of such loss or 
 destruction made, it may be shown either by copy or oral evidence of 
 its contents. In Ames v. Hoy, 12 Cal. II, an action on a judgment, 
 it was in terms held that parol evidence was admissible to show the 
 existence and contents of a judgment, the record of which had been 
 destroyed by fire. The court very tersely disposed of the objection
 
 THE BEST EVIDENCE; RULE 663 
 
 of the defendant in this regard, saying: "It is also argued that the 
 destruction of the book containing the judgment is the destruction of 
 the judgment itself; so that the primary evidence of the judgment be- 
 ing removed, no other proof of it is admissible. We think that this 
 position is alike indefensible in reason and on authority. " (See, also, 
 In re Warfield, 22 Cal. 51, 64, [83 Am. Dec. 49].) Mr. Freeman 
 quotes approvingly the rule announced by Mr. Greenleaf in his work 
 on evidence, as follows : "If the record be lost, and is ancient, its ex- 
 istence and contents may sometimes be presumed; but whether it be 
 ancient or recent, after proof of the loss, its contents may be proved, 
 like any other document, by any secondary evidence, where the case 
 does not, from its nature, disclose the existence of other and better 
 evidence," and declares this rule to be sustained, beyond a doubt, by 
 the weight of authority. (2 Freeman on Judgments, sec. 407 and 
 note.) After a careful examination of its contents, we are satisfied 
 that the act of June 16, 1906, should not be construed as purporting 
 to make any change in this well-settled rule of evidence. 
 The judgment and order are affirmed. 
 
 DAVIS v. MONTGOMERY. 
 205 Mo. 273. (1907) 
 
 WOODSON, J. The plaintiff instituted this suit in the Circuit Court 
 of New Madrid County. The petition states that plaintiff was the 
 owner of certain lands described in the petition, and that defendants 
 claimed some interest therein under and by virtue of a certain tax 
 deed, which plaintiff alleged was void for want of proper service on 
 the defendants, and prayed that the title and interest of all parties 
 in and to said land be ascertained and determined by the court, as pro- 
 vided by section 650, Revised Statutes 1899. 
 
 The answer was a general denial and a plea of the thirty-year Stat- 
 ute of Limitations. 
 
 The replication was a general denial of the new matter set up in 
 the answer. 
 
 There are but two questions presented by the record in this court 
 for consideration. The first is, can the contents of a lost or destroyed 
 record be shown by parol evidence? and, second, were the allegations 
 of the petition and the order of publication sufficient to give the Cir-
 
 664 CASES ON EVIDENCE 
 
 cult Court jurisdiction over the subject matter in the case of Steel, 
 Collector v. The Unknown Heirs of Robert C. Hayes? 
 
 The defendants contend that the action of the court in permitting 
 the introduction of parol evidence to show the contents of the order 
 of publication in that case was erroneous. The evidence of the cir- 
 cuit clerk and that of his deputy showed that they made diligent search 
 in their office for the record of that order and that it could not be 
 found; and the evidence of Mr. Wright, the editor of the Weekly 
 Record, showed that the order of publication was delivered to him for 
 publication, and that it was duly published in his paper, and that it was 
 an exact copy of the order admitted in evidence, and that the certified 
 copy delivered to him for publication had been destroyed by fire in 
 the year of 1899. 
 
 The record clearly shows that said order of publication had been 
 made and published, and had either been lost or destroyed prior to the 
 date of the trial of this suit. 
 
 The rule of law in this State is well settled, that the contents of a 
 lost or destroyed record may be established by parol evidence in the 
 same manner as the contents of other lost or destroyed documents 
 are shown. (Parry v. Walser, 57 Mo. 169; Foulk v. Colburn, 48 Mo. 
 225 ; Land & Mining Co. v. Land & Cattle Co., 187 Mo. 420.) 
 
 The recital in the judgment rendered in that case to the effect that 
 the defendants had been duly notified by publication of the institution 
 and the nature of that suit did not prevent plaintiff in this suit from 
 showing by parol evidence that the order of publication did not com- 
 ply with the provisions of section 580, Revised Statutes 1899, because, 
 as stated by Valliant, J., in speaking for this court, in a well and very 
 carefully considered case: "Appellant contends that the recital in the 
 tax judgment to the effect that the summons was served cannot be 
 overcome by the evidence of those witnesses. If the files in the case 
 were accessible, the return itself would be the best evidence, and by 
 it the recital in the judgment would be contradicted, but when the files 
 in the case are lost their contents can be proven by the next best evi- 
 dence." (Land & Alining Co. v. Land & Cattle Co., 187 Mo. i c. 433.) 
 
 In the case at bar, the record of the order of publication and the 
 certified copy which was delivered to the publisher were both lost or 
 destroyed. Under those circumstances it was proper for the court to 
 admit in evidence the files of the paper containing the publication of 
 the lost or destroyed order. The editor swore the files contained a 
 true and correct copy of the order delivered to him by the clerk for 
 publication. This made the files the next best evidence of the publi-
 
 THE BEST EVIDENCE RULE 665 
 
 cation of the order. (St. Louis Ins. Co. v. Cohen, 9 Mo. 421 ; Brown 
 v. Railroad, 69 Mo. App. 584.) 
 
 It follows from what has been said, that there was no error in the 
 action of the trial court in admitting parol evidence to prove the con- 
 tents of the lost or destroyed record of the order of publication, notify- 
 ing the defendants of the institution of the suit of Steel, Collector, v. 
 the Unknown Heirs of Robert C. Hayes, deceased. 
 
 For the reasons herein stated, the judgment of the Circuit Court is 
 hereby affirmed. 
 
 All concur. 
 
 MORRISON v. WEIK. 
 ip Cal. App. 139. (1912) 
 
 The facts are stated in the opinion of the court. 
 
 SHAW, J. Action to have a certain deed, which purported to have 
 been made by plaintiff to defendant Anna Ilmer Weik, canceled and 
 annulled upon the ground that the signature thereto had been forged 
 by defendants. The court upon ample evidence found that the instru- 
 ment had been duly signed and executed by plaintiff, and accordingly 
 gave judgment for defendants, from which, and an order denying her 
 motion for a"*new trial, plaintiff appeals. 
 
 The sole alleged error upon which appellant bases her claim for re- 
 versal is that the court, over plaintiff's objection, permitted the intro- 
 duction of evidence on behalf of defendants tending to show that plain- 
 tiff signed and executed the deed which defendants were, by reason of 
 the loss thereof, unable to produce in court. Plaintiff testified that 
 she did not sign the deed, and now on appeal contends that defendants 
 should not have been permitted to prove the contrary, since they did 
 not produce the deed, nor offer sufficient proof of its loss. The ques- 
 tion at issue, however, was not the contents of the instrument, which, 
 it was conceded by the complaint, purported to be a conveyance of the 
 property described therein, but whether the name of plaintiff attached 
 thereto was in fact her genuine signature. While the production of 
 the alleged forged signature would have afforded opportunity for its 
 inspection and comparison with admitted genuine signatures of plain- 
 tiff, thus aiding in the determination of the question at issue, the want 
 of such production constituted no ground for the exclusion of evidence
 
 666 CASES ON EVIDENCE 
 
 touching the fact in controversy, upon the ground that it was sec- 
 ondary in character, and hence not admissible until the loss of the 
 deed was shown. Moreover, conceding that the testimony offered, and 
 to the introduction of which plaintiff objected, was competent only 
 upon proof of the loss of the instrument, we think the evidence clearly 
 and sufficiently established such fact. The evidence shows that sub- 
 sequent to the bringing of the suit accusing defendants of the forgery, 
 one of them, Fred G. Weik, had the deed in his possession, and, ac- 
 companied by his attorney, went to the office of plaintiff's attorney 
 to whom he exhibited the deed and tendered it to him for inspection. 
 Upon the latter refusing to accept it or look at it, the same was re- 
 turned to the office of his attorney. Thereafter defendant obtained it 
 to show to some of his friends and again returned it to the office of his 
 attorney. It appears that both said defendant and his attorney made 
 diligent search and effort, but without success, to find the deed. The 
 fact that the deed was tendered to plaintiff's attorney for inspection 
 negatives any suspicion that might otherwise arise from withholding 
 it. Without entering upon a full discussion of the evidence, suffice 
 it to say that it was sufficient to satisfy the mind of the court that the 
 instrument was unintentionally mislaid or lost, and that after a diligent 
 search made there for it could not be found. Such preliminary proof 
 is left to the discretion of the trial judge, and unless manifestly in- 
 sufficient to warrant the introduction of secondary evidence, his rul- 
 ing will not be disturbed on appeal. (Kenniff v. Cauleld, 140 Cal. 
 35 ; 73 Pac. 803.) . 
 
 Judgment and order appealed from are affirmed. 
 , P. J., and JAMES, J., concurred. 
 
 .MORRISON v. PRICE, &c. 
 130 Ky. 139. (1908) 
 
 OPINION OF THE COURT BY JUDGE HOBSON Reversing. 
 
 Mrs. Joyce Morrison brought this suit against Henry Price and 
 Oliver Blair to recover damages for their forcibly seizing her and put- 
 ting her and her property out of a house which she occupied as the 
 tenant of Price. The defendants filed answer, in which they traversed 
 the allegations of the petition. 
 
 The court at the conclusion of the evidence instructed the jury per-
 
 THE BEST EVIDENCE RULE 667 
 
 emptorily to find for the defendants, which was done; and, the plain- 
 tiff's petition having been dismissed she appeals. 
 
 The plaintiff offered in evidence a deposition taken by a commis- 
 sioner in a proceeding to supply the lost record ; the papers of the pro- 
 ceeding in which judgment was rendered in her favor being lost. The 
 court properly sustained exceptions to this deposition. When the pa- 
 pers of a case are lost, and a proceeding is instituted to supply the lost 
 record, the proof taken by the commissioner may not be read as a 
 substituted record. In Mayo v. Emery, 103 Ky. 640, 45 S. W. 1048, 
 20 Ky. Law Rep. 638, the court said : "The statute provides that the 
 evidence which the commissioner takes shall be in writing, and shall 
 be legal evidence, and shall be returned to the clerk of the court and 
 safely kept by him. The statute does not provide that the evidence 
 which the commissioner is required to take shall be used in place of 
 the parts of the record which are lost. The testimony which he takes 
 is simply the evidence upon which the court must act in making a sub- 
 stitution for the lost record. To supply the lost record, it is essential 
 that the court should make an order to that effect, and he sends his 
 commissioner out to get the evidence upon which to act." When the 
 record has been thus supplied by an order of court, the judgment of 
 the court is conclusive that all preliminary steps were properly taken ; 
 but, until it is thus supplied, the substituted record cannot be read. 
 
 Where the record is lost, and has not been supplied, the contents of 
 the lost record may be shown by parol evidence, just as the contents 
 of any other lost paper may be shown. Bullock v. Commonwealth, 96 
 Ky. 537, 29 S. W. 341, 16 Ky. Law Rep. 621. It is common practice 
 to prove by parol evidence the contents of a lost deed, where the rec- 
 ord has been destroyed ; and there is no reason why the contents of a 
 judicial record may not be proved in the same way until it is supplied. 
 The court, therefore, improperly excluded the testimony of Mrs. Mor- 
 rison and the police judge as to the record being lost and as to its con- 
 tents. 
 
 Judgment reversed and the cause remanded for a new trial.
 
 668 CASES ON EVIDENCE 
 
 ATLANTIC COAST LINE RAILROAD CO. v. HILL. 
 12 Ga. App. 392. (1912) 
 
 RUSSELL, J. Hill brought an action in the City Court of Nashville 
 against the Atlantic Coast Line Railroad Company to recover for dam- 
 age to a lot of household goods and furniture which he alleged he, as 
 consignee, had received from this carrier at destination in a damaged 
 condition. The jury returned a verdict in favor of the plaintiff, and 
 the defendant excepts to the overruling of its demurrers, the refusal 
 to strike a notice to produce certain papers which had been served upon 
 the defendant, and the overruling of its motion for a new trial. 
 
 The motion for a new trial assigns error upon the court's permitting 
 the plaintiff, while testifying, to read from a book kept by himself and 
 testify therefrom; because the defendant had produced a copy of the 
 bill of lading showing what goods were shipped, delivered, and received 
 by the defendant, and because oral testimony was not admissible when 
 a correct copy of the documentary testimony was obtainable, and es- 
 pecially when it had not been shown that the original papers called for 
 in the notice were in the possession of the defendant. As to these ob- 
 jections it is only necessary to say that the plaintiff testified that he 
 had delivered the original bill of lading, along with the notice to trace, 
 to an agent of the defendant and the defendant failed to produce it on 
 notice to produce. The plaintiff was therefore permitted to prove by 
 secondary evidence (such as his oral testimony would be) what was 
 actually delivered to the carrier. Crawford v. Hodge, 81 Ga. 728 (8 
 S. E. 208). If the original bill of lading had been produced, it would 
 have been prima facie evidence to the same point, but its statement of 
 the articles received would not be conclusive upon the shipper. As to 
 the shipper the bill of lading is in the nature of a receipt given by the 
 opposite party, and he may show, if he can, that it does not evidence 
 the acceptance of all of the articles he delivered to the carrier. It is 
 not error to allow the plaintiff to refer to his book, as it does not ap- 
 pear that he testified from his book, and not from his memory. A 
 witness may use any memorandum, useful for that purpose, to refresh 
 his recollection, and his testimony will not be objectionable, if it is, at 
 last, not entirely dependent upon the memorandum, but based upon 
 his- memory, even though the memorandum may be necessary in order 
 to refresh his recollection. 
 
 There was no error in permitting the oral testimony complained of 
 in the 4th ground of the amendment to the motion for new trial, over
 
 THE BEST EVIDENCE RULE 669 
 
 the defendant's objection that "the way-bill or dray ticket" was higher 
 and better evidence. The defendant had failed to produce this way- 
 bill or dray ticket, if he had it in his possession, or to show that it was 
 lost or destroyed, and the court's ruling was therefore in accord with 
 what has just been held. Crawford v. Hodge, supra. 
 
 Judgment affirmed. 
 
 BRENTNER v. THE C. M. & ST. P. R. CO. 
 58 Iowa 625. (1882) 
 
 Action to recover double damages for certain cattle alleged to have 
 been killed by one of the defendant's trains where it had a right to 
 fence. There was a trial to a jury, and a verdict and judgment were 
 rendered for the plaintiff. The defendant appeals. 
 
 ADAMS, J. A question was raised as to the proof of service of the 
 notice and affidavit of loss required by statute to entitle the plaintiff to 
 double damages. The service, if made, was made by one Summer, 
 who made an affidavit to the effect that he served a notice and affidavit 
 of loss upon the defendant' station agent by reading them to him and 
 leaving the same with him ; duplicate originals of which were annexed 
 to his affidavit. The papers introduced in evidence were the so called 
 duplicate originals to which the affidavit of service was annexed. The 
 defendant objected upon the ground that the papers were inadmissible 
 without first having called upon the defendant to produce the notice 
 and affidavit read to, and left with the defendant's station agent. The 
 defendant relies upon McNaught v. C. & N. W. R'y Co., 30 Iowa 336 ; 
 Cole v. C. & N. W. R'y Co., 38 id. 311 ; Campbell v. C. R. I. & P. 
 R. R. Co., 35 id. 334. 
 
 The doctrine of those cases is that the service cannot be made by 
 leaving a copy of the affidavit of loss, but must be made by leaving the 
 original. What was served in this case was without question the orig- 
 inal, if what the plaintiff claims was served was in fact served. The 
 question presented is, as to whether the original papers left with the 
 defendant's agent are to be deemed the best evidence and all other evi- 
 dence secondary. If so the plaintiff was not entitled to introduce the 
 evidence which he did, without first showing that he had notified the 
 defendant to produce the papers left with its agent. 
 
 The doctrine is familiar that where a person seeks to give evidence
 
 670 CASKS ON EVIDENCE 
 
 of the contents of an instrument he must produce the original or ac- 
 count in some way for its non-production. But the papers in question 
 were not, we think, instruments in such sense as would justify us 
 in applying the rule above mentioned. It has been repeatedly held that 
 proof of the service of a notice can be made without notice to the 
 other party to produce the notice served. Atwell v. Grant, n Md. 
 loi ; Central Bank v. Allen, 16 Me. 41 ; Eagle Bank v. Chapin, 3 Pick. 
 180; Falkner v. Beers, 2 Doug. (Mich.) 117; Leavitt v. Lines, 3 N. 
 H. 14; Morrow v. Commonwealth, 48 Penn. St. 305. See also I 
 Greenleaf on Ev., sec. 561. Now while one of the papers in this case 
 was an affidavit, it falls, we think under the same principle. It was 
 a mere amplification of the notice by a sworn statement of the truth 
 of the matters of which the defendant was notified. The papers in- 
 troduced were said to be duplicate originals. If so they must have 
 been equivalent to an exact copy which is the essential idea; and as 
 such they were admissible as a means of describing the papers served 
 
 Reversed on other grounds. 
 
 TRAINOR v. LEE, CITY TREASURER. 
 34 R. I. 345. (1912) 
 
 PARKHURST, J. This is an action on the case to recover the sum of 
 four hundred and forty-three dollars and twenty-one cents ($443.21), 
 for services rendered by the plaintiff as Chief of Police, Town Ser- 
 geant, and Dog Officer of the town of Cranston in the city of Cranston. 
 
 The next exception relates to the testimony offered by the defend- 
 ant's counsel, that there was no appropriation made by any proper 
 authority, from which payment of the plaintiff's claim could properly 
 be made. Defendant's counsel offered himself as a witness as to the 
 facts, without attempting to produce, or to account for the lack of, 
 record evidence on this point, where it was quite evident that such rec- 
 ord evidence could and should have been produced, if it existed. It 
 is quite manifest that it would have been error to allow him to offer 
 his oral evidence of such matters. 3 Elliot Ev. 1942; Owings v. Speed, 
 5 Wheat. 420; Hutchinson v. Pratt, n Vt. 402; Gilbert v. New Ha- 
 ven, 40 Conn. 102; Morrison v. Lawrance, 98 Mass. 219, 221. This 
 exception, is overruled. 
 
 We find no error; the exceptions alleged by the defendants are all
 
 THE BEST EVIDENCE RULE 671 
 
 overruled, and the case is remitted to the Superior Court with direc- 
 tion to enter judgment upon the verdict for the plaintiff. 
 
 COMMONWEALTH v. MORRELL. 
 pp Mass. 542. (1868) 
 
 Indictment for robbery. At the trial in the Superior Court before 
 Devens, J., the defendants were found guilty, and alleged exceptions 
 which were allowed as follows: 
 
 "The evidence for the commonwealth tended to show that Thomas 
 Wait of Greenfield was robbed on the night of February 19, 1867, at 
 Greenfield. There was further evidence tending to show that Anthony 
 Baker, one of the defendants, the day after the robbery shipped by 
 express from South Deerfield two valises for Chicago, Illinois. The 
 express agent at South Deerfield testified that he affixed tags to the 
 valises, which he marked by direction of Baker, 'B. Anthony, Chicago, 
 111.,' which name Baker gave as his own. Afterwards James P. Wade, 
 a detective officer, testified that he and one Jones, his partner, arrested 
 the defendants at Chicago, took possession of their baggage, and de- 
 tached the tags from their valises for the purpose of preserving them 
 as evidence. The witness was proceeding to state what was written on 
 the tags so detached by them 'when the defendants' counsel objected, 
 claiming that the tags must be produced or shown to be lost before the 
 writing thereon could be given by the witness. The witness then testi- 
 fied that he had kept the tags, taken them to Boston, and given them 
 to Jones, and that they had been placed by Jones in a drawer in the 
 office jointly occupied by Jones and the witness, to which drawer they 
 both had access and keys, and of which both had equal control; 
 that they could not find them, and he believed them to be lost. 
 Jones was not called as a witness. On this testimony, and against the 
 defendants' objection, the presiding judge ruled that the witness might 
 state what was written on the tags ; and the witness stated that on the 
 tags was written 'B. Anthony, Chicago, 111.'" 
 
 CHAPMAN, C. J. The law generally requires the production of the 
 highest evidence of which a thing is capable ; and evidence is to be ex- 
 cluded which supposes still higher evidence behind in the possession 
 or power of the party. But the rule is far from being universal. For 
 example, it does not require that a supposed writer shall be called to
 
 672 CASES ON EVIDENCE 
 
 prove his own handwriting, or that a person whose identity is to be 
 proved shall be produced in court. The same is true in respect to an 
 animal or any other object the identity of which is to be proved. 
 
 The general rule is most frequently applied to writings, where proof 
 is offered of their contents. The writing itself must be produced. But 
 there are many exceptions as to writings. An inscription on a banner 
 or flag carried about by the leaders of a riot may be proved orally. 
 The King v. Hunt, 3 B. & Aid. 566. Or a direction contained on a 
 parcel. Burrell v. North, 2 Car. & Kirw. 679. Or a notice to an in- 
 dorser of a promissory note. Eagle Bank v. Chapin, 3 Pick. 180. 
 
 In the present case, the tag referred to was not a document, but an 
 object to be identified. The words written upon it served to identify 
 it and the court are of opinion that oral evidence was admissible for 
 this purpose, and that it was not necessary to produce the tag. An in- 
 spection of the tag with the written direction upon it might have been 
 more satisfactory to the jury than oral description of it, and therefore 
 might be regarded as the stronger evidence; but the strength of evi- 
 dence and the admissibility of evidence are different matters. 
 
 But even if it ought to have been produced in the absence of evi- 
 dence of its loss, the proof of loss was adduced to the judge, and his 
 decision as to the credibility of the evidence of loss was conclusive, 
 and not subject to exception. Foster v. Mackay, 7 Met. 531. 
 
 Exceptions overruled.
 
 THE PAROL EVIDENCE RULE 673 
 
 THE PAROL EVIDENCE RTTLE.i 
 
 AUGUSTUS ALLEN & another v. RICHARD FURBISH. 
 70 Mass. 504. (1853) 
 
 Action of contract on a promissory note for $30, dated August I3th, 
 , signed by the defendant, payable to the plaintiffs or order in 
 three months from date, with interest. 
 
 At the trial in the Court of Common Pleas, the defendant was al- 
 lowed against the plaintiffs' objection, to introduce parol evidence "that 
 on the 1 3th of August, 1853, the defendant purchased a horse of the 
 plaintiff for $60, and paid for $30 in cash, and gave this note for the 
 balance; that it was agreed at the time of purchase, as an inducement 
 to the bargain, that if the defendant should be dissatisfied with the 
 horse within three months, he might return him to the plaintiff, re- 
 scind the contract, and receive the note and money ; that the horse was 
 bought upon that condition ; and that within a week after the purchase 
 the defendant was dissatisfied, took the horse back and offered him to 
 the plaintiffs and demanded the money and note, but the plaintiffs re- 
 fused to receive him." 
 
 Hoar, J., ruled "that if the jury were satisfied that the note was 
 given as a part of the price of a horse sold to the defendant by the 
 plaintiffs ; and that the horse was sold to the defendant upon the con- 
 dition that if he should be dissatisfied with the horse within three 
 months and should return him, the bargain should be rescinded and the 
 money and note returned ; and that the defendant within three months 
 was dissatisfied, and did return the horse, and demand the money and 
 note; then the consideration of the note had failed, and the plaintiffs 
 could not recover, although they refused to receive the horse. But that, 
 if not satisfied of these facts, they should find for the plaintiffs." 
 
 The jury returned a verdict for the defendant, and to these instruc- 
 tions, and to the admission of the parol evidence, the plaintiffs ex- 
 cepted. 
 
 DEWEY, J. The principle, that parol evidence is inadmissible to an- 
 nex a condition to an absolute promise in writing in the form of a 
 promissory note promising to pay a certain sum of money on a certain 
 day named, seems to be too well settled in this commonwealth to be 
 further questioned. 
 
 In the present case the parol evidence is not offered to show any il- 
 legality in the contract, or any fraudulent representation or breach of 
 
 iHughes on Evidence, p. 235.
 
 674 CASES ON EVIDENCE 
 
 warranty as to the nature of the property sold, but simply to show that 
 the note was given upon a condition rendering it defeasible. It has no 
 tendency to show a want of consideration, or a failure of considera- 
 tion, as we understand the law on this subject. There was a good and 
 valid consideration for the note in any view of the case. The trans- 
 fer of the possession of the plaintiff's property to the defendant, to be 
 held and enjoyed as his own, and with the full right to sell and dis- 
 pose of it for his own benefit, was in itself a sufficient consideration 
 for his note. This consideration has never failed, but has continued 
 to be enjoyed by the defendant. The gravamen complained of by the 
 defendant does not reach the consideration, or show any failure there- 
 in. The parol evidence would, if competent, prove that the plaintiff 
 had not performed a stipulation on his part to deliver up the note on 
 the happening of a certain event. 
 
 Had the plaintiff received back the horse, and treated the contract 
 of sale as rescinded, the defendant might properly have insisted upon 
 such fact in defense of the right of the plaintiff to recover on the note. 
 That would have presented a different case, and might have been com- 
 petent to show the defendant was thereby discharged from further lia- 
 bility on the note, for the reason that plaintiff had assented to the re- 
 scinding of the contract, and taken back the property. 
 
 In the view we have taken of this case, a majority of the court are 
 of opinion that the parol evidence was inadmissible for the purpose of 
 sustaining the defense. It was not admissible as evidence showing a 
 want or failure of the consideration of the note, its effect being solely 
 to engraft a condition upon an absolute written promise, and by force 
 and effect of this condition to defeat the recovery of the note. 
 
 Exceptions sustained. 
 
 RANDALL B. SWEET v. GRANVILLE S. STEVENS. 
 7 R. I. 375- (1862) 
 
 Assumpsit upon a check drawn by the defendant on the 25th day of 
 June, 1862, upon the High Street Bank, in Providence, requesting said 
 bank to pay to the plaintiff, or order, on the I2th day of July, 1862, the 
 sum of forty-five dollars, which check the bank refused to pay, of 
 which the defendant, on the same day, had notice, &c. 
 
 BULLOCK, J. The only question in this case is, whether the parol
 
 THE PAROL EVIDENCE RULE 675 
 
 testimony, offered by the defendant in bar of the plaintiff's action, is 
 admissible under the rules of evidence. 
 
 No oral declarations or agreements, made between the parties to a 
 written contract, are admissible, to contradict or vary the terms of such 
 contract. The law presumes the written engagement to be the contract 
 of the parties, and to embrace all the terms and stipulations deemed 
 material by either at the time of its execution. And hence the whole 
 current of authorities is, that in an action upon a note, check, or bill 
 of exchange, for the payment of money absolutely, and which has been 
 fully executed and delivered by the original parties thereto, it is not 
 competent to show by parol, that such note, check, or bill of exchange 
 was not to be paid except upon a contingency which has not happened, 
 or upon a condition which has not been performed. 
 
 The mode of preserving the condition or defeasance is, to incor- 
 porate it into the written contract, or to cause the writing to be exe- 
 cuted and delivered in escrow. Free v. Hawkins and Foster v. Jolly, 
 before cited. If, therefore, the check sued upon has taken effect by 
 an actual, absolute, and legal delivery to the plaintiff, so that the de- 
 fendant had no right to recall -it, and being in terms payable without 
 condition, oral testimony is offered to show that it was to be paid upon 
 conditions, such evidence varies the terms of the written instrument, 
 and is clearly inadmissible. 
 
 It is, however, competent to show by parol the circumstances under 
 which the written contract was made, as that it was in pursuance of 
 some general purpose, and what that purpose was. 3 Starkie on Evd. 
 1047, 1048- And so in Hubbard v. Barker, executrix, i Allen, 99, 
 which was a suit by a grandchild against her grandmother's executrix, 
 to recover a note given to the child by the testatrix, the plaintiff was 
 permitted to show, by parol, the manner or plan by which the testatrix 
 distributed her estate, and that the note was given in pursuance of, and 
 as a part of, such plan. 
 
 The question here is not a question touching the consideration of a 
 check, a want or failure of which, between the original parties, may be 
 shown; neither is it, upon the facts stated, a question, whether parol 
 evidence may be offered to vary or change an absolute written prom- 
 ise into a conditional one ; but, rather, whether it is competent to show, 
 by parol, that such written promise grew out of an oral agreement or 
 negotiation, which agreement was inchoate and unexecuted in fact by 
 either party, and by the express terms of which the written instrument 
 was not to be regarded as obligatory, but its operation and efficacv sus- 
 pended until the happening of an event then in the future. In such case,
 
 676 CASES ON EVIDENCE 
 
 the rule which presumes the written instrument to embody the entire 
 contract and all its stipulations, does not apply. The oral evidence is 
 offered, not to contradict or vary the written, but admitting, seeks to 
 avoid it by showing that, as an entire and independent agreement, it 
 has no present legal effect. 
 
 The evidence, objected to, was offered to show that the plaintiff 
 and defendant contemplated a trade, by the terms of which the defend- 
 ant was to give $45 for the Mathewson note and his own debt of $13, 
 if he could use the Mathewson note in set-off. If he could not use 
 the note, he did not propose to buy it. He received the note into his 
 possession for the purpose of ascertaining this fact. It was endorsed 
 by the plaintiff to enable the defendant to use it, if Mathewson would 
 receive it. If Mathewson would not receive it, the defendant was to 
 return it. The defendant acquired no present title under the endorse- 
 ment, because there was no complete and absolute delivery of the note 
 made, or intended to be made. Upon thus receiving the note, the de- 
 fendant gives his check to the plaintiff with the express understanding, 
 that the plaintiff was to return it if the defendant could not use the 
 note. Hence the check was post-dated. It was in the nature of a 
 memorandum-check. It vested no present authority in the plaintiff 
 to demand or receive the money; neither was it intended to. And 
 this view of the transaction is confirmed by the fact that the plain- 
 tiff did not receipt his bill against the defendant, thus showing that he 
 did not regard the trade as completed. 
 
 We think the evidence does not fall within .the rule of parol testi- 
 mony offered to vary or contradict a valid written agreement, and. 
 upon the facts stated in the bill of exceptions, was admissible. 
 
 As the defendant has impounded, in court, the Mathewson note for 
 the plaintiff's use, the plaintiff's exceptions are overruled, and judg- 
 bent will be entered in the Court of Common Pleas upon the verdict. 
 
 i Hughes on Evidence, p. 235.
 
 THE PAROI, EVIDENCE RULE 677 
 
 JOHNSON v. ELMEN. 
 94 Tex. 168. (1900) 
 
 GAINES, C. J. This case comes to us upon a certificate of dissent 
 from the Court of Civil Appeals for the First District. 
 
 The trial court admitted evidence of the parol agreement to pay the 
 vendor's lien upon the land conveyed by Elmen to Johnson, and upon 
 appeal the Court of Civil Appeals upheld that ruling, one of the judges 
 dissenting. This presents the question which has been certified for 
 our determination. 
 
 The cases in which the question of the admissibility of parol evi- 
 dence to affect a covenant against incumbrances in a deed conveying 
 land may be divided into three classes. 
 
 In many cases it has been sought to show that one or more incum- 
 brances were known to the covenantee and to exclude such from the 
 operation of the covenant. But it is held, certainly by the great weight 
 of authority, that this can not be done. A sufficient reason for the 
 rule is that the covenantee in many instances may insist upon the cove- 
 nant for the very purpose of guarding against incumbrances which he 
 knew to exist. In other cases, it has been held that parol evidence can 
 not be admitted to show merely that the parties orally agreed that a 
 certain incumbrance should be excepted from the operation of the cove- 
 nant. To admit such evidence is to violate the familiar rule that parol 
 evidence is not admissible to vary the terms of a written contract. So 
 far, the courts are in practical accord. But whether or not, notwith- 
 standing a covenant against incumbrances in a deed, it may be shown 
 by parol evidence that it was agreed between the parties at the time of 
 the conveyance and as a part of the contract, that the covenantee 
 should himself discharge an incumbrance, is a question of more diffi- 
 culty and one upon which there is a conflict of authority. We think 
 however, the rule that in such cases parol evidence is admissible is 
 supported by the better reason and the weight of authority. 
 
 A deed may contain all the terms of the contract of sale between 
 the parties to it. This occurs where the purchase money is fully paid 
 at the time of the execution of the instrument and ifs payment is ac- 
 knowledged in the deed. Again, the recitals may be so explicit as not 
 only to show all the stipulations on part of the grantee but also to ex- 
 clude the existence of any other. In other words, the conveyance, with 
 its recitals, may be such as to make it apparent upon its face that it 
 contains all the terms of the contract between the parties. But for the
 
 678 CASKS ON EVIDENCE 
 
 reason that the conveyance must be in writing in order to pass the ti- 
 tle, it sometimes occurs that the deed is but a part of the contract, and 
 that there are other stipulations on the part of one or both of the par- 
 ties which do not appear upon its face. When such other terms of the 
 contract are not required by law to be in writing, they may be proved 
 by parol evidence and given their proper legal effect subject, how- 
 ever, to the rule that the effect of the deed as a conveyance and as to 
 its covenants can not be varied by such proof. Parol evidence can not 
 be admitted to show that more or less land was agreed to be conveyed 
 than appears in the deed itself, nor, where there is a covenant against 
 such incumbrances, that a particular incumbrance was to be excepted 
 which is not excepted in the writing. Thus as a rule, a consideration 
 different from that recited in the conveyance may be shown by parol 
 evidence. It is clear, therefore, that, in the absence of a covenant 
 against incumbrances in the deed in question, the appellee would have 
 been permitted, in any proceeding in which the question could have 
 arisen, to prove by such evidence that, as a part of the consideration 
 for the conveyance of the land, the appellant agreed to pay the note? 
 which were a charge upon it. But there being a covenant against in- 
 cumbrances in this case, the result of such proof is the same as if the 
 notes which were secured by a vendor's lien upon the land had been 
 expressly excepted from the covenant. The question presents itself, 
 whether, because of the resulting effect upon the covenants in the 
 deed, the grantor is deprived of the right of showing the assumption 
 of the notes on the part of the grantee a right which would clearly 
 have been his had he not covenanted against incumbrances. While 
 there is very high authority to the contrary, we are of opinion that 
 it does not (he is not). The agreement of the grantee to pay the notes 
 was a part of the contract for the exchange of the lands, but was not a 
 necessary part of either conveyance. It was an additional considera- 
 tion which the appellant was to pay for the premises conveyed to him. 
 which, as a general rule, as we have seen, may be established by parol 
 evidence. It was a part of the original contract which was agreed upon 
 between the parties, and which was finally consummated by their re- 
 spective conveyances. The ground upon which the authorities which 
 hold parol evidence inadmissible in such a case proceed, is that the effect 
 of the proof is to except the incumbrance from the covenant and thus 
 to vary the contract as shown by the writing. But does proof of the 
 promise to discharge the debt which is a lien upon the land except 
 anything from the covenant? Does it conflict with or is it inconsistent 
 with the terms of the conveyance? We think not. Qearly, in a suit
 
 THE PAROL EVIDENCE RULE 679 
 
 for a breach of a covenant against incumbrances, it'could be shown that 
 a lien had been discharged either before or at the time of or after the 
 execution of the deed; and we think that the effect of the promise 
 which was proved by parol in this case was not to except the vendor's 
 lien notes from the covenant, but was to show that as between the par- 
 ties to the contract the incumbrance had been discharged. Is the ap- 
 pellant to be permitted to claim a right by reason of the nonpayment 
 of a debt, which, by his own promise, he became primarily liable to 
 pay? Does it lie in his mouth to complain that his grantor has not 
 done that which he bound himself to do?. The lien remained after his 
 promise, but as between him and the grantor, it was no longer an in- 
 cumbrance resting upon the latter, but one which he had taken upon 
 himself. It seems to us that although this is a question of law, the 
 equitable principle should apply, that that is considered as done which 
 ought to be done, and that as between the parties the lien should be 
 held to be discharged. 
 
 For the reasons given, we are of opinion that the majority of the 
 Court of Civil Appeals was correct in holding that parol evidence was 
 admissible to show that at the time of the execution of the deed in 
 question it was agreed between the parties that the grantees assumed 
 the payment of the notes which were a charge upon the premises, and 
 our opinion will be so certified. 
 
 WEBSTER & HUBBARD v. PAUL, 
 i 
 
 10 Ohio 5JJ. (1860) 
 
 James R. Paul sued Daniel A. Webster and Jasper M. Hubbard, as 
 partners, under the firm name of Webster & Hubbard, on an account 
 connected with a transaction in hogs between the parties. 
 
 Webster put in his own answer," and in it claimed, in substance, 
 that there was no partnership between him and Hubbard in the trans- 
 action; that there was a written contract between him and Paul for. 
 the sale and delivery of the hogs, and that the contract had been 
 violated by Paul, and that there was a large sum due him (Webster), 
 for which he asked for a judgment against Paul. 
 
 Hubbard, in his answer, denied that he was indebted to Paul in any 
 sum, and denied that he was a partner, or had any interest in the hogs 
 at the time the contract was made by Webster and Paul.
 
 68o CASES ON EVIDENCE 
 
 On the trial, at the June term, 1857, of the District Court, certain 
 evidence was offered by the defendants and excluded by the court, 
 and a verdict returned for the plaintiff. 
 
 Thereupon the defendants moved for a new trial, on the ground that 
 the court erred in overruling the testimony offered by them. The court 
 overruled the motion, and entered judgment on the verdict. The error 
 now relied on is, that the court erred in not granting a new trial. 
 
 GHOLSON, J. The contract in writing shows that Paul had made an 
 advance on hogs, which he was to ship through to New York, and do 
 the best he could with them. in the market. We infer from the state- 
 ments in the record that there were two routes for the shipment which 
 the parties intended should be made one by rail and steamboat, and 
 the other overland, by railroad only. The object of the evidence 
 offered, as shown by the first bill of exceptions, was to restrict Paul 
 in shipping the hogs to the former of the two routes. 
 
 It is claimed for the plaintiffs in error, that there was a latent 
 ambiguity ; that there were two routes to New York well known to the 
 parties; that the writing did not specify one or the other, and therefore 
 it might be shown which the parties intended. But, we think there is 
 a misapprehension as to the meaning of a latent ambiguity. "A latent 
 ambiguity is where you show that words apply equally to two differ- 
 ent things or subject-matters." Smith v. Jeffryes, 15 M. & W. 561. 
 The things must be different, and the parties must, on account of such 
 difference, have intended one and not the other. It is not a case of lat- 
 ent ambiguity, where, according to the language of the contract, the 
 parties may have intended either of the two things in which the differ- 
 ence is claimed to exist. Thus in the case just cited, where the con- 
 tract was to deliver "ware potatoes," and evidence was offered to show 
 that there were two kinds of "ware potatoes," known in the market 
 as "regents wares" and "kidney wares," and that the former were in- 
 tended, it was held, that there was not a latent ambiguity, and that 
 the evidence "went to vary and limit the written contract between the 
 parties." 
 
 Upon a like principle and distinction, stands the case of a written 
 contract to do a particular thing where there are two usual and ordi- 
 nary modes in which it may be done. The party upon whom per- 
 formance devolves, may adopt either. If, in this case, it might be an 
 advantage to Paul to select one or the other of the two routes, as for* 
 example on account of its being more rapid, and thereby securing him 
 an earlier return of the money he had advanced, he had the right so to 
 do, according to the terms of the written contract. That he might
 
 THE PAROI, EVIDENCE RULE 681 
 
 properly have done so under that contract, is admitted by the offer to 
 prove a verbal contract which would restrict the right. To allow this 
 would, we think, in the language before used, vary and limit the writ- 
 ten contract between the parties. 
 
 Our attention has been directed to the case of Barrett v. Allen, 10 
 Ohio Rep. 426. In that case, evidence was received to explain the 
 meaning of the expression, "fair wholesale factory prices." The 
 words had no definite, precise meaning, and therefore required expla- 
 nation. This might have been given by showing a general usage and 
 practice in the particular trade or business. Lewis v. Marshall, 7 M. 
 & G. 729-744; Syers v. Jonas, 2 Exch. m-ii6; Brown v. Byrne, 3 
 Ell. & Black, 703-715. So it is permissible "to show in what sense 
 words are used, by showing what the situation of the parties was at 
 the time." Bainbridge v. Wade, 16 Q. B. 89-98. Evidence of the cir- 
 cumstances and relation in which the parties stood, may be let in to 
 explain the meaning of language, whenever it tends to throw light upon 
 that meaning. Id. 71 Eng. Com. L. 101, note, and cases cited. "Parol 
 evidence was clearly admissible to show the circumstances under which 
 the contract was made, and the relation of the plaintiff and defendant 
 to it, and to each other, in respect to it." Humphrey v. Dale, 7 Ell. & 
 Black, 266-272. According to these rules, the evidence in the case of 
 Barrett v. Allen was properly received. Something was said, by the 
 judge delivering the opinion, as to there being a latent ambiguity. We 
 think the case more properly came within the rules which have been 
 stated. But in no view, according to the proper meaning of a latent 
 ambiguity as before explained, would that case reach such a case as 
 the present. The parties in that case could not have intended either 
 of the two prices proved, but must have intended to provide for one 
 price only. 
 
 We think there was no error in this case, and the judgment must 
 be affirmed. 
 
 BRINKERHOFF, C. J., and SCOTT, SUTUFF and PECK, JJ., con- 
 curred.
 
 682 CASES ON EVIDENCE 
 
 HARRISON v. MORRISON. 
 5P Minn. 319. 
 
 MITCHELL, J. The proposed defense is that when the promissory 
 notes in suit were executed, there was an oral agreement, annexed as 
 a condition to their payment, that if the defendant should be forced to 
 make an assignment for the benefit of his creditors, under chapter 140, 
 Laws 1881 (which he was), the plaintiffs should file their claims on 
 the notes with the assignee, as provided by the statute, and execute 
 and file with the clerk of the court a full release to the defendant of 
 all claims, other than such as might be paid by the assignee under the 
 provisions of the statute. This is clearly inadmissible, under the famil- 
 iar rule that the terms of a written contract cannot be contradicted, 
 altered, added to, or varied by oral evidence. By their terms the de- 
 fendant promises to pay absolutely the full amount of the notes at the 
 dates therein named, the proposed parol evidence had no tendency to 
 prove either a want or failure of consideration, but merely to show that 
 a condition was annexed to the manner of payment, and amount to be 
 paid, different from that expressed in the notes. The notes on their 
 face purport to be a complete expression of the whole agreement of 
 the parties, and it must be conclusively presumed that they have intro- 
 duced into them every material term of the contract. It is not a case 
 where the agreement was oral, and the writings executed in perform- 
 ance of part of the agreement, leaving another and separate part of 
 it still wholly in parol, as in Healy v. Young, 21 Minn. 389. Neither is 
 it a case of a separate collateral agreement upon a matter distinct from 
 that to which the writings relate, and upon which they are silent. On 
 the contrary, the oral agreement relates to the very matter covered by 
 the writings, and is inconsistent with their express terms. Thompson 
 v. Libby, 34 Minn. 374 (26 N. W. Rep. i) ; Underwood v. Simonds. 
 12 Met. 275 ; Allen v. Furbish, 4 Gray 504 (64 Am. Dec. 87) ; Eighmie 
 v. Taylor, 98 N. Y. 288. This renders it unnecessary to consider the 
 other questions discussed by counsel. The order sustaining the de- 
 murrer to the answer must be affirmed.
 
 THE PAROL EVIDENCE RULE 683 
 
 ITHE OAK RIDGE COMPANY v. JOHN TOOLE. 
 82 N. J. 541- 
 
 LEWIS, V. C. 
 
 The defendant in this case entered into a written agreement with 
 the complainant to convey a tract of land on East Thirty-third street, 
 in the city of Paterson, New Jersey, fifty feet by one hundred and 
 twenty-five feet, as part consideration for a house and lot conveyed to 
 the defendant. The defendant in making the conveyance presumed 
 that he had legal title to the lots but after entering into the agreement, 
 the parties discovered that he had title only to a tract one hundred feet 
 in depth. When the complainant discovered the defective title, he 
 called upon the defendant to secure the additional twenty-five feet 
 provided for in his deed to the complainant. They had some consul- 
 tations about the matter and finally met in the office of Sherwood & 
 Lockwood, real estate agents in the city of Paterson, New Jersey; at 
 the time of the meeting they were accompanied by their respective at- 
 torneys. After some discussion of the subject of meeting, they en- 
 tered into an agreement wherein the defendant contracted that if he 
 didn't perfect his title to the premises, 298 and 300 East Thirty-third 
 street, Paterson, New Jersey, the tract in question, within two months 
 from that date, that he would purchase from the Oak Ridge Company 
 said premises at the price of $2,000. 
 
 The evidence of the complainant was that the defendant did not per- 
 fect his title in the manner aforesaid and that it is entitled to a decree 
 compelling the defendant to repurchase the land for $2,000. The de- 
 fendant admits the execution of the agreement and insists that the con- 
 tract in question was signed by the parties for "selling purposes," on 
 the understanding that it would not be considered binding on the de- 
 fendant. The treasurer of the Oak Ridge Company at the hearing 
 was the only witness for complainant and insisted that no such under- 
 standing had been had or arrangement been made. The defendant 
 alleged that he had given complainant the agreement upon the repre- 
 sentation of Mr. Hapgood, that there would be no trouble about it, 
 that it would not be used at any time, and that his company simply 
 wanted it for "selling purposes." The defendant was corroborated by 
 the testimony of his attorney, Mr. Lynch, and by a witness, Miss Lock- 
 wood ; both these witnesses stated that they heard the conversation be- 
 tween Mr. Toole and Mr. Hapgood, treasurer of the Oak Ridge Com- 
 pany, to the effect that the price named in the agreement was placed
 
 684 CASES ON EVIDENCE 
 
 there for "selling purposes" and that there was no understanding be- 
 tween the parties that Toole should take back the lots at the sum of 
 $2,000. 
 
 This case, it seems to me, establishes the rule, that if the parties to 
 an agreement stipulated at the time that it was made that it was to have 
 no binding effect upon them, then, notwithstanding their execution of 
 the agreement, such a contract is of no force and effect at law or in 
 equity. The rule now so well established in equity, admitting parol 
 evidence to show for what purpose the written agreement was exe- 
 cuted, was properly invoked by the defendant. The evidence leaves 
 no doubt in the court's mind that in this issue the agreement between 
 the complainant and the defendant was made for the purpose as stated 
 by the latter and his witnesses. It is inequitable and unjust, therefore, 
 for the complainant to enforce the agreement of April I3th. 
 
 HARRY B. HATCH v. WM. HYDE AND WM. S. HYDE. 
 14 Ver. 25. (1842) 
 
 Assumpsit, on a promissory note. The defendant pleaded non as- 
 sumpsit and a special plea in bar. 
 
 The County Court decided that the special plea was insufficient, 
 and the defendants excepted to the decision. 
 
 The opinion of the court was delivered by 
 
 BENNETT, J. The plea in bar sets up a parol agreement contempora- 
 neous with the giving of the note, and inconsistent with the one ex- 
 pressed in the note. The horse, though lame and diseased, was clearly 
 a sufficient consideration for the note, and no fraud is pretended. The 
 note then, being upon sufficient consideration, and absolute upon the 
 face of it, cannot, by parol evidence, be converted into one payable 
 upon a contingency. Bentley v. Bradley, 8 Vt. R. 243. Isaacs v. El- 
 kins, ii Vt. R. 679. As the agreement, set up in the plea in bar, if 
 made upon sufficient consideration, cannot control the note, it is im- 
 possible that it should furnish good matter to plead in bar. The right 
 of action, established by the note, cannot be destroyed by setting up an 
 opposing agreement which, by the rules of evidence, cannot be proved. 
 The plea then was properly met by a demurrer. If it had been tra- 
 versed and issue joined, it might have been a question whether the 
 rule of evidence, excluding parol, might not have been waived.
 
 THE PAROL EVIDENCE RULE 685 
 
 If the facts set up in the plea go to defeat the note, as has been 
 argued, for want of consideration, they would have availed the party 
 under the general issue. Though it is true that some matters which 
 may be given in evidence under the general issue, in assumpsit, may 
 also be pleaded in bar, yet it is not such matter as goes to deny the orig- 
 inal cause of action. The consideration is of the very essence and 
 foundation of the promise, and a plea, in effect, denying the considera- 
 tion amounts to the general issue, and is, for this cause, ill, on special 
 demurrer. Potter v. Stanley, i D. Chip. R. 243. Gould's PI. 334, 
 sec. 56. This is made one ground of demurrer. The plea cannot be 
 sustained. 
 
 The judgment of the County Court is affirmed. 
 
 MILLER v. SPRING GARDEN INS. CO. 
 202 Fed. 44.2. (1913) 
 
 In error to the District Court of the United States for the Northern 
 Division of the Eastern District of Washington; Frank H. Rudkin, 
 Judge. 
 
 Action by Jacob Miller against the Spring Garden Insurance Com- 
 pany. Judgment for plaintiff, and defendant brings error. Affirmed. 
 
 GILBERT, Circuit Judge. Error is assigned to the admission of tes- 
 timony as to conversations between the plaintiff and the insurance 
 agent who procured the policy concerning the alterations that were be- 
 ing made in the plaintiff's building, and error is assigned to the con- 
 clusion of the court that the plaintiff had not violated the provisions 
 of the policy by having carpenters and mechanics engaged in building 
 the premises for a period of more than 15 days after the policy was 
 executed and delivered, without the consent of the the defendant, and 
 in holding that the work done upon the building was ordinary altera- 
 tions and repairs within the permission contained in the rider to the 
 policy. 
 
 The disposition of the case in this court depends upon the question 
 of the admissibility of the oral testimony which was taken to show that 
 the plaintiff fully explained to the insurance agents, and the latter 
 understood, the nature of the alterations which were being made in 
 the building and the time which would be necessarily taken in com- 
 pleting the same. Testimony of that nature was admitted by the court
 
 686 CASKS ON EVIDENCE 
 
 below as explanatory of an ambiguity in the policy, and we think it was 
 properly so admitted. The defendant, after stipulating in the printed 
 policy that the employment of merchants in building, altering, or re- 
 pairing the premises for more than 15 days should avoid the contract 
 of insurance, attached to the policy a typewritten slip or rider, "Per- 
 mission granted to make ordinary alterations and repairs." The fact 
 that this provision was attached by a typewritten slip to the policy 
 shows that it was to express the intention of the parties, and that the 
 printed provision in regard to the employment of mechanics, and at- 
 tached another special provision which made no limitation of time 
 whatever, the question arose, what was meant by the second, and what 
 were the "ordinary alterations and repairs" in the contemplation of the 
 parties? No rule of evidence was violated by admitting testimony to 
 show what that intention was, and what were the circumstances under 
 which the rider was attached to the policy. In cases of doubt or am- 
 biguity the negotiations between the parties are properly considered in 
 giving construction to their agreement. Fire Insurance Co. v. Wick- 
 ham, 141 U. S. 564, 576, 12 Sup Ct. 84, 35 L. Ed. 860; Seitz v. Brew- 
 ers R. M. Co., 141 U. S. 510, 517, 12 Sup. Ct. 46, 35 L. Ed. 837; Lind- 
 blom v. Fallett, 145 Fed. 805, 76 C. C. A. 639; Lilienthal v. Cart- 
 wright, 173 Fed. 580, 97 C. C. A. 530; Kilby v. Hinchman-Renton 
 Fire Proofing Co., 132 Fed. 957, 66 C. C. A. 67. 
 
 It was proper to show, therefore, that by the term "ordinary altera- 
 tions" was meant the very alterations and changes which were then 
 being made. The word "alterations" is an elastic one, and, if the par- 
 ties so understood its use, it was proper to show their understanding 
 by oral testimony. 
 
 We find no error. The judgment is affirmed. 
 
 THOMPSON v. LIBBY. 
 34 Minn. 374. (1885) 
 
 MITCHELL, J. The plaintiff being the owner of a quantity of logs 
 marked "H. C. A.", cut in the winters of 1882 and 1883, an< 3 lying in 
 the Mississippi river, or on its banks, above Minneapolis, defendant 
 and the plaintiff, through his agent, D. S. Mooers, having fully agreed 
 on the terms of a sale and purchase of the logs referred to, executed 
 the following written agreement:
 
 THE PABOL EVIDENCE Ruui 687 
 
 "AGREEMENT. 
 
 Hastings, Minn., June I, 1883. 
 
 "I have this day sold to R. C. Libby, of Hastings, Minn., all my logs 
 marked 'H. C. A.', cut in the winters of 1882 and 1883, for ten dol- 
 lars a thousand feet, boom scale at Minneapolis, Minnesota. Payments 
 cash as fast as scale bills are produced. 
 (Signed) "J. H. THOMPSON, 
 
 "Per D. S. MooERS. 
 "R. C. LIBBY." 
 
 This action having been brought for the purchase-money, the de- 
 fendant having pleaded a warranty of the quality of the logs, alleged 
 to have been made at the time of the sale, and a breach of it offered 
 on the trial oral testimony to prove the warranty, which was admitted, 
 over the objection of plaintiff that it was incompetent to prove a ver- 
 bal warranty, the contract of sale being in writing. This raises the 
 only point in the case. 
 
 No ground was laid for the reformation of the written contract, 
 and any charge of fraud on part of plaintiff or his agent in making the 
 sale was on the trial expressly disclaimed. No rule is more familiar 
 than that "parol contemporaneous evidence is inadmissible to contra- 
 dict or vary the terms of a valid written instrument," and yet none has 
 given rise to more misapprehension as to its application. It is a rule 
 founded on the obvious inconvenience and injustice that would result 
 if matters in writing, made with consideration and deliberation, and 
 intended to embody the entire agreement of the parties, were liable to 
 be controlled by what Lord Coke expressively calls "the uncertain tes- 
 timony of slippery memory." Hence, where the parties have deliber- 
 ately put their engagements into writing in such terms as to import a 
 legal obligation, without any uncertainty as to the object or extent of 
 such engagement, it is conclusively presumed that the whole engage- 
 ment of the parties, and the manner and extent of their undertaking, 
 was reduced to writing. I Greenl. Ev. sec. 275. Of course, the rule 
 presupposes that the parties intended to have the terms of their com- 
 plete agreement embraced in the writing, and hence it does not apply 
 where the writing is incomplete on its face and does not purport to 
 contain the whole agreement, as in the case of mere bills of parcels, 
 and the like. 
 
 But in what manner shall it be ascertained whether the parties in- 
 tended to express the whole of their agreement in writing? It is some- 
 times loosely stated that where the whole contract be not reduced to 
 writing, parol evidence may be admitted, to prove the part admitted.
 
 688 CASES ON EVIDENCE 
 
 But to allow a party to lay the foundation for such parol evidence by 
 oral testimony that only part of the agreement was reduced to writing, 
 and then prove by parol the part omitted, would be to work in a cir- 
 cle, and to permit the very evil which the rule was designed to pre- 
 vent. The only criterion of the completeness of the written contract 
 as a full expression of the agreement of the parties is the writing it- 
 self. If it imports on its face to be a complete expression of the whole 
 agreement, it is to be presumed that the parties have introduced into 
 it every material item and term ; and parol evidence cannot be admitted 
 to add another term to the agreement, although the writing contains 
 nothing on the particular one to which the parol evidence is directed. 
 The rule forbids to add by parol where the writing is silent, as well as 
 to vary where it speaks 2 Phil. Evidence (Cow. & H. N. Notes,) 
 669; Naumberg v. Young, 44 N. J. Law, 331 ; Hei v. Heller, 53 Wis. 
 415 and the law controlling the operation of a written contract be- 
 comes a part of it, and cannot be varied by parol any more than what 
 is written. 2 Phil. Ev. (Cow. & H. Notes,) 668; La Jarge v. Rickert, 
 5 Wend. 187; Creery v. Holly, 14 Wend. 26; Stone v. Harmon, 31 
 Minn. 512. 
 
 The written agreement in the case at bar, as it appears on its face, 
 in connection with the law controlling its construction and operation, 
 purports to be a complete expression of the whole agreement of the 
 parties as to the sale and purchase of these logs, solemnly executed by 
 both parties. There is nothing on its face (and this is a question of 
 law for the court) to indicate that it is a mere informal and incom- 
 plete memorandum. Parol evidence of extrinsic facts and circum- 
 stances would, if necessary, be admissible, as it always is, to apply the 
 contract to its subject-matter, or in order to a more perfect under- 
 standing of its language. But in that case such evidence is used, not. 
 to contradict or vary the written instrument, but to aid, uphold, and 
 enforce it as it stands. The language of this contract "imports a legal 
 obligation, without any uncertainty as to its object or the extent of 
 the engagement," and therefore "It must be conclusively presumed 
 that the whole engagement of the parties, and the manner and extent 
 of the undertaking, was reduced to writing." No new term, forming 
 a mere incident to or part of the contract of sale, can be added by 
 parol. 
 
 That in case of a sale of personal property a warranty of its quality 
 is an item and term of the contract of sale, and not a separate and in- 
 dependent collateral contract, and therefore cannot be added to the 
 written agreement by oral testimony, has been distinctly held by this
 
 THE PAROL EVIDENCE RULE 689 
 
 court, in accordance, not only with the great weight of authority, but 
 also, as we believe, with the soundest principles. Jones v. Alley, 17 
 Minn. 269, (292.) 
 
 In opposition to the doctrine of Jones v. Alley, we are referred to a 
 few cases which seem to hold that parol evidence of a warranty is ad- 
 missible on the ground that a warranty is collateral to the contract 
 of sale, and that the rule does not exclude parol evidence of matters 
 that this is based upon a misapprehension as to the sense in which the 
 term "collateral" is used in the rule invoked. There are a great many 
 matters that, in a general sense, may be considered collateral to the 
 contract ; for example, in the case of leases, covenants for repairs, im- 
 provements, payment of taxes, etc., are, in a sense, collateral to a 
 demise of the premises. But parol evidence of these would not be 
 admissible to add to the terms of a written contract. So, in a sense, 
 a warranty is collateral to a contract of sale, for the title would pass 
 without a warranty. It is also collateral in the sense that its breach is 
 no ground for a rescission of the contract by the vendor, but that he 
 must resort to his action on the warranty for damages. But, when 
 made, a warranty is a part of the contract of sale. The common sense 
 of men would say, and correctly so, that when, on a sale of personal 
 property, a warranty is given, it is one of the terms of the sale, and 
 not a separate and independent contract. To justify the admission of 
 a parol promise to one of the parties to a written contract, on the 
 ground that it is collateral, the promise must relate to a subject dis- 
 tinct from that to which the writing relates. Button v. Gerrish, 9 
 Cush. 89; Naumberg v. Young, supra; 2 Taylor Ev. Sec. 1038. See 
 Lindley v. Lacey, 34 Law J., C. P., 7. 
 
 We 1 have carefully examined all the cases cited in the quite exhaus- 
 tive brief of counsel for defendant, and find but very few that are at 
 all in conflict with the views already expressed, and these few do not 
 commend themselves to our judgment. Our conclusion therefore is 
 that the court erred in admitting parol evidence of a warranty, and 
 therefore the order refusing a new trial must be reversed.
 
 690 CASKS ON EVIDENCE 
 
 COFFMAN v. MALONE. 
 p8 Neb. 819. (1915) 
 
 MORRISSEY, C. J. Amos Snyder, Matt Malone and Samuel J. Coff- 
 man owned all of the capital stock in a corporation called the Snyder- 
 Malone-Coffman Company, which was doing a live stock commission 
 business in South Omaha. During the fall of 1912, slight differences 
 as to the conduct of the business arose, and December 12 the following 
 writing was drawn up and signed by the parties: 
 
 "South Omaha, Neb., Dec. 12, 1912. We, Amos Snyder and S. J. 
 Coffman, have this day sold our interest in the Snyder-Malone-Coff- 
 man Company to Matt Malone. The said Amos Snyder to receive 
 $1,500 for his interest, and said S. J. Coffman is to receive $1,000 for 
 his interest, and said business is to be turned over to Matt Malone on 
 December 31, at 6 o'clock p. m., and all bills to be paid up to that 
 time, that is, owed by the firm of Snyder-Malone-Coffman Company, 
 and, after the bills are all paid, each, Snyder and Coffman, can draw 
 out the balance they have to their credit. Amos Snyder has received 
 on this contract ($200) two hundred dollars, and S. J. Coffman has 
 received ($100) one hundred dollars. This contract made and signed 
 by Amos Snyder, S. J. Coffman and Matt Malone this I2th day of 
 December, 1912. 
 
 "AMOS SNYDER, 
 "S. J. COFFMAN, 
 "MATT MALONE." 
 
 December 31, 1912, Snyder delivered his stock, tendered his resig- 
 nation as president of the corporation, and received from Malone the 
 balance due. Four or five days thereafter the articles of incorpora- 
 tion were redrafted and Coffman and Malone signed the same. Coff- 
 man made no assignment of his stock, and neither made nor tendered 
 his resignation as an officer of the corporation until January 15, 1913, 
 when he made an assignment of his stock and tendered the same, to- 
 gether with his resignation, to Malone, and demanded the amount 
 stipulated in this writing. Malone refused to receive the stock or res- 
 ignation or to pay over the money, and Coffman brought suit upon 
 the contract. 
 
 Malone by answer alleged that the writing was executed for the sole 
 purpose of purchasing the interest of Amos Snyder, but it was drawn 
 in the form set out because they wanted Snyder to believe that Coff- 
 man was also retiring from the business ; that there was a contempora-
 
 THE PAROL EVIDENCE RULE 691 
 
 neous oral agreement between him and Coffman that, as between them, 
 it was not to be performed ; that there was no delivery of the writing 
 to Coffman; and that the check which was delivered was not to be 
 cashed, but was to be returned again by Coffman to Malone. There is 
 an allegation, also, that after Snyder retired from the business, and 
 after the expiration of the time fixed by this writing for the transfer 
 of Coffman's stock, Coffman participated in the election of himself as 
 secretary of the company, and that he continued to act for and in be- 
 half of the company until January 15, 1913; that under their oral 
 agreement Malone was to transfer certain of Snyder 's shares of stock 
 to Coffman, which Malone was ready and willing to do, but Coffman 
 did not have the money to pay therefor, and, upon Malone's refusal 
 to accept Coffman's note in lieu of cash, Coffman attempted to re- 
 pudiate the oral agreement and to enforce this writing. 
 
 A jury was waived and the cause tried to the court. Oral testi- 
 mony was admitted in support of the allegations of the answer. But 
 at the conclusion of the trial, on motion of the plaintiff, the court 
 struck from the record the testimony which had been received in proof 
 of the oral agreement, and entered judgment for plaintiff for the 
 amount due under the writing. There are three assignments of error ; 
 but, as the one directed against the ruling of the court in striking this 
 evidence goes to the merits of the whole controversy, it is the only one 
 we will consider. If the ruling in that regard is correct, the judgment 
 is warranted by the pleadings and the proof. No doubt the court re- 
 lied upon the general rule laid down in Mattison v. Chicago, R. I. & 
 P. R. Co., 42 Neb. 545, and quoted as authority in Nebraska Land & 
 Feeding Co. v. Trauerman, 70 Neb. 795, wherein it is held: "Parol 
 evidence is incompetent to prove a contemporaneous oral agreement 
 by which it is sought to change or alter the terms of a written contract 
 and the result of which would be to change the effect of the written 
 contract in a material portion and to insert or read into it a condition 
 or reservation not contained in it, or implied by its terms" while the 
 appellant contends that the rule invoked does not apply, and that a 
 party who had been induced to sign a written contract for a certain 
 purpose is entitled to offer oral testimony, for the purpose of showing 
 that it was never intended to be a contract or to be of binding force 
 between the parties. It is not contended that the contract is ambigu- 
 ous or incomplete, but that plaintiff and defendant were working to- 
 gether for a common purpose; that, in furtherance of this common 
 purpose, it was executed in its present form ; that they were not deal- 
 ing one with the other, but were jointly dealing with Snyder; that,
 
 692 CASES ON EVIDENCE 
 
 in the very nature of things, the writing could not contain the agree- 
 ment between Coffman and Malone, because that would defeat its pur- 
 pose. If there was no intention on the part of either party to observe 
 the terms of this writing, as between them, this writing was not the 
 contract. 
 
 This evidence was not offered with the view of contradicting, varj 
 ing, or explaining the language employed in the written instrument 
 but to establish a fact or circumstance collateral to the original writ- 
 ing which would control its effect or operation as a binding engage- 
 ment. On either theory the writing is precisely what both parties in- 
 tended it to be. If there was an express agreement between Coffman 
 and Malone that it was not to be carried out, Malone in signing was 
 acting, not alone for himself, but also for the plaintiff, and in that 
 event it never became a binding obligation. "The existence of a writ- 
 ten contract or instrument, duly executed between the parties to an 
 action and delivered, does not prevent the party apparently bound 
 thereby from pleading and proving that contemporaneously with the 
 execution and delivery of such contract or instrument the parties had 
 entered into a distinct oral agreement which constitutes a condition on 
 which the performance of the written contract or agreement is to de- 
 pend." Norman v. Waite, 30 Neb. 302. 
 
 In Barnett v. Pratt, 37 Neb. 349, in discussing a somewhat similar 
 question, the court said: "It is settled by a considerable line of au- 
 thority that where the execution of a written agreement has been in- 
 duced upon -the faith of an oral stipulation made at the time, but 
 omitted from the written agreement, though not by accident or mis- 
 take, parol evidence of the oral stipulation is admissible, although it 
 may add to or contradict the terms of the written instrument." 
 
 The doctrine laid down in Norman v. Waite, supra, has been reiter- 
 ated in Davis v. Sterns, 85 Neb. 121, First Nat. Bank v. Burney, 91 
 Neb. 835, and is the settled rule in this state. 
 
 This evidence having been erroneously stricken from the record it 
 follows that the judgment of the District Court must be reversed and 
 the cause remanded. 
 
 Reversed.
 
 THE PAROL EVIDENCE RULE 693 
 
 HARDAGE v. DURRETT. 
 no Ark. 63. (1913) 
 
 HART, J. This is an action of contract on a covenant of warranty 
 against encumbrances in a deed from appellee to appellants. The 
 court, sitting as a jury, found in favor of appellee, and from the 
 judgment in his favor appellants have duly prosecuted an appeal 
 to this court. 
 
 At the time of the execution of the deed, taxes to the amount of 
 $99.10 had been duly assessed, levied and charged against the land 
 conveyed by the deed. It is admitted that the unpaid taxes upon 
 the land were an encumbrance within the covenants of the deed, and 
 such is the effect of the decisions of this court. William Farrel Lby. 
 Co. v. DeShon, 65 Ark. 103; Sanders v. Brown, 65 Ark. 498. 
 
 Appellee was allowed to prove, over the objection of appellants, 
 by parol evidence, that at the time the deed was executed, and as a 
 part of the consideration, appellants promised to pay said taxes; 
 and the action of the court in admitting this oral testimony is as- 
 signed by appellants as error for which the judgment should be re- 
 versed. 
 
 On the precise issue raised by the appeal, the authorities are at 
 variance. The courts of Maine and Indiana hold that a parol agree- 
 ment by the vendee to pay taxes which are a lien upon the land, as 
 a part of the consideration of the conveyance, is a good defense to 
 an action on the covenants of the deed. Fitzer v. Fitzer, 29 Ind. 
 468; Dearbon v. Morse, 59 Me. 210. So, also, in the case of John- 
 son v. Elmen, 94 Tex. 168, the court held : 
 
 "A grantor by deed of general warranty (implying a covenant 
 against encumbrances) when sued thereon by the warranty who had 
 been dispossessed by a purchaser at a sale under foreclosure of an 
 encumbrance covered by such warranty, can show in defense a parol 
 agreement, as part of the consideration, that the vendee should him- 
 self assume and pay off such encumbrance." 
 
 The Supreme Courts of Massachusetts and Ohio have held that 
 in an action for breach of a covenant of warranty against encum- 
 brances in a deed which consist of unpaid taxes, it is incompetent 
 for the defendant to prove by parol testimony that at the time the 
 deed was given, and as a part of the consideration, the plaintiff prom- 
 ised to pay the assessment. Simanovich v. Wood, 13 N. E. (Mass.)
 
 694 CASES ON EVIDENCE 
 
 391 ; Flynn v. Bourneuf, 143 Mass. 277, 9 N. E. 650; Long v. Moler, 
 5 Ohio St. 271. 
 
 The Supreme Court of Indiana admits that the doctrine laid down 
 by it has been questioned elsewhere and that the very opposite is 
 held in many of the States. Some of the courts have criticized the 
 Indiana decision, not only as being opposed to the well-known rule 
 that parol evidence is not admissible to vary the contract as shown 
 by the writing, but as being productive of litigation, as is evidenced 
 by the number of decisions on this question in that State. 
 
 In the case of Simanovich v. Wood, supra, the court said: "While 
 for some purposes it is competent to show what the real considera- 
 tion of a deed is, a party can not, under the guise of showing what 
 the consideration is, prove an oral agreement, either antecedent to 
 or contemporaneous with the deed, which will cut down or vary 
 the stipulations of his written covenant. This would violate the 
 well-settled rule of law which will not permit a written contract to 
 be varied or controlled by such parol testimony." 
 
 To the same effect is Devlin on Deeds (i ed.), vol. 2, 914; Rawle 
 on Covenants of Title (5 ed.), 88. 
 
 We think the effect of our previous decisions bearing on this ques- 
 tion is to exclude parol evidence to show that it was the agreement 
 of the parties that the covenant was not to extend to a particular 
 encumbrance not expressly excepted from its operation. In the case 
 of Barnett v. Hughey, 54 Ark. 195, the court, in discussing the 
 measure of damages in an action for breach of covenant said : 
 
 "In such actions, parol evidence is admissible on the part of the 
 plaintiff to show that the actual consideration was greater than that 
 expressed in the deed for the purpose of increasing the damages, 
 and on the part of the defendant to show that it was such for the 
 purpose of diminishing them; but not for the purpose of defeat- 
 ing the deed or recovery on the covenants." 
 
 Therefore, we hold that aside from the question of fraud or mis- 
 take parol evidence is not admissible to show that a covenant against 
 encumbrances, where no exception is contained in the deed itself, 
 was not intended by the parties to apply to a particular encumbrance. 
 
 It followed that the judgment must be reversed and, the case hav- 
 ing been fully developed, judgment will be entered here for $99.10, 
 the amount sued for.
 
 THE PAROI, EVIDENCE RULE 695 
 
 MILLER BROS. v. McCALL CO. 
 
 37 Okla. 643. (1913) 
 \. 
 
 Opinion by Brewer, C. The McCall Company, a corporation, 
 sued Miller Bros., a partnership, in the District Court of Oklahoma 
 County for a balance due for goods sold and delivered, in the sum 
 of $909.10, under a written contract between the parties, and for 
 damages on account of a breach of the contract by Miller Bros. 
 
 The cause was tried to a jury and a verdict was rendered in 
 favor of the plaintiff for $909.10, which was the amount of balance 
 due for goods received by defendants, less payments made. 
 
 The defendants below appealed the case under '27 separate as- 
 signments of error. 
 
 On the first point, sufficiently presented in the brief, *. e., that 
 the court erred in refusing to permit them to prove that contem- 
 poraneously with the execution of the written contract a verbal one 
 was made that defendants should have the exclusive sale of plain- 
 tiff's goods in Oklahoma City, it is not suggested in what way this 
 evidence would have been of value to them if admitted. They did 
 not claim that any one else did have the sale of the goods, thus de- 
 priving defendants of expected profits; in fact it is admitted that 
 such was not the case. The trial court held that the written con- 
 tract which detailed its terms and conditions fully and with minute 
 particularity could not be changed or varied in its terms by oral 
 proof, and that to admit the proof offered would have that effect. 
 The court was right. When persons meet and negotiate concern- 
 ing a contract and discuss its proposed terms and conditions, and 
 finally end the matter by executing a written contract fully covering 
 the subject, it represents the final agreement of the parties, and 
 oral evidence tending to vary, contradict, enlarge, or narrow the 
 terms of the writing is not admissible. 
 
 The instrument involved here is admittedly a contract, is free 
 from fraud, accident, or mistake, and covers fully the details of its 
 subject-matter. Under similar circumstances this court in South- 
 ard v. Arkansas Valley & W. Ry. Co., 24 Okla. 420, 103 Pac. 755, 
 has ruled: 
 
 "For the instrument here involved is admittedly a contract, and 
 under the authorities cited by the plaintiff in error it is not per- 
 missible to prove a parol contemporaneous contract to add to, vary, 
 or contradict a written contract, unless under proper allegations as
 
 696 CASES ON EVIDENCE 
 
 to fraud, accident, or mistake. This rule is supported by practi- 
 cally an unbroken line of authority where the common law con- 
 trols. Engelhorn v. Reitlinger et al., 122 N. Y. 79, 25 N. E. 297, 
 9 L. R. A. 548; Wilson v. Deen, 75 N. Y. 531; Hubbard v. Mar- 
 shall, 50 Wis. 327, 6 N. W. 497; Undersood v. Simmonds, 12 Mete. 
 (Mass.) 277; Fawkner v. Smith Wall Paper Co., 88 Iowa 169, 
 55 N. W. 200, 45 Am. St. Rep. 230; Sandage v. Studebaker'Bros. 
 Mfg. Co., 142 Ind. 157, 41 N. E. 380, 34 L. R. A. 363, 51 Am. St. 
 Rep. 165; Baum v. Lynn, 72 Miss. 932, 18 South. 428, 30 L. R. 
 A. 441 ; Ferguson v. Rafferty, 128 Pa. 337, 18 Atl. 484, 6 L. R. A. 
 33; Parker v. Morrill, 98 N. C. 232, 3 S. E. 511; Eighmie v. Taylor, 
 98 N. Y. 288; Wigmore on Evidence, sec. 2433." 
 
 Affirmed. 
 
 WARE v. ALLEN. 
 128 U. S. 5po. (i 
 
 IN EQUITY. Decree dismissing the bill. Complainant appealed. 
 
 MR. JUSTICE MILLER delivered the opinion of the court. 
 
 This is an appeal from the Circuit Court of the United States for 
 the Southern District of Mississippi. 
 
 W. P. Ware was the plaintiff below, and from a decree dismissing 
 his bill he has taken this appeal. The action was brought upon a 
 written instrument, of which the following is a copy: 
 
 "NEW ORLEANS, Nov. 7th, 1881. 
 
 "Ninety days after date we promise to pay W. P. Ware or order 
 ten thousand dollars for two notes of T. P. Ware for five thou- 
 sand dollars each, dated August 21, '81, one on demand and one at 
 30 days, provided we are not defeated in the suit against T. P. 
 Ware; if so, this note is void. 
 
 "Yours truly, 
 "(Signed) ALLEN, WEST & BUSH." 
 
 The testimony is ample to show that before the paper was signed 
 or agreed upon, it was distinctly understood that it was to be of 
 no effect unless, upon consultation with Judge Harris or J. M. 
 Allen, or both of them, the defendants were assured that the pro- 
 ceeding was lawful and the attachment for the full amount of both 
 claims could be enforced. It is very true that the plaintiff does
 
 THE PAROL EVIDENCE RULE 697 
 
 not agree to this, in the full extent in which it is thus stated by at 
 least two or three witnesses, but all the circumstances go to con- 
 firm the truth of this statement of what actually occurred. 
 
 We are quite clear that the testimony does establish the agree- 
 ment alleged by the defendants to have been made at the various 
 interviews between the persons composing the firm of Allen, West 
 & Bush, or some of them, and the plaintiff, at and before the time 
 when they delivered to him the instrument sued on and received from 
 him the two notes made by his brother, T. P. Ware; that the firm 
 were to have an opportunity to consult counsel, upon whom they 
 relied as to the validity of the transaction; and that if such advice 
 was adverse, then the instrument given by them was to be of no 
 effect. 
 
 It also sufficiently appears that they were advised, without hesi- 
 tation, by the counsel to whom they had reference in those con- 
 versations about the agreement, that the transaction was not one 
 that would stand the test of a legal investigation. This is to be 
 considered in connection with the fact that the firm only brought 
 suit for their own claim, and have since returned, or offered to 
 return, the notes of W. P. Ware, which were given him by his 
 brother and delivered to them when the paper was executed. 
 
 We are of opinion that this evidence shows that the contract upon 
 which this suit is brought never went into effect; that the condi- 
 tion upon which it was to become operative never occurred, and 
 that it is not a question or contradicting or varying a written in- 
 strument by parol testimony, but that it is one of that class of cases, 
 well recognized in the law, by which an instrument, whether deliv- 
 ered to a third person as an escrow or to the obligee in it, is made 
 to depend, as to its going into operation, upon events to occur or be 
 ascertained thereafter. 
 
 The present case is almost identical in its circumstances with that 
 of Pym v. Campbell, in the Court of Queen's Bench, 6 Ell. & Bl. 
 370, 373. The defendants in that case had signed an agreement for 
 the purchase of an interest in an invention, which the evidence showed 
 was executed with the understanding that it should not be a bar- 
 gain until a certain engineer, who was to be consulted, should ap- 
 prove of the invention. There was a verdict for the defendants, 
 which was sustained, and the following language was used by Erie, 
 J., on discharging the rule to show cause: "I think that this rule 
 ought to be discharged. The point made is that this is a written 
 agreement, absolute on the face of it, and that evidence was ad-
 
 698 CASES ON EVIDENCE 
 
 mitted to show that it was conditional; and if that had been so, it 
 would have been wrong. But I am of opinion that the evidence 
 showed that in fact there was never any agreement at all. * * * 
 
 "If it be proved that in fact the paper was signed with the ex- 
 press intention that it should not be an agreement, the other party 
 cannot fix it as an agreement upon those signing. The distinction 
 in point of law is evidence to vary the terms of an agreement in 
 writing is not admissible, but evidence to show that there is not 
 an agreement at all is admissible." 
 
 In this view the other judges, including Lord Campbell, Chief 
 Justice, concurred, holding that it having been explained to the plain- 
 tiff that the defendants did not intend the paper to be an agree- 
 ment until the engineer had been consulted, and his approval ob- 
 tained, and was signed only because it was not convenient for them 
 to remain, it was therefore no agreement, the plaintiff having as- 
 sented to this and received the writing on these terms. 
 
 Affirmed. 
 
 FARWELL v. ST. PAUL TRUST CO. 
 45 Minn. 495. (i8pi) 
 
 Plaintiffs presented a claim of $44,374.02, with interest, against 
 E. Allen & Co., insolvents, to the defendant, which was receiver of 
 the insolvent firm, which claim was wholly disallowed by it. Plain- 
 tiffs thereupon appealed to the district court for Ramsey county, 
 where the action was tried before Kelly, J., who ordered judgment 
 allowing the claim to the amount of $31,444.49. Plaintiff's appeal 
 from the judgment. 
 
 COLLINS, J. Allen and Levinson were general partners, looking after 
 a mercantile business in St. Paul. Appellants were engaged in the 
 wholesale trade in Chicago, where Ettelsohn resided. E. Allen & 
 Co., the insolvents, were dealing quite extensively with appellants, 
 and Ettelsohn was attending to nearly all of their part of the busi- 
 ness. E. Allen & Co. had an opportunity to sell a bill of goods to 
 Long & Glennon, traders at Mankato, Minn., upon time. Ettelsohn 
 called upon appellants in reference to such a sale, and it was agreed 
 that if the sale was made the latter would take Long & Glennon's 
 notes upon account, when indorsed by Ettelsohn personally and by
 
 THE PAROI, EVIDENCE RULE 699 
 
 his firm. The sale was made, and the purchasers executed 13 prom- 
 issory notes, bearing date April 9, 1888, payable to their own order 
 at intervals of 15 days, the first 235 days from date. These notes 
 were then indorsed by Long & Glennon, delivered to Allen & Co., 
 and immediately forwarded to Ettelsohn, who at once placed his own 
 name and that of the firm upon the back of each, and delivered them 
 to appellants, with the understanding that they should be discounted. 
 This was done by appellants, and the trial court found as a fact that 
 the proceeds were applied by the latter in payment of the balance 
 then owing appellants by Allen & Co. on account of goods sold be- 
 tween September i and December 31, 1888. These notes were made 
 payable at the office of the makers at Mankato, but were not pre- 
 sented there or elsewhere for payment as they matured. On Janu- 
 ary 19, 1889, Long & Glennon made an assignment under the insol- 
 vency act, and then removed from the state. To avoid the effect of 
 a failure to present the notes at maturity, to give notice thereof, and 
 of the makers' default, appellants offered to prove on the trial that, 
 at the time of the indorsement, demand upon the makers at maturity, 
 notice thereof, and of non-payment, were verbally waived by the 
 indorsers, Allen & Co. The question is by no means a new one, and 
 goes to the competency, as between indorser and indorsee, of tes- 
 timony tending to show that contemporaneously with the indorse- 
 ment, there was a parol agreement which materially changed the 
 contract from what it appeared to be, and relieved one of. the par- 
 ties from the performance of certain acts otherwise resting upon 
 him. To put it in other words, the object of their proposed testi- 
 mony was to transform the contract from one of conditional to one 
 of absolute liability. 
 
 From the earliest history of the state this court has steadily re- 
 sisted the attempts which have frequently been made to vary or 
 explain by parol the ordinary indorsement of a promissory note, by 
 means of which the usual liability and contract of the indorser might 
 be enlarged or diminished, made greater or less, as interest demanded. 
 The most notable of the earlier cases was that of Kern v. Von Phul, 
 7 Minn. 341 (426), where a regular indorser in blank sought to 
 show "that he was an indorser without recourse. We do not feel 
 called upon to review this line of cases, but content ourselves by 
 saying that, while this precise question was in neither, it was prac- 
 tically settled by the reasoning and conclusion in the cases of First 
 Nat. Bank v. Nat. Marine Bank, 20 Minn. 49 (63) ; Barnard v.
 
 700 CASES ON EVIDENCE 
 
 Gaslin, 23 Minn. 192; and Knoblauch V. Foglesong, 38 Minn. 352 
 (37 N. W. Rep. 586). 
 
 The contract of indorsement is twofold, that of sale and trans- 
 fer, and that of conditional liability. When in blank, as in the case 
 at bar, all of the authorities concur in saying that a well-defined 
 contract has been made, as full and complete as if explicitly ex- 
 pressed in writing. On what principle can it be urged, then, that 
 testimony which would be incompetent and inadmissible to vary, alter, 
 or control a written agreement can be receivable to vary, alter, or 
 control, and even to destroy, the contract entered into by the regu- 
 lar indorser in blank? And if there is any rule of evidence, save 
 in a few exceptional cases referred to in First Nat. Bank v. Nat. 
 Marine Bank, supra, whereby parol testimony may be received to 
 vary or alter the contract, at what point short of that which may to- 
 tally destroy it can the line be drawn? The contract is admittedly 
 of the same force as though it were reduced to writing, and. for that 
 reason it can only be limited or enlarged or impeached with safety 
 by the same class of testimony. If the indorser wishes to qualify 
 his liability, apt words are in common use which he must adopt, or 
 he must in some other manner clearly indicate that his indorsement 
 is limited to a transfer of the paper, and nothing more. Tf a trans- 
 fer of title is desired, with a complete and unconditional assump- 
 tion of liability by the indorser, equally as apt and common phrases 
 are at hand which may be written above the indorser 's signature, 
 and the indorsee must see to it that they are used, thus relieving the 
 transaction of its doubt and uncertainty. We regard it as of great 
 importance that the rule respecting negotiable paper should be clear, 
 and the whole story of its obligation should appear upon it. The 
 indorsee must not be permitted, as against the indorser, to show that 
 at the time of the indorsement it was verbally agreed that present- 
 ment for payment, notice thereof, and of non-payment, need not be 
 made or given. Bank of U. S. v. Dunn, 6 Pet. 51 ; Renner v. Bank 
 of Columbia, 9 Wheat. 581; Dale v. Gear, 38 Conn. 15; Bartlett v. 
 Lee, 33 Ga. 491; Barry v. Morse, 3 N. H. 132; Charles v. Denis, 
 42 Wis. 56; Bank of Albion v. Smith, 27 Barb. 489; Campbell v. 
 Robbins, 29 Ind. 271; Rodney v. Wilson, 67 Mo. 123; Hoare v. 
 Graham, 3 Camp. 57; Free v. Hawkins, 8 Taunt. 92. 
 
 Judgment affirmed.
 
 THE; PAROL EVIDENCE RULE 701 
 
 PALLISTER v. CAMENISCH. 
 24 Col. App. 79. (1912) 
 
 The facts in this case, so far as we deem them important, are sub- 
 stantially as follows: Pallister, the appellant, defendant below, pur- 
 chased a dairy from Camenisch, appellee, plaintiff below, inducing 
 Camenisch to accept as part payment for said dairy a promissory 
 note for $2,500, payable to Pallister and signed by Benjamin W. 
 Ladd and S. D. Moss. The note was taken by Camenisch at its face 
 value, with the accrued interest, and Pallister was given credit on 
 the purchase price of the dairy for the amount. The note was en- 
 dorsed by Pallister, "without recourse," and delivered by him to 
 Camenisch. Up to this point the facts are undisputed. On substan- 
 tially all other questions of fact the evidence is in sharp conflict. 
 
 The briefs are limited to the discussion of two questions, and we 
 shall accordingly limit our consideration of the case. The first cause 
 of action (the only one we shall consider), is based on wilful or 
 actual fraud. In it, plaintiff charges defendant with liability, be- 
 cause of wilful and fraudulent misrepresentations made by the de- 
 fendant, and deceit practiced by him upon the plaintiff. 
 
 Counsel for appellant in their brief contend, first, that since Pal- 
 lister endorsed the note, "without recourse," he thereby made it plain 
 that he would not be responsible for its payment; that such an en- 
 dorsement constituted a written contract, and measured his full ob- 
 ligations, or rather, worked his release from all further obligations 
 in the prerrTises. In other words, it is contended that in writing he 
 declined to be bound in any way for and on account of the note. 
 Hence, they say, to attempt to hold him liable by reason of any oral 
 statement that he may have made at or before the date of transfer, 
 would be to vary the terms of a written contract by oral agreement. 
 Appellant further contends that he ought not to be held liable for 
 any misrepresentations he may have made to appellee, for the rea- 
 son, as he says, that appellee, having undertaken to investigate and 
 ascertain for himself the financial condition of the maker of the note, 
 and no artifice being used to prevent such investigation from being 
 full and complete, the conclusive presumption is that the appellee 
 relied upon the result of his own investigations rather than upon 
 the appellant's statements. Neither of these arguments impress us 
 as being sound under the law applicable to this case, and the facts 
 disclosed on the trial. In appellant's brief appears the following:
 
 702 CASES ON EVIDENCE 
 
 "That his, (appellant's) endorsement of a negotiable instrument, 
 whether the endorsement be general or qualified, is a full and com- 
 plete contract with full and complete agreements as to the covenants 
 of the endorser, and is not subject to be varied or attacked by parol 
 evidence." This statement, and the authorities oited in support 
 thereof, have no application to the case at bar. If appellee had sued 
 appellant as endorser of the note, or by reason of the fact that he 
 had endorsed it, then the statement quoted, and the authorities cited, 
 would be applicable. To illustrate: Had Moss's financial condition 
 at the time the alleged false representations were made, been sub- 
 stantially as represented by appellant, but thereafter, through adverse 
 circumstances, he had lost his fortune and been reduced to the state 
 financially in which he really was at the time these representations 
 were made; or had Moss refused, through dilatoriness, or from 
 other ulterior motives, to pay the note when it became due, the 
 endorsement of the appellant, "without recourse," would have barred 
 recovery against him. Under the state of facts assumed here by. 
 way of illustration, the contention of appellant and his authorities 
 would be sound. But we have no such case before us. It may be 
 conceded that had appellant, before or at the time of endorsing the 
 note, said to appellee: "Now, I am going to endorse this note 'with- 
 out recourse,' but, nevertheless, if the defendant does not promptly 
 meet his obligations and take up the note at maturity, I will, not- 
 withstanding I have endorsed the note 'without recourse,' see that 
 you are paid," the appellant could not have been held liable by rea- 
 son of such oral undertaking or statement, but it by no means fol- 
 lows from this concession that one may make false representations 
 concerning a material fact affecting the value of a note which he is 
 seeking to negotiate, and then escape responsibility for his represen- 
 tations simply by writing the words, "without recourse," after his 
 endorsement. 
 
 We perceive no reason, either in law or in common sense, why 
 one who makes false representations concerning the payor of a prom- 
 issory note for the purpose of giving to the note he is attempting 
 to negotiate a false or fictitious value, ought not to be held respon- 
 sible for his statements in all respects as though such statements 
 had been made of and concerning real estate or personal property 
 of any character. To so hold does. not involve any doctrine of the 
 law merchant or the provisions of our negotiable instruments act, 
 as counsel for appellant seem to think. 
 
 Stripped of its verbiage, and disregarding all specious and subtle
 
 THE PAROL EVIDENCE RULE 703 
 
 reasoning, the situation is simply this : Pallister received valuable 
 property from Camenisch for a worthless piece of paper; his false 
 representations led appellee to conclude that the paper was worth 
 its face ; but for these false representations, appellee would not 
 have closed the transaction and accepted the note. Under these cir- 
 cumstances, does the law permit Pallister to retain the property and 
 force Camenisch to keep the worthless paper ? We think not. 
 
 Judgment affirmed. 
 
 SWAYNE v. FEL ICE. 
 
 84 Conn. 147. (1911) 
 \ 
 
 Action to recover rent, and damages for alleged breaches of cove- 
 nants in a lease, brought to the City Court of New Haven and tried 
 to the jury before Mathewson, J. ; verdict and judgment for the de- 
 fendants, and appeal by the plaintiff for alleged errors in the rul- 
 ings and charge of the court. Error and new trial ordered. 
 
 HAU,, C. J. 
 
 One of the answers to all the counts alleges, in substance, that 
 the plaintiff fraudulently procured the defendants to execute the 
 lease in question by representing to them that he would build a 
 dwelling-house and dig a well upon the premises for the use of the 
 defendants, and would incorporate such agreement in the written 
 lease to be prepared, and by falsely and fraudulently stating to the 
 defendants, who were ignorant and unable to read English, that 
 such a provision was incorporated in the written lease which they 
 signed; that the plaintiff refused to build the house and dig the well, 
 and thereby prevented the defendants from using or occupying the 
 premises, and compelled them to abandon them, which they did after 
 due notice to the plaintiff. 
 
 The reply denies the allegations of fraud. 
 
 The testimony received of the defendant Ferrucci, that the plain- 
 tiff orally promised to build a house and dig a well, was inadmis- 
 sible for the purpose of proving such a promise of the plaintiff as 
 constituting in itself a defense, or of proving any agreement of the 
 parties respecting the defendants' occupation of the premises or the 
 conditions under which the defendants were to pay the rent reserved, 
 different from those stated in the written lease. Such testimony
 
 704 CASES ON EVIDENCE 
 
 was, however, admissible in support of the averments of fraud con- 
 tained in the answer, when offered in connection with evidence that 
 the plaintiff promised to have such agreement incorporated in the 
 written lease, and evidence that he falsely represented that it was, 
 in fact, contained in such lease. As we read the record it was only 
 admitted for the latter purpose, and in connection with evidence of 
 the character just described. 
 
 Reversed and a new trial ordered on another ground. 
 
 FORSYTH MFG. CO. v. CASTLEN. 
 112 Ga. 199. (1900) 
 
 COBB, J. Castlen brought suit against the Forsyth Manufacturing 
 Company upon a contract of which the following is a copy : "This 
 agreement made and entered into this the 25th day of April, 1898, 
 by and between the Forsyth Manufacturing Company of the first 
 part, and A. W. Castlen of the second part, both of the county of 
 Monroe and the State of Georgia, witnessed! : that the party of the 
 first part hereby agrees to pay the party of the second part six cents 
 per pound for one hundred and fifty bales of lint-cotton to be deliv- 
 ered at the warehouse of said Forsyth Manufacturing Company on 
 the Central Railroad just above Forsyth, in good merchantable order, 
 at times below set forth. The party of the second part hereby agrees 
 to deliver at the place above designated one hundred and fifty bales 
 of lint-cotton, said cotton to be delivered to the Forsyth Manufac- 
 turing Company as follows: fifty bales in September, fifty bales in 
 October, and fifty bales in November, 1898, at the place above set 
 forth, and in good merchantable order, all bales to weigh more than 
 450 pounds each; and should the party of the second part fail or 
 refuse to furnish the full amount of fifty bales each month as above 
 set forth, then the second party forfeits one half cent per pound for 
 each pound not delivered at the end of each month of fifty bales." 
 This contract was signed by both parties mentioned. At the trial it 
 appeared that Castlen was a cotton-planter, that this fact was known 
 to the president of the defendant company, and that at the date the 
 contract was entered into Castlen had upon his land cotton planted 
 and growing. It also appeared that Castlen had delivered to the de- 
 fendant one hundred bales of cotton, which were raised upon his
 
 THE PAROL EVIDENCE RULE 705 
 
 place, and which were received by the defendant and paid for un- 
 der the contract. Six bales raised on the plaintiff's place were de- 
 livered and received in due time, but have never been paid for. The 
 plaintiff tendered to the defendant, in November, a sufficient num- 
 ber of bales to complete the contract; but the defendant company 
 refused to receive and pay for these bales, on the ground that they 
 were not raised upon the land of'Castlen. This action is brought 
 to recover for the six bales of cotton which were received and not 
 paid for, and for damages on account of the failure to receive and 
 pay for the number of bales tendered in November which were nec- 
 essary to complete the contract. The jury under the charge of the 
 court returned a verdict in favor of the plaintiff. The defendant 
 made a motion for a new trial, which was overruled. The case is 
 here upon a bill of exceptions assigning error upon the decision of 
 the judge overruling a demurrer to the petition, and upon the judg- 
 ment refusing to grant a new trial. 
 
 The Civil Code declares that parol evidence is inadmissible to add 
 to, take from, or vary a written contract, or to contradict or vary 
 the terms of a valid written instrument. Civil Code, sees. 3675, 
 5201. When parties have reduced the agreement between them to 
 writing, they must abide by the terms of the writing, whatever they 
 may be, and nothing in the writing can be contradicted or varied by 
 parol evidence. If, however, "a part of a contract only is reduced to 
 writing (such as a note given in pursuance of a contract), and it is 
 manifest that the writing was not intended to speak the whole con- 
 tract, then parol evidence is admissible." Civil Code, sec. 3675 (i). 
 "To bring a case within the rule admitting parol evidence to com- 
 plete an entire agreement of which a writing is only a part, two 
 things are essential. First, the writing must appear on inspection 
 to be an incomplete contract; and second, the parol evidence must 
 be consistent with and not contradictory of the written instrument." 
 Bradner, Evidence (2d ed.), 303. See also Underbill, Ev. sec. 209, 
 307; Smith, Ev. 214. And a party is at liberty to prove "the exist- 
 ence of any separate oral agreement as to any matter on which a 
 document is silent, and which is not inconsistent with its terms, if 
 from the circumstances of the case the court infers that the parties 
 did not intend the document to be a complete and final statement of 
 the whole of the transactions between them." 2 Whart. Ev. sec. 1026, 
 p. 203. See also Smith, Ev. 553; i Gr. Ev. (i6th ed.) sec. 284a, 
 p. 413; Browne, Parol Ev. sec. 50; McKelvey, Ev. sec. 277. It ap- 
 pears from the authorities above cited, that, in order to render parol
 
 706 CASES ON EVIDENCE 
 
 evidence admissible for the purpose of making complete an incom- 
 plete contract, the fact that the contract is incomplete must appear 
 upon the face of the contract by reason of a patent ambiguity, or, 
 although apparently complete on its face, in the light of evidence 
 showing the circumstances surrounding the parties at the time the 
 contract was executed, a latent ambiguity that it may in like man- 
 ner be relieved. Civil Code, sees. 3675, 5202. The rule is thus stated 
 in McAlahon v. Tyson, 23 Ga. 43 : "When a writing is such that 
 something more than what is expressed by it is to be implied from 
 it, parol evidence of anything not inconsistent with that unexpressed 
 something is admissible." In that case it appeared that a note was 
 given in consideration of "rent," and parol evidence was admitted 
 to show what was the subject-matter of the contract to rent. In 
 Johnson v. Patterson, 86 Ga. 725, the ruling in McMahon v. Tyson 
 was followed, and it was held that a written contract, silent or am- 
 biguous as to certain matters, may, as to them, be explained by parol 
 evidence not conflicting with anything plainly expressed in such con- 
 tract. In Barclay v. Hopkins, 59 Ga. 562, it was held: "Where the 
 entire contract does not purport to be in writing, parol testimony is 
 admissible to show all other terms and conditions, not inconsistent 
 with the written part." There are many decisions by this court re- 
 lating to this subject, but it would be useless to refer to or cite all 
 of them. Enough have been cited to show that this court has rec- 
 ognized the rule, that in order to allow parol evidence to be admitted 
 to show a collateral agreement it must appear, either from the con- 
 tract itself or from the surrounding circumstances, that the contract 
 is incomplete, and what is sought to be shown as a collateral agree- 
 ment must not in any way conflict with or contradict what is con- 
 tained in the writing. An examination of the cases decided by this 
 court will show, we think, that this rule has been steadfastly adhered 
 to. There may be some confusion in regard to the way in which it 
 has been applied in some cases, and possibly there have been erro- 
 neous applications of the rule; but no case has been called to our 
 attention where there has been any departure from this rule. 
 
 It follows from what is above said, that the court did not err 
 in refusing to allow the defendant to prove, as a collateral agree- 
 ment between himself and the plaintiff, that the cotton specified in 
 the contract was to be raised on the lands of the plaintiff. The con- 
 tract between the parties evidenced by the writing calls for a cer- 
 tain number of bales of cotton of a certain description, and for no 
 particular cotton. It is clear that, so far as the terms of the contract
 
 THE PAROL EVIDENCE RULE 707 
 
 are concerned, the parties did not intend that the plaintiff should be 
 limited to cotton raised by him. It was a plain and unambiguous 
 contract for the delivery of any cotton, answering to the descrip- 
 tion specified in the contract, which the plaintiff might see fit to offer 
 to the defendant at the times specified in the contract. Such being 
 the legal effect of the paper, parol evidence tending to show that the 
 real contract was that the cotton was to be raised on the land of the 
 plaintiff contradicted and varied and altered the very terms of the 
 written instrument. There being no patent ambiguity in the contract, 
 of course parol evidence was not admissible on the ground that such 
 an ambiguity might be explained. Evidence showing that it was the 
 intention of the parties to make a contract whereby plaintiff should 
 be confined to cotton raised on his own lands did not raise a latent 
 ambiguity, but directly impeached an unambiguous instrument. If 
 such evidence could be held to raise a latent ambiguity, the rule 
 prohibiting the introduction of parol evidence would be, in effect, 
 abrogated. If such was the intention of the parties, and this was 
 omitted from the contract by fraud, accident, or mistake, of course 
 the defendant would have a right in a court of equity to reform the 
 contract, but he cannot in a court of law be allowed in this manner 
 to contradict the terms of a plain, unambiguous paper by parol evi- 
 dence. 
 
 There was no error in overruling the defendant's demurrer, nor 
 in the rulings on evidence complained of in the motion for a new 
 trial. 
 
 Judgment affirmed. All the Justices concurring. 
 
 ANTON KNOBLAUCH v. ELIZABETH E. FOGLESONG. 
 38 Minn. 352. (1887-88) 
 
 After the decision of the former appeal in this action (37 Minn. 
 320), the action was tried in the district court for Hennepin county, 
 before Rea, J., and a jury, and a verdict was directed for plaintiff, 
 who appeals from an order granting a new trial. 
 
 GILFILLAN, C. J. Action against the defendant Grossman as maker, 
 and the defendant Foglesong as indorser, of a promissory note made 
 by Grossman, payable to the order of Foglesong, and by the lat- 
 ter indorsed in blank. At the trial, Foglesong offered to prove an
 
 708 CASES ON EVIDENCE 
 
 oral agreement, made at the time of the indorsement, between the 
 indorser and indorsee, this plaintiff acting for the latter, that the 
 indorsee would look for his pay to the security only given by the 
 maker with the note (to wit, a mortgage upon real estate), and not 
 trouble or sue the indorser; the plaintiff stating that he wanted the 
 name on the back of the note because it was made payable to order, 
 and the indorsement was necessary, and should be treated simply 
 as passing the title to the notes ; and also offered to prove by parol 
 in substance, that, prior to the making of the note, Grossman and 
 Foglesong were negotiating for the sale of certain real estate by the 
 latter to the former, when the former made an offer for the real 
 estate of $2,000 in cash, $2,000 in other lands, and $2,250 in notes 
 (one of them the note in suit), to be secured by a mortgage on the 
 real estate; that Foglesong objected on the ground that the mortgage 
 would be a second mortgage, whereupon plaintiff, who was present 
 and had heard the negotiations and offer, agreed that, if Foglesong 
 would take the notes and mortgage at $2,250, he would purchase 
 them, and count on the notes. Each of these offers was objected 
 to as incompetent and immaterial, and the objection was sustained. 
 After a verdict for the plaintiff, the court below, conceding that it 
 had erred in excluding the evidence granted a motion by defendant 
 for a new trial. 
 
 The objection to each offer was rightly sustained. 
 
 BLANCHARD v. RIDGEWAY. 
 779 Mich. 4Qi. (1914) 
 
 MOORE, J. The plaintiff sued defendant upon three notes. 
 
 From a judgment in favor of the plaintiff, the case is brought here 
 by writ of error. 
 
 The defendant attempted to show by the cross-examination of the 
 plaintiff for what consideration the notes were given, and that they 
 were drawn by plaintiff, and were for a larger amount than the debt 
 of defendant. Defendant also attempted to show by his own testi- 
 mony that the facts stated in the notice under his plea, which we 
 have quoted were true. That plaintiff drew the notes for a larger 
 amount than he should, and shoved them over to the defendant, who 
 signed them, relying upon the statements of the plaintiff that they 
 were drawn for the proper amount. This testimony was excluded
 
 THE PAROL EVIDENCE RULE 709 
 
 upon the theory that the amounts stated in the notes must control, 
 and that to permit the testimony would be to allow a written instru- 
 ment to be contradicted or varied by parol. It must be remembered 
 that the plaintiff is the payee. No third party is interested. 
 
 The testimony was competent under Anderson v. Walter, 34 Mich. 
 113; Soper v. Peek, 51 Mich. 563 (17 N. W. 57) ; Maltz v. Fletcher, 
 52 Mich. 484 (18 N. W. 228) ; Macomb v. Wilkinson, 83 Mich. 486 
 (47 N. W. 336); Phelps v. Abbott, 114 Mich. 88 (72 N. W. 3); 
 Brown v. Smedly, 136 Mich. 65 (98 N. W. 856), and the many 
 authorities cited in the last-named case. 
 
 As this conclusion must reverse the case, it will not be necessary 
 to refer to the other assignments of error, as the same situation 
 cannot arise again. 
 
 The judgment is reversed, and a new trial ordered. 
 
 MCALVAY, C. J., and BROOKE, KUHN, STONE, OSTRANDER, BIRD. 
 and STEERE, JJ., concurred. 
 
 CENTRAL SAVINGS BANK v. O'CONNOR. 
 132 Mich. 578. (1903) 
 
 MONTGOMERY, J. This action is brought upon two promissory notes 
 aggregating $1.523.47, made by the defendant O'Connor and indorsed 
 by the defendant Hammond. The notes bear date February i, 1901. 
 The plaintiff made its case by introducing them in evidence. The 
 defendants then offered to show by a parol agreement made at the 
 time said notes were executed, and which is set out in a notice under 
 the general issue, in substance as follows : That the notes were given 
 for the amount of a chattel mortgage which plaintiff held upon the 
 property of the J. R. Pearson Company, which property defendant 
 O'Connor had purchased ; that the title to said notes never passed 
 to said plaintiff; that the notes were delivered to plaintiff upon the 
 clear and distinct understanding and condition, agreed to by said 
 plaintiff that in case the said J. R. Pearson Company should there- 
 after be forced into bankruptcy by any of its creditors, upon pro- 
 ceedings instituted by them for that purpose, and adjudicated a bank- 
 rupt, said notes would thereupon, in the event of the happening of 
 such contingency, become and be null and of no effect, and were 
 not to be paid, and that it was upon said condition said notes were
 
 7io CASES ON EVIDENCE 
 
 delivered to said plaintiff; and that it accepted and held, and still 
 holds, them, and each of them. 
 
 The evidence of the defendants upon this subject, which is most 
 favorable to the defense, is, in substance, this : That the notes were 
 executed in consideration of the transfer by the plaintiff to the de- 
 fendant of a chattel mortgage and accompanying note of the J. R. 
 Pearson Company, which note was indorsed by J. R. Pearson, F. 
 H. Crawford, and A. J. Franklin. Defendant testifies that, after 
 the notes were signed and indorsed he then said to Mr. Fox, plain- 
 tiff's representative: 
 
 "These notes are delivered to you on the condition that if this 
 concern is put in bankruptcy by reason of any of these creditors 
 petitioning because of this chattel mortgage having been given, or an 
 execution having been levied and the goods sold under the execution, 
 which are both acts of bankruptcy v then the notes are to be null 
 and void; and Mr. Fox says, 'That is my understanding of it, and 
 I accept them so;' and he says, 'You know that there is nothing go- 
 ing to be done about it.' " 
 
 On the trial of the case s the court submitted the case to the jury 
 upon the instruction that, if the claim set up by the defense was 
 true, the plaintiff could not recover. The jury returned a verdict 
 for the defendants. Afterwards a motion for a new trial or for the 
 entry of a judgment non obstante veredicto was entered, and the 
 court, after consideration, entered a judgment for the plaintiff non 
 obstante veredicto. The defendants bring error. 
 
 The meritorious question is whether the defense set out in this 
 notice is one which can be established by parol testimony. It is 
 doubtless true, as contended by the appellants counsel, that it may 
 be shown that a promissory note, unconditional in terms, was condi- 
 tionally delivered that is to say, that it was placed in the hands of 
 the payee, but with the distinct understanding that it was not to be 
 operative or to become a binding obligation until the happening of 
 some event. Brown v. St. Charles, 66 Mich. 71 (32 N. W. 926) ; 
 Burke v. Dulaney, 153 U. S. 228 (14 Sup. Ct. 816). On the other 
 hand, the rule is firmly established that where a promissory note for 
 a certain amount, payable at a certain time, is delivered into the 
 hands of the payee, to take effect presently as the obligation of the 
 defendant, parol evidence to introduce conditions or modifications 
 of the terms is not admissible. The case of Hyde v. Tenwinkel, 26 
 Mich. 93, illustrates this rule. It was there held that an attempt to 
 show a verbal contemporaneous agreement to reduce a note from
 
 THE PAROL EVIDENCE RULE 711 
 
 an absolute and specific promise to a defeasible engagement was in- 
 admissible. The same rule has been followed, one of the recent 
 cases being Phelps v. Abbott, 114 Mich. 88 (72 N. W. 3); Burns 
 & Smith Lumber Co. v. Doyle, 71 Conn. 742 (43 Atl. 483, 71 Am. 
 St. Rep. 235). We think it clear that the present case falls within 
 that line of cases which precludes parol evidence offered to vary the 
 terms of a written instrument. If we adopt the testimony of the 
 defendant as correctly stating the transaction, and more certainly if 
 we adopt the terms of the notice of defense by which the defendant 
 was bound, these notes were delivered to take effect presently, but 
 upon the alleged parol agreement that they were to become void in 
 the event that a certain contingency should happen. This is no 
 more than averring that plaintiff entered into a contemporaneous 
 parol agreement that, while the defendant's obligation bound him to 
 pay absolutely the sums of money at specified times, yet in a cer- 
 tain contingency this sum should not be payable at all, and the notes 
 be redelivered. 
 
 It is suggested, also that there was a total failure of considera- 
 tion. This cannot be held, for the reason that there was transferred 
 to the defendant, in consideration for the notes the chattel mortgage 
 and promissory note of the J. R. Pearson Company, which note had 
 indorsers against whom it would be enforceable. There was no ab- 
 solute and total failure of consideration, and no defense of partial 
 consideration was noticed under the general issue. 
 
 We think, however, that the practice adopted in this case was mis- 
 taken. There is no verdict which supports the judgment entered 
 non obstante veredicto. Had there been a special verdict inconsist- 
 ent with the general verdict, such a judgment might have been 
 proper. 
 
 We think the case should be reversed and remanded for a new 
 trial. No costs will be awarded to either party on this hearing. 
 
 The other Justices concurred.
 
 712 CASES ON EVIDENCE 
 
 WHEATON ROLLER-MILL COMPANY v. JOHN T. NOYE 
 MANUFACTURING COMPANY. 
 
 66 Minn. 156. (1896) 
 
 MITCHELL, J. This action was brought to recover damages for 
 the breach of a warranty of a steam engine, boiler, etc., furnished 
 and set up by defendant for the plaintiff in its mill. The alleged 
 warranty was that the machinery was well made, of good material, 
 and capable of operating plaintiff's mill at full capacity; the part 
 italicized being all that is material on this appeal. It appeared on 
 the trial thftt the machinery was furnished under the written con- 
 tract found in full in the paper book, at folios 52 to 57, which is so 
 long that we shall leave it to speak for itself, without attempting here 
 to state its provisions. The plaintiff then offered certain parol evi- 
 dence, the exclusion of which by the court forms the subject of the 
 assignments of error. 
 
 The second assignment of error is that "the court erred in sus- 
 taining defendant's objection to plaintiff's offer to prove that there 
 was an express oral warranty." This refers to the complex and 
 somewhat obscure and indefinite offer found at the bottom of page 12 
 of the record. 
 
 Some parts of this offer were clearly inadmissible, and for that 
 reason, if no other, the defendants objection was properly sustained. 
 For example, the offer, in part, was to prove that there was an oral 
 agreement that the machinery should fulfill the conditions of the 
 written agreement. That was necessarily one of the terms of -the 
 written agreement itself, whether the conditions referred to in the 
 offer were expressed or implied. But what we infer the assignment 
 of error means is that the court erred in refusing to allow the plain- 
 tiff to prove an express oral warranty as alleged in the complaint, 
 that the machinery would be capable of operating plaintiff's mill at 
 its full capacity. It will be observed from its language that the 
 offer was to prove an oral warranty made in connection with, and 
 at the same time as, the written agreement. Assuming that such a 
 warranty as suggested could be spelled out of the offer, and that it 
 was made in proper form, still the evidence was properly excluded 
 under the familiar rule that parol evidence is inadmissible to vary 
 the terms of a written contract. 
 
 Plaintiff's contention is that it does not fall within that rule; that 
 the offer was merely to prove a separate oral agreement as to a
 
 THE PAROL EVIDENCE RULE 713 
 
 matter on which the writing was silent, and which was not incon- 
 sistent with its terms. The rule thus sought to be invoked is one 
 which both courts and text writers have found some difficulty in 
 formulating so as to be at once complete as well as accurate. 
 
 All the authorities are substantially agreed that where, in the ab- 
 sence of fraud, accident, or mistake, the parties have deliberately put 
 their contract into a writing which is complete in itself, and couched 
 in such language as imports a complete legal obligation, it is con- 
 clusively presumed that they have introduced into the written in- 
 strument all material terms and circumstances relating thereto. But 
 the point upon which the courts have sometimes differed is as to 
 how the incompleteness of the written contract may be made to 
 appear. Some cases seem to go to the length of holding that this 
 may be done by going outside of the writing, and proving that there 
 was a stipulation entered into but not contained in it, and hence that 
 only part of the contract was put in writing. If any such doctrine 
 is to obtain, there would be very little left of the rule against vary- 
 ing written contracts by parol. Such is not the law. Other cases 
 seem to go almost to the other extreme, by holding that the incom- 
 pleteness of the writing must appear on the face of the document 
 from mere inspection. But to furnish a basis for the admission of 
 parol evidence the incompleteness need not be apparent on the face 
 of the instrument. 
 
 If the written contract, construed, in view of the circumstances in 
 which, and the purpose for which, it was executed, which evidence 
 is always admissible to put the court in the position of the parties 
 shows that it was not meant to contain the whole bargain between 
 the parties, then parol evidence is admissible to prove a term upon 
 which the writing is silent, and which is not inconsistent with what 
 is written; but, if it shows that the writing was meant to contain 
 the whole bargain between the parties, no parol evidence can be ad- 
 mitted to introduce a term which does not appear there. In short, 
 the true rule is that the only criterion of the completeness of the 
 written contract as a full expression of the agreement of the par- 
 ties is the writing itself; but, in determining whether it is thus com- 
 plete, it is to be construed, as in any other case, according to its 
 subject matter, and the circumstances under which and the purposes 
 for which it was executed. 
 
 Applying the rules which we have laid down, parol evidence to 
 prove a warranty, which was part of the prior or contemporaneous
 
 714 CASES ON EVIDENCE 
 
 agreement, and about which the written contract was silent, was clearly 
 inadmissible. 
 
 Order affirmed. 
 
 TOWN SEND v. FONTENOT, Sheriff. 
 42 La. An. 890. 
 
 McENERY, J. This is a suit to restrain the execution of a judg- 
 ment of the District Court of the parish of St. Landry in a suit en- 
 titled J. U. Payne & Co. v. A. C. Townsend. 
 
 The ground for the injunction is that the execution was prema- 
 turely issued as the judgment creditors had granted a stay of execu- 
 tion until the ist day of January, 1890. Damages for the illegal 
 seizure are claimed to the amount of $9,000 against the judgment 
 creditors, and the Sheriff in solid o. 
 
 Henry M. Payne sold to A. C. Townsend the undivided half of the 
 Anchorage plantation, part cash and the balance on terms of credit 
 for which notes were executed by Townsend and the usual mortgage 
 and vendor's privilege retained on the plantation, to secure the de- 
 ferred payments. 
 
 The last two of the notes were acquired by Jacob U. Payne & Co., 
 and they brought suit against Townsend on the first maturity of the 
 notes to enforce payment, with recognition of the mortgage and 
 vendor's privilege. The defendant Townsend made no appearance 
 in said suit. When the default was made final and judgment ren- 
 dered there was inserted and incorporated in the judgment the fol- 
 lowing statement: 
 
 "The attorney of the plaintiff in this suit declares that he has been 
 instructed not to seize or sell said property before the end of the 
 year." 
 
 The defendants contend that this statement did not operate as a 
 stay of execution, that it was inserted ex gratia, and, as incorporated 
 in the judgment is meaningless. 
 
 On this point the defendants offered in evidence the testimony of J. 
 U. Payne, Thomas H. Lewis and R. W. Foster, to explain the inser- 
 tion of said statement in the judgment. It was properly excluded by 
 the District Judge, as no parol testimony can be received to vary, 
 contradict, explain or interpret a judgment. The defendants' counsel,
 
 THE PAROL EVIDENCE RULE 715 
 
 however, states that such was not the intention of introducing the 
 evidence, and its effects would not be to contradict or vary said judg- 
 ment, but to show that the defendants were not controlled by any vin- 
 dictive or malicious motives in executing the judgment. But in this 
 we think he was mistaken, and the District Judge viewed the effects 
 of the rejected testimony in its proper bearing. 
 
 It is immaterial in consideration of this question how the state- 
 ment got in the judgment. It was prepared and written by plaintiffs' 
 counsel, and must have been placed there by plaintiffs' instructions. 
 It is sufficient to show that it was there, and that it formed a part of 
 the judgment, as binding and authoritative as any other recital in it. 
 
 JOHNSON v. MANUFACTURING CO. 
 165 N. C. 105. (1914) 
 
 CLARK, C. J. This is an action to recover damages for trespass on 
 the "White" tract of land, which the plaintiffs claim title to under the 
 will of Sallie E. Ward, described as "lying on the White Oak road, 
 and adjoining the lands of Patterson Ruffin, A. S. Rascoe, and others, 
 and containing 191 acres." 
 
 The second and third exceptions are that the court refused to allow 
 the deed from Sallie E. Ward to W. A. Ward to be read to the jury, 
 and excluded all evidence offered to identify the land described in it and 
 tending to show what the 50 acres were included in the 191 acres of the 
 "White" tract claimed by plaintiffs. This deed from Sallie E. Ward 
 had been put in evidence without objection; but when the defendant 
 offered to read it to the jury the court excluded it, holding that, as a 
 matter of law, it was "void for lack of description," and that "the deed 
 did not describe any land." The description is "50 acres adjoined by 
 P. R., bound on the White Oak road and joining A. S. Rascoe and P. 
 Ruffin." The deed has apt words of conveyance and is sufficiently 
 formal. It does not convey an indefinite 50 acres "out of" the White 
 land but a tract of 50 acres which was a part of the White land, "on 
 the White Oak road" adjoining the lands of A. S. Rascoe and P. Ruffin. 
 
 We think his honor erred in excluding parol testimony to identify 
 this tract of land. It was a latent and not a patent ambiguity. It may 
 be that the defendant could have shown that the boundaries had been 
 actually run and marked. At any rate, it was not impossible to lay off
 
 716 CASES ON EVIDENCE 
 
 50 acres of the "White" tract, taking the White Oak read as one bound- 
 ary. The other boundary in such case (unless it had been actually 
 run and marked) would have been parallel to said White Oak road 
 and far enough from it to make up the acreage of 50 acres. In 
 Farmer v. Batts, 83 N. C. 387, there is an interesting discussion in 
 which the cases are cited, where the words of description have been 
 held too indefinite to admit of parol testimony, and other cases in 
 which the description has been held sufficient. We think this case falls 
 in the latter class. 
 
 Among the later cases in point is Hudson v. Morton, 162 N. C., 6, 
 in which the court held that a description "being one acre of land ad- 
 joining L., in one corner of the field now turned out and lies near and 
 including the spring, it being a portion of the H. tract conveyed by 
 D. to M.," was held sufficiently definite to permit of parol testimony 
 to fit the description to the deed. Among the cases cited therein is 
 Edwards v. Deans, 125 N. C. 61, where a deed for "30 acres in the 
 western part of a tract of 112 acres" was held sufficient to offer proof 
 of a survey of said 30 acres, followed by possession. In Perry v. 
 Scott, 109 N. C. 374, the language, "on the south side of Trent River 
 adjoining the lands of Colgrove, McDaniel and others, containing 360 
 acres," was held not too vague and indefinite to permit identification 
 by parol. 
 
 In Stewart v. Salmonds, 74 N. C. 518, Pearson, C. J. says that the 
 words "29 acres off the north end of a tract of land containing 129 
 acres, of an irregular figure, and bounded by eight lines, all straight, 
 and with definite courses and distances can be ascertained and cut off 
 with mathematical precision. The question is, Can the 29 acres be 
 identified by the rules of mathematics so that the cutting off of the 29 
 acres will involve no discretion, but be a mere ministerial act? We 
 think the 29 acres can be identified by a mere ministerial act." This 
 case has often been cited and approved ; see Anno. Ed. 
 
 In Warren v. Makely, 85 N. C. 12, the description is: "A parcel 
 of land lying and being in Currituck Township, near the head of Smith 
 Creek, being the easternmost portion of the farm I purchased of my 
 brother, John E. Fortescue, known as the Russel land, containing 100 
 acres." This court held that the court below properly refused to tell 
 the jury, from a simple inspection of the deed, that the 100 acres 
 could not be ascertained, and added: "If the larger tract be known, 
 it is apparent the area of 100 acres can be cut off from its eastern 
 part by a line running due north and south." To similar purport is 
 Webb v. Cummins, 127 N. C. 41, and Shaffer v. Hahn, in N. C., at
 
 THE PAROL EVIDENCE RULE 717 
 
 p. ii. Here the description, "50 acres on the White Oak road," is 
 sufficient to admit of parol proof. 
 
 In Cox v. Cox, 91 N. C. 256, the court held that the acreage is 
 material in questions of doubtful boundary. Here the 50 acres is a 
 part of the "White" tract and is on the White Oak road. That is to 
 say the land being a part of the "White" tract, and one boundary, 
 "the White Oak road," being given, as well as the adjoining owners, 
 P. R. Ruffin and A. S. Rascoe, parol testimony was admissible either 
 to show an actual survey, if one had been made, and possession there- 
 under, as in Edwards v. Dean, supra, or the tract could be located, as 
 we have said, by running a line parallel with the White Oak road so 
 as to cut off 50 acres, as in Stewart v. Salmonds and Warren v. 
 Makely and other cases, supra. 
 
 As these errors require a new trial, it is unnecessary to discuss the 
 other exceptions. 
 
 Error. 
 
 WHITBY v. MOTZ. 
 125 Minn. 40. (1914) 
 
 Ella Whitby petitioned the probate court for Wabasha county that 
 in its final decree in the matter of the estate of George Motz, deceased, 
 it assign to her such portion of the estate of decedent as though he 
 had died intestate, petitioner being a daughter and having been omitted 
 from the last will and testament of decedent, and it not appearing that 
 such omission was intentional, Mary Motz, the executrix and residuary 
 legatee of the estate, objected. Ella Whitby, having been omitted from 
 any share of the estate by the terms of the final decree appealed there- 
 from to the district court for Wabasha county. The appeal was heard 
 before Snow, J., who made findings and ordered judgment affirming 
 the final decree of the Probate Court. From an order denying her 
 motion for a new trial, Ella Whitby appealed. Affirmed. 
 
 TAYLOR, C. George Motz and the mother of appellant were married 
 in 1883 and lived together as husband and wife until 1891 when they 
 separated. Appellant was born a few months after the separation and 
 is their only child. Subsequently Motz obtained a divorce on the 
 ground of desertion, and on September 14, 1897, married the respond- 
 ent Mary Motz, with whom he lived until his death on August 9, 1911,
 
 718 CASKS ON EVIDENCE 
 
 He left a will by which he gave the respondent all his property ex- 
 cept one horse. Appellant was not mentioned or referred to in the 
 will. 
 
 From the parol testimony offered by respondent and received in evi- 
 dence by the court, the court found as a fact "that said omission to 
 provide for appellant in said last will and testament, or to mention 
 her name therein, was intentional and not occasioned by accident or 
 mistake." 
 
 Appellant insists : ( i ) That such parol testimony was not admis- 
 sible and that the question as to whether she was intentionally omitted 
 must be determined solely from the will itself; (2) that the evidence 
 is not sufficient to sustain the above finding, even if such parol testi- 
 mony were admissible. 
 
 In the revised laws of 1905 our statutes were changed so as to read 
 as follows : 
 
 "If any child of a testator, born after the death of such testator, 
 has no provision made for him by his father in his will or otherwise, 
 he shall take the same share of his father's estate that he would have 
 taken if the father had died intestate." Section 3668, R. L. 1905 (Sec- 
 tion 7259, G. S. 1913). 
 
 The second section is so changed that the right of a pretermitted 
 child to inherit is absolute, "unless it appears that such omission was 
 intentional and not occasioned by accident or mistake." Under the 
 original statute the burden was upon the omitted child to show that 
 such omission was unintentional. Under the present statute, when 
 it appears that a child has been omitted, the burden is upon those who 
 claim that such omission was intentional, to establish that fact. The 
 statute contains no restriction as to the manner in which such fact 
 may be shown. Appellant, however, insists that the statute should be 
 construed as if it provided that an omitted child should inherit, "un- 
 less it appears from the ivill that such omission was intentional." In 
 other words that the court, in effect, should interpolate the words 
 italicised. It is difficult and frequently impossible to prove the inten- 
 tion of the testator. The legislature has shifted the burden of doing 
 this from the child to the adverse party. If it had intended to go 
 further and to limit the evidence upon the question to the will itself, 
 it would, doubtless, have used appropriate language to express that 
 intention. 
 
 Other courts, in construing statutes substantially the same as our 
 present statute hold that parol evidence is admissible for the purpose 
 of showing that such child was intentionally omitted. Coulan v. Doull,
 
 THE; PAROL EVIDENCE; RULE 719 
 
 133 U. S. 216; Wilson v. Fosket, 6 Mete. (Mass. 4), 39 Am. Dec. 736; 
 Converse v. Wales, 4 Allen, 512; Ramsdill v.- Wentworth, 101 Mass. 
 125; Lorieux v. Keller, 5 Iowa, 196, 68 Am. Dec. 696; Whittemore v. 
 Russell, 80 Me. 297 ; Re Atwood's Estate, 14 Utah, i ; Schulz v. Schulz, 
 19 N. D. 688. 
 
 Order appealed from is affirmed. 
 
 CRAGIN v. CARLETON. 
 21 Me. 492. (1842) 
 
 Assumpsit on a note, dated February 20, 1838, in favor of the 
 plaintiffs against James H. Carleton, Robert R. Haskins and Romu- 
 lus Haskins, alleged to have then been copartners, doing business in 
 the name of J. H. Carleton & Co. Carleton and Romulus Haskins 
 were defaulted; and the only question was, whether Robert R. Has- 
 kins was liable as a partner. 
 
 The note, which was admitted to have been signed by Carleton in 
 the partnership name, was read to the jury. To prove that Robert 
 R. Haskins was a partner, after the introduction of other evidence, 
 the plaintiffs produced and offered in evidence a copy of a judg- 
 ment against all the defendants, recovered by default, at the return 
 term of the writ, in the Court of Common Pleas for the county of 
 Cumberland, March Term, 1838, in favor of the Oriental Bank, on 
 a note given April 14, 1836, and signed by J. H. Carleton & Co. 
 To the admission of this judgment in evidence the defendant ob- 
 jected. Tenney, J., presiding at the trial, permitted it to be read 
 to the jury, as evidence of the admission of the defendant, R. R. 
 Haskins, that he was a member of that firm. The counsel for the 
 defendant then proposed to prove, that after the commencement of 
 that suit, and before the default, the defendant consulted counsel in 
 reference to a defence thereto, stating to the counsel that he was 
 never a member of the firm of J. H. Carleton & Co. and that he had 
 never in any way authorized the use of his name by that firm; that 
 upon inquiry by his counsel, whether he considered the firm of Carle- 
 ton & Co. solvent, he stated that he thought it was; and that upon 
 the suggestion by his counsel, that the amount of the demand sued 
 was small, and that the expense of litigating it at such distance would 
 be considerable, whether it would be best to resist it, he concluded,
 
 72O CASES ON EVIDENCE 
 
 and so instructed his counsel, to let the action be defaulted. The 
 plaintiffs objected to the admission of this evidence, and it was ex- 
 cluded by the Judge. 
 
 The defendant then consented to be defaulted, with leave to move 
 to have the default taken off, if, in the opinion of the court, the 
 judgment was not admissible in evidence, or if the evidence offered 
 by the defendant, and rejected was admissible. 
 
 WHITMAN, C. J. The only questions raised by the defendants 
 are, whether a judgment entered against them, as copartners upon 
 default, in a suit between them and persons other than the plain- 
 tiffs, was admissible in this case to prove their copartnership; and, if 
 it was, whether the reasons given by one of the defendants, who 
 denies that he was a partner, disclosed' by him to his counsel for 
 suffering a default to be entered in that suit were admissible to- 
 gether with the advice of his counsel thereon, by way of showing 
 that the default should not be taken to be a concession that a part- 
 nership existed between them. As to the first question, we cannot 
 regard it otherwise than as settled by the case of Ellis v. Jameson, 
 17 Me. R. 235, that such judgment is admissible. And, as to the 
 other, we are not aware of any precedent in support of such a prop- 
 osition; but, on the contrary, the rules of evidence seem to be dia- 
 metrically opposed to it. The effect of judgments is never to be 
 explained by parol; and surely not by the declarations of the parties 
 to them, in opposition to what is obviously imported by them. 
 
 Judgment on the default. 
 
 DADY v. O'ROURKE. 
 172 N. Y. 447. (1902) 
 
 Appeal from a judgment of the Appellate Division of the Supreme 
 Court in the second judicial department, entered June 3, 1901, affirm- 
 ing a judgment in favor of plaintiff entered upon a decision of the 
 court on trial at Special Term. 
 
 PARKER, CH. J. It is urged on the part of plaintiff that his part 
 of the contract would have been performed by delivering to the trust 
 company all his stock, whether the number of shares was 687 or a 
 much less number, so that if the amount actually owned and held 
 by him had been one-fifth instead of three-fifths, the turning over
 
 THE PAROL EVIDENCE RULE 721 
 
 of that amount to the trust company would have constituted per- 
 formance on his part. But we do not so understand the contract. 
 As we read it, he not only agreed to turn over all his stock, but also 
 agreed that the stock holdings thus to be turned over amounted to 
 three-fifths of the entire capital. 
 
 One of the rules to be applied in the construction of contracts is 
 that they shall be construed so that all parts may stand together if 
 they are capable of such an interpretation. A covenant in large and 
 general terms may be restrained and narrowed where the intent to 
 restrain and narrow or qualify is apparent from other parts of the 
 same instrument. Thus in Holmes v. Hubbard (60 N. Y. 183), upon 
 the dissolution of a partnership between D. & H., H. purchased D's 
 interest and gave him a bond signed by himself and another con- 
 ditioned to indemnify D "from all and singular the debts and lia- 
 bilities" of the firm. At the end of the formal part of the bond 
 were added the words "Liabilities as per schedule of indebtedness 
 hereto attached." This court held that the general terms of the 
 condition were limited and qualified by the added clause; and that 
 the obligers were not liable for a copartnership debt not mentioned 
 in the schedule. That case is in point here and should be controlling. 
 
 Still another rule of construction is that the intention of the par- 
 ties is to be sought in the words and language employed, which are 
 to be read and understood according to their natural and obvious 
 import. (Schoonmaker v. Hoyt, 148 N. Y. 425.) 
 
 Applying these rules to the contract before us the conclusion must 
 be reached, we think, that plaintiff agreed to sell his holdings in the 
 ice company, and agreed that they amounted to three-fifths of the 
 entire capital. 
 
 Now it must be borne in mind that this is not an action to reform 
 a contract so that it shall voice the agreement the parties intended 
 to make. On the contrary, it is based on the contract as it was writ- 
 ten with the claim of full performance on the part of the plaintiff 
 and, therefore, cannot be maintained by evidence that the contract 
 was intended to be a different one, for it is the general rule that 
 when an agreement is reduced to writing, it, as between the parties, 
 merges and overcomes all prior or contemporaneous negotiations upon 
 the subject, and that oral evidence is not admissible to vary, explain 
 or contradict its terms, for the writing is conclusively presumed to 
 contain the whole engagement of the parties. (Stowell v. Greenwich 
 Ins. Co., 163 N. Y. 298.) There are certain exceptions to the rule 
 referred to in that case, but as this case is not within any of them 
 
 ' /
 
 722 CASES ON EVIDENCE 
 
 they need not be referred to. Other authorities to the same effect 
 are Mars v. McNair (99 N. Y. 174); Sanders v. Cooper (115 N. 
 Y. 279); Walton v. Agricultural Ins. Co. (116 N. Y. 317); United 
 Press v. N. Y. Press Co. (164 N. Y. 406). 
 
 The evidence was apparently admitted upon the view that the con- 
 tract was ambiguous and hence that the proof of the facts and sur- 
 rounding circumstances was admissible in order to aid the court in 
 arriving at the intention of the parties, but as we read it it is clear 
 and unambiguous, and, therefore, to be construed according to its 
 language. 
 
 Now, the evidence admitted against the objection of the defend- 
 ant, some of which we have quoted, was prejudicial to defendant, 
 tending to show that it was the intent of the parties that plaintiff 
 should sell only his interest in the stock of the company, whatever 
 it might be, and as the court found that plaintiffs had fully per- 
 formed his part of the agreement it must, in view of our construc- 
 tion of the contract, have been based upon the evidence adduced out- 
 side of the contract, tending to show that plaintiff only intended to 
 sell and defendant to buy such of the stock of the company as was 
 held and owned by plaintiff. 
 
 It follows that the judgment should be reversed, and a new trial 
 granted, with costs to abide the event. 
 
 GRAY, O'BRIEN, BARTLETT, HAIGHT and VANN, JJ., concur; MAR- 
 TIN, J., not voting. 
 
 Judgment reversed, etc. 
 
 STATE v. LOVAN. 
 245 Mo. 516. (1912) 
 
 FERRISS, J. Defendant was convicted in the Criminal Court of 
 Jackson County on an information charging him with the crime of 
 obtaining property by false pretenses, and sentenced to two years in 
 the penitentiary. The information charges that the defendant with 
 intent to defraud one George F. Hannay, did falsely, etc., repre- 
 sent to said Hannay that he, the defendant, and the Ernest Lovan 
 Investment Company owned in fee simple, and free and clear of all 
 incumbrances several parcels of real esttate, described in -detail in
 
 THE PAROI, EVIDENCE; RULE 723 
 
 the information, and said Hannay was the owner of certain capital 
 in certain corporations, set out in detail. 
 
 The testimony for the State developed the fact that at the time 
 when the alleged representations were made by defendant concerning 
 the Morgan county land the same was incumbered by two deeds of 
 trust of several hundred dollars each. Defendant testified that he 
 told Hannay of the existence of these two incumbrances and tolcl 
 him further, that he had an arrangement with the holder of them, 
 Mr. J. J. Swofford, by which he could get them at any time and 
 clear them. Mr. Swofford testified that he held the two deeds of 
 trust on the Morgan county land, and that they had been put up with 
 him by defendant as collateral for a loan. Defendant's counsel asked 
 Swofford, in substance, whether he had a conversation with defend- 
 ant with reference to surrendering these notes. Objection by the 
 State was sustained. Defendant urges that this ruling was error 
 materially affecting his rights. The State contends that defendant 
 has no standing to urge this assignment, because he made no formal 
 offer to show such arrangement to take up the notes as defendant 
 claimed, and further, that, even if there had been such an arrange- 
 ment, it ivould be immaterial. The defendant's counsel sufficiently 
 indicated their purpose, and the court so understood it. The ruling 
 of the court was put upon the ground that such arrangement was 
 immaterial inasmuch as it had not been carried out. We think the 
 objection to this line of inquiry should have been overruled. If an 
 arrangement existed by which defendant could at any time clear 
 the lien of these deeds of trust, that fact would be material upon 
 the question of intent. Defendant had testified, without objection by 
 the State, that he had told Hannay that he had an arrangement with. 
 Swofford by which he could at any time get these notes and deeds 
 of trust. We think testimony upon this point from Swofford would 
 be competent, in corroboration of the testimony of defendant. If 
 defendant pledged these mortgages to Swofford, it is fair to assume 
 that he owned them. Suppose he had not pledged them, but was 
 holding them as owner it is conceded that he had title to the land 
 and had said, under such conditions, that the land was clear of in- 
 cumbrances, it would hardly be claimed that such facts could not 
 be shown upon the question of criminal intent. Yet, if he had an 
 agreement by which he could certainly clear the land of these mort- 
 gages, although they were hypothecated, and intended so to do, the 
 effect would be practically the same so far as the facts related to a
 
 724 CASES ON EVIDENCE 
 
 criminal intent. The ruling of the court was prejudicial error, and 
 must result in a reversal of the judgment. 
 
 It is finally urged that the contract read in evidence does not sus- 
 tain the charge in the information. It was argued that the written 
 contract does no more than bind the defendant to guaranty of title, 
 and does not amount to an assertion of present clear title. If the 
 case depended solely upon the written contract, this point might be 
 worthy of serious consideration but the prosecuting witness swears 
 that the defendant assured him verbally, before the written contract 
 was drawn, that the land was unincumbered. 
 
 The rule applied in civil cases in actions upon written contracts, 
 namely that prior conversations and oral agreements are merged in 
 the writing can have no application here. Fraud is not merged in 
 a written contract. [Gooch v. Conner, 8 Mo. 391.] There is no 
 question here as to the contract between the parties or that the writ- 
 ing does not truly state it. Where the written contract itself was 
 brought about by fraud, proof of that fraud may be in parol. 
 
 When the parol testimony was offered, the defendant did not ob- 
 ject, presumably because counsel saw no grounds for objection. In 
 our judgment, none existed. 
 
 Because of the error committed in ruling out the testimony of wit- 
 ness Swofford, the judgment is reversed and the cause remanded. 
 
 BROWN, P. J., and KENNISH, J., concur. 
 
 SHERWOOD v. SHERWOOD. 
 45 Wis. 357- 
 
 LYON, J. This is substantially an action to remove a cloud from 
 the plaintiff's title to lot 10 in block 20 in the city of Oshkosh, which, 
 the plaintiff alleges in her complaint was devised to her by her son, 
 the late Daniel O. Sherwood, in and by his last will and testament, 
 which since his death has been duly admitted to probate. The cloud 
 is alleged to have been produced by the fact that in said will the lot 
 is misdescribed as lot 9 in block 20. It is further alleged that the 
 defendant claims to be the owner of an undivided one-half of lot 
 10; and facts are stated, showing that his claim is valid, if the lot 
 is intestate estate. The plaintiff prays that the cloud may be re- 
 moved by correcting the alleged misdescription in the will, and by
 
 THE PAROL EVIDENCE RULE 725 
 
 the judgment of the court that lot 10 is therein devised to the plain- 
 tiff notwithstanding such misdescription. Either of these modes, if 
 adopted, will operate to quiet and confirm the plaintiff's title to 
 lot 10. 
 
 An extended examination of the cases and authorities bearing on 
 the question, not only those cited by both of the learned counsel, 
 but many others not cited, has satisfied us that it is not a proper 
 exercise of the powers of a court of equity to reform a will by add- 
 ing provisions thereto to make the will accord with the real inteu 
 tions of the testator. 
 
 The remaining question is, whether the will admits of the con- 
 struction that the testator therein devised lot 10 to the plaintiff. One 
 of the rules by which this question must be determined is, that evi- 
 dence of the intention of the testator, extrinsic to the will itself, is not 
 admissible for the purpose of explaining, construing or adding to 
 the terms of a will; but such intention must be' spelled out from the 
 words of the will itself, read in the light of the circumstances sur- 
 rounding the testator when he made it. In cases where there are 
 inconsistent provisions in the will, evidence of such circumstances is 
 always admissible. 
 
 The above rules excluding extrinsic evidence of the intention of 
 the testator has been applied in a large number of cases in which 
 such evidence has been offered to vary or contradict wills, to supply 
 omissions or correct mistakes therein, or to explain patent ambig- 
 uities. Wigram lays down the rule as follows: "If a testator's 
 words, aided by the light derived from the circumstances with ref- 
 erence to which they were used, do not express the intention ascribed 
 to him, evidence to prove the sense in which he intended to use them 
 is, as a general proposition, inadmissible; in other words, the judg- 
 ment of a court in expounding a will must be simply declaratory of 
 what is in the will." p. 179. Numerous English cases illustrating 
 the application of the rule are cited in the note 2, p. 182 of the 
 treatise above cited. 
 
 In Morgan v. Burrows, ante, p. 211, such evidence was held ad- 
 missible to explain a latent ambiguity; and the distinction is there 
 considered between such a case and those cases which are within the 
 rule. Many American cases in which the rule has been applied, will 
 be found cited in the brief of counsel for the appellant in that case. 
 
 We are now to determine whether there is any provision or clause 
 in the will under consideration, from which, when considered in the 
 light of surrounding circumstances, the court can say that it con-
 
 726 CASES ON EVIDENCE 
 
 tains a devise of lot 10 to the plaintiff. Inasmuch as the question 
 arises on demurrer to the complaint, we have no knowledge of the 
 contents of the will beyond what is stated in the complaint. It is 
 averred therein that, by mistake, lot 9 is the lot described in the will 
 instead of lot 10, and that the testator "made no other mention or 
 description of lot 10, or of any lot of land in said block 20 except 
 as herein stated." Thus it is substantially alleged that the only desig- 
 nation or description in the will of the lot devised to the plaintiff is 
 "lot 9." Hence there is nothing in the will upon which to predi- 
 cate a construction that lot 10 was therein devised to her. 
 
 It might be otherwise had the testator inserted in his will any 
 other description or identification of the lot which he intended to 
 devise to the plaintiff. For instance, had he devised to her "lot 9 in 
 block 20 occupied by A;" or, "which I purchased of B;" or even 
 "my lot 9 in block 20," and had it appeared that lot 10 alone was 
 occupied by A, or that the testator purchased lot 10 alone of B, or 
 that lot 10 was the only lot owned by the testator in block 20, in 
 either case extrinsic evidence would be admissible to show the fact; 
 and if established, the court would be justified in construing the will 
 as containing a devise to the plaintiff of lot 10. This does not con- 
 travene the rule which rejects extrinsic evidence of the intention of 
 the testator when offered to vary or add to a will ; for in either of the 
 cases above supposed, the will itself contains two inconsistent de- 
 scriptions of the lot devised, the one true and the other false; and 
 the court would merely resort to extrinsic evidence to ascertain which 
 was the true description, and would construe the will accordingly. 
 This is but an application of the familiar maxim, falsa demonstratio 
 non nocet sanctioned by all of the authorities. Nearly all of the cases 
 cited by the learned counsel for the plaintiff sustain these views. 
 
 Our conclusion upon the whole case is, that the complaint in its 
 present form does not state a cause of action, and that the demurrer 
 thereto should have been sustained.
 
 THE; PAROL EVIDENCE RULE 727 
 
 PROVIDENT SAV. LIFE ASS'N OF N. Y. v. SHEARER. 
 751 Ky. 298. (1912) 
 
 CARROLL, J. In March, 1896, the appellee, Shearer, procured from 
 the appellant company a ten year term policy for $5,000, in which 
 the company obligated itself to pay the amount of the insurance 
 only in the event the insured died before the expiration of the ten 
 years. In October 1905, a few months before this policy expired, 
 the appellant company proposed to issue to Shearer a new form of 
 insurance for $5,000 under the twenty payment life plan, the policy 
 to be dated back to March, 1896, in order that Shearer might have 
 the benefit of the premium rate based on his age in 1896, in place 
 of the higher rate he would have to pay if his policy was dated in 
 1905. As a result of conference between Sprout, the agent of ap- 
 pellant, and Shearer, the latter, on October 26, 1905, made a writ- 
 ten application to surrender his old policy and take out the new 
 twenty payment life, which was to be dated March 27, 1896, to cor- 
 respond with the date of the old policy. Soon after this the appli- 
 cation was accepted and the new policy issued. As a part of the 
 plan by which the old policy was surrendered and the new one issued, 
 Shearer executed his note to the company for $1,826, this amount 
 representing the reserve against the policy, which under the law the 
 company was required to have either in money or in a secured note. 
 
 On March 22nd Shearer paid to the company $71.90 in cash and 
 executed his note for $215.70, the remainder of the premium due 
 on March 27, 1910. This note was due on June 27, 1910, and on 
 June 25th Shearer advised the company that he had concluded not 
 to carry the insurance any longer, and did not pay the note. In Jan- 
 uary, 1911, he brought suit against the company to recover from it 
 $1,222.30, the full amount of the premiums he had paid each year 
 from 1906 to 1910 inclusive, with interest thereon from the date of 
 each payment, and in addition thereto, $750 which he alleged was 
 the value to him of the old policy which he surrendered to the com- 
 pany. His action was based on the ground that the company, by false 
 and fraudulent representations induced him to surrender his old 
 policy and accept in place of it the new one. 
 
 To this suit the company made a number of defenses, and upon a 
 trial before a jury a verdict was returned in favor of Shearer for the 
 premiums paid by him in 1906, 1907, 1908, 1909, and 1910, with 
 interest on each from the date of its payment. A reversal is asked
 
 728 CASES ON EVIDENCE 
 
 on several grounds but we will only notice two : one, that the request 
 of appellant for a peremptory instruction should have been granted, 
 and the other, that the verdict is flagrantly against the evidence. 
 
 The rule is elementary that the terms or conditions of a written 
 contract in the absence of fraud or mutual mistake in its execution, 
 cannot be varied, or contradicted, or added to or subtracted from by 
 prior or contemporaneous, parol agreements or arrangements be- 
 tween the parties to the written memorial: Farmers Bank of Wick- 
 liffe v. Wickliffe, 131 Ky. 787; Anthony v. Hudson, 131 Ky. 185; 
 Sayler v. Sayler, 141 Ky. 648; Sackett v. Maggard, 142 Ky. 500. 
 
 But the broadest application of this rule does not deny to a party 
 the right to attack, in its entirety, with parol evidence, a contract 
 for fraud or want of consideration. Any written contract, without 
 reference to what form it may be put in, and without regard to the 
 circumstances attending its execution, can be assailed, as a whole 
 with parol evidence for fraud or for want of consideration. If this 
 were not true, a written contract, however fraudulent or destitute 
 of consideration, could be enforced, and the party who signed a 
 written obligation would be helpless to protect or defend himself 
 against its enforcement, although he might be able to show, by the 
 most convincing parol evidence that it was procured by fraud or that 
 there was no consideration for its execution. The exception that 
 we have stated to the general rule rejecting parol evidence, to vary 
 a written contract, is too well settled to need more than the mere 
 citation of authorities. Stone v. Ramsey, 4 T. B. Mon. 236; Triggle 
 v. Oldham, 5 J. J. Marshall, 137; Doyle v. Offutt, 135- Ky. 296; 
 Cummings v. Cass, 52 N. J. L. 77; Page on Contracts, section 1207; 
 Greenleaf on Evidence, section 284; Lavalleur v. Hahn, 152 la. 649. 
 
 HAYCOCK v. JOHNSTON. 
 81 Minn. 49. (1900) 
 
 BROWN, J. This action is one to recover an amount claimed to be 
 due as and for rent of a dwelling house leased by plaintiff to de- 
 fendant. The court below directed a verdict for plaintiff, and de- 
 fendant appeals from an order denying a new trial. 
 
 The facts are as follows: On April 6, 1899, plaintiff was, and 
 for some time prior thereto had been, the owner of a certain dwell-
 
 THE PAROI, EVIDENCE RULE 729 
 
 ing house situated upon land owned by him in the city of St. Paul, 
 and on that day leased the same to defendant for the term of five 
 years. Defendant took possession of the property and continued 
 to occupy it until September, 1899, when he vacated the same for 
 the reasons to be presently stated. He failed to pay the rent for 
 the months of July, August, September, October, and November, and 
 this action was brought to recover the same. The tract of land on 
 which the dwelling stands extends a distance of ninety feet on Fair- 
 mount avenue, and the dwelling and barn, also included in the lease, 
 stand on the westerly part of the tract. Immediately east of the 
 house a driveway extends from the avenue to the rear of the prem- 
 ises where the barn is located. All that portion of the tract of land 
 east of the driveway was vacant and unoccupied at the time the 
 lease was made. Before the execution of the lease, plaintiff in- 
 formed defendant that he intended to erect another dwelling upon 
 the unoccupied and vacant portion of the land; and in June follow- 
 ing he caused the same to be erected, placing the same within four- 
 teen feet of the one leased to defendant. It is the contention of de- 
 fendant that plaintiff specially agreed not to construct or erect the 
 new building nearer than twenty-four feet to the old one; that he 
 violated this agreement, erected the building within fourteen feet, 
 and thereby evicted defendant from a part of the leased premises, 
 which violation of said agreement relieved defendant from liability 
 for the payment of rent. He also contends that plaintiff never in- 
 tended to carry out such agreement, but fraudulently represented that 
 he would do so, and thereby induced defendant to lease the prem- 
 ises. For this alleged fraud, he asks for a cancellation of the lease. 
 
 The defendant's whole defense is embodied in this alleged special 
 or collateral agreement as to the erection of the new building. The 
 theory of his counsel that the lease is indefinite and uncertain as to 
 the extent of the tract of land covered and intended to be covered 
 thereby is so clearly erroneous as to require no extended notice. The 
 description of the leased property, as contained in the writing, is as 
 follows : 
 
 "The real property situate in the city of St. Paul, county of Ram- 
 sey, and state of Minnesota, and described as follows; that is to say: 
 Premises known as No. 771 Fairmount Avenue, together with all 
 the appurtenances thereof. This lease to cover the property that the 
 house and barn stand on only." 
 
 This description is unambiguous and perfectly definite and clear. 
 The property leased includes, and was intended by the parties to
 
 730 CASES ON EVIDENCE 
 
 include, that portion of the tract of land in question upon which the 
 house and barn stand, and that portion only. And the court below 
 was right in excluding the evidence offered by defendant for the 
 purpose of enlarging and extending the description. It follows from 
 this that defendant's further contention to the effect that he was 
 entitled to twenty-four feet of land on the east of the house, for use 
 in connection therewith, is without foundation. It is not so con- 
 ditioned in the lease. And, as the written contract cannot be en- 
 larged by parol, his theory of eviction falls. 
 
 Neither is there any merit in the claim that the lease was obtained 
 by fraud; that by reason of fraudulent representations on the part 
 of plaintiff at and before the execution of the lease, with respect to 
 the location of the new building, defendant is entitled to a cancel- 
 lation of the lease. All agreements and promises made and entered 
 into by either party preliminary to and simultaneously with the exe 
 cution of the lease, and with reference thereto, are conclusively pre- 
 sumed to be embodied and contained in the written contract. In no 
 proper view of the law can we construe the alleged collateral agree- 
 ment with reference to the location of the new building to be or con- 
 stituted a part or portion of the written lease. It should have been 
 incorporated in the writing. As it was not, defendant is in no posi- 
 tion to say that the contract as orally made included the collateral 
 agreement, and that by reason of plaintiff's violation thereof he has 
 been defrauded. 
 
 Order affirmed. 
 
 CALIFORNIA TITLE ETC. CO. v. PAULY. 
 in Cat. 123. (1896) 
 
 C. Action to foreclose a mortgage executed by the 
 San Diego Cable Railway Company (a corporation), to the plain- 
 tiff, in trust, to secure the payment of a series of bonds executed by 
 the mortgagor. 
 
 The plaintiff prevailed in the lower court; and the defendant, Pauly, 
 appeals from the judgment of foreclosure, and from an order de- 
 nying his motion for a new trial. 
 
 The appellant contends that the court erred in finding that a cer- 
 tain piece of land, known as the "Pavilion Grounds," was embraced
 
 THE PAROL EVIDENCE RutE 731 
 
 in the description of the mortgaged property, and in ordering a sale 
 of those "grounds" as a part of the property mortgaged; and this 
 is the principal point in controversy on this appeal. 
 
 Appellant contends that "the only ground on which the court holds 
 the 'Pavilion Grounds' to be included in the mortgage is that said 
 grounds are an appurtenance of the line of railway," and insists 
 that whether or not those grounds are appurtenant to the railway 
 is the only material question involved; and then proceeds to con- 
 trovert the proposition that they are so, on the ground that land 
 cannot be appurtenant to land, etc. 
 
 Counsel for appellant say: "The court erred in admitting parol 
 evidence showing the general course and termini of the cable road, 
 the location of the 'Pavilion Grounds,' and the amount of travel 
 induced by reason of the pleasure resort maintained thereon." 
 
 In this connection it was proved by undisputed parol evidence that 
 the purchase of the Pavilion Grounds was contemplated by the rail- 
 way company before and at the time the mortgage was executed ; that 
 qne of the termini of the road was within those grounds; that the 
 sole object of the purchase was to increase travel upon the road ; that 
 the grounds were used in connection with the road for that purpose 
 only; that they were adapted to such use and did increase the traffic 
 on the road about one hundred per cent; that the grounds were im- 
 proved at the expense of the railway company, and were opened to 
 the public as a pleasure resort at the same time the road was finished 
 and opened for travel, no distinct charge being made for admission of 
 the public to those grounds; that the railway company furnished mu- 
 sic, a dance hall, and other conveniences for visitors and picnic parties 
 on Sundays and holidays at an expense of two hundred or three hun- 
 dred dollars per month; and that the grounds thus used by the rail- 
 way company were worth three to four times as much as they would 
 be for any other purpose. 
 
 The purpose for which such evidence was introduced, and which it 
 served, was to prove that the Pavilion Grounds were acquired by the 
 railway company for use and adapted to use "on or about its said lines 
 of railway", and thus to identify them as being after-acquired real es- 
 tate described in the mortgage; or, as may be otherwise expressed, to 
 apply to those grounds the description contained in the mortgage, 
 though the description, of itself, is unambiguous and sufficiently certain. 
 That parol evidence is competent for this purpose does not admit of 
 doubt. Greenleaf on Ev. ff 287; Hancock v. Watson, 18 Cal. 137;
 
 732 CASES ON EVIDENCE 
 
 Began v. O'Reilly, 32 Cal. 1 1 ; Marriner v. Denison, 78 Cal. 202 ; 
 Towle v. Carmelo, 99 Cal. 397. 
 
 For the reasons given in the foregoing opinion the judgment and 
 order are 
 
 Affirmed. 
 
 GATES et al. v. BENNETT. 
 
 33 Ark. 475. (1878) 
 
 ENGLISH, C. J. On the I2th day of March, 1875, John Bennett 
 brought an action of replevin before Justice Booth of Mattensas town- 
 ship, Prairie county against David Gates. 
 
 Upon affidavit and bond, a writ of replevin was issued, the con- 
 stable seized the property sued for, and upon the execution of a cross- 
 bond by defendant, he was permitted to retain possession of it. 
 
 It was competent for appellants to prove, by parol evidence, that a 
 complaint and affidavit were filed in the replevin suit, a writ issued, 
 bond executed, and the return upon the writ, and that they were all 
 in regular form, and had been lost or destroyed. Davis v. Pitt, I Ark. 
 359. Mason, adm'r v. Bull, 26 Ark. 167. But it was not competent 
 for appellants to prove by the attorney who brought the replevin suit, 
 or by the justice who rendered the judgment, or by any witness, that 
 the justice in fact rendered any other or different judgment than that 
 shown to have been rendered by the transcript offered in evidence. 
 Or that the justice by mistake, entered the judgment in the names 
 and in favor of Gates Bros., when it should have been entered in 
 favor of David Gates, as trustee, etc. Butler v. Owen, 7 Ark. 373. 
 Barkman v. Hopkins, 6 ib. 157. State Bank v. Minikin, 12 ib. 719. 
 Kimball v. Merrick, 20 ib. 12, and cases cited. 
 
 If the justice in fact made a mistake in entering the judgment if 
 he entered it in the names and in favor of Gates Bros., when it should 
 have been entered in favor of David Gates, as trustee, etc., the parties 
 relying on the judgment as a former recovery, should have taken the 
 proper steps to have the judgment amended, and offered in evidence a 
 transcript of the amended judgment. 
 
 Reversed.
 
 THE PAROL EVIDENCE RULE 733 
 
 RICHARDSON v. SKETCHLEY. 
 150 Iowa 393. (1911) 
 
 This is an action to quiet title to a small tract of land. There was 
 a decree for the plaintiff, and the defendant appeals. Affirmed. 
 
 EVANS, J. It is urged by appellant that the deed under which plain- 
 tiff claims is absolutely void for uncertainty, and that plaintiff and 
 his grantors took nothing under it. This position is not quite sound. 
 The deed standing alone would be quite ineffective for the purpose of 
 specific performance ; but is by no means wholly void. It indicates on 
 its face that Peter Dyon did undertake for a specific consideration to 
 convey by warranty deed to Mrs. Richardson a particular tract of 
 land conforming to the description contained in the deed. The descrip- 
 tion may be aided by extrinsic proof not inconsistent with the descrip- 
 tion contained in the deed itself. 
 
 Affirmed. 
 
 ALLEN & TRAMMELL v. TURNHAM. 
 83 Ala. 393. (1887) 
 
 This action was brought by Allen & Trammell, suing as partners, 
 against Joseph C. Turnham ; and was founded on the defendant's prom- 
 issory note for $500, which was dated the 6th December, 1873, and 
 payable twelve months after date, to J. N. Brisby, by whom it was 
 indorsed and transferred to plaintiffs. Indorsed on this note were the 
 following credits: December 2nd, 1874, $250; December 24th, 1878, 
 $169.31 ; and January 25th, 1882, $42.13. The defendant pleaded 
 usury, and a special plea stating the facts which constituted the alleged 
 usury; and he was allowed by the court to testify, against the objec- 
 tion of the plaintiffs, that it was verbally agreed between him and 
 Brisby, at the time the note was given, that, on payment of one-half 
 the amount at maturity, the balance should be extended one year at 
 twelve per cent interest per annum; that this agreement was after- 
 wards reduced to writing, as stipulated at the time and $250 was paid 
 on the note at maturity as shown by the indorsed credit. The written 
 agreement, which was dated May 4th, 1874, and signed by both of 
 the parties, was in these words : "This will certify, to whom it may
 
 734 CASES ON EVIDENCE 
 
 concern, that whereas Joseph C. Turnham has bought a tract of land 
 from me, J. N. Brisby, for which he gave his note for $500, payable on 
 the 25th December, 1874, but it is now agreed and understood between 
 the parties, that in case the said Turnham shall fail to pay the last half 
 of the note, $250, by the said 25th December, 1874, the said Brisby 
 agreed to wait with him for twelve months longer, the said Turnham 
 promising to pay him twelve and a half per cent, per annum." The 
 court admitted this agreement as evidence against the objection and ex- 
 ception of the plaintiffs ; and instructed the jury, in effect, that, on these 
 facts, the transaction was usurious, and the plaintiffs were entitled to re- 
 cover the balance due on the note, if any without interest. The plain- 
 tiffs excepted to each of these rulings, and here assign them as error. 
 
 SOMERVILLE, J. It is not contended there is any usury in the note 
 sued on which was executed December sixth, 1873, payable to J. N. 
 Brisby, twelve months after date, in the sum of five hundred dollars, 
 and was transferred by Brisby to the plaintiffs. This contract does 
 not, covertly or otherwise stipulate for a higher rate of interest than 
 that allowed by law. It is sought, however, to import into the original 
 agreement the taint of usury, by showing that, contemporaneously 
 with the execution of the note, an oral agreement was entered into, 
 that, upon the maturity of the note, the maker might pay half of the 
 amount, and extend the other half by agreeing to pay usurious inter- 
 est, at the rate of twelve and a half per cent per annum ; and that this 
 latter agreement was subsequently reduced to writing, on May 4, 1874, 
 and at the maturity of the original note, in December following, half 
 of the sum was paid as stipulated. 
 
 The admission of this parol evidence, we think, was error. It vio- 
 lated the rule, that parol, or extrinsic contemporaneous evidence is 
 inadmissible to contradict or vary the legal effect of a valid written 
 instrument. It must be presumed that the parties to this written instru- 
 ment intended thereby to fully express their intention and agreement ; 
 and they are presumed to have abandoned all oral suggestions, or ver- 
 bal agreements, antecedent to, or contemporaneous with the writing, 
 having reference to the subject-matter of the contract. The writing 
 itself must be deemed conclusive as to the matters embraced in it. The 
 note was an agreement to pay eight per cent interest per annum, which 
 was not usurious, but lawful. The evidence introduced showed a con- 
 temporaneous oral agreement to pay twelve and a half per cent per 
 annum which was usurious, and therefore unlawful. This if allowable 
 would operate to change the legal effect of the original note, so as to 
 make it voidable for the interest from the beginning.
 
 THE PAROL EVIDENCE RULE 735 
 
 This evidence does not come within the rule, that parol evidence is 
 always admissible to show the illegality of the consideration, or sub- 
 ject-matter of a written agreement. If the original note, here sued 
 on, had been usurious, it matters not by what words of device, or acts 
 of artifice or evasion, it was sought to be concealed under false recitals 
 in the writing, this fact could be proved by oral evidence. But the sub- 
 stitution of an oral usurious contract in the place of a written one 
 not usurious, is not permissible, when the one is contemporaneous with 
 the other, as in this case. 
 
 This evidence being excluded, the case is completely analogous to 
 Van Biel v. Fordney, 77 Ala. 76, where it was decided that, when the 
 original transaction is not usurious, a subsequent agreement to pay 
 illegal interest, in consideration of forbearance, will not impart to the 
 former the taint of usury so long as the first contract remains in force, 
 without renewal, discharge, or cancellation, the subsequent contract 
 alone is affected by the usury, and the payments of illegal interest 
 will be regarded merely as partial payments on the original debt. 
 
 The usurious agreement of May 4th, 1874, which was reduced to 
 writing by Turnham and Brisby, does not renew, discharge or cancel 
 the original note, but is entirely collateral to it, leaving it in full force 
 and effect. The suit on the original agreement is such an abandonment 
 of the subsequent one as to expurgate the taint of usury, which might 
 otherwise be made to inhere to the transaction. Masterson v. Grubbs, 
 70 Ala. 406. 
 
 These principles will settle the case upon all points likely to be con- 
 sidered on another trial, the note sued on not being usurious under the 
 facts set out in the bill of exceptions. This is all we need to decide. 
 
 Reversed and remanded. 
 
 BURNS & SMITH LUMBER CO. v. DOYLE. 
 71 Conn. 742. (1898-99) 
 
 Action by the payee against the acceptor of a bill of exchange to 
 recover the amount thereof. Curtis, J. Facts found and judgment 
 rendered for the defendant, and appeal by the plaintiff for alleged 
 errors in the rulings of the court. 
 
 The following is a copy of the bill of exchange counted upon in the 
 complaint :
 
 736 CASES ON EVIDENCE 
 
 "Bridgeport, Conn., June 24, 1893. 
 "Mr. Thomas Doyle: 
 
 "Please pay to The Burns & Smith Lumber Co., or order, the sum 
 of four hundred twenty ($420.00) and no/ioo dollars, value received, 
 and charge the same to my account. 
 
 "E. P. Mills. 
 
 "Accepted, June 24, 1893. Thos. A. Doyle." 
 
 The answer as finally amended consisted of two defenses, as fol- 
 lows: 
 
 "First Defense. I. The defendant accepted the bill of exchange 
 at the solicitation of the plaintiff, upon the express condition that only 
 upon the defendant's becoming indebted for services to the drawer of 
 said bill should the defendant be called upon to pay or be made liable 
 upon said bill of exchange. 2. The defendant says he is not liable 
 upon said bill, because the drawer of the same never performed any 
 service for the defendant, nor did the defendant become indebted to 
 said drawer after said acceptance of said bill. 
 
 "Second Defense. I. The defendant says that at the time of the 
 said acceptance of said bill he did not owe the drawer of said bill, 
 or the plaintiff, or either of them, upon any demand whatever, and that 
 said acceptance was known to the defendant and to said plaintiff to 
 be wholly without consideration, and that said plaintiff is not a bona 
 fide holder for value of said bill of exchange. 2. The matters con- 
 tained in the first defense are made part of this defense." 
 
 The reply was a general denial. 
 
 The plaintiff objected to the introduction of any parol evidence to 
 prove the allegations of the defenses, or either of them, and to all evi- 
 dence tending to prove the foregoing facts, except the fact of acceptance. 
 The court overruled the objection and admitted the evidence. 
 
 The plaintiff also claimed that upon the facts found judgment should 
 be rendered in its favor, and the court overruled this claim. The rea- 
 sons of appeal are based upon these adverse rulings. 
 
 TORRANCE, J. The acceptance sued upon is in writing, and is an 
 absolute and unqualified one, as distinguished from a conditional one. 
 It is well settled that in an action at law such an acceptance cannot be 
 cut down to a conditional one, even by the clearest proof of a con- 
 temporaneous oral agreement to that effect. Such an agreement, how- 
 ever conclusively proved, would not avail the defendant for such a 
 purpose, and therefore all evidence of it is excluded. Osborne v. Tay- 
 lor, 58 Conn. 439; Averill v. Sawyer, 62 id. 560; Caulfield v. Her- 
 mann, 64 id. 325 ; Hills v. Farmington, 70 id. 450, 453.
 
 THE PAROL EVIDENCE RULE 737 
 
 But if the written acceptance was delivered to the plaintiff upon an 
 oral condition assented to by the plaintiff, that it was not to become oper- 
 ative, or have any existence at all as an acceptance, until the cottage 
 was completed and the money became due to Mills, that condition, if 
 proved, would avail the defendant, and under proper pleadings evi- 
 dence of such a conditional delivery would be admissible. McFarland 
 v. Sikes, 54 Conn. 250; Trumbull v. O'Hara, 71 id. 172; Michels v. 
 Olmstead, 157 U. S. 198; Bedell v. Wilder, 65 Vt. 406; Pym v. Camp- 
 bell, 6 El. & Bl. 370; Pattle v. Hornibrook, L. R. (1897) I Ch. Div. 25. 
 
 The general rule applied in the former class of cases is, that a prior 
 or contemporaneous oral agreement intended to add to or cut down or 
 vary a written agreement is without legal effect. It is founded on the 
 principle that the writing expresses the final views of the parties to 
 the exclusion of all extrinsic, prior or contemporaneous agreements 
 or understandings. It is a salutary rule and should be strictly adhered 
 to. 
 
 The rule applied in the latter class of cases is, that you may show 
 that a writing purporting to be a contract never came into existence 
 as a contract, or has ceased to be a contract, and may show this, of 
 course, by evidence outside of the writing. This latter rule is not an 
 exception to the former nor an infringement of it. 
 
 The practical distinction between the two rules was tersely stated 
 by Erie, J., Pym v. Campbell, supra, as follows : 
 
 "The distinction in point of law is that evidence to vary the terms 
 of an agreement in writing is not admissible, but evidence to show that 
 there is not an agreement at all is admissible." Where a defense of this 
 kind is set up in a case in which the written contract has been 
 actually delivered to the other party, as in this case, the proof of 
 conditional delivery ought to be clear and strong. In such case posses- 
 sion of the contract by the other party is prima facie evidence of an 
 unconditional delivery. McFarland v. Sikes, 54 Conn. 250, 251. 
 
 In the court below the defendant claimed that the acceptance sued 
 upon came within the latter class of cases, and he therefore claimed the 
 right to show, not a conditional acceptance, but a conditional delivery 
 of an acceptance; a delivery under the terms of which the writing 
 signed by the defendant never became a contract at all. The defend- 
 ant claimed the right fo prove such a delivery under the pleadings. 
 
 The plaintiff claimed that evidence of such a delivery was not ad- 
 missible under the pleadings, and the court overruled this claim, and 
 against the plaintiff's objection admitted the evidence; and one of the 
 questions upon this appeal is whether the court erred in so doing.
 
 738 CASES ON EVIDENCE 
 
 Leaving out of view for the present the defense of want of con- 
 sideration, we think the answer sets up a conditional oral acceptance, 
 and not a conditional delivery of an acceptance. It alleges, in effect 
 that the absolute written acceptance was made, but was made upon an 
 oral condition that the defendant should not be called upon to pay it, 
 or be made liable upon it, except in a certain stated contingency. This 
 is nothing more or less than an allegation of the existence of a con- 
 temporaneous oral agreement that the absolute, written acceptance 
 should be treated as a conditional one. The defense in question con- 
 tains no hint that the acceptance was delivered conditionally, within the 
 meaning of the cases upon which the defendant relies. It is analogous 
 to the defenses set up in Osborne v. Taylor, supra, and in Beard v. 
 Boylan, 59 Conn. 181, which were held to be demurrable, because they 
 each set up a contemporaneous oral agreement to effect a written con- 
 tract. On the same ground we think the defense in question could not 
 have stood the test of a demurrer. Under this defense, then, the de- 
 fendant was not entitled to prove such a conditional delivery as he 
 claimed, because that fact, if it existed, was not within the issue, and 
 evidence of it should have been excluded. 
 
 Furthermore, in this view of the matter, if the facts found are to 
 be regarded as establishing a conditional delivery of the acceptance, 
 the finding goes entirely outside of the issue, and such a finding fur- 
 nishes no support for a judgment based upon facts so found. Atwood 
 v. Welton, 57 Conn. 514; Ives v. Goshen, 63 id. 79. 
 
 The plaintiff further claims that even if the facts found were prov- 
 able under the pleadings, yet the finding does not show a conditional 
 delivery of the acceptance, as distinguished from a conditional accept- 
 ance. Upon this point the finding is not free from doubt, but we think 
 the fair import of it is that the acceptance was delivered upon a condi- 
 tion that it was not to take effect at all as an acceptance except upon a 
 stated contingency. That was the ground upon which the judgment 
 was based, and apparently the sole ground ; and taking the record as a 
 whole we think the finding is that the delivery was conditional. 
 
 As there must be new trial for reasons already given, we deem 
 it unnecessary to consider or decide the questions raised by the defense 
 of want of consideration for the acceptance. 
 
 There is error and a new trial is granted. 
 
 In this opinion the other judges concurred.
 
 THE PAROI, EVIDENCE RULE 739 
 
 GREASON v. ST. L., I. M. & S. RY. 
 112 Mo. App. 116. 
 
 The petition alleged and the evidence proved, that the defendant, 
 instead of keeping its agreement to carry the ties to East St. Louis for 
 ten cents a hundredweight, charged and collected a higher rate, to-wit : 
 thirteen and one-quarter to fifteen cents a hundredweight, which higher 
 rate the plaintiffs were compelled to pay; that afterwards plaintiffs 
 demanded the excess of freight charged ($250) which defendant re- 
 fused to pay; wherefore judgment was prayed for said sum. The 
 answer was a general denial. The articles actually shipped were hewn 
 switch ties. The defendant company charged the plaintiffs more than 
 ten cents per hundredweight for transporting the ties from the points 
 of shipment to East St. Louis. The essential dispute is as to whether 
 the letter from defendant's freight agent, quoting a rate for hauling 
 lumber, constituted an agreement on the part of the defendant to carry 
 hewn switch ties at ten cents a hundredweight that is, whether hewn 
 ties are lumber within the meaning of the defendant's agreement to 
 transport lumber for ten cents a hundredweight. To maintain their 
 position that switch ties are lumber the plaintiffs, over the defendant's 
 objection, introduced the definition of the word "lumber" given in the 
 Universal Dictionary, to-wit: "Lumber (Noun) Marketable timber. 
 Lumber (Verb) To cut forest timber and prepare it for market." 
 An exception was saved to the admission of that evidence. 
 
 The jury returned a verdict for plaintiffs for $19.46 and the railroad 
 company appealed. 
 
 GOODS, J. (after stating the facts). It will be observed from the 
 foregoing statement that the plaintiffs declared on a supposed agree- 
 ment by the defendant contained in the letter dated January 20, 1902, 
 to transport switch ties from Harviell and Poplar Bluff to East St. 
 Louis, for ten cents a hundredweight. It is alleged that, relying on 
 said agreement, plaintiffs shipped nineteen carloads of ties and were 
 charged an excess above the rate mentioned, in violation of the agree- 
 ment. The letter quoted a rate on lumber, not on ties. 
 
 The solution of this case depends, therefore, on what the defendant 
 meant by the word "lumber" or rightly as understood by plaintiffs to 
 mean. The meaning of the word is vague and indefinite and it has dif- 
 ferent senses according to the context in which it is used in docu- 
 ments, or the nature of the transactions to which the parties refer. 
 
 No decision has been cited that "lumber" means hewn ties. If the
 
 74O CASES ON EVIDENCE 
 
 word lumber has any peculiar meaning among dealers in it or in trans- 
 portation circles, which would embrace or exclude hewn ties, no evi- 
 dence of the fact was offered. The meaning to be applied to the word 
 in the letter in question is its ordinary meaning in vernacular speech, 
 unless the previous dealings between the plaintiffs and the defendant, 
 or the circumstances under which the letter was written, or the light 
 thrown on the intention of the letter by the other facts in evidence, 
 the tariff sheet and the testimony of the freight agent, compel a differ- 
 ent significance. All this evidence was introduced by the plaintiffs 
 and they are in no position, therefore, to deny its truthfulness. We 
 emphasize the fact that this is an action on a specific written agree- 
 ment and is to be determined exclusively by ascertaining what that 
 agreement was. Laclede, etc., Co. v. Iron Works, 169 Mo. 137, 69 S. 
 W. 384- 
 
 All the evidence tending to explain what the defendant meant when 
 it said "lumber", either in the letter declared on or other documents, 
 goes to show it did not mean hewn switch ties. 
 
 ^ The rule of law that extrinsic evidence may be received to identify 
 the subject-matter of an ambiguous contract, has no application here, 
 because the agreement in defendant's letter had no particular subject- 
 matter. That rule is employed to ascertain what property was intended 
 by an agreement in reference to some particular property too loosely 
 described to be identified from the description alone. 
 
 Thus if a contract of sale describes the thing sold indefinitely, it 
 may, within limits, be helped out by extrinsic evidence. Macdonald v. 
 Longbottom, i E. & E. 597; M'Adie v. Sills, 24 U. S. C. 606; 2 Tay- 
 lor, Evidence (6 Ed.), sec. 1080. ,We conceive it to be the duty of 
 a court to say what is meant by a word in an instrument, used as far as 
 appears, in its ordinary, instead of a technical or trade sense, or a 
 peculiar one adopted by the parties. 
 
 As "lumber" is a word of vague meaning, testimony to show the 
 sense in which these parties used it was competent ; but there was none 
 introduced to show it was employed in an unusual sense and therefore, 
 its usual one must be accepted in interpreting their agreement. Wil- 
 liams v. Lumber Co., 72 Wis. 487 ; Dutch v. Anderson, 75 Ind. 40. The 
 words of a contract are to be understood in their popular and accepted 
 sense unless something indicates that a different meaning was attached 
 to them by the persons concerned. Lovelace v. Assn., 126 Mo. 104, 
 28 S. W. 877. And it is the duty of a court to interpret writings free 
 from ambiguity. Mathews v. Danahy, 26 Mo. App. 660. 
 
 The essence of this case is not whether ties ought to have been
 
 THE PAROL EVIDENCE RULE 741 
 
 carried at lumber rates according to the tariff sheets (and the tariff 
 sheets in fact stated to the contrary), but whether defendant when it 
 gave a rate for lumber, meant to give and was understood to give a rate 
 for hewn switch ties. Curtain poles and wagon spokes are put in the 
 tariff sheets among other things carried at the lumber rate. But who 
 would say they are lumber or that an agreement to carry lumber was 
 an agreement to carry them? Neither the letter itself, nor the ex- 
 trinsic evidence before us supports the plaintiffs' case. 
 
 The judgment is, therefore, reversed. 
 All concur. 
 
 SAMUEL H. CHUTE CO. v. LATTA. 
 
 123 Minn. dp. (1913) 
 
 i 
 
 HALLAM, J. 
 
 1. Plaintiff leased certain premises to one Dahlquist. Later, by a 
 written agreement in which plaintiff, defendant and Dahlquist joined. 
 Dahlquist assigned the lease to defendant, defendant assumed all obliga- 
 tions of the lessee hereunder, and plaintiff consented to the assignment. 
 This action is brought to recover two instalments of rent due upon 
 the lease so assigned. The defense is that there was a concurrent 
 verbal agreement that the written contract should be no longer oper- 
 ative, in the event defendant should form a corporation known as the 
 Cozy Photo Play Company, and should assign the lease to such cor- 
 poration when formed. It is claimed that this corporation was or- 
 ganized and the assignment made. The one question in the case is : 
 Was it competent for defendant to prove the verbal agreement that 
 the written contract should not be enforced in the contingency men- 
 tioned? We hold that it was not. 
 
 2. These parties reduced their agreement to writing. "All the au- 
 thorities are substantially agreed that where, in the absence of fraud, 
 accident, or mistake, the parties have deliberately put their contract into 
 a writing which is complete in itself, and couched in such language 
 as imports a complete legal obligation, it is conclusively presumed that 
 they have introduced into the written instrument all material terms 
 and circumstances relating thereto." Wheaton Roller-Mill Co. v. John 
 T. Noye Mnfg. Co., 66 Minn. 156, 159, 68 N. W. 854, 855. 
 
 3. It is contended that the written agreement in this case embodied
 
 742 CASES ON EVIDENCE 
 
 only part of the agreement of the parties, and that it was executed to 
 partially carry out a prior verbal agreement. 
 
 It is true that, where a part only of the agreement between the par- 
 ties is reduced to writing, it is competent to prove by parol the exist- 
 ence of any separate oral agreement as to any matter on which the 
 document is silent, and which is not inconsistent with its terms. 
 Phoenix Pub. Co. v. Riverside Clothing Co., 54 Minn. 205, 206, 55 N. 
 W. 912. But this agreement was not incomplete. The criterion of 
 completeness or incompleteness of the writing is the writing itself. We 
 do not mean that the court is limited to a mere inspection of the docu- 
 ment. As in other cases of doubtful construction, the court is at 
 liberty to view the circumstances under which, and the purpose for 
 which, the writing was executed. Where the writing, construed in the 
 light of such circumstances, shows that it was not meant to contain 
 the whole bargain between the parties, then parol evidence is ad- 
 missible to prove a term upon which the writing is silent, and which is 
 not inconsistent with what is written: but, if it shows that the writing 
 was meant to contain the whole bargain between the parties, no parol 
 evidence can be permitted to introduce a term which does not appear 
 there. Wheaton Roller-Mill Co. v. John T. Noye Mnfg. Co., 66 Minn. 
 156, 160, 68 N. W. 854; Potter v. Easton, 82 Minn. 247, 250, 84 N. 
 W. ion. 
 
 Tested by this rule it cannot be held that the written contract is in- 
 complete. By its terms it makes the obligation to pay absolute. There 
 are no surrounding circumstances that place the contract in any differ- 
 ent light. The proof of surrounding circumstances that defendant in- 
 troduced was simply proof that the contract made was different from 
 the terms written instrument. Such evidence is not permissible. To 
 allow a party to lay the foundation for such parol evidence by oral 
 testimony that only part of the agreement was reduced to writing, and 
 then prove by parol the part omitted, would be to work in a circle and 
 to permit the very evil which the rule was designed to prevent. Thomp- 
 son v. Libby, 34 Minn. 374, 377, 26 N. W. i ; Wheaton Roller-Mill 
 Co. v. John T. Noye Mnfg. Co., 66 Minn. 156, 68 N. W. 854; 17 Cyc. 
 716, 717. 
 
 4. It is contended that the alleged parol stipulation was a contract 
 collateral to the written agreement sued on, and that on that ground 
 it was proper to prove it. 
 
 It is true that proof is admissible of any collateral parol agreement, 
 or of any independent fact, which is not inconsistent with, or does not 
 qualify, any of the terms of the written contract, even though it may
 
 THE PAROL EVIDENCE RULE 743 
 
 relate to the same subject-matter. Backus v. Sternberg, 59 Minn. 403, 
 61 N. W. 335 ; H. H. King & Co. v. Dahl, 82 Minn. 240, 84 N. W. 
 737. But the alleged oral stipulation, which defendant attempted to 
 prove in this case, was in no sense collateral to or independent of the 
 main contract. The alleged oral stipulation provided that the obliga- 
 tion shall be conditional, and provided for nothing else. The par- 
 ticular element of the alleged intrinsic evidence is accordingly dealt 
 with in the writing. Defendant simply attempted to prove that it was 
 verbally stipulated as an integral part of the negotiation that the obliga- 
 tion, which by the terms of the writing was absolute, should in fact 
 be conditional. This he cannot do. 
 
 5. It is further contended that it was proper for defendant to prove 
 a contemporaneous verbal agreement that he should be relieved from his 
 written contract on the occurrence of a future contingent event, or 
 upon compliance with a future condition. 
 
 It is true that, in case of a simple contract in writing, it is compe- 
 tent to show by parol that, notwithstanding its delivery, the parties in- 
 tended that it should be operative as a contract only upon the happening 
 of a future contingent event, or the performance of a condition, such 
 as that it should first be executd by some other person. Merchants' 
 Exchange Bank v. Luckow, 37 Minn. 542, 35 N. W. 434; Westman 
 v. Krumweide, 30 Minn. 313, 15 N. W. 255; Skaaraas v. Finnegan, 
 31 Minn. 48, 16 N. W. 456; Smith v. Mussetter, 58 Minn. 159, 59 N. 
 W. 995 ; Mendenhall v. Ulrich, 94 Minn. 100, 101 N. W. 1057. Such 
 evidence tends to prove a condition precedent to the attachment of any 
 obligation under the written instrument. This is not to vary a written 
 instrument, but to prove that no contract was ever made That its 
 obligation never commenced. Smith v. Mussetter, 58 Minn. 159, 59 
 N. W. 995. But the verbal stipulation alleged in this case was not a 
 condition precedent. The obligation of defendant unquestionably took 
 effect as a complete contract. 
 
 Order affirmed.
 
 744 CASES ON EVIDENCE 
 
 RAILWAY CO. v. TRUSKETT. 
 <5/ Kan. 26. (1903) 
 
 The opinion of the court was delivered by 
 
 SMITH, J. At the time the written agreement was made on which 
 this action was based, defendants in error, as promoters and stock- 
 holders of the Kansas, Oklahoma Central & Southwestern Railway 
 Company, had laid out a right of way from Caney, in Montgomery 
 county, Kansas, to Bartlesville, in the Cherokee nation, and a line from 
 the latter town to Collinsville, a distance of about thirty-five miles, and 
 had done some grading along the route. They were prosecuting the 
 work under the rights of way granted by acts of congress referred to 
 in the statement. The amended petition of plaintiffs below contains 
 this allegation with reference to the contract between the parties : 
 
 "That it is not definitely stated in said writing how many miles of 
 said railway were to be constructed by defendant, nor when; whereas, 
 it was in fact understood and agreed that thirty-five (35) miles should 
 be built, and completed, within twelve months of the time when 85 per 
 cent, of said capital stock of said corporations had been delivered to 
 defendant by plaintiffs, and other things done as in said writing enumer- 
 ated, and that the balance of said railway, and the branches thereof 
 mentioned in said last-named act of congress, should be built and con- 
 structed within the time fixed for the completion thereof in said act 
 of congress." 
 
 To remove the alleged indefinite terms in the contract, oral testimony 
 was admitted by the trial court, confined mainly to conversation be- 
 tween the officers of the Atchison company and the plaintiffs below, 
 at and before the time the writing was signed, wherein the former 
 stated, in effect, that all concessions and donations received on lines 
 of road built under the authority of the acts of congress mentioned, 
 beyond the stipulated thirty-five miles, should go to the plaintiffs. 
 
 It was the contention of plaintiffs below that the line which the 
 Atchison company aided in building from Guthrie to Pawnee, a dis- 
 tance of loo miles, known as "The Eastern Oklahoma railway," and 
 for the building of which concessions were received, was constructed 
 along a route provided for in the acts of congress granting the right 
 of way to the Kansas, Oklahoma Central & Southwestern Railway 
 Company, of which they were stockholders, and, therefore, under the 
 terms of the contract of sale sued on, after its meaning was made 
 certain, that plaintiffs below were entitled to such concessions, aids,
 
 THE PAROL EVIDENCE RULE 745 
 
 and donations. The exact language employed by the parties in the 
 written contract was this : 
 
 "The Atchison company agrees that within twelve months of the 
 transfer and delivery to it of not less than eighty-five per cent, of 
 the capital stock of the Oklahoma companies, and transfer to it or 
 payment and satisfaction of all outstanding indebtedness and other 
 obligations of the Oklahoma companies, and any liens or encumbrances 
 upon their property, it will complete or build, or cause to be built, at 
 least thirty-five (35) miles of its railroad, from the junction near 
 Bartlesville, Indian Territory, towards Collinsville, Indian Territory, 
 and cause the Oklahoma companies, and each of them, to assign and 
 transfer to, the stockholders, the parties of the first part herein, all right, 
 title and interest of said companies, and each of them, in or to any aids, 
 concessions or donations obtained along the lines of railroad of said 
 companies as constructed and described in said railway-extension bill." 
 
 It is not alleged that the words of the instrument are susceptible of 
 two different constructions, or are not intelligible, the charge being that 
 "it is not definitely stated in said written contract how many miles of 
 said railway were to be constructed by said defendant, nor when." We 
 do not think the language of the contract is subject to the criticism 
 made of it with respect to the maximum number of miles of road to be 
 built. It was for an increase of this expressed maximum that plain- 
 tiffs below called extraneous testimony to their aid. 
 
 The words used convey to our minds a definite and clearly expressed 
 refusal of the Atchison company to bind itself to build, or cause to be 
 built, more than thirty-five miles of railroad along the route described 
 in the railway-extension bill. The thirty-five miles of road which the 
 Atchison company agreed with the stockholders should be constructed 
 was built along the line described in the railway-extension bills in com- 
 pliance with the contract. The complaint of the plaintiffs below was 
 that the Atchison company built 135 miles of road under the same 
 grants from congress, and that the aids and donations received along 
 the last loo miles belonged to them. 
 
 There is no claim that plaintiffs did not get the aids and donations 
 along the thirty-five miles from the Kansas state line south, but the 
 action was brought to recover the value of the concession received on 
 the line of road from Guthrie northeast to Pawnee, a distance of about 
 100 miles, alleged to have been built by the Atchison company under 
 the name of the Eastern Oklahoma Railway Company. 
 
 Conceding that the road from Guthrie to Pawnee was constructed 
 and owned by the Atchison company, and that all donations and aids
 
 746 CASES ON EVIDENCE 
 
 went to it, yet, in order to recover for a breach of the contract, Trus- 
 kett and his associates must show that by its provisions such aids and 
 donations belonged to them. They cannot do this by enlarging the 
 terms of a written instrument which is not ambiguous or of doubtful 
 meaning, resorting to parol testimony to that end. The mere asser- 
 tion by a party to a written contract that uncertainties and ambiguities 
 exist in it will serve no purpose when, by a perusal of the writings, 
 the court can find no equivocal language employed. 
 
 Again, the writing is sought to be reformed by parol testimony in 
 respect to the time of performance of those things which it is alleged 
 that the Atchison company agreed to do as shown aliunde the contract. 
 It is averred that the limitation of twelve months in which it stipulated 
 to build the road a distance of not less than thirty-five miles should be 
 extended beyond that time as to the number of miles it built between 
 Guthrie and Pawnee to a time limited only by the date for completion, 
 fixed in the last act of congress. This would be a violent wresting of 
 obvious language out of the written agreement, and substituting there- 
 for words which the parties themselves were careful not to use. The 
 rule of law applicable to the case is old and familiar. It was well 
 stated in Naumberg v. Young, 44 N. J. L. 331, 339, 43 Am. Rep. 380, 
 as follows : 
 
 "The only safe criterion of the completeness of a written contract 
 as a full expression of the terms of the parties' agreement is the con- 
 tract itself. When parties have deliberately put their mutual engage- 
 ments into writing in such language as imports a legal obligation, it is 
 only reasonable to presume that they have introduced into the written 
 instrument every material term and circumstance; and, consequently, 
 all parol testimony of conversations held between the parties, or of 
 declarations made by either of them, whether before or after, or at the 
 time of the completion of the contract, will be rejected. 2 Tayl. Ev. 
 Sec. 1035." 
 
 See, also, Thisler v. Mackey, 65 Kan. 464, 70 Pac. 334; Ehrsam v. 
 Brown, 64 id. 466, 67 Pac. 867 ; Getto v. Binkert, 55 id. 617, 40 Pac. 925 ; 
 Assurance Co. v. Norwood, 57 id. 610, 47 Pac. 529; Milich v. Armour, 
 60 id. 229, 56 Pac. 15; Trice v. Yoeman, 60 id. 742, 57 Pac. 955; 
 Wilson v. Jones, 48 id. 767, 30 Pac. 117; Drake v. Dodsworth, 4 id. 159; 
 Trustees of Southampton v. Jessup, 173 N. Y. 84, 65 N. E. 949; 
 United Press v. New York Press Co., 164 N. Y. 406, 58 N. E. 527, 
 53 L. R. A. 288; Tracey v. The Union Iron Works, 104 Mo. 193, 16 
 S. W. 203. In the last case cited (p. 199) it was said : 
 
 "We may, however, properly remark that the adoption of the modern
 
 THE PAROL EVIDENCE; RULE 747 
 
 practice, admitting as witnesses the parties directly interested in the 
 action, seems to add a cogent reason to those existing at the common 
 law for a close adherence to the rule under discussion. If the uncer- 
 tainty of 'slippery memory' furnished a ground for excluding such 
 verbal testimony in the days of Lord Coke (Countess of Rutland v. 
 Earl of Rutland (1604), Coke's Reports, part 5, 26a), how much 
 stronger reason for such exclusion today, when the influence of self- 
 interest is so likely to render the memory of litigating parties more 
 'slippery' than was that of the witnesses of olden time." 
 
 The judgment will be reversed, with directions to the court below 
 to sustain the demurrer to the evidence. 
 
 All the Justices concurring. 
 
 THOMAS J. JENKINS v. SPRINGFIELD REDUCTION AND 
 CHEMICAL CO., and JOHN C. DYSART. 
 
 168 Mo. App. 534. (1913) 
 
 STURGIS, J. The plaintiff recovered judgment against the defendants 
 for the conversion of a quantity of fertilizer claimed to be his property. 
 The defendants justified the conversion by asserting their own owner- 
 ship to the same. 
 
 The dispute in this case grew out of the question whether or not the 
 product in dispute, designated as fertilizer in the petition, passed under 
 this contract to the defendant corporation and became its property 
 or whether it remained the property of the plaintiff. 
 
 The evidence shows that at the time this contract was entered into 
 there was at the plant a considerable amount of the finished product 
 in sack and all parties agree that this is fertilizer and not "tankage" 
 and remained the property of the plaintiff. There was also considerable 
 amount of the raw material or semi-raw material, which all parties 
 agree passed to the defendant under the name of "tankage". There 
 was also in bins or sheds a considerable amount of the product testified 
 to by one witness as "ground tankage" but which had all the ingre- 
 dients of the finished product and differed in no way from the fertilizer 
 in the sacks. All that needed to be done to put this product on the 
 market was to put it in sacks. This is the product that is in dispute 
 and is claimed by the defendants to have passed to the corporation as 
 "tankage" or otherwise under the contract mentioned and become its
 
 748 CASES ON EVIDENCE 
 
 i 
 
 property. There is no question but that if this product was the prop- 
 erty of plaintiff, then the defendants converted it to its own use. 
 
 The greatest difficulty in this case arises from the fact neither party 
 seems to have tried it on any definite theory. In the defendants' brief 
 in this court, it is said : "The vital issue of fact in this case was or 
 ought to have been, whether the word tankage in the said contract 
 was used in its ordinary sense, or in its purported trade or technical 
 sense." If the word has an ordinary and common meaning, then it 
 would not be necessary or proper to introduce extrinsic evidence to 
 show what that meaning is. 
 
 The product now in dispute is the mixed and complete product and 
 is quite different from the refuse of the tanks before mixed with other 
 ingredients. Under this view of the case the judgment must be 
 affirmed. 
 
 The writer of this opinion thinks that it is but just and fair to the 
 parties litigant, and in order that this opinion may not be misunder- 
 stood, to say that had the defendants tried the case throughout on the 
 theory that the word "tankage" is necessarily used in this contract as 
 a technical term that demands an explanation by extrinsic evidence; 
 that the parties themselves agreed and understood at the time and that 
 plaintiff pointed out and designated this loose product in the bins as 
 being "tankage" and being sold under that name; and that defendants 
 bought this product under the name of tankage; then it would have 
 been proper to have admitted evidence to this effect and to have left 
 it to the jury under proper instructions to determine whether this par- 
 ticular product was or was not included within that term as used in 
 the contract. 
 
 This case falls within the class where in an ordinary transaction 
 an ambiguous term is used and the parties are permitted to introduce 
 extraneous evidence and circumstances to show its meaning. In regard 
 to such cases it is said in I Ency. of Evidence 837, 838: "So, if the 
 previous negotiation make it manifest in what sense the parties under- 
 stood and used the ambiguous term in the writing, they may be resorted 
 to, and indeed, they furnish the best definition to be applied in ascer- 
 taining the intention of the parties. Within the rule of admitting evi- 
 dence of surrounding facts and circumstances to aid or explain an am- 
 biguity, it has been held proper to receive evidence or declarations of 
 the parties tending to show what they understood the ambiguous term 
 or expression to mean." And on page 841, it is further said, "Such 
 evidence neither varies nor adds to the writing but merely translates 
 ' it from the language of the trade or art in question, into the ordinary
 
 THE; PAROL EVIDENCE; RULE 749 
 
 language of people generally." (Gaunt v. Pries & Co., 21 Mo. App. 
 540.) 
 
 The judgment will be affirmed. 
 
 HARMAN v. FISHER, 
 po Neb. 688. (1912) 
 
 ROOT, J. This is an action in equity to settle conflicting claims to 
 a quarter section of land in Furnas county. The case is here on appeal 
 and cross-appeals. 
 
 A majority of the court instructed me to say that oral evidence is 
 admissible to prove the actual consideration for a deed, even though 
 the effect may be to convert the instrument from one of bargain and 
 sale into one of pure gift; such proof has always been considered com- 
 petent in other actions, and a majority of the court does not think 
 sound sense should permit an exception to be made in a case where, 
 to do so, is to compel the court to hold contrary to the fact, and thereby 
 render ineffectual a plain provision of the statute. Such evidence, 
 although admissible, should not be held to prove the fact, unless it is 
 clear and convincing and leaves no reasonable doubt in the mind con- 
 cerning the consideration given for the deed. 
 
 The courts of last resort are not in harmony in cases like the one at 
 bar. The following cases directly sustain the majority of this court : 
 Bradley v. Love, 60 Tex. 472; Rockhill v. Spraggs, 9 Ind. 30; Jones 
 v. Jones, 12 Ind. 389; Kenney v. Philipy, 91 Ind. 511. See, also, Sires 
 v. Sires, 43 S. Car. 266, and Salmon v. Wilson, 41 Cal. 595. 
 
 The writer of this opinion, while recording the views of a majority 
 of the court, personally holds to the contrary. That is to say, that 
 while for many purposes recitations in a deed may not, even as be- 
 tween the parties and their privies, be conclusive evidence of the facts, 
 and the recitation of consideration is frequently held to be solely prirna 
 facie evidence of the fact, yet it seems to me that, both upon reason 
 and the better authority, persons claiming under a deed should not, 
 in the absence of fraud, or mutual mistake, be permitted to prove by 
 oral evidence that a recitation of a substantial, valuable consideration, 
 where no other consideration is referred to in the deed, is false, and 
 prove by oral evidence that the sole consideration was good so as
 
 75Q CASES ON EVIDENCE 
 
 to change the quality ofjhe estate thereby conveyed. In such cases the 
 recitation gives quality to the estate transferred, and, to contradict it 
 by oral evidence, violates the statute of frauds and perjuries. Pat- 
 terson v. Lamson, 45 Ohio St. 77 ; Brown v. Whaley, 58 Ohio St. 654 ; 
 Groves v. Groves, 65 Ohio St. 442. 
 
 Among the cases cited to sustain the majority of the court Bradley 
 v. Love, supra, is directly in point, but the opinion is a mere declara- 
 tion that the law is as stated and contains no convincing argument to 
 sustain the conclusion. The later Indiana cases follow Rockhill v. 
 Spraggs, 9 Ind. 30, and it was decided on the authority of M'Crea v. 
 Purmort, 16 Wend. (N. Y.) 460. The New York case, however, 
 merely involved the right of a party to a deed to prove that the con- 
 sideration therefor was a quantity of iron delivered by the grantee to 
 the grantor, rather than a money consideration, as recited in the deed. 
 That case was correctly determined, but does not sustain the Indiana 
 cases, nor the majority opinion in the instant case. 
 
 In Salmon v. Wilson, 41 Cal. 595, in addition to a recitation of a 
 nominal valuable consideration, there was a recitation of a good con- 
 sideration, and it was held that, upon a consideration of the entire 
 instrument, the court should construe the deed to be one of gift. 
 
 In Carty v. Connolly, 91 Cal. 15, that court recognize the rule that, 
 in the absence of fraud, oral evidence should not be received to con- 
 tradict the recitation of consideration for the purpose of defeating the 
 conveyance according to its terms. In the case at bar the testimony 
 is convincing that the sole consideration for the deed was that of love 
 and affection, and we conclude, upon a consideration of the entire 
 record, that substantial justice has been done. 
 
 The judgment of the district court, therefore, is 
 
 Affirmed 
 
 MARTIN v. MASK. 
 158 N. C. 436. (1912) 
 
 This action was commenced by Martin & Garrett, agents, before a 
 justice of the peace, to recover the" sum of $166.65, an d interest on 
 $166.65 from 14 December, 1910, due by five notes for $33.33 each, 
 given for rent of house No. 307 Third Street, Augusta, Ga., said notes
 
 THE PAROL EVIDENCE RULE 751 
 
 being due I March, 1911; i April, 1911; I May, 1911; I June 1911; 
 and i July, 1911. 
 
 The defendant denied any liability to the plaintiffs. 
 
 Judgment was rendered by the justice in favor of the defendant, 
 and the plaintiff appealed. 
 
 In the Superior Court the defendant moved to dismiss the action on 
 the ground that it appeared upon the face of the summons and also 
 from the notes that the plaintiffs were agents, and that the action 
 should have been brought in the name of their principal, the real party 
 in interest. 
 
 The motion was denied, and the defendant excepted. The defendant 
 offered to prove that he was, at the time of making said contract, the 
 agent of the Metropolitan Life Insurance Company, and he did not 
 know how long he would reside in the city of Augusta, his residence 
 there being entirely dependent upon his employment by the company 
 at that point; and in consequence thereof there was a separate and 
 distinct contract made with the plaintiffs at the time of the signing of 
 the said notes, by which it was agreed and understood that the de- 
 fendant would pay said notes which were given for the house in which 
 he was to reside and did reside during his stay in Augusta, but that 
 if he was required to leave the city of Augusta, that he was to pay 
 no other note, and that he would surrender the possession of the house 
 to the plaintiffs. That, in accordance with the contract, the defendant 
 did pay to the plaintiffs the rent on said house during his stay in 
 Augusta. 
 
 That under instructions from his employer, he left Augusta during 
 the month of January, 1911, and paid the plaintiff the note that was 
 due i February, 1911, for the rent of said house for the month of 
 January, 1911, and delivered the possession of said house and lot to 
 the plaintiffs, and that the plaintiffs, took possession of and rented said 
 house out to other parties. That by reason of said contract the said 
 notes sued on, all being given for the rent of the house for months 
 subsequent to i February, 1911, were not to be paid, and the defend- 
 ant was under no obligation on said notes to the plaintiffs or their 
 principal. 
 
 This evidence was excluded, and the defendant excepted. There 
 was judgment in favor of the plaintiffs, and the defendant excepted 
 and appealed. 
 
 ALLEN, J. The record presents two questions: 
 
 i. Was it error to refuse to dismiss the action because the plain- 
 tiffs are named as agents, and sue on notes payable to them as agents?
 
 752 CASES ON EVIDENCE: 
 
 2. Was it error to exclude the evidence offered by the defendant? 
 The evidence offered by the defendant was, in our opinion, clearly 
 competent, and for several reasons : 
 
 (1) It tended to prove a separate parol agreement entered into at 
 the time of the execution of the notes, which was to be a part of the 
 contract, and which is not distinguishable in principle from agreements 
 admitted in evidence under the authority of several cases in our re- 
 ports. 
 
 In Braswell v. Pope, 82 N. C. 57, it was held competent to prove that 
 notes given for money were to be surrendered upon the maker signing 
 a judgment and a certain mortgage as security for the money. 
 
 In Pennington v. Alexander, in N. C. 427, that "The maker of a 
 promissory note or other similar instrument, if sued by the payee, may 
 show as between them a collateral agreement, putting the payment upon 
 a contingency. 
 
 In Evans v. Freeman, 142 N. C., 61, that the maker of a note for 
 the purchase money of a stock- feeder could prove by parol that at the 
 time the note was given it was agreed that it should be paid only out 
 of the sales of the stock-feeder, and in Kernodle v. Williams, 153 N. 
 C. 475, that it was competent to prove a parol agreement that the 
 children should pay only so much of notes given by their father as was 
 necessary to pay his debt, and that the balance should be accounted for 
 as an advancement. 
 
 (2) The evidence, if believed, proved a total failure of considera- 
 tion as to the notes sued on. Carrington v. Waff, 112 N. C. 119. 
 
 (3) If the defendant could not avoid the payment of the notes, 
 it was competent to prove that he surrendered the house for the rent 
 of which the notes were given, and that the plaintiffs accepted it, for 
 the purpose of charging the plaintiffs with the rents. 
 
 For the error pointed out, a new trial is ordered. 
 
 New trial. 
 
 S. E. BOWSER & CO. v. FOUNTAIN. 
 128 Minn. 198. (1915) 
 
 Action in the District Court for Clay County to recover $162 for 
 goods sold and delivered. The case was tried before Nye, J., and a 
 jury which returned a verdict in favor of defendants. From an order
 
 THE PAROL EVIDENCE RULE 753 
 
 denying plaintiff's motion for judgment notwithstanding the verdict 
 or for a new trial, it appealed. Affirmed. 
 
 HALLAM, J. It is an elementary proposition "that where, in the ab- 
 sence of fraud, accident or mistake, the parties have deliberately put 
 their contract into a writing which is complete in itself, and couched 
 in such language as imports a complete legal obligation, it is conclu- 
 sively presumed that they have introduced into the written instrument 
 all material terms and circumstances relating thereto." Wheaton Rol- 
 ler-Mill Co. v. John T. Noye Mnfg. Co., 66 Minn. 156, 159, 68 N. W. 
 854, 855. 
 
 It is also well settled that "Where a contract is silent as to the time 
 of performance, the law' implies that it is to be performed within a 
 reasonable time; and, if the contract be in writing, parol evidence of 
 an antecedent or contemporaneous oral agreement is inadmissible to 
 vary the construction to be thus legally implied from the writing it- 
 self." Liljengren F. & L. Co. v. Mead, 42 Minn. 420, 424, 44 N. W. 
 306, 308. 
 
 Another rule equally well settled, however, is that, in case of a sim- 
 ple contract in writing, it is competent to show by parol that, notwith- 
 standing the delivery of the writing, the parties intended and agreed 
 that it should be operative as a contract only upon the happening of a 
 future contingent event, or the performance of a condition. Westman 
 v. Krumweide, 30 Minn. 542^5 N. W. 255 ; Merchants Exchange Bank 
 v. Luckow, 37 Minn. 542, 35 N. W. 434 ; Smith v. Mussetter, 58 Minn. 
 159, 59 N. W. 995; Mendenhall v. Ulrich, 94 Minn. 100, 101 N. W. 
 1048. The purpose and effect of such evidence is to prove a condition 
 precedent to the attachment of any obligation under the written in- 
 strument, but to prove that no contract was ever made, that its obliga- 
 tion never commenced. 
 
 We come now to the question whether there is in this case evidence, 
 to submit to the jury, of an agreement that the delivery of the order 
 was conditional, and that it should become operative only on the hap- 
 pening of a contingency or the performance of a condition. We 
 think there is. The testimony of the defendants was to the effect that 
 plaintiff's salesman was advised that defendants wanted the outfit for 
 the installation in a garage then under construction; that they wanted 
 it delivered before the floor of the garage was in, and for that reason 
 wanted it within two. weeks time ; that the salesman did not know 
 whether he could make delivery within that time or not. He said he 
 could do so if he could get the outfit in Minneapolis, but that, if it 
 became necessary to ship from Fort Wayne, it would be impossible tc
 
 754 CASES ON EVIDENCE 
 
 do so, and that defendants then gave the written order "on condition 
 * * * that if he could deliver the goods in two weeks' time, or 
 thereabouts, it would be a deal; otherwise it would be thrown out." 
 We think this evidence was sufficient to sustain a finding that the de- 
 livery of the order was conditional upon ascertainment of the fact that 
 the goods could be delivered in two weeks or thereabouts. 
 
 Order affirmed. 
 
 BURKE v. DULANEY. 
 153 U. S. 228. (1893) 
 
 This action was brought by the testator of the appellees, upon a 
 writing purporting to be the promissory note of the appellant for forty- 
 three hundred and eight dollars and eighty cents, dated Salt Lake City, 
 Utah, August 10, 1883, an ^ payable one year after date, for value re- 
 ceived, at the bank of Wells, Fargo & Co. in that city, with interest 
 at the rate of six per cent per annum from date until paid. 
 
 The defendant, Burke, denied his liability upon the note, and at the 
 trial below was sworn as a witness on his own behalf. In support of 
 his defense, as set forth in the answer filed by him, he stated the cir- 
 cumstances under which the note was given. He said : "Mr. Dulaney 
 bought this group of mines the Live Yankee and the Mary Ellen. He 
 came to the Walker House in Salt Lake, and wanted me to run them 
 for him. I said I would not do it unless I got a show to get some inter- 
 est in the property." To this testimony the plaintiff objected, and, the 
 defendant admitting that the agreement referred to by him was oral, the 
 objection was sustained. To this ruling he excepted. 
 
 Being asked what he did after giving the note in suit, he answered : 
 "I gave the note. I worked on the property, which was done some 
 time in September ; worked the property until March ; settled up all of 
 its debts, paid them, notified Dulaney I wanted nothing more to do 
 with the property; that I was going to Idaho Territory, to Coeur d' 
 Alene mines, and as I was ready to give him a deed at any time he 
 would send me my note. That is all." Objection being made by the 
 plaintiffs to this testimony, the defendant offered to prove "that at the 
 time of the giving of the note and prior thereto, Dulaney, the payee 
 of the note, agreed with Mr. Burke, the maker of the note, that the 
 note should be given to represent the price of the interest that Mr.
 
 THE PAROI, EVIDENCE RULE 755 
 
 Burke was to have, conditioned upon his demanding it after an in- 
 spection of the mining property mentioned." He offered also to prove 
 that after inspecting the property and testing it, the defendant notified 
 testator that he did not want the interest; that he was prepared to 
 make a deed for the interest to the latter, and demanded the delivery 
 of his note. All this evidence was excluded by the court upon motion 
 of the plaintiffs, to which ruling the defendant excepted. 
 
 The defendant having stated that the conversation with the testator 
 above referred to, and which was excluded by the court, took place 
 prior to the execution of the note, he offered to prove that at the time 
 the note was made, the same agreement was made orally between him 
 and the testator. This testimony was also excluded, and he excepted. 
 
 MR. JUSTICE HARLAN, after stating the case, delivered the opinion of 
 the court. 
 
 The general rule that a written contract cannot be contradicted or 
 varied by evidence of an oral agreement between the parties before 
 or at the time of such contract, has been often recognized and applied 
 by this court, especially in cases in which it was sought to deprive 
 bona fide holders of or parties to negotiable securities of the rights to 
 which they were entitled according to the legal import of the terms of 
 such instruments. Renner v. Bank of Columbia, 9 Wheat. 576, 587 ; 
 Brown v. Wiley, 20 How. 442; Specht v. Howard, 16 Wall. 564; For- 
 sythe v. Kimball, 91 U. S. 291 ; Brown v. Spofford, 95 U. S. 474 ; 
 Martin v. Cole, 104 U. S. 30; Burnes v. Scott, 117 U. S. 582; Falk v. 
 Moebs, 127 U. S. 597. 
 
 The authorities cited do not determine the present case. The issue 
 here is between the original parties to the note. And the evidence 
 offered by the appellant, and excluded by the court, did not in any 
 true sense contradict the terms of the writing in suit, nor vary their 
 legal import, but tended to show that the written instrument was never, 
 in fact, delivered as a present contract, unconditionally binding upon 
 the obligor according to its terms from the time of such delivery, but 
 was left in the hands of Dulaney, to become an absolute obligation of 
 the maker in the event of his electing, upon examination or investiga- 
 tion, to take the stipulated interest in the property in question. In 
 other words, according to the evidence offered and excluded, the writ- 
 ten instrument, upon which this suit is based, was not except in a 
 named contingency to become a contract, or a promissory note which 
 the payee could at any time rightfully transfer. Evidence of such an 
 oral agreement would show that the contingency never happened, and 
 would not be in contradiction of the writing. It would prove that
 
 756 CASES ON EVIDENCE 
 
 there never was any concluded, binding contract entitling the party who 
 claimed the benefit of it to enforce its stipulations. The rule that ex- 
 cludes parol evidence in contradiction of a written agreement presup- 
 poses the existence in fact of such agreement at the time suit is brought. 
 But the rule has no application if the writing was not delivered as a 
 present contract. The authorities supporting these views are numerous. 
 The judgment is reversed and the cause is remanded, that a new trial 
 may be ordered, and further proceedings had in conformity with this 
 opinion. 
 
 JAMESTOWN BUSINESS COLLEGE- ASSN. v. ALLEN. 
 ij2 N. Y. 291. (1902) 
 
 WERNER, J. Under the unanimous affirmance by the Appellate Divi- 
 sion of the judgment entered upon the verdict of the jury herein, the 
 only question presented by this record that survives to reach this court 
 is the single exception taken by the plaintiff to the admission of parol 
 evidence, given by the defendant, in contradiction of the written in- 
 strument upon which the action is founded. I think that the excep- 
 tion referred to was well taken. The action is upon a promissory note. 
 The complaint is in the usual form in such actions. The answer 
 alleges want of consideration and an agreement that the note was not 
 to be paid if the defendant did not take the course of instruction at 
 plaintiff's school, for which the note was given. Upon the trial, under 
 these pleadings, the plaintiff introduced the note in evidence and rested 
 its case. Thereupon the defendant, under the direction of the court, 
 assumed the affirmative of the issue and introduced evidence in sup- 
 port of the allegations of her answer. Despite plaintiff's objection to 
 any oral testimony tending to vary or contradict the written instru- 
 ment, the defendant was permitted to testify that the note in suit was 
 not to be paid if she should decide not to attend plaintiff's school and 
 could not sell her scholarship. I think this ruling of the trial court 
 was erroneous, and that the exception requires a reversal of this judg- 
 ment. 
 
 The general rule, that evidence of what was said between the parties 
 to a valid instrument in writing, either prior to or at the time of its 
 execution, cannot be received to contradict or vary its terms, applies 
 to promissory notes and bills of exchange. (Thompson v. Ketcham,
 
 THE PARoiv EVIDENCE RULE 757 
 
 8 Johns, 190; Norton v. Coons, 6 N. Y. 33; Read v. Bank of Attice, 
 124 N. Y. 671.) 
 
 As stated in Thomas v. Scutt (127 N. Y. 133) and Stowell v. Green- 
 wich Ins. Co. (163 N. Y. 305), there are two classes of exceptions to 
 this general rule of evidence. The first class includes those cases in 
 which parol evidence is received to show that a written instrument 
 which purports to be a contract is in fact no contract at all. The 
 other class "embraces those cases which recognize the instrument as 
 existing and valid, but regard it as incomplete, either obviously or at 
 least possibly, and admit parol evidence, not to contradict or vary, but 
 to complete the entire agreement of which the writing was only a part. 
 Receipts, bills of parcels and writings that evidently express only some 
 parts of the agreement are examples of this class which leaves the 
 written contract unchanged, but treats it as part of an entire oral agree- 
 ment, the remainder of which was not reduced to writing. Two things, 
 however, are essential to bring a case within this class: I. The writ- 
 ing must not appear upon inspection to be a complete contract, em- 
 bracing all the particulars necessary to make a perfect agreement and 
 designed to express the whole arrangement between the parties, for in 
 such a case it is conclusively presumed to embrace the entire contract. 
 2. The parol evidence must be consistent with and not contradictory 
 of the written instrument." 
 
 I think the case at bar does not fall within either of these excep- 
 tions. In form, the instrument sued upon is a complete contract. This 
 is equally true as regards the note alone, or the note and the certificate 
 of scholarship together considered as parts of the same contract. If it 
 is a contract at all, it is a complete contract. The oral evidence re- 
 ceived over plaintiff's objection did not serve to amplify or complete the 
 writing; it was radically contradictory thereof. The mere statement of 
 this fact is the only argument necessary to show that the case is not 
 in the class of cases in which oral testimony is received to complete 
 contracts which are only partly reduced to writing. Does the oral 
 testimony received over plaintiff's objection tend to show that the writ- 
 ten instrument, which was a complete contract in form, was in fact 
 no contract? This question suggests the distinction between this case 
 and the cases upon which the defendant relies. According to the testi- 
 mony of the defendant the delivery of the note in suit was not condi- 
 tional upon the happening of some event before it was to become a 
 binding obligation; on the contrary, it is said to have been complete 
 and unconditional. The defendant says, in substance, that the note 
 became effective at once and was to be binding upon her unless she
 
 758 CASES ON EVIDENCE 
 
 should decide not to take instructions at plaintiff's school and could not 
 sell her scholarship, in which event it was to be canceled and she was 
 not to be called upon to pay it. Had the parties agreed that the note 
 should not be regarded as completely delivered until the defendant 
 should take such instructions, or until she could sell her scholarship, 
 it would not have become operative until either of these events had 
 transpired. The agreement which the parties did make was just the 
 reverse of that. The note is stated to have been actually and uncondi- 
 tionally delivered, and was to be and remain a note until the defendant 
 should decide either to sell the scholarship, if that were possible, or 
 to abandon the projected course of instruction. As the note was not 
 payable until a year after its date, and the course of instruction was 
 not to begin until the note became due, the defendant's claim is, in 
 reality, an assertion that the note was to be regarded as a valid and 
 binding obligation until it became due, when it was to be optional with 
 the defendant to decide whether it should then be payable or not. This 
 was not a conditional delivery which held the consummation of the con- 
 tract in abeyance, but an absolute delivery which, as the defendant sup- 
 posed, could be annulled in a certain contingency at her option. It is 
 obvious, therefore, that there is a radical distinction between a condi- 
 tional delivery, which is not to become complete and effective until the 
 happening of some condition precedent, and a complete delivery, like 
 the one at bar, which is sought to be defeated by subsequent contin- 
 gencies that may or may not arise. In the one case there is no con- 
 tract until the condition has been complied with; in the other there 
 is a binding contract, notwithstanding the happening of the contingency 
 relied upon to defeat it. For the foregoing reasons the cases of Sey- 
 mour v. Cowing, (i Keyes, 532); Reynolds v. Robinson, (no N. Y. 
 654) ; Blewitt v. Boorum, (142 N. Y. 357) ; Higgins v. Ridgway, (153 
 N. Y. 130), and kindred cases, holding that conditions limiting and cir- 
 cumscribing the delivery of written instruments may be shown by parol, 
 are not applicable to the case at bar. 
 
 This case seems to fall directly within the principle "that parol evi- 
 dence of an oral agreement made at the time of the drawing, making 
 or indorsing of a bill or note, cannot be permitted to vary, qualify or 
 contradict, to add or to subtract from the absolute terms of the written 
 contract." (Specht v. Howard, 16 Wall. 564; Forsyth v. Kimball, 91 
 U. S. 291 ; Brown v. Wiley, 61 U. S. 442 ; Brown v. Spafford, 95 U. 
 S. 474; Read v. Bank of Attica, 124 N. Y. 671.) 
 
 For these reasons I think the parol evidence above referred to was
 
 THE PAROL EVIDENCE; RULE 759 
 
 erroneously admitted, and, therefore, the judgment herein should be 
 reversed and a new trial ordered, with costs to abide the event. 
 
 Judgment reversed, etc. 
 
 QUARRY CO. v. CLEMENTS. 
 38 Ohio 587. (1883) 
 
 So far as necessary to present the point reserved for decision the 
 following is a statement of the facts : 
 
 The action below was brought by The Baldwin Quarry Co., the pres- 
 ent plaintiff, against Robert J. Clements, defendant, to recover a bal- 
 ance due for stone furnished for and used in the construction of a 
 bridge by defendant for Cuyahoga county. The contract was in writ- 
 ing, and stipulated "That said party of the second part agrees to fur- 
 nish to the said party of the first part, good bridge stone at $4.50 per 
 perch, to be measured in the wall. And said party of the second part 
 agrees to furnish to said party of the first part, perch stone at $1.50 
 per perch, to be measured in the wall. The above described stone is 
 to be used in the erction and building of a bridge or culvert to be built 
 on Columbus Street, at or over the stream known as Big Creek, and 
 said stone is to be delivered on the ground where said bridge or culvert 
 is to be built, at the above price." The defendant pleaded that he did 
 not owe, etc. The case was tried to a jury and resulted in a verdict 
 and judgment for plaintiff. The district court reversed the judgment 
 for error in rejecting certain evidence offered by defendant. The 
 amount due plaintiff turned on the meaning of the word perch, as used 
 in said contract. The plaintiff, on the trial, for the purpose of making 
 good his claim, offered evidence tending to show that by the usage of 
 the business, i6 l / 2 cubic feet was a perch, while the defendant, for a 
 like purpose, offered evidence that by such usage 25 feet made a 
 perch. The weight of this evidence was, in substance, that in small 
 jobs, such as cellar walls and foundations, in Cleveland and vicinity, 
 the usage was to count i6 l /2 feet to the perch, while in all railroad 
 masonry it took 25 feet. As to bridge masonry, such as this was, the 
 evidence failed to show that there was any fixed or definite meaning 
 to the word, or any uniform usage as to the quantity of stone it took 
 to make a perch. The effect of this testimony was that the term perch 
 was ambiguous, and, as applied to this kind of work, might mean i6 l / 3
 
 760 CASES ON EVIDENCE 
 
 feet or 25 feet indifferently. In this state of the proof, and for the 
 purpose of showing what the parties really intended by the use of this 
 term, the defendant offered to prove the conversation of the parties 
 at and before the contract was reduced to writing and signed, which 
 resulted in a verbal agreement as to the terms of the contract, and 
 their instructions to the attorney, who, at their instance, reduced the 
 same to writing, in which of the two senses the word perch was used. 
 He offered to show that the verbal agreement was for 18 cents per 
 cubic foot, and that Graves, the attorney by whom it was reduced to 
 writing, of his own motion, and without instructions from either party, 
 inserted "$4.50 per perch" instead of 18 cents per cubic foot, which 
 is the same price if 25 feet be counted as a perch. 
 
 This testimony was rejected. The district court held this was error. 
 
 JOHNSON, J. The evidence of usage failed to show that either six- 
 teen and one-half or twenty-five cubic feet made a perch, in this class 
 of work. It left the meaning of the term perch ambiguous and uncer- 
 tain. In this state of the proof, the defendant offered to prove that 
 the word perch was not used by either of them, and that the parties 
 verbally agreed on 18 cents per cubic foot as the price of the stone, 
 and that the attorney employed to reduce the contract to writing, of his 
 own motion, and without instruction from either party, made the 
 change from feet to perch, and the price from 18 cents per cubic foot 
 to $4.50 per perch, this being at the same rate, if twenty-five feet is a 
 perch, but if sixteen and one-half feet is a perch, then the price per 
 cubic foot would be over twenty-seven cents. 
 
 In determining the question presented, we can derive little or no aid 
 from the cases where custom or usage is shown, to enable the court 
 to interpret the meaning of doubtful or ambiguous words, or of words 
 or terms that have a special, technical or peculiar meaning, as applied 
 to particular kinds of trade or business. Hence it is not necessary to 
 cite or comment on this class of cases. The rule which admits this 
 kind of testimony is not at variance with the other general rule, that 
 parol contemporaneous evidence is not competent to modify or contra- 
 dict the terms of a written contract. The object of evidence of such 
 usage is not to vary or modify the writing, but to ascertain 'its mean- 
 ing, when words and terms are used which are ambiguous, or have a 
 technical or particular signification when applied to the subject matter. 
 
 In the present case, the claim is, that the rejected evidence was not 
 offered to vary, modify or contradict, the terms of the contract, but, as 
 the evidence of usage in the business left the word used ambiguous, 
 it was proper to show in what sense the parties used it. When that
 
 THE PAROI, EVIDENCE RULE 761 
 
 is ascertained, the contract has a definite meaning, and its terms, as 
 construed in the light of this evidence constitute the measure of obliga- 
 tion. The reason why usage is resorted to is to ascertain, not to vary, 
 the intention of the parties, inasmuch as they are presumed to have 
 contracted with reference to the known usage of the business. For 
 the purpose for which this rejected evidence was offered, we think it 
 was competent. The parties used a word employed in the kind of 
 business in which they were engaged. As applied to this kind of work, 
 it had no general meaning nor any fixed technical meaning. 
 
 The object was not to vary, but to develop the meaning of the con- 
 tract, by ascertaining the sense in which this word was intended to 
 be used. Numerous text books and cases could be cited illustrating 
 this rule and its proper limitations. Thus, where the defendant's agent, 
 by letter, offered to purchase plaintiff's wool. In the correspondence 
 the offer was in terms to purchase "your wool." Evidence of previous 
 conversations between the parties was admitted, showing that the plain- 
 tiff had some wool, of his own clip, and some he had purchased, which 
 he was offering for sale. The object of this evidence was to show in 
 what sense the defendant used the term "your wool", by showing, by 
 their previous negotiations, that at the time the offer by letter was 
 made, he did not refer to the wool from plaintiff's clip merely, but to 
 all the seller had on hand. Lord Campbell says: "There cannot be 
 the slightest objection to the admission of evidence of previous con- 
 versations, which neither alters nor adds to the written contract, but 
 merely enables us to ascertain what was the subject matter referred 
 to therein." There the subject matter, as was shown by extrinsic evi- 
 dence, was uncertain, and oral evidence was admitted to fix or ascer- 
 tain the meaning of the term "your wool". McDonald v. Longbottom, 
 102 Eng. Com. Law. 977. 
 
 So where there was a sale, by written contract, of "winter strained 
 lamp oil", equal to a sample exhibited, the proof showed there were 
 two kinds of such oil : one sperm oil, the other whale oil, the latter of 
 which was inferior in quality. Evidence was held admissible to show 
 that, in conversation at the time the contract was made, this was ex- 
 plained to the purchaser, and that he was then informed that it was 
 not sperm oil he was selling. Hart v. Hammett, 18 Vt. 127. 
 
 In a contract made in Alabama during the rebellion, to pay "dol- 
 lars", parol evidence was admitted showing the circumstances under 
 which the contract was made, and that, in fact, at the time and place, 
 the only dollars in use were Confederate dollars. Thorington v. Smith, 
 8 Wall. i.
 
 762 CASES ON EVIDENCE 
 
 In the charter of the whole tonnage of a vessel, except necessary 
 quarters for the officers and crew and storage of provisions, water and 
 fuel, proof of conversations between the parties, when in negotiations 
 in relation to the excepted parts required for use by the officers and 
 crew was properly admitted, as it did not tend to vary or contradict 
 the written contract, but only to point out the subject to which it ap- 
 plied. Almgren v. Dulith, i N. Y. 28. Without extending quotations, 
 we add a few authorities where this principle is adhered to: Shore v. 
 Wilson, 9 Cl. & F. 555; Barret v. Stow, 15 111. 423; Gray v. Harper, 
 i Story 574 ; Brown v. Brown, 8 Met. 576 ; Attorney General v. Shore, 
 1 1 Sim. 592-632 ; Wharton on Evidence, par. 938-943 ; Stoops v. Smith, 
 loo Mass. 63; Miller v. Stevens, Ibid. 518; Sweet v. Shumway, 102 
 Mass. 367. 
 
 So in a contract for "ware potatoes", where on the trial it appeared 
 there were two kinds of "ware potatoes" known in the market one in- 
 ferior to the other, parol evidence to show that the contract was in 
 fact, for the best, was admissible, for the reason, as we suppose, that by 
 the terms of the contract the seller was not limited to a delivery of 
 that kind, which was of best quality, if the inferior kind was within 
 the term "ware potatoes", and therefore the evidence went to vary 
 the written contract. Smith v. Jeffries, 15 Mees. & W. 561. 
 
 If books are referred to, they furnish no certain guide. Webster 
 says 1&/2 feet make a perch. Worcester gives no definition in cubic 
 measure. The New American Encyclopaedia says 25 feet. In some 
 arithmetics i6 l /t feet, in others 25 feet, while in others again 24^ 
 feet, are given as a perch. In Haswell's Engineers & Mechanics' Book 
 a leading authority on the subject, and one in general use 24^ f et 
 are given as a perch of stone. In this state of doubt and uncertainty, 
 and in the absence of an express statutory definition, we hold that the 
 rejected testimony was admissible, to show in what sense the word was 
 used in the written contract. It does not tend to vary the terms of the 
 writing. It simply enables the court to ascertain what its terms mean, 
 and to construe and enforce it as the parties intended. It is proper 
 to add that it does not appear that the error, in rejecting this evidence, 
 was cured by the verdict. 
 
 The judgment of the District Court is affirmed.
 
 THE PAROI, EVIDENCE RULE 763 
 
 COLONIAL JEWELRY CO. v. BROWN et al. 
 38 Okla. 44. (1913) 
 
 KANE, J. This was an action commenced by the plaintiff in error, 
 plaintiff below, against the defendants in error, defendants below, upon 
 a jewelry contract or order. At the commencement of the action, an 
 order of attachment was issued upon an affidavit of the plaintiff, to the 
 effect that the defendants were attempting to dispose of and other- 
 wise conceal their property with intent to hinder and delay plaintiff 
 in collecting its debt, and was otherwise violating the Bulk Sales Law 
 of the state of Oklahoma, Comp. Law 1909, sees. 7908-7910 (Rev. 
 Laws 1910, sees. 2903-2905). The defendants admitted the execution 
 of the contract sued upon, but alleged that the same was placed into the 
 hands of the defendants under an agreement, whereby it was not to be- 
 come effective until five days after its execution, during which time 
 the defendants were at liberty to cancel the order. They further 
 alleged that the goods were shipped before the expiration of the five 
 days, notwithstanding the defendants in the meantime had notified the 
 plaintiff that they did not want the goods described in the order, and 
 requested it to cancel the same. They further alleged that they had 
 in no way violated the Bulk Sales Law of the state of Oklahoma and 
 that no grounds for attachment existed, and that by reason of the 
 wrongful suing out of the same they had been damaged in the sum of 
 $500. Upon a trial to a jury upon the merits, a verdict was returned 
 for the defendants in the sum of $100 and the dissolution of the at- 
 tachment, upon which judgment was duly entered, to reverse which this 
 proceeding in error was commenced. 
 
 Counsel for plaintiff in error presents his grounds for reversal under 
 three heads, as follows : 
 
 "(i) The trial court erred when it permitted defendants to intro- 
 duce parol evidence to contradict and vary the terms of a written con- 
 tract, by which evidence a verbal agreement was shown different from 
 the written, but not incorporated therein, and made prior to and con- 
 temporaneous with the written instrument. (2) The trial court erred 
 in giving the instructions that were given. (3) The trial court erred 
 in refusing to give the special instructions asked for by the plaintiff." 
 
 Counsel states his position in his brief in effect as follows : 
 
 When defendants signed the contract sued upon, the same became 
 and was a binding obligation, and was not subject to countermand, 
 especially after the order had been received and the goods delivered
 
 764 CASES ON EVIDENCE 
 
 to an express company for delivery to defendants as per order ; and 
 defendants are estopped from setting up a different verbal agreement 
 made prior to and contemporaneous with the written contract, whereby 
 the contract was not to take effect until the member of the partnership 
 who signed the same and could see the other partner and discuss with 
 him the deal, and parol testimony tending to prove said agreement was 
 unquestionably inadmissible, and this one proposition, involves the whole 
 case. 
 
 We do not understand that evidence offered for the purpose of show- 
 ing that a written instrument was delivered conditionally constitutes 
 contradicting or varying a written instrument by parol. Such evidence 
 does not tend to show any modification or alteration of the written 
 agreement, but that it never became operative, and that its obligation 
 never commenced. A written contract must be in force to make it 
 subject to the parol evidence rule. 
 
 Such a contract cannot become a binding obligation until it has been 
 delivered. Its delivery may be absolute or conditional. If the latter, 
 then it does not become a binding obligation until the condition upon 
 which its delivery depends has been fulfilled. Tovera v. Parker, 34 
 Okla. 74, 128 Pac. 101 ; Horton v. Birdsong, 35 Okla. 275, 129 Pac. 
 701. In Lions v. Stills, 97 Tenn. 514, 37 S. W. 280, it was held: 
 
 "When an unconditional note is given for the purchase of certain 
 property, parol evidence is admissible to show an option on the part 
 of the purchaser to rescind the sale within a certain time, as this does 
 not contradict the note, but sets up an independent agreement made at 
 the same time, that upon a condition or contingency the note was to 
 become void." 
 
 Mr. Joyce in his Defence to Commercial Paper (section 312) makes 
 the distinction between the two classes of cases very clear : 
 
 "No rule is more elementary than that parol contemporaneous evi- 
 dence is inadmissible to contradict or vary the terms of a written in- 
 strument. But the rule is almost equally well settled that parol evidence 
 may be given to prove the existence of any separate parol agreement 
 constituting a condition precedent to the attaching of any obligation 
 under the written instrument. This is not to vary or contradict a writ- 
 ten instrument, but to prove that no contract was ever made; that its 
 obligations never commenced." 
 
 As the instructions refused and given are objected to upon the 
 theory that the first contention of plaintiff in error is correct, what 
 we have already said disposed of such assignments of error. Counsel 
 for plaintiff in error in conclusion says that "we submit there
 
 THE PAROL EVIDENCE RULE 765 
 
 was no evidence to sustain a verdict of $100 against plaintiff for the 
 wrongful suing out of said attachment." We have examined the evi- 
 dence, and are of the opinion that it reasonably tends to support the 
 verdict of the jury. 
 
 The judgment of the court below is therefore affirmed. 
 
 All the Justices concur. 
 
 HAPKE v. DAVIDSON. 
 180 Mich. 138. (1914) 
 
 KUHN, J. The defendant, James Davidson, prior to February 20, 
 1904, was interested in a factory at Dresden, Ontario, for the manufac- 
 ture of beets into sugar. The operation of the factory not being suc- 
 cessful, in that locality, he made a contract with the plaintiff, Theo- 
 dore Hapke, who was an expert agriculturist, to remove the same. 
 
 The issue thus formed being submitted to the jury, a verdict in the 
 sum of $1,917 for the plaintiff was returned. Judgment being brought 
 to this court by writ of error. 
 
 The circuit judge held and instructed the jury that there could be no 
 recovery for services performed or the expenditures made prior to Feb- 
 ruary 20, 1904, for the reason that all these matters had merged in 
 the contract. The defendant offered in evidence certain correspon- 
 dence between the parties prior to that time, and also endeavored to 
 show conversation which took place between the parties in the office of 
 the attorney at the time the contract was made. In the letter of Feb- 
 ruary 13, 1904, written by the defendant to plaintiff at Janesville, he 
 said, after discussing the removal of the factory in question: 
 
 "And of course we would also want it distinctly understood that we 
 could not allow anything for any promotion, expenses or anything of 
 that kind." 
 
 It is clear that the purpose of offering this letter and a draft of the 
 proposed contract made previous to the meeting in the attorney's office, 
 when the agreement was actually signed, was to vary the terms of the 
 contract as construed by the court, and was an effort to show that the 
 claimed items for extras were intended to be within the terms of the 
 agreement. The rulings of the court in excluding these writings were 
 proper. It must be assumed that the contract as made was the cul- 
 mination of the negotiations between the parties, and, its terms not
 
 766 CASES ON EVIDENCE 
 
 being ambiguous, these writings were inadmissible. Eaton v. Gladwell, 
 1 08 Mich. 678 (66. N. W. 598) ; Mouat v. Montague, 122 Mich. 334 
 (81 N. W. 112) ; 17 Cyc. p. 596. The evidence of the conversation 
 had before the contract was also inadmissible. Cohen v. Jackoboice, 
 101 Mich. 409 (59 N. W. 665) ; R. K. Carter & Co. v. Weber, 138 
 Mich. 576 (101 N. W. 818) ; Wallace v. Kelly, 148 Mich. 336 (in N. 
 W. 1049, 118 Am. St. Rep. 580) ; International Text-Book Co. v. Mar- 
 vin, 166 Mich. 660 (132 N. W. 437). 
 
 Reversed on another ground. 
 
 WILLIAM ENNIS v. WILLIAM D. WRIGHT. 
 217 Mass. 40. (1914) 
 
 Contract for the alleged breach by the defendant of a contract in 
 writing dated August 27, 1910, by which the defendant, doing business 
 as the Massachusetts Engraving Company, agreed to employ the plain- 
 tiff for one year from the date of the contract. 
 
 The evidence showed that the plaintiff worked under the terms of 
 the contract until February 3, 1911, when he was discharged by the 
 defendant, and it was a material issue in the case whether, as the plain- 
 tiff contended, he was discharged because he was a union man or 
 whether, as the defendant contended, he was discharged for miscon- 
 duct. 
 
 The plaintiff testified that he lived in Rochester, New York, up to 
 August 23, 1910; that he had a letter from the defendant in regard 
 to coming to Boston and entering the employ of the defendant in July, 
 1910; and that after the receipt of this letter one Hickman called upon 
 him. He was asked, "Well, what did Mr. Hickman say?" The ques- 
 tion was objected to, and, for the purpose of showing the authority of 
 Hickman, a letter written by the defendant to the plaintiff on August 
 10, 1910, was introduced in evidence. The letter referred to Hickman 
 as follows: "I understood from Mr. Hickman that the probabilities 
 were you would come at once." After the introduction of this letter 
 in evidence the question was repeated, "Now what did Mr. Hickman 
 tell you when you saw him?" The question was objected to on the 
 ground that the statement in the letter was not sufficient to qualiiy 
 Hickman as an agent to make declarations which would bind the de-
 
 THE PAROL EVIDENCE RULE 767 
 
 fendant as principal. The judge admitted the evidence and the de- 
 fendant excepted. 
 
 The conversation, as testified to, was in part to the effect that the 
 plaintiff stated that he was informed that there were labor troubles in 
 Boston, and that Hickman represented to him that there was no trou- 
 ble in the defendant's shop. This was all the evidence bearing upon 
 the question of Hickman's agency at the time the evidence was intro- 
 duced. 
 
 The jury returned a verdict for the plaintiff in the sum of $394; 
 and the defendant alleged exceptions to the admission in evidence of 
 the plaintiff's conversation with Hickman. 
 
 HAMMOND, J. The plaintiff was discharged before the end of the 
 year, and the only question finally left to the jury was whether the 
 defendant was justified in so discharging him, the plaintiff contending 
 that the cause of his discharge was that he was a "union man," and 
 the defendant contending that the cause was the misconduct of the 
 plaintiff. There was evidence in support of each contention. 
 
 The only question before us is whether the conversation between 
 the plaintiff and one Hickman was properly admitted. Clearly it was 
 not admissible to prove the terms of the contract, because the contract 
 subsequently was reduced to writing. But the burden of showing the 
 scope of Hickman's authority was upon the plaintiff; and the chief 
 objection is that there was no evidence outside the conversation itself 
 tending to show the authority of Hickman to make any representation 
 about the existence of labor troubles, or to guarantee that there were 
 no labor troubles in the defendant's shop, or to "guarantee the rest of 
 the conditions." Of course the scope of the authority cannot be proved 
 by the statement of the agent alone. The admission of the evidence 
 therefore was error. 
 
 It is urged by the plaintiff however that the error, if any, was not 
 prejudicial to the defendant. But it is to be presumed that the jury 
 thought they had a right to take it into consideration, and it is obvious 
 that it might lead them into a train of thought not logical to the issue 
 and yet harmful to the defendant. 
 
 Exceptions sustained.
 
 768 CASES ON EVIDENCE 
 
 VOGT v. SCHIENEBECK. 
 .122 Wis. 491. (1904) 
 
 Action to recover damages for breach of contract for the sale of lum- 
 ber. The complaint was to the effect that defendant contracted to sell 
 plaintiff 100,000 feet of one-inch pine lumber then owned by the for- 
 mer and piled at Stadler's mill, near the village of Butternut, Wiscon- 
 sin, at $8 per thousand feet for the culls, and $15 per thousand feet for 
 common or better, delivery to be made to the plaintiff free on board 
 cars at Butternut upon demand by him within two months from No- 
 vember 15, 1902, and the customary inspection fees to be paid one half 
 by each party; that defendant breached such contract by refusing to 
 deliver the lumber when the same was duly demanded, or at all, to the 
 plaintiff's damage in the sum of $1,500. 
 
 The defendant, for answer to the complaint, denied all the allega- 
 tions thereof, and alleged the making of a contract substantially as 
 stated in the complaint, except that it was agreed, as part of such con- 
 tract, that the cars for use in delivering the lumber to the plaintiff were 
 to be furnished by him, the lumber to be delivered only upon his de* 
 mand within two months after November 15, 1902; that he would fur- 
 nish the inspector to examine, grade, and measure the lumber, the 
 expenses to be paid equally by the parties ; and that plaintiff did not 
 within the time specified, or before the commencement of the action, de- 
 mand the lumber or furnish cars for use in delivering the same, or fur- 
 nish or offer to furnish the inspector; that on the contrary he at all 
 times neglected to make any demand for the lumber, and refused to 
 accept the same. 
 
 The evidence showed that the contract was in writing and as fol- 
 lows: 
 
 "Received of Paul Vogt of Milwaukee, Wil., Five (.5) Dollars on 
 account of sale to him by me, made this I5th day of November, 1902, 
 of 100,000 feet more or less of pine one-inch lumber at Eight Dol- 
 lars per 1,000 feet cull & Fifteen Dollars per 1,000 feet common or bet- 
 ter now at Stadler's Mill, f. o. b. cars Butternut, Wis., to be delivered 
 upon demand within two months from above date. Inspection fees 
 paid by both of us. 
 
 "Dated at Butternut, Wis., Novbr. I5th, 1902. 
 
 "JosEF SCHIENEBECK." 
 
 Evidence was allowed, against objections by plaintiff's counsel, in 
 effect that at the time such contract was made plaintiff verbally agreed
 
 THE PAROL EVIDENCE RULE: 769 
 
 to furnish the cars for use in delivering the lumber; also as to what 
 the custom was between buyer and seller in regard to such matters. 
 
 MARSHALL, J. There was evidence on the part of the defendant to 
 the effect that at the time of the verbal agreement preceding the mak- 
 ing of the written contract, plaintiff said he would furnish the cars. 
 The learned trial court denied the motion for judgment, assuming 
 that such evidence raised a question for the jury. That is plain, be- 
 cause he expressly referred to such evidence in submitting the cause as 
 to whether the plaintiff did or did not agree to furnish the cars. In 
 that it seems the rule, that a written contract cannot be varied by parol 
 evidence of what was said between the parties prior to or at the time 
 of the making of the writing, was overlooked. The final result of all 
 negotiation eventuating in the making of a contract which is reduced 
 to writing, in the absence of relievable fraud or mistake, is conclusively 
 presumed to be embodied therein, unless the writing appears clearly to 
 be merely a- part execution of an entire verbal contract, which is not 
 the case in the instance before us. Here was the ordinary occurrence 
 of closing contractual negotiations by reducing the consequent verbal 
 agreement to writing. If, in doing so, anything was left out, the party 
 prejudiced is without remedy upon the contract except to appeal to 
 equity for its reformation and the enforcement thereof as corrected. 
 John O'Brien L. Co. v. Wilkinson, 117 Wis. 468, 94 N. W. 337; Braun 
 v. Wisconsin R. Co., 92 Wis. 245, 66 N. W. 196; Herbst v. Lowe, 65 
 Wis. 316, 26 N. W. 751. In Braun v. Wisconsin R. Co. it was said 
 that the execution mentioned, to the exclusion of evidence of what was 
 said or occurred at the time of making a written contract, is never to 
 be so extended as to permit evidence of mere contemporaneous stip- 
 ulations or conditions, the writing being the agreement reached and not 
 a mere part performance or incident of it. It follows that the oral tes- 
 timony as to what plaintiff said respecting who was to furnish the cars, 
 when the contract was made, cannot be regarded as a justification for 
 denying appellant's motion for a verdict. 
 
 By the court. The judgment is reversed, and the cause remanded 
 for a new trial.
 
 770 CASES ON EVIDENCE 
 
 HARTMYER v. EVERLY. 
 73 W. Va. 88. (1913) 
 
 ROBINSON, Judge : 
 
 The action is ejectment. The jury found for defendants, and judg- 
 ment followed accordingly. 
 
 There is clearly no ambiguity in the deeds. Looking to them, we 
 find them certain as to meaning in the description of the land. Not a 
 single term indicates that they were meant to convey the land by the 
 description in the patent. They cannot be changed by the assumption 
 that they are unambiguous. No part of the description in a deed is in- 
 consistent with the remaining part, and thus shown to be erroneous, it 
 may be rejected; or, when the description given is uncertain and am- 
 biguous, parol or extrinsic evidence will be admitted to show to what 
 it truly applies. But where terms are used in a description which are 
 clear and intelligible, the court will put a construction upon those 
 terms, and parol or extrinsic evidence will not be admissible to control 
 the legal effect of such description. Devlin on Real Property and 
 Deeds, sec. 1042; Bond v. Fay, 12 Allen, 86. Plaintiffs could not 
 change the terms of their deeds by extrinsic evidence, as they were per- 
 mitted to undertake to do. They could not, in ejectment, reform the 
 deed by which they held their land, so as to take in the parcel sought 
 to be recovered. This case is controlled by a well known general rule 
 which has been concisely stated as follows : "Where the description 
 in a deed of the premises intended to be conveyed is clear and free from 
 ambiguity, it can not be varied, controlled, or contradicted by parol or 
 extrinsic evidence. In such case the deed must be held to be conclu- 
 sive evidence as to what land is intended by the grantor to be con- 
 veyed, the quantity of land, and likewise the conclusive evidence of his 
 intention to include in or exclude from the instrument particular land." 
 17 Cyc. 616. 
 
 Plaintiffs' evidence did not appreciably tend to make a case. The 
 jury having reached a verdict that the court should have directed, the 
 judgment entered thereon will be affirmed. 
 
 Affirmed.
 
 THE PAROL EVIDENCE RULE 7?i 
 
 UIHLEIN v. MATTHEWS. 
 172 N. Y. 154. (1902) 
 
 Appeal from a judgment of the Appellate Division of the Supreme 
 Court in the fourth judicial department, entered February i, 1901, 
 affirming a judgment in favor of plaintiffs entered upon a decision of 
 the court on trial at Special Term. 
 
 O'BRIEN, J. The judgment in this action awarded a permanent in- 
 junction against the defendant, restraining her from using or permit- 
 ting the use of her premises as a place for the sale of ales, beers, wines 
 and liquors, for the period of five years from May 4, 1898. 
 
 The precise question is whether a person who has an interest in the 
 real property of his next neighbor in the nature of an easement, and 
 who conveys absolutely, without any exception of reservation of such 
 easement, can afterward be permitted, in an action to enforce the right 
 involved in the easement, to show by parol that he intended to retain 
 it, notwithstanding his deed. We think that the testimony was inad- 
 missible. The deed in terms, as we have seen, purported to convey all 
 the right, title and interest to the grantor. The language employed nec- 
 essarily included any easement that the grantor had or claimed with 
 respect to the premises conveyed, and it was not competent to show by 
 parol evidence that the easement was reserved or excepted. It was a 
 violation of the rule which excludes such evidence to vary, explain or 
 contradict a written instrument that was complete in itself and without 
 ambiguity in its terms. The legal effect of the deed upon the words em- 
 bodied in the conveyance, and not with reference to what the grantor 
 thought or understood. When words have a definite and precise mean- 
 ing, it is not permissible to go elsewhere in search of conjecture in order 
 to restrict or extend the meaning. That deeds or other written in- 
 struments cannot be varied, enlarged or restricted by evidence of that 
 character appears from the words of the statute and the general con- 
 sensus of authority. (Chap. 647, Laws of 1896, sec. 205; Armstrong 
 v. Lake Champlain Granite Co., 147 N. Y. 495 ; McCluskey v. Crom- 
 well, ii N. Y. 601 ; Green v. Collins, 86 N. Y. 254; Thomas v. Scutt, 
 127 N. Y. 133-138; Case v. Phoenix Bridge Co., 134 N. Y. 78; Engle- 
 horn v. Reitlinger, v i22 N. Y. 76; House v. Walch, 144 N. Y. 418; Dev- 
 lin on Deeds, sec. 837.) It follows that all parol evidence tending to 
 show that, notwithstanding the clear and comprehensive words of the 
 quitclaim deed, the grantor therein still retained the right to restrict
 
 772 CASES ON EVIDENCE 
 
 the grantee in the use of the property conveyed should have been ex- 
 cluded. 
 
 The judgment should be reversed, and a new trial granted, costs to 
 abide the event. 
 
 ARMSTRONG v. GRANITE CO. 
 
 147 N. Y. 495. (1895) 
 
 Appeal from judgment of the General Term of the Supreme Court 
 in the third judicial department, entered upon an order made May 9, 
 1893, which affirmed a judgment in favor of defendant, dismissing the 
 complaint upon the merits. 
 
 ANDREWS, Ch. J. This action was brought to restrain the defend- 
 ants from quarrying granite upon lot 27, Split Rock tract, in Essex 
 county. Both parties claim title to the granite. 
 
 The whole question, as above intimated, turns on the interpretation 
 of the words "minerals and ores" in the second deed. In view of the 
 conclusion we have reached and to avoid possible misconceptions in 
 the future, it is proper to state that in our opinion the evidence given 
 and admitted on behalf of the defendant under objection by the plain- 
 tiff, that the purpose of Bridgford and his co-grantees in securing the 
 deeds of 1871 was to acquire the iron ore then supposed to exist on the 
 premises, and of their statements contemporaneously with the purchase, 
 that they had purchased the iron ore on the lot, was incompetent to ex- 
 plain or confine the meaning of the words "minerals and ores" in the 
 deed of May 18, 1871. The evidence would have been incompetent if 
 it had related to the motives of the parties to the deed sought to be es- 
 tablished by the oral statements or negotiations between them prior to 
 or contemporeaneous with its execution. The words of a deed, unam- 
 biguous in themselves, cannot be controlled by proof that the parties 
 used them with a definite and limited meaning, for the purpose of that 
 particular instrument. Such proof might, under some circumstances, 
 be competent in an action between the parties to reform the instrument, 
 but not in determining the rights of the parties under the instrument 
 as written. The incompetency of the evidence received as to the mo- 
 tives of the original grantees and of their statements as to what they 
 intended to purchase or had purchased, is still more manifest in view 
 of the fact that they were disclosed and the statements made to third
 
 THE PAROL EVIDENCE RULE 7/3 
 
 parties not connected with the sale. (See Voorhees v. Burchard, 55 
 N. Y. 98.) 
 
 Judgment affirmed. 
 
 CHANNEL COMMERCIAL CO. v. HOURIHAN. 
 20 Cal. A pp. 647. (1912) 
 
 JAMES, J. This is an action for damages alleged to have been suf- 
 fered by plaintiff through breach of contract committed by defendant. 
 Plaintiff alleged in its complaint that on the thirtieth day of Septem- 
 ber, 1910, in the county of Santa Barbara, it purchased of defendant 
 one thousand sacks of beans at the rate of 4^ cents per pound, to be 
 delivered at once, and that defendant failed and refused to deliver the 
 same. As evidencing the alleged contract of sale, plaintiff set out in 
 its complaint that a memorandum of the agreement had been made in 
 the following form: "Sep. 30, '10. Rec'd C. C. Co., $160.45 to ap- 
 ply on i M. sk lot pink beans as per sample at 4^c. M. P. Hourihan." 
 
 The vital question in the case, however, depends upon what construc- 
 tion shall be given to the receipt as signed by defendant and as set out 
 in plaintiff's complaint. If that instrument contains sufficient terms to 
 evidence a complete contract of sale and purchase, then all of the tes- 
 timony introduced which tended to vary or limit the effect of that 
 agreement would be irrelevant and incompetent. (Code Civ. Proc., 
 sec. 1856.) By the section last referred to it is provided that where an 
 agreement is reduced to writing, it must be considered as containing all 
 of the terms agreed upon, except that evidence may be introduced of 
 the circumstances under which the agreement was made, or to explain an 
 extrinsic ambiguity, receipt, so called, of itself evidenced by a contract 
 of sale. Plaintiff only treated it as a mere memoranda which required 
 explanation by oral testimony and there seems not to have been any 
 special objection made on the part of plaintiff to the introduction of any 
 of the testimony of defendant wherein he gave his version of the trans- 
 action. The rule is that where a writing imports upon its face to be a 
 complete expression of the whole agreement, it is then presumed that 
 the parties have introduced into it every material item and term. (Har- 
 rison v. McCormick, 89 Cal. 327 (23 Am. St. Rep. 469, 26 Pac. 830.) 
 In the case of Gardiner v. McDonogh, 147 Cal. 313 (81 Pac. 964), 
 relied upon by appellant, the memorandum stated in express terms that
 
 774 CASES ON EVIDENCE 
 
 th'e parties had that day "bought" a certain quantity of beans, stating 
 the name of the beans but not otherwise designating them as beans. 
 Here no words are contained in the written receipt appropriate to con- 
 vey the meaning of sale or purchase and undoubtedly oral testimony 
 was admissible to explain just what the obligations of the parties were 
 in the entire transaction. The instrument was in the nature of a re- 
 ceipt only, in the consideration of which it has been often held that the 
 terms of such documents are not conclusive, but that they may be ex- 
 plained or varied by parol proof. (Snodgrass v. Parks, 79 Cal. 55, 
 [21 Pac. 429.]) As we have before noted, it appears from the record 
 that both parties at the trial considered that the true transaction was 
 to be established in the main by oral proof, for both sides offered such 
 proof, and that offered on the part of the defendant to this point was 
 not objected to. We can on this review have no concern as to whether 
 the preponderance of evidence tended to sustain the plaintiff's conten- 
 tions, or those of the defendant. That was a matter solely for the de- 
 termination of the trial court and its conclusions thereon must be 
 treated as final. 
 
 The order denying a new trial is affirmed. 
 
 ALLEN, P. J., and SHAW, J., concurred. 
 
 A petition to have the cause heard in the Supreme Court, after judg- 
 ment in the District Court of Appeal, was denied by the Supreme 
 Court on February 14, 1913. 
 
 TRACY v. THE UNION IRON WORKS. 
 104 Mo. 193. (1891) 
 
 BARCLAY, J. Plaintiff brought this action to recover certain instal- 
 ments of rent, due from defendant according to the covenants of a 
 lease dated April 24, 1884, under the seals of both parties, whereby 
 plaintiff let certain business property in Kanass City, Missouri, to de- 
 fendant for one year from May, 1884, on terms, one of which was the 
 payment of $1,000 rent during that period. Defendant went into pos- 
 session and concedes non-payment of the rent in dispute. The reason 
 therefor appears in the counterclaim interposed. That part of de- 
 fendant's answer and the evidence supporting it raise the only question 
 presented on this appeal. 
 
 Defendant's position is that the rent due is subject to reduction to
 
 THE PAROL EVIDENCE RULE 775 
 
 the extent of damages sustained by defendant by the breach of a ver- 
 bal agreement between plaintiff and defendant, the admissibility of 
 which in evidence is the point in dispute. 
 
 The trial court heard defendant's testimony on the subject fully 
 (over objections), and then directed a verdict for plaintiff, a stipula- 
 tion having been made at the outset of the trial, that plaintiff was en- 
 titled to recover the amount claimed unless the defense in question 
 was established. 
 
 The facts shown on defendant's part were that it was engaged in 
 the manufacture and sale of cornshellers and other farm machinery at 
 Decatur, Illinois. It rented the premises at Kansas City as a store- 
 house and business office. When the negotiations for the lease began, 
 it was verbally agreed, between plaintiff and defendant's representa- 
 tive, that the former would put in a railway switch (to connect the 
 premises with a. railroad near by) for the use of defendant for shipping 
 purposes. Something was then said about inserting this stipulation in 
 the lease, but plaintiff declared it was not necessary as the thing would 
 be done by the time defendant would be ready to use the track after 
 moving in, adding that his word was as good as his bond. Shortly 
 afterwards the lease was prepared in Kansas City, and forwarded to 
 Decatur for signature on the part of defendant. On examining its 
 terms, the defendant made an amendment, by inserting the words, "also 
 office desk room and space for sample machine on first floor" (as they 
 now appear). Then the instrument was formally executed by both 
 parties. It contains no such express agreement as defendant now in- 
 sists upon, concerning a railway switch. 
 
 On this showing the trial court directed a verdict for plaintiff. 
 
 Defendant contends that plaintiff's prior agreement to add a railroad 
 switch to the demised premises should be regarded as collateral to the 
 lease, and admissible as such. It is not denied that verbal evidence 
 in contradiction of written, and especially of sealed, documents is 
 usually inadmissible ; but the case here is said to belong to a recognized 
 class of exceptions to that rule. Waiving all question that might arise 
 from the form of the lease as a specialty and treating it merely as a 
 written contract, let us examine the merits of defendant's contention. 
 
 The general rule excluding evidence of contemporaneous or prior 
 verbal agreements, varying or contradicting the terms of a valid writ- 
 ten instrument, is the outgrowth of the common experience of men. 
 It is of great antiquity and appears in other systems of jurisprudence 
 besides our own. Corp. Jur. Civ., Cod. Lib. 4, Tit. 20; Tait's Evid., 
 pp. 326, 327.
 
 776 CASES ON EVIDENCE 
 
 It rests on principles somewhat analogous to those which underlie 
 the doctrine of the conclusiveness of judgments upon parties thereto. 
 It is said to be in the interest of the state that there should be an end 
 to litigation. Accordingly, the record that closes a forensic contro- 
 versy is regarded as merging the matters litigated to the extent declared 
 in the judgment. So, in private adjustments of reciprocal rights, it 
 is wisely considered that, when parties have deliberately put their mutual 
 agreements into the form of a completed written contract, that ex- 
 pression of their intention should be accepted as a finality, in which is 
 merged all prior negotiations within the scope of the writing. 
 
 But the rule has too long occupied a place as a cornerstone in the 
 law of evidence to require, at this day, any justification of its existence. 
 
 We may, however, properly remark that the adoption of the modern 
 practice, admitting as witnesses the parties directly interested in the 
 action, seems to add a cogent reason to those existing at the common 
 law, for a close adherence to the rule under discussion. If the uncer- 
 tainty of "slippery memory" furnished a ground for excluding such 
 verbal testimony in the days of .Lord Coke (Countess of Rutland v. 
 Earl of Rutland (1604), Coke's Reports, Part 5, 26a), how much 
 stronger reason for such exclusion today when the influence of self- 
 interest is so likely to render the memory of litigating parties more 
 'slippery" than was that of the witnesses of olden time. 
 
 In Missouri the general hile has been repeatedly approved in early, 
 as well as recent, decisions. Woodward v. McGaugh, (1843), 8 Mo. 
 161 ; Walker v. Engler (1860), 30 Mo. 130; State ex rel. v. Hoshaw, 
 (1889), 98 Mo. 358; Morgan v. Porter, (1891), 103 Mo. 135; 15 S. 
 W. Rep. 289. 
 
 There are, however, cases, here and elsewhere, announcing proposi- 
 tions called exceptions to this rule. Some may fairly be so described, 
 as, for example, those admitting parol evidence to contradict a recited 
 consideration, or to show that, in equity, an absolute deed was intended 
 as a mortgage. But it will be found, we think, that many rulings, on 
 this topic, which, at first sight, appear exceptional, are rather instances 
 not embraced within the true meaning and scope of the rule. As 
 such may be mentioned cases in which fraud, mistake or illegality has 
 prevented the written instrument from acquiring original vitality as 
 a contract, or those admitting evidence to identify its subject-matter, 
 as well as others in which the writing, on its face, appears to be an 
 incomplete, or merely one-sided expression of the term of agreement. 
 Rollins v. Claybrook (1856), 22 Mo. 405; Moss v. Green (1867), 41 
 Mo. 389.
 
 THE PAROL EVIDENCE; RULE 777 
 
 The pending appeal does not demand any attempt to classify the so- 
 called exceptional cases. Especially do we abstain from any effort to 
 indicate what kind of verbal agreements may be shown, collateral to 
 a written one, beyond the requirements of the appeal now actually in 
 hand. 
 
 The facts in the present record disclose that the verbal agreement, 
 proposed to be shown, contemplated a substantial addition by the plain- 
 tiff to the property which was the subject of the demise, whereas the 
 terms of the written lease between the parties declared that the prem- 
 ises were let "in the present condition thereof." 
 
 Obviously the oral testimony in question contradicted the very lan- 
 guage of the writing in which these business men, dealing at arm's 
 length, had deliberately expressed themselves. We think the learned 
 circuit judge correctly held such testimony inadmissible and that it 
 could find no proper place in the case made by the pleadings, without 
 departing from sound principle and precedents. 
 
 We regard the action of the trial court as correct and accordingly 
 affirm the judgment of the Kansas City Court of Appeals, which was 
 to the same effect. SHERWOOD, C. J., BLACK and BRACE, JJ., concur. 
 
 ANDREWS, ALLEN & MOOREFIELD v. TUCKER. 
 127 Ala. 602. (1900) 
 
 This action was brought by the appellees, J. A. & I. C. Tucker, 
 against M. A. Andrews, T. H. Allen and J. D. Moorefield, composing 
 the firm of Andrews, Allen & Moorefield. The third count was for 
 $150 due for work and labor done under a contract between plain- 
 tiffs and defendants. The demurrer of the defendants to the third 
 count was sustained. The grading was agreed to be done according 
 to the specifications attached to the contract, and the plaintiffs agreed 
 to finish and complete the grading as specified by the ist day of March. 
 1896, "unless prevented by the weather." 
 
 SHARPE, J. By the law as it has been settled in this state, a written 
 contract which by its terms is executory as imposing the performance 
 of duties other than the mere obligation of making payment, may 
 while the contract is executory in respect of any part of such duties, 
 be altered, modified or rescinded with or without a writing and without 
 any other consideration than that of mutual assent. Badders v. Davis,
 
 778 CASES ON EVIDENCE 
 
 88 Ala. 369; Robinson v. Bullock, 66 Ala. 547; i Brick Dig. 394, Sec. 
 233. And such change under such circumstances may extend to the 
 waiver of any right either party might have had under the original 
 contract but for the new agreement. Cornish v. Suydam, 99 Ala. 620. 
 A waiver of a right to declare a contract forfeited may even be im- 
 plied from conduct of the parties which is inconsistent with the inten- 
 tion to claim a forfeiture. Accordingly, the fact that the contract here 
 involved was acted upon and treated by the parties as in force after 
 the time specified therein for completion of the work undertaken by 
 plaintiffs implied an agreement on the defendants' part not to treat 
 the failure of completion within that time as a cause of forfeiture. 
 Brigham v. Carlisle, 78 Ala. 243 ; Stewart v. Cross, 66 Ala. 22. 
 
 The judgment will be affirmed. 
 
 J. W. RIPY & SON v. ART WALL PAPER MILLS. 
 41 Okla. 20. (1913) 
 
 Action by the Art Wall Paper Mills against J. W. Ripy & Son. 
 Judgment for plaintiff, and defendants bring error. Affirmed. 
 
 Opinion by BREWER, C. The Art Wall Paper Mills, a corporation 
 of Dallas, Tex., brought this suit in the District Court against J. W. 
 Ripy & Son, a co-partnership, to recover the purchase price of certain 
 goods, wares, and merchandise, sold and delivered in pursuance of a 
 certain written contract executed by the parties. We will hereafter 
 refer to the parties as they were called in the trial court. The case 
 was tried to a jury, and a verdict returned in favor of the plaintiff. 
 The defendants, plaintiffs in error here, bring up the case on case- 
 made, and in their brief seem to rely upon the following alleged er- 
 rors : First. Overruling defendants' demurrer to the petition. Sec- 
 ond. Placing the burden of proof upon the defendants. Third. The 
 occlusion of evidence offered by defendants. 
 
 The evidence, which it is contended the court erred in refusing to 
 admit, was intended to cover several different contentions. It is only 
 referred to in the brief by general statements of counsel, in the main, 
 and is not brought into the brief. We have gone into the record, how- 
 ever, and made some search, and find that the real complaint is in the 
 rejection of oral evidence, clearly intended to either vary, modify, 
 contradict, enlarge, or destroy the plain and unambiguous meaning of
 
 THE PAROL EVIDENCE RULE 779 
 
 the written contract. For instance, evidence was offered and refused 
 that during the prior and contemporaneous negotiations terminating in 
 the written contract it was agreed that plaintiff would not sell its 
 goods to any other dealer in Oklahoma and Indian Territory : there was 
 no hint of such an agreement in the writing which the parties formally 
 executed, and it very fully defined the rights and duties of both .parties. 
 The expressed purpose of the evidence was to so ingraft by oral evi- 
 dence onto a written contract, legal and valid and in no sense immoral 
 or against public policy, a new and foreign meaning so as to render 
 the contract when so enlarged invalid as against public policy, to the 
 end that the law would then strike down the contract when so enlarged, 
 affording defendants a means of escape from liability. This evidence 
 was properly rejected, and the same may be said of the rulings on the 
 other rejected evidence. 
 
 The jury passed on the evidence, and its verdict was approved by 
 the trial court. To our minds the verdict was right. 
 
 The cause should be affirmed. 
 
 By the court : It is so ordered. 
 
 KING v. HUDSON RIVER REALTY CO. 
 210 N. Y. 467. (1914) 
 
 CHASE, J. This action is brought to recover damages for the alleged 
 breach of a covenant contained in a written contract dated May 9, 
 1906, by which the plaintiff agreed to purchase and the defendant to 
 sell certain lots in Bergen county, New Jersey, as shown on a map 
 described in the contract. The covenant is as follows : 
 
 "As part of the consideration for the said purchase price this com- 
 pany hereby agrees to build proper streets and sidewalks as shown on 
 said map on which these lots abut', and put in a sewer." 
 
 The plaintiff performed the contract on his part. The covenant 
 was not performed by the defendant in 1906. It claims to have per- 
 formed the covenant in 1907 and prior to September i of that year. 
 It did in 1907 build streets and sidewalks abutting said lots and con- 
 structed a sewer in said streets. It is claimed by the plaintiff that the 
 streets and sidewalks were in accordance with the covenant. 
 
 The plaintiff was allowed to testify that some time before the writ- 
 ten contract was made, a sales agent of the defendant told him that if
 
 780 CASES ON EVIDENCE 
 
 he would purchase the lots the defendant would put in improvements 
 the same as had been done on sections of land north of the sections 
 in which the lots were situated, "putting the streets on to grade, the 
 sewers, sidewalks, gutters, water and gas, etc., all the improvements," 
 and that, "he would try and have the improvements completed within 
 about six weeks." This testimony was admitted notwithstanding the 
 defendant objected to the same as "incompetent, irrelevant and imma- 
 terial, the contract being in writing." The objection was overruled 
 and the defendant excepted. It was error to allow such testimony, 
 as the agreements prior to the written contract were merged in it. 
 
 The judgment should be reversed and a new trial granted, with 
 costs to abide the event. 
 
 WENT WORTH v. MANHATTAN MARKET CO. 
 216 Mass. 374. (1913-14) 
 
 DE COURCY, J. This is a bill in equity seeking, among other things, 
 to have the defendants ordered to specifically perform their agreement 
 under a lease and written contract by erecting a building upon the 
 leased premises, and by conveying in fee a certain right of way; and 
 also asking that they be enjoined from maintaining a stable on the 
 leased premises. It is before this court on an appeal by the defend- 
 ants from an interlocutory decree overruling exceptions to and con- 
 firming a master's report, and from the final decree. 
 
 The facts out of which the controversy arises are as follows: The 
 defendant occupied for market purposes a building .in Cambridge, the 
 lease of which was about to expire. It leased from the plaintiff for ten 
 years from May 9, 1910, with the privilege of renewal, a lot of land 
 containing about six thousand five hundred square feet, located in the 
 rear of property known as Hyde's block, that belonged to one Cor- 
 coran. There was on the leased land a three-story wooden building 
 thirty by sixty feet in size, the ground floor of which long had been 
 used by the plaintiffs as a stable before the erection of his four-story 
 tenement block. The parties also executed a collateral contract in 
 writing, later referred to. The principal controversy in this litiga- 
 tion relates to the size and character of the new building that the de- 
 fendant was to erect on the leased premises within two years from 
 June i, 1910.
 
 THE PAROL EVIDENCE RULE 781 
 
 Exceptions 3, 4 and 6 are to the admission of conversations between 
 the parties, before the execution of the lease and contract, relating to 
 the building proposed to be erected on the plaintiff's land and to the 
 use of the stable. In view of the fact that the papers were prepared 
 by a skilled attorney, after many interviews and preliminary drafts, 
 that according to the uncontradicted testimony they expressed the final 
 conclusions of the parties and that the contract on its face is reason- 
 ably plain, it is not clear on what ground this testimony was admitted. 
 Even assuming the terms of the instrument in which the previous oral 
 negotiations were merged to be doubtful, the evidence admissible to 
 clear up the doubt would be that of the circumstances attending the 
 transaction, and not the conversations held in the course of the prelimi- 
 nary negotiations. It is apparent from a perusal of these that their 
 natural tendency and probable effect upon the master was to vary by 
 oral evidence the written agreement between the parties ; and these 
 exceptions must be sustained. Jennings v. Puffer, 203 Mass. 534; 
 Rochester Tumbler Works v. Mitchell Woodbury Co., 215 Mass. 194. 
 
 BOLLINGER v. GALLAGHER 
 770 Pa. 84. (1895) 
 
 Trespass for alleged wrongful levy and sale of a mule, horse, saddle 
 and two bridles, claimed by plaintiff as her property. 
 
 Verdict and judgment for plaintiff for $450. Defendants appealed. 
 
 Opinion by MR. JUSTICE WILLIAMS, July 18, 1895 : 
 
 One other subject requires attention. It is brought to our notice 
 by the eleventh assignment of error. Millard F. Taylor, a member of 
 the Baltimore bar, was called as a witness and testified that he was 
 familiar with the law of Maryland relating to husband and wife. He 
 was not then examined as to what the law was held to be by the courts 
 of that state on any subject relating to husband and wife, but was in- 
 formed by counsel that it was his purpose to put a hypothetical ques- 
 tion to him. Before this question was framed an offer was required 
 and it was accordingly reduced to form thus: "Defendants propose 
 to prove by the witness that if a wife of an insolvent debtor in Mary- 
 land who purchased property while the husband was in insolvent cir- 
 cumstances, giving in payment therefor her promissory note signed by 
 herself and her husband as joint makers, and two sureties, such a
 
 782 CASES ON EVIDENCE 
 
 purchase would not be so exclusively on the wife's credit as to give 
 title to the property as against the husband's creditors under the Mary- 
 land law." 
 
 It should be noticed that this is not an offer to prove what the law 
 of Maryland is as held by its courts, but an offer to show by the wit- 
 ness what, upon the facts assumed in the hypothetical question, his 
 own conclusion is as to what would be held by the courts of that state. 
 The question reached after the opinion of the witness as to what the 
 courts would hold, not after -his knowledge of what they had held. 
 The statutes of another state or country may be proved by a properly 
 authenticated copy. The unwritten law of such state or country may 
 be shown by the decisions of the courts or by the testimony of a wit- 
 ness who is familiar with it: i Greenleaf on Ev. 488; Chesapeake 
 Ins. Co. v. Starke, 6 Cranch, 273; but such evidence is to the court, 
 and for its information. The jury must take the law from the court. 
 The law of another state upon a subject coming under notice in the 
 trial of a cause will be presumed to be the same as the law of this 
 state upon the same subject. It is incumbent upon him who alleges 
 that it is different to show just what it is to the court, who will judge 
 of the sufficiency of the evidence, and its effect, and instruct the jury 
 thereon. Ordinarily expert testimony is for the jury and is intended 
 to aid them in determining a question of fact. They are not bound 
 by it, but may exercise their own judgment in deciding the question 
 in regard to which experts have testified, 7 Am. & Eng. Ency. of Law, 
 516, and may in doing so disregard the expert testimony. But the 
 proof of the laws of another state is not made by experts as such. It 
 is made by the best evidence which the nature of the law in question 
 admits of. A statute admits of exact proof by a copy and for this 
 reason it cannot be shown by parol. The expositions of that statute 
 by the courts are not necessarily evidenced by any sort of documentary 
 matter and for this reason may be proved by one who is familiar with 
 them; but a conjecture, or a professional opinion, as to what the law 
 would be held to be upon certain assumed facts, while it might be 
 desirable for the guidance of a client, and be within the appropriate 
 province of an attorney at law to give, is not admissible as proof of 
 what the law actually is. With the statute before him the judge in 
 the absence of an interpretation by the courts of the proper state must 
 make his own. He must determine its meaning and its operation for 
 himself, and unless he seeks or accepts the services of an amicus curiae, 
 the opinions of other men are not admissible as evidence at the in-
 
 THE PAROL EVIDENCE RULE 783 
 
 stance of either party. It was not error therefore to reject the offer 
 resting on the hypothetical question. 
 
 Upon a consideration of the whole case the assignments of error are 
 overruled and the 
 
 Judgment is affirmed. 
 
 MIDLAND ROOFING MFG. CO. v. PICKENS. 
 96 S. C. 286. (1913) 
 
 The opinion of the court was delivered by MR. JUSTICE FRASER. 
 The plaintiff in its complaint: "That on or about the i8th day of 
 March, nineteen hundred and ten, plaintiff sold and delivered to the de- 
 fendant, on account, at his request, goods, wares and merchandise to 
 the value of four hundred and seventy-three dollars, an itemized, veri- 
 fied copy of which account is hereto attached, marked Exhibit A, and 
 made part of this complaint. 
 
 That the said goods, wares and merchandise were reasonably worth 
 the money therein charged for them, and no part thereof has been 
 paid except the sum of one hundred twenty-two and 82-100 dollars, 
 paid as freight charges thereon, as plaintiff is informed and believes, 
 and there is now justly due and owing to plaintiff from defendant the 
 sum of three hundred and fifty and 18-100 dollars." 
 
 For the first defense, the defendant alleges that the goods mentioned 
 in the complaint were delivered by the plaintiff to and received by the 
 defendant upon a special contract betwen them, whereby plaintiff's 
 salesman entered into agreement with defendant on or about the i8th 
 day of March, 1910, to take on consignment one-half car of roofing. 
 This the defendant was to sell for plaintiff and every thirty days remit 
 proceeds of said sales, less defendant's commissions. Said goods were 
 received on or about the 6th day of April, 1910, before any part of 
 said goods were sold and before the time specified in the agreement 
 for the defendant to perform his part thereof, defendant's storehouse 
 was destroyed by fire, and not by any fault or negligence of defendant, 
 said roofing was destroyed. That the title of said goods was never in 
 the defendant, but in the plaintiff." 
 
 The plaintiff offered in evidence a written order signed by the de- 
 fendant. The defendant offered evidence to show that on the day the 
 order was signed and before the agent had delivered it to the plaintiff
 
 784 CASES ON EVIDENCE 
 
 for acceptance, he had notified the agent that he withdrew the order 
 and that then and there he made a new parol agreement by which the 
 plaintiff was to ship the goods to the defendant upon consignment. 
 The goods were destroyed by fire before any part was sold. The de- 
 fendant's evidence was entirely by parol. The plaintiff objected to the 
 evidence on the ground: ist, that parol evidence cannot be admitted 
 to vary a written contract; 2nd, that inasmuch as the defendant had 
 alleged a special contract, that is a contract by specialty, he could not 
 prove a parol contract. 
 
 The general rule is correctly stated that a written contract can not 
 be varied by parol; but here the defendant denied that the writing 
 ever became a contract. Until the writing was signed or acted upon, 
 that is accepted by the plaintiff, it was a mere offer and could be with- 
 drawn. There was no evidence on behalf of the plaintiff to deny the 
 allegations of the answer. The first ground of objection can not be 
 sustained. 
 
 Judgment affirmed. 
 
 PUTNAM FOUNDRY & MACHINE CO. v. CANFIELD. 
 25 R. I. 548. (1904) 
 
 Trespass on the case in assumpsit. Heard on petition of defendant 
 for a new trial, and petition denied. 
 
 TILUNGHAST, J. The defendant petitions for a new trial on the 
 grounds (i) that the verdict is against the evidence; and (2) that the 
 presiding justice erred in allowing the plaintiff to introduce parol evi- 
 dence to vary a written contract. 
 
 1. An examination of the evidence submitted fails to satisfy us 
 that it is not sufficient to sustain the verdict. 
 
 2. The written contract between the parties, which was entered into 
 on March 25, 1903, was for the furnishing and installing by the plain- 
 tiff of a steam-heating and drying apparatus in the defendant's fac- 
 tory in Providence, and the contract stipulated, amongst other things, 
 that "the price for same, complete, will be eight hundred fifty (850) 
 dollars." 
 
 The contract fixes no time within which the work called for shall 
 be done, nor does its terms specify when the price agreed upon shall 
 be paid.
 
 THE PAROI, EVIDENCE RULE 785 
 
 At the trial of the case the plaintiff was allowed to offer testimony, 
 against the defendant's objection, that on April 2, 1903, the defendant 
 requested the plaintiff to change the terms of payment so that he 
 might pay the sum of $500 on the loth of April, 1903, and the bal- 
 ance on the loth of May. The reason given by the defendant for de- 
 siring this change, according to the plaintiff's testimony, was, in effect, 
 that it would be more convenient for him to pay the amount agreed 
 on in two installments than to wait until the work should be com- 
 pleted and then pay the entire amount. 
 
 The defendant denies that any such conversation as that testified to 
 by the plaintiff was had, or that any modification whatever was made 
 regarding said written contract. 
 
 This raised an issue of fact for the jury to determine; and there 
 was sufficient evidence offered by the plaintiff to warrant them in find- 
 ing" that the time of payment was modified, as aforesaid. The only 
 question for us to determine is whether the testimony which was of- 
 fered by the plaintiff was admissible, as ruled by the trial court. 
 
 We think it was. The contract, as already suggested, contains no 
 stipulation as to when the work called for shall be paid (although it 
 is doubtless true that under said contract it would be due and payable 
 upon the completion of the work), and hence the evidence which the 
 plaintiff was permitted to introduce was not inconsistent with, and did 
 not tend to contradict, the written contract. Its only effect was to fix 
 a different time of payment from that which the law would have fixed, 
 or rather the time would have been implied by law, in the absence of 
 any special agreement. Nor was the evidence offered in violation of 
 the familiar rule invoked by the defendant's counsel, viz. : that "parol 
 contemporaneous evidence is inadmissible to contradict or vary the 
 terms of a valid written instrument," for the evidence was not of a 
 contemporaneous agreement, but related to an agreement made several 
 days subsequent to the date of the written contract in question. In 
 short, the oral evidence offered related to a supplemental agreement 
 as to the time or times of payment for the work called for by the 
 written contract, and hence in no event was it obnoxious to the rule 
 of evidence above stated. 
 
 Petition for new trial denied, and case remanded for judgment on 
 the verdict.
 
 786 CASES ON EVIDENCE 
 
 CRELIER v. MACKEY. 
 243 Penn. 363. (1914) 
 
 Assumpsit on written contract. Before EVANS, J. 
 The contract was as follows: 
 
 "Thomas R. Mackey Baking Company, 
 "Pittsburgh, Pa., Feb. 23d, 1905. 
 
 "An agreement between Chas. F. Crelier and Thomas R. Mackey, 
 President of the Thomas R. Mackey Baking Co., in consideration of 
 getting the dividends on $10,000 worth of common stock when divi- 
 dends are declared, and a salary of $200 per month. 
 
 "I hereby bind myself to accept the position as foreman of the 
 Thomas R. Mackey Baking Company for five (5) years, and agree 
 to report for duty not later than August ist, 1905, Mr. Mackey agree- 
 ing to protect me to the extent of $1400 on my twenty-five (25) shares 
 of Ward-Mackey Company's common stock. 
 
 "Mr. Mackey further agrees to pay Mr. Crelier in cash the sum of 
 $1400 in five (5) years from the above date. 
 
 "(Signed) Chas. F. Crelier. 
 
 "Thos. R. Mackey." 
 "Witnessed, 
 
 "M. Fagan." 
 
 Opinion by MR. JUSTICE BROWN, January 5, 1914: 
 Though the agreement in this case was written on a letterhead of 
 the Thomas R. Mackey Baking Company, and Thomas R. Mackey, 
 the appellant, is therein described as president of that company, it is 
 not a contract between the said company and the appellee, nor is there 
 anything in it showing an intention of the parties to it that Crelier, the 
 appellee, should look to the company for payment of the sum for which 
 he sues. Mackey, as an individual, agreed, without condition, in a 
 separate clause of the contract, that he would pay the appellee $1,400 
 five years from August I, 1905, and to the agreement he appended 
 his individual signature, without adding anything thereto to indicate 
 that he did not intend to be personally bound. As the agreement is 
 free from all ambiguity, it was for the court to construe it, and it was 
 properly construed to be the personal obligation of the appellant. 
 
 The disallowed offer, which is the subject of the first assignment 
 of error, was to show that the agreement was not what it clearly pur- 
 ported to be, but that the appellant had executed it as the mere repre-
 
 THE PAROL EVIDENCE RULE 787 
 
 sentative of the Thomas R. Mackey Baking Company, and that this 
 fact was known to the appellee at the time it was executed. 
 
 Opinion of the court. 
 
 If the offer had been allowed, permission would have been given the 
 defendant to vary and contradict the terms of a plain contract and to 
 substitute for it another, upon which the appellee would have no cause 
 of action against the appellant. With no averment in the affidavit of 
 defense, and with no offer on the trial to prove that there had been any 
 fraud, accident or mistake in the execution of the agreement, its plain 
 terms were not to be radically changed by parol : Hunter v. McHose, 
 loo Pa. 38; Wodock v. Robinson, 148 Pa. 503; Krueger v. Nicola, 
 205 Pa. 38; Lowry v. Roy, 238 Pa. 9. The meaning of the parties to 
 the agreement is conclusively presumed to have been set forth in its 
 written words, and, as they speak for themselves, their meaning was 
 for the trial judge. 
 
 Judgment affirmed. 
 
 J. J. CRABLE & SON v. O'CONNOR. 
 21 Wyo, 460. (1913) 
 
 POTTER, Justice. 
 
 The defendant in error was plaintiff in the court below and brought 
 this action against J. J. Crable, E. I. Crable and J. J. Crable & Son, 
 plaintiffs in error here, to recover a sum of money alleged to be due as 
 rent for certain teams delivered to J. J. Crable & Son by the plaintiff 
 pursuant to a written contract set out in the petition as follows : 
 
 Parol evidence was admitted, over the objection of the defendants, 
 to sustain the averments of the petition to the effect that in making 
 the contract with the plaintiff for the lease of the term E. I. Crable 
 acted, as a member to and for the firm of J. J. Crable & Son, and it 
 was in fact a partnership contract. It is contended that this ruling 
 was error for the reason that it violated the principle that parol evi- 
 dence is inadmissible to vary or contradict the terms of a written in- 
 strument. 
 
 The law is well settled, both in England and this country, that it is 
 competent to show by parol evidence that a party who is named in and 
 has signed a contract as one of the parties thereto was an agent for 
 another, and acted as such agent in making the contract, so as to give
 
 788 CASES ON EVIDENCE 
 
 the benefit of the contract to,, and charge with liability, the unnamed 
 principal ; and this is so, whether the unnamed principal was disclosed 
 or known to the other party to the contract at the time it was made 
 or not, although there is occasional opinion to the contrary where the 
 unnamed principal was known to the other party at the time. (Hig- 
 gins v. Senior, 8 M. & W. 834; Jones on Ev., (2nd Ed. I Sec. 452; 
 9 Ency. of Ev., 404-405 ; Story on Agency, (7th Ed.) Sec. 270; 4 Wig- 
 more on Ev., Sec. 2438; Curran v. Holland, 141 Cal. 437, 75 Pac. 46; 
 Briggs v. Partridge, 64 N. Y. 357, 21 Am. Rep. 617; Byington v. Simp- 
 son, 134 Mass. 169, 45 Am. Rep. 314.) It is said in Story on Agency: 
 
 "There is no doubt that parol evidence is admissible, on behalf of 
 one of the contracting parties, to show that the other was an agent 
 only in the sale, although contracting in his own name, so as to fix the 
 real principal. It has been well observed that, in cases of this sort, 
 the liability of the principal depends upon the act done ; and not merely 
 upon the form in which it is executed. If the agent is clothed with 
 the proper authority, his acts bind the principal, although executed in 
 his own name. The only difference is that, where the agent contracts 
 in his own name, he adds his own personal responsibility to that of 
 the principal, who has employed him." 
 
 It is contended that the conversations at the time the contract was 
 made were inadmissible, on the ground that agency on the authority 
 of an agent cannot be proved by the declarations of the alleged agent. 
 But it was competent to prove the transaction, to ascertain whether 
 E. I. Crable acted for the firm or on his own behalf. Whether there 
 was a firm, and whether E. I. Crable had authority to act for it, "would, 
 perhaps", as said in the Michigan case o-f Beckwith v. Mace, supra, 
 "affect the validity of his attempt to bind others, but the evidence 
 offered was admissible to show the nature of the contract actually 
 agreed upon.' In that case the evidence had been excluded, and for 
 that reason the judgment was reversed. Here the evidence was ad- 
 mitted, and properly so, for it explained the transaction and tended to 
 show that the contract was made for the partnership. The fact of the 
 partnership was shown by other evidence, and this contract was such 
 as to come clearly within the partner's authority. 
 
 As above indicated, we think the evidence sufficient to justify the 
 trial court in finding that E. I. Crable, in making the contract for the 
 use of the teams, was acting for the firm of which he was a member, 
 that it was a partnership contract, and created a firm obligation. The 
 amount of the judgment indicates that the plaintiff was only allowed
 
 THE PAROL EVIDENCE RULE 789 
 
 the rent of the teams, with interest, after deducting the credit given 
 for the hay. 
 
 For the reason stated, the judgment will be affirmed. 
 
 SCOTT, C. J., and BEARD, J., concur. 
 
 COHEE et al. v. TURNER & WIGGINS. 
 37 Okla. 778. (1913) 
 
 Action by Turner & Wiggins against Charles Cohee and others. 
 Judgment for plaintiffs, and defendants bring error. Affirmed. 
 
 Opinion by BREWER, C. In January, 1906, the plaintiffs in error 
 entered into a written contract of employment with Turner & Wiggins, 
 a firm of lawyers, by which said firm was employed to represent the 
 interests and claims of a class of colored people in the Choctaw and 
 Chichasaw Nations usually called "Freedmen", before Congress and 
 its committees and the various departments of the federal govern- 
 ment, in the protection of their rights and in the advancement of their 
 claims and interests relative to enrollment of themselves and their new- 
 born babies, and as to their rights and claims of right in the lands and 
 properties of said tribes. This suit was brought on said contract, and 
 a judgment obtained by said firm of lawyers from which the defend- 
 ants below, as the plaintiffs in error here, have appealed. 
 
 A number of questions are raised in the record, but two of which 
 are seriously urged in the brief; the others appearing to have been 
 abandoned. These questions are: (i) That the court erred in re- 
 fusing to permit the defendants to testify that they signed the contract 
 in their representative capacity only and did not intend to be bound 
 individually thereby. (2) That the court abused its discretion in re- 
 fusing to permit the defendants to amend their answer in the course 
 of the trial as to material matters. 
 
 i. On the first proposition as stated above, it is contended that, 
 although the contract in suit is in writing and its execution admitted 
 in the pleading, yet that it is so framed as to be ambiguous as to the 
 capacity, whether representative or individual, in which the makers 
 signed it. The contract recites : 
 
 "Now therefore, we Charles Cohee, Robert Cobb, Ed. Humdy, etc., 
 constituting the executive committee and the duly authorized and em- 
 powered members and claimants in this behalf, and for themselves and
 
 7QO , CASES ON EVIDENCE 
 
 those whom they represent as such claimants in the premises, do hereby 
 as such, warrant and guarantee to said Turner & Wiggins, that in the 
 event of diligent performance of duty, they shall receive as compensa- 
 tion for services under this contract, the sum of one dollar per capita 
 aforesaid, to be paid by the said parties of the first part." 
 
 It seems to be well settled both in this and many other jurisdictions 
 that when the question arises, in a suit on a written obligation, as to 
 whether the signers executed the same appears on the face of the 
 instrument which suggests a doubt or ambiguity as to the party or as 
 individual, and anything or ambiguity as to the party bound, or as to 
 the character in which the signers acted parol testimony is competent 
 as between the original parties, for the purpose of showing their true 
 intent in the execution of the instrument. Weagant v. Camden et al., 
 ante, 132 Pac. 487; Farmers' & M. Bank v. Hoyt, 29 Okla. 772, 120 
 Pac. 264; Janes v. Citizens' Bank, 9 Okla. 546, 60 Pac. 290; Miller v. 
 Way, 5 S. D. 468, 59 N. W. 467; Case Mfg. Co. v. Soxman, 138 U. 
 S. 431, ii Sup. Ct. 360, 34 L. Ed. 1019. The list of authorities on 
 this point might be extended indefinitely. 
 
 Such parol evidence is not admitted for, nor does it have the effect 
 of, contradicting or varying the language of the written agreement, 
 but it is admitted to explain away the doubt inhering in the written 
 language itself. 
 
 But is the contract in suit ambiguous or uncertain as to who is to 
 be bound, or as to the character in which the signers executed the 
 same? The claim is made that the defendants excuted it "as members 
 of the executive committee of the Choctaw & Chichasaw Freedman's 
 Association, and in no other capacity." This contention does not ap- 
 pear sound. If we analyze the language, we find these guarantors say- 
 ing "now therefore we (following with the twelve individual names) 
 constituting the executive committee, etc. * * * and for them- 
 selves, and those they represent, etc., warrant and guarantee * * * 
 the payment of the compensation in the contract." If this association 
 had any legal existence, and these men had authority to bind it, they did 
 so. But it is further clear that they went further than this, and, by 
 the very letter of the bond, bound themselves, as individuals, in spe- 
 cific language, in addition to attempting to bind the so-called association 
 and the members thereof. Bad grammar does not necessarily render 
 the meaning of a writing ambiguous or doubtful. 
 
 The cause should be affirmed. 
 
 By the court : It is so ordered.
 
 THE PAROL EVIDENCE RULE 791 
 
 UNITED SURETY CO. v. MEENAN. 
 211 N. Y. sp. (1914) 
 
 Appeal from a judgment of the Appellate Division of the Supreme 
 Court in the first judicial department, entered July 8, 1912, affirming 
 a judgment in favor of plaintiff entered upon a verdict directed by the 
 court. 
 
 June 1 5th, 1909, the Gore-Meenan Company, of which Frank E. 
 Gore was president, and the defendant Daniel Meenan was secretary, 
 together with the respondent, executed a bond to Benjamin B. Odell, 
 Jr., and William E. Paine, as receivers of the Thomas McNally Com- 
 pany, in the sum of one hundred thousand dollars, which recited that 
 the Gore-Meehan Company had entered into a contract with said re- 
 ceivers, bearing date the i5th day of June, 1909, whereby said com- 
 pany had been employed by said receivers to construct part of the 
 Catskill aqueduct between Garrison and Peekskill, as shown on the 
 contract drawing for contract number two between the McNally Com- 
 pany and the city of New York. The condition of the obligation was 
 that the Gore-Meenan Company should faithfully perform the contract 
 and pay bills for labor performed and materials furnished. This bond 
 was executed by the Gore & Meenan Company by Gore as president. 
 
 HOGAN, J. The sole question to be determined on this appeal is the 
 correctness of the rulings made by the trial justice in the exclusion of 
 evidence offered on the behalf of defendant t avoid liability upon the 
 instrument in suit and to establish that the writing in question was the 
 undertaking of the Gore-Meenan Company, of which defendant was 
 secretary, and was not the individual obligation of the defendant ; that 
 the plaintiff obligee in the bond understood that the instrument in suit 
 was the undertaking of the corporation, not only from the face of the 
 same but it treated it as such by subsequently preparing an indemnity 
 bond and seeking to have Meenan individually execute the same in 
 lieu of the bond in suit. For the purpose of establishing the acts and 
 knowledge of plaintiff, defendant called as a witness a representative 
 of the plaintiff, and propounded questions to him tending to disclose 
 knowledge on the part of the plaintiff that / the bond was intended by 
 plaintiff to be the bond of the Gore-Meenan Company; that it had 
 been treated as such by the plaintiff, and that an attempt had been 
 made by the plaintiff after the execution of the instrument in question 
 to secure from the defendant individual indemnity in addition to the
 
 792 CASES ON EVIDENCE 
 
 Gore-Meenan liability. All parol evidence offered by defendant along 
 the line stated was excluded over exceptions by defendant. 
 
 If upon the face of the instrument in suit such ambiguity is found 
 as to be consistent with the construction either that the defendant 
 intended to execute the same on behalf of the Gore-Meenan Company 
 or as an individual, parol evidence was admissible to prove the cir- 
 cumstances under which the bond was executed and the character in 
 which the defendant signed the same. 
 
 The bond in its entirety, including the acknowledgment of the same, 
 was set forth in the complaint in the action, and was 'received in evi- 
 dence upon trial. It was prepared by the plaintiff and under well- 
 established rules of law must be strictly construed against it. The 
 body of the bond does not contain the name of the defendant. True 
 it does refer to the parties thereto in an individual sense, but it also 
 refers to. "successors", thus disclosing the adaptability of the blank 
 form to execution by a corporation as well as an individual. At the 
 close of the instrument will be found first the corporate seal of the 
 Gore-Meenan Company ; this was followed by the signature of the de- 
 fendant Meenan and the signature .of Gore. The acknowledgment was 
 by Gore, "President of the Gore-Meenan Co." ; then follows the ac- 
 knowledgment wherein appears the name of Meenan who did depose 
 that he was secretary of the Gore-Meenan Company," the corporation 
 described in and which executed the foregoing instrument; that he 
 knows the seal affixed to the said instrument is such corporation seal; 
 that it was so affixed by order of the Board of Directors of the said 
 corporation, and that he signed his name to the said instrument by like 
 order." 
 
 The instrument upon the face thereof discloses it was executed the 
 day following the execution by the Gore-Meenan Company of an appli- 
 cation (which was placed in evidence by the plaintiff) for a bond sub- 
 stantially in terms the language of the bond in suit. 
 
 At common law a contract under seal of a corporation, attested by 
 the signature of its executive officers, was prima facie the contract of 
 the corporation. The seal of the corporation was its signature. (Trus- 
 tees v. Mckechnie, 90 N. Y. 618; People's Bank v. St. Anthony's R. 
 C. Church, 109 N. Y. 512-525; Quackenboss v. G. & R. F. Ins. Co., 
 177 N. Y. 71.). The seal of the corporation having been affixed to 
 the instrument followed by the signatures of the president and secre- 
 tary, designated in the acknowledgment as such, the presumption fol- 
 lows that the seal of the corporation was attached to the instrument 
 by proper authority.
 
 THE PAROL EVIDENCE. RULE 793 
 
 We are of the opinion that the instrument in suit was not free from 
 ambiguity, and that parol evidence was admissible to prove the circum- 
 stances under which the same was executed, also to establish facts dis- 
 closing knowledge of the plaintiff that the purpose of the bond in suit 
 was to bind the Gore-Meenan Company and not the defendant in the 
 suit (Schmitter v. Simon, 114 N. Y. 176) ; therefore, the trial justice 
 was in error in refusing to receive such evidence and for that reason 
 judgment must be reversed. 
 
 The judgment should be reversed and a new trial ordered, costs to 
 abide the event. 
 
 WILLARD BARTLETT, Ch. J., WERNER, COLLIN and CUDDEBACK, JJ., 
 concur; HISCOCK, J., dissenting; MILLER, J., not sitting. 
 
 Judgment reversed, etc. 
 
 BARBRE v. GOODALE. 
 28 Or. 465. (1896) 
 
 This is an action by J. I. Barbre against J. C. Goodale to recover 
 upon two separate causes. The first is upon a written agreement which 
 purports upon its face to be the agreement of one G. W. Handsaker, 
 of the first part, and J. C. Goodale, of the second part. By its terms, 
 in brief, the first party agrees to cut, haul, bank, and deliver to the 
 second party two million feet of fir logs, and, if certain conditions of 
 the lumber market continued to prevail, an additional one-half million 
 feet, at a certain point upon the McKenzie River in Lane County, 
 at the rate of three dollars per thousand, to be paid by the second party 
 as follows : One dollar per thousand when the logs were cut and 
 banked, and one dollar per thousand when scaled and rolled in the 
 river, and such balance as should be found due between the parties with- 
 in thirty-one days thereafter. 
 
 The second cause of action is based upon the sale and delivery by 
 the plaintiff to defendant of nine hundred and eighty-seven thousand 
 feet of other logs at three dollars and twenty-five cents per thousand, 
 upon which a balance of four hundred and seventy-two dollars and 
 thirty-four cents is claimed. At the trial plaintiff had a verdict for 
 two hundred and seventy-two dollars, and from the judgment thereon 
 the defendant appealed. Affirmed. 
 
 Opinion by MR. JUSTICE WOLVERTON :
 
 794 CASES ON EVIDENCE 
 
 The question is here presented whether it is competent to show by 
 parol testimony that a contract executed by and in the name of an agent 
 is the contract of the principal, where the principal was known to the 
 other contracting party at the date of its execution. There are two 
 opinions touching the question among American authorities the one 
 affirming and the other denying; but the case is one of the first im- 
 pression here, and we feel constrained to adopt the rule which may 
 seem the more compatible with the promotion of justice, and the exac- 
 tion of honest and candid transactions between individuals. The Eng- 
 lish authorities are agreed that parol evidence is admissible to show 
 that a written contract executed in the name of an agent is the con- 
 tract of the principal, whether he was known or unknown; and the 
 American authorities are a unit so far as the rule is applied to an un- 
 known principal, but disagree where he was known at the time the con- 
 tract was executed or entered into by the parties. All the authorities, 
 both English and American, concur in holding that, as applied to such 
 contracts executed when the principal was unknown, parol evidence 
 which shows that the agent who made the contract in his own name 
 was acting for the principal does not contradict the writing, but simply 
 explains the transaction; for the effect is not to show that the person 
 appearing to be bound is not bound, but to show that some other per- 
 son is bound also. And those authorities which deny the application 
 of the rule where the principal was known do not assert or maintain 
 that such parol testimony tends to vary or contradict the written con- 
 tract, but find support upon the doctrine of estoppel, it being maintained 
 that a party thus dealing with an agent of a known principal elects 
 to rely solely upon the agent's responsibility, and is therefore estopped 
 to proceed against the principal. The underlying principle, therefore, 
 upon which the authorities seem to diverge, is the presumption created 
 by the execution of the contract in the name of the agent, and the ac- 
 ceptance thereof by a party, where the principal is known. Is this 
 presumption conclusive or is it disputable? Without attempting to 
 reconcile the decisions, we believe the better rule to be that the pre- 
 sumption thus created is a disputable one, and that the intentions of 
 the party must be gathered from his words, and the various circum- 
 stances which surround the transaction, as its practical effect is to pro- 
 mote justice and fair dealing. The principal may have recourse to the 
 same doctrine to bind the party thus entering into contract with his 
 agent. Parol evidence, however, is not admissible to discharge the 
 agent, as the party with whom he has dealt had his election as to 
 \\hether he will hold him or the principal responsible. This doctrine
 
 THE PAROL EVIDENCE RULE 795 
 
 must be limited to simple contracts, and may not be extended to nego- 
 tiable instruments and specialties under seal, as they constitute an 
 exception to the rule. 
 
 If any instrument is valid without a seal, although executed under 
 seal, it is to be treated as written evidence of a simple contract ; and the 
 seal adds nothing, except, under our statute, it is made primary evi- 
 dence of a consideration: Stowell v. Eldred, 39 Wis. 626; Byington 
 v. Simpson, 134 Mass. 169 (45 Am. Rep. 314) ; Rector of St. David's 
 v. Wood, 24 Or. 404 (34 Pac. 18). 
 
 Now, looking to the contract which is the basis of the cause of action 
 under consideration, we find that it was executed in manner and form 
 as requested by the defendant, and to subserve a special purpose pe- 
 culiar to his interest, with the express avowal that it should be treated 
 as the contract of plaintiff, although executed in the name of Hand- 
 saker the agent. It is further disclosed that both the defendant and 
 the plaintiff afterwards so treated it; the plaintiff proceeding under it, 
 and in obedience with the terms and conditions thereof in cutting, 
 hauling, and banking the logs preparatory to delivery, and the defend- 
 ant by making payments to him from time to time, sometimes directly, 
 and sometimes through Handsaker, the agent. This ratification, con- 
 stitutes a very significant feature of the inquiry. Aside from this, the 
 contract discloses upon its face that a part of the consideration for 
 these logs moved directly from the defendant to plaintiff. Under these 
 attendant circumstances, and others which might be alluded to, we 
 think the court committed no error in admitting the testimony to show 
 who were the real parties to the contract, as well as to explain how 
 the clause touching the one thousand seven hundred dollars came to 
 be placed therein. The admission of the parol evidence pouching this 
 clause may be upheld as being explanatory of the consideration which 
 in part supports the contract. 
 
 Affirmed. 
 
 DECOWSKI v. GRABARSKI. 
 181 III. App. 279. (1913) 
 
 Statement by the court. Plaintiffs in error, hereinafter called de- 
 fendants, are seeking in this court a reversal of a judgment obtained 
 against them by Peter Decowski, hereinafter called plaintiff, on a cog- 
 novit under a power of attorney contained in a promissory note.
 
 796 CASES ON EVIDENCE 
 
 Defendants entered an appearance and filed an affidavit, whereupon 
 leave was given to make a defense, and judgment to stand as security 
 and the affidavit to stand as an affidavit of merits. A trial was had by 
 the court, which found for the plaintiff and entered judgment against 
 the defendants by confession. 
 
 The note in question is in part as follows : 
 
 "$83.34. Chicago, 111., May I, 1910. 
 
 Two years after date for value received we promise to pay to P. 
 Decowski or order Eighty-three and 34/100 Dollars at our office, 1112- 
 1 1 14 Milwaukee Ave. 
 
 Witness hand the day and year first above written. 
 
 In presence of 
 
 Albert F. Grabarski, Pres. 
 F. J. Tomczak, Secy. 
 No Due May I, 1912." 
 
 By the affidavit of merits it was claimed, in substance, that the note 
 was executed by the defendants as president and secretary, respectively, 
 of a corporation called/'The Bell", and that the note was the obliga- 
 tion of The Bell and not of the defendants individually ; that no con- 
 sideration had ever been received by them, as individuals for the exe- 
 cution of the note; that in 1908 The Bell assessed its stockholders, 
 among whom was the plaintiff; that said assessment was a loan by the 
 stockholders to the corporation, and that the corporation evidenced its 
 indebtedness to the plaintiff for the amount loaned by him to the cor- 
 poration by giving him its promissory note for $83.34 due two years 
 after date ; that subsequently said corporation changed its officers, and 
 the defendant Grabarski became its president, and the defendant Tomc- 
 zak, its secretary; that thereafter, upon the maturity of the aforesaid 
 note, the defendants, acting for the corporation as president and secre- 
 tary, respectively, executed and delivered to plaintiff a new note in 
 place of the old one, upon which new note the judgment herein was 
 entered, but which note was not the individual indebtedness of the de- 
 fendants but was executed and delivered as the indebtedness of the cor- 
 poration. 
 
 MR. JUSTICE McSuRELY delivered the opinion of the court. 
 
 The question for our determination is whether or not the defendants, 
 individually, are obligated by the note in question. From an examina- 
 tion of the record we find that the word "we" appearing in the note 
 was inserted after its maturity, but by whom is not shown. However, 
 we do not deem this to be important. The use of the word "we" in 
 this connection indicates nothing as to whether the note was intended
 
 THE PAROL EVIDENCE RULE 797 
 
 to be the obligation of the individuals or of the corporation. New 
 Market Sav. Bank v. Gillet, 100 111. 254. 
 
 Examination of the decisions in the reported cases cited by respec- 
 tive counsel does not give definite assistance in arriving at the con- 
 clusion upon the issue before us. 
 
 It was said in Scanlan v. Keith, 102 111. 634 (641) : 
 
 The possible task of reconciling the decisions on this branch of the 
 law will not be attempted, nor would it subserve any good purpose to 
 review any considerable number of cases in other courts on this sub- 
 ject. They will be found to be conflicting as the cases are numerous. 
 Much of the contrariety observed in the decisions, both in the American 
 States and in England, no doubt arises out of the equities of each case, 
 and of an effort on the part of courts to carry out what was supposed 
 to be the intentions of the parties executing such notes or bills." 
 
 However, it seems to be fairly settled by the decisions in this state 
 that a party will not be permitted to show by oral testimony that his 
 written agreement, understandingly entered into, was not in fact to be 
 binding upon him. And so it has been held in Hypes v. Griffin, 89 111. 
 134, and in Powers v. Briggs, 79 111. 493 ; that where the trustees of 
 a church corporation made a note in their individual names, although 
 they were described as trustees, parol evidence was inadmissible to 
 show that it was the intention to make an indebtedness of the church 
 corporation. But there is also another principle that where a party 
 signs his name as the agent or officer of a corporation in the ordinary 
 course of business, if it appears that it is the obligation of the cor- 
 poration the officer is not personally liable, and that the facts may be 
 shown by extrinsic evidence. 
 
 As was said in Scanlan v. Keith, supra: 
 
 "Most generally there is that on the face of the instrument itself, 
 * * * that indicates unmistakably it is the obligation of the cor- 
 poration. It is seldom any one takes such paper under the belief it is 
 the obligation of the officers executing it on the behalf of the cor- 
 poration. But parol testimony is admissible to establish the facts, 
 collateral though they may sometimes be, that will make it appear past 
 all doubt whose obligation it is." 
 
 In Keidan v. Winegar, 95 Mich. Rep., the court discusses the general 
 propositions in such apt words that we quote from the opinion at some 
 length : 
 
 "As is so often said, it is the intent of the parties which is to be 
 carried out by the court. The rule that rejects words added to the 
 signature is an arbitrary one. Its reason is not so much that the words
 
 798 CASES ON EVIDENCE 
 
 are not, or may not be, suggestive, but that they are but suggestive, 
 and the instrument, as a whole, is not sufficiently complete to point to 
 other parentage. The very suggestiveness of these added words has 
 given rise to an irreconcilable confusion in the authorities as to the 
 legal effect of such an instrument. Extrinsic evidence, therefore, is 
 admissible in such case, betwen the immediate parties, to explain a 
 suggestion contained on the face of the instrument, and to carry out 
 the contract actually entered into as suggested, but not fully shown, 
 by the note itself. The presumption that persons dealing with negotia- 
 ble instruments take them on credit of the parties whose names appear 
 should not be absolute in favor of the immediate payee, from whom the 
 consideration passed, who must be deemed to have known all the facts 
 and circumstances surrounding the inspection of the note, and with 
 such knowledge accepted a note containing such a suggestion." 
 
 Applying these general statements to the particular case before us, 
 it may be said that while plaintiff, by the introduction of the note, 
 made a prima facie case against the defendants individually, yet the 
 court properly permitted the defendants to introduce evidence outside 
 the note to prove the matters of defense set forth in their affidavit of 
 merits. 
 
 Reversed and remanded on this ground. 
 
 STANLEY v. FIREMAN'S INSURANCE COMPANY 
 34 R. I. 491. (1912) 
 
 VINCENT, J. This is an action of assumpsit brought to recover the 
 amount due under a policy of insurance issued by the defendant com- 
 pany to the plaintiff. The case is now before the court on exceptions 
 to the decision of the Superior Court sustaining the defendant's de- 
 murrer to the plaintiff's second amended declaration. 
 
 The policy in question was issued to the plaintiff in his individual 
 name, although he now alleges that it was, in fact, procured for the 
 benefit of himself as administrator and of Roger R. Ramsey, the sole 
 heir-at-law of Sarah E. Stanley. 
 
 The plaintiff further alleges that the agent of the defendant who 
 negotiated the contract of insurance and wrote the policy knew that 
 said policy was intended to cover, and agreed that it should cover, the
 
 THE PAROL EVIDENCE RULE 799 
 
 plaintiff's interest as administrator and also the interest of the heir- 
 at-law. 
 
 The plaintiff contends that he is entitled to offer parol testimony 
 in support of these allegations and that upon sufficient proof of the 
 alleged agreement and understanding, between himself and of the de- 
 fendant's agent, he would have the right to recover for the loss which 
 he has sustained as administrator and also for the loss sustained by 
 the heir-at-law, notwithstanding the fact that the written instrument, 
 by its terms covers nothing more than the individual interest of the 
 plaintiff. There can be no doubt that if it had been indicated in the 
 policy that the same was issued for the benefit of the plaintiff as ad- 
 ministrator and of Roger R. Ramsey, or even if the policy had con- 
 tained some language indicating or suggesting other and distinct in- 
 terests, that parol testimony might properly be offered to show who the 
 parties were as well as the extent of their interest. 
 
 The general rule is that a policy made in the name "of a particular 
 person will not protect the interest of any other person, unless it con- 
 tains some words which indicates that it is intended that the interest 
 of some other person be covered. Colley's Briefs on the law of Ins., 
 Vol. i, p. 787, and cases cited. 
 
 In Higginson v. Ball, 13 Mass. 96, the court in its opinion said, "the 
 policy itself is considered to be the contract between the parties and 
 whatever proposals are made, or conversations had between the parties 
 prior to the subscription, they are to be considered as waived if not 
 inserted in the policy, or contained in a memorandum annexed to it." 
 
 In Insurance Co. v. Lyman, 15 Wall. 664, Mr. Justice Miller said, 
 "Undoubtedly a valid verbal contract for insurance may be made, and 
 when made, and when it is relied on, and is unembarrassed by any 
 written contract for the same insurance, it can be proved, * * * 
 as in all other cases when contracts may be made either by parol or in 
 writing. But it is also true that when there is a written contract of 
 insurance it must have the same effect as the adopted mode of ex- 
 pressing what the contract is, that it has in other classes of contracts, 
 and must have the same effect in excluding parol testimony in its 
 application to it that other written instruments have. * * * To 
 permit the plaintiffs, therefore, to prove by parol that the contract of 
 insurance was actually made before the loss occurred, though executed 
 and delivered and paid for afterwards, is to contradict and vary the 
 terms of the policy in a matter material to the contract, which we un- 
 derstand to be opposed to the rule on that subject in the law of Louisi- 
 ana as well as at the common law. The doctrine is too well settled
 
 8oo CASES ON EVIDENCE 
 
 that all previous negotiations and statements are merged and included 
 in the assent to the written instruments as expressing the agreement." 
 
 Many other authorities recognized, to the same effect, might be cited 
 were it necessary to do so. 
 
 Numerous authorities recognize the admissibility of parol testimony 
 in explanation of the written instrument, when its terms are incom- 
 plete or ambiguous, as for instance, where the insurance is effected 
 and the policy issued "for whom it may concern," or for the "owners" 
 of a vessel or cargo, parol testimony may be offered to show who the 
 parties in interest, or the owners, are. But none of the cases cited 
 upon the plaintiff's brief support his contention. None of them go 
 to the extent of holding that a person who is not named in the policy 
 and whose existence is not even suggested therein can, through the aid 
 of parol testimony, make himself a party to the contract and obtain 
 the benefits of its provisions. 
 
 We think that the introduction of parol testimony, in accordance with 
 the plaintiff's contention, showing circumstances and verbal under- 
 standings and agreements, between the plaintiff and defendant's agent, 
 prior to the execution and delivery of the policy, would in effect be 
 founding a right of action on a parol variation of a written contract 
 and would be an attempt to reform a written contract in an action at 
 law, which under the great weight of authority he cannot be permitted 
 to do. If the plaintiff desires to reform his contract he must do so 
 through a court of equity and not in an action at law. 
 
 The plaintiff's exceptions are overruled, and the case is remitted to 
 the Superior Court for further proceedings not inconsistent with this 
 opinion. 
 
 TOWN v. JEPSON. 
 133 Mich. 673. (1903) 
 
 Assumpsit by Lewis S. Town against Merton K. Jepson and Edward 
 Jepson copartners as Jepson Bros., for a breach of contract for the sale 
 of fruit. From a judgment for defendants, plaintiff brings error. 
 Affirmed. 
 
 CARPENTER, J. On the 28th of September, 1898, the parties to this 
 suit entered into a written contract. 
 
 Plaintiff contends that the court erred in permitting defendants to
 
 THE; PAROL EVIDENCE; RULE 801 
 
 prove that, after the contract was entered into, it was agreed that 
 shipments of 100 fifty-pound boxes might be made by them. This 
 testimony was clearly admissible. See Summers v. Wagner, 87 Mich. 
 272 (49 N. W. 570) ; Freese v. Arnold, 99 Mich. 13 (57 N. W. 1038). 
 
 Neither can we agree with plaintiff that parol testimony show- 
 ing the agreement that the draft should be paid at Manchester was 
 incompetent. This evidence did not tend to vary the contract. The 
 contract contained these, and only these, terms : "Sight draft, with bill 
 of lading attached." It was not only competent, but proper, for the 
 parties to determine by an oral agreement upon whom these drafts 
 should be drawn, and where they should be presented. Liggett Spring 
 & Axle Cp. v. Michigan Buggy Co., 106 Mich. 445 (64 N. W. 466,) ; 
 National Cash Register Co. v. Blumenthal, 85 Mich. 464 (48 N. W. 
 622). 
 
 The judgment will be affirmed, with costs. 
 
 The other Justices concurred. 
 
 BONICAMP v. STARBUCK. 
 25 Okla. 483. (1910) 
 
 Action by W. H. Starbuck against John Bonicamp. Judgment for 
 plaintiff, and defendant brings error. Reversed and remanded. 
 
 TURNER, J. On May 2, 1910, W. H. Starbuck, defendant in error, 
 sued John Bonicamp, plaintiff in error, in the Probate Court of Kay 
 County in damages for the alleged breach of a lease, dated November 
 i, 1905, wherein the latter undertook to lease to the former for a 
 period of five years from date a two story building of certain dimen- 
 sions located in Blackwell, Okla., "at a monthly rent of $70 per month, 
 said sum to be increased at the rate of 15% of the sum expected by 
 the first party for purchase price and improvements in excess of the 
 sum of $4,550; first party to make all necessary improvements and 
 repairs to put property in first-class condition to be occupied as a first- 
 class hotel. Parties to this contract to agree on the improvements 
 necessary thereof." After answer admitting the execution of the 
 lease and a general denial and reply thereto filed, there was trial by 
 a jury, which resulted in a judgment for plaintiff for $817.50, and on 
 second trial for $640, and after motion for a new trial filed and over-
 
 802 CASES ON EVIDENCE 
 
 ruled, to which defendant excepted he brings the case here for review 
 by petition in error and case made. 
 
 To maintain the issues on his part, plaintiff, among other things, 
 introduced in evidence the lease providing as aforesaid, proved that 
 defendant had refused him possession thereunder and had leased the 
 premises to another, and, pursuant to allegations in his petition over 
 the objection of defendant, was permitted to introduce parol testimony 
 in effect that shortly after the execution and delivery of the lease plain- 
 tiff and defendant agreed on what improvements and repairs were to be 
 placed in said building to be put in first-class condition to be occu- 
 pied as a first-class hotel, which was, among other things, that a bake- 
 shop should be built in the rear of the premises, that the building 
 should be painted and finished, the necessary partitions put up, sewer- 
 age and waterworks connection made, and that the rent of the prem- 
 ises thereafter should be $90 per month. 
 
 It is contended by plaintiff in error that the court erred in admitting 
 said testimony, because he says that the terms of said lease could not 
 be altered except by a contract in writing, and therefore the judgment 
 is contrary to law. The testimony is objectionable for the reason that 
 a lease for five years is one required by the statute of frauds to be 
 in writing, which must contain the whole contract. To permit a party 
 to sue partly on a written and partly on an oral agreement, as is here 
 attempted, would be in direct contravention of the statute. I Beach on 
 Contracts, *579, lays down the rule as stated and in section 577 says : 
 
 "It is also the general rule that the evidence necessary to take the 
 contract out of the statute of frauds must be furnished by the waitings ; 
 parol evidence not being admissible to supply evidence not found in the 
 writings." 
 
 The lease providing, as it does in effect, that plaintiff was to make all 
 necessary improvements and repairs to put the premises in first-class 
 condition to be occupied as a first-class hotel, and that the parties 
 thereto were thereafter to agree on what improvements and repairs 
 were necessary so to do, standing alone was incapable of enforcement 
 for uncertainty, for the reason that on its face, it left some essential 
 terms to be agreed on in the future. Ringer v. Holtzclaw, 112 Mo. 
 519, 20 S. W. 800; Dayton v. Stone, in Mich. 196, 69 N. W. 515; 
 Bumpus v. Bumpus, 53 Mich. 346, 19 N. W. 29; Wardell v. Williams, 
 62 Mich. 50, 28 N. W. 796, 4 Am. St. Rep. 814; Gates v. Gamble, 
 53 Mich. 181, 18 N. W. 631. Recognizing this fact, defendant sought 
 to sustain his cause of action by a subsequent oral contract, the subject- 
 matter of which is found in the original writing, while the contract
 
 THE PAROI/ EVIDENCE RULE 803 
 
 itself is found in the subsequent oral agreement sought to be proved, 
 connecting itself with the writing as a part of its terms. To enforce 
 said contract would practically annul our statute, supra, and the statute 
 of frauds. If a part of the entire contract is void under the statute, it 
 is void in toto (Fuller v. Reed, 38 Cal. 99), and thereby becomes re- 
 duced to the grade of a mere unwritten contract (Dana & Henry v. 
 Hancock, 30 Vt. 616). uch subsequent oral agreement varied thfe 
 terms of the writing contained in the lease, and plaintiff cannot recover 
 upon said writing as thus qualified. 
 
 Hence we conclude that the testimony was improperly admitted, and 
 the judgment contrary to law, in that it was based upon a parol con- 
 tract void under the statute of frauds, and are of the opinion that the 
 case should be reversed. 
 
 All the Justices concur. 
 
 MOREHOUSE v. TERRILL. 
 in III. App. 460. (1903) 
 
 Statement by the court. This was an action on the case to cover 
 damages from appellant for his having wilfully induced one Dooley 
 to break a contract he had entered into with appellee for the purchase 
 of some real estate. 
 
 On or about May 18, 1900, appellee accepted verbally a written 
 proposition of that date made him by appellant and providing for an 
 exchange of the latter's farm in McLean County, Illinois, subject to 
 an incumbrance of $4,000, for the former's house and lot known as 
 1257 Fulton avenue, in Chicago, subject to an incumbrance of $4,250 
 and a payment of $2,000. Appellant was to furnish an abstract show- 
 ing a good title in him to the lot by the Security Title and Trust Com- 
 pany. 
 
 This contract was superseded by a more formal one under the seals 
 of the parties, dated May 22, 1900, which imposed upon appellee the 
 additional obligations of also furnishing an abstract of title, each 
 party to hand his abstract to the other within six days from the date 
 of the contract, and deeds to be passed and the deal closed on or be- 
 fore June i, 1900. 
 
 By a written contract, also dated May 22, 1900, appellee agreed to 
 sell to William H. Dooley, and he agreed to buy from appellee, the
 
 804 CASKS ON EVIDENCE 
 
 farm of appellant for $9,000, appellee to furnish an abstract showing 
 good title in him to the farm, except as to the $4,000 incumbrance 
 which the purchaser was to assume; deed to be delivered to Dooley 
 on or before June i, 1900, at which time he agreed to pay appellee, 
 in cash, $5,000, being the difference between the purchase price and 
 the incumbrance. By falsely representing to Dooley that the contract 
 between appellant and appellee "had fallen through," appellant, on 
 May 27, 1900, procured Dooley to break his contract with appellee, 
 and then violated his own contract with the latter by selling and con- 
 veying the farm to Dooley for $9,000 without appellee's knowledge 
 and thereby causing him a loss of at least $2,000 which appellee would 
 have made as profit if appellant had conveyed the farm to him. 
 
 The jury were instructed inter alia that they might award punitive 
 damages against appellant if they found that he had acted maliciously 
 in the premises. There was a verdict and judgment against him for 
 $2,000. 
 
 MR. JUSTICE STEIN delivered the opinion of the court. 
 
 The second contract between appellant and appellee was executed 
 in duplicate. Over the objection of appellant the court received proof 
 that after the execution of the other he had by parol waived the provi- 
 sion of the contract requiring the appellee to furnish an abstract of 
 title to his lot. Both parties treat the furnishing of such abstract (un- 
 less waived) as a condition precedent to the maintenance of the ac- 
 tion; and assuming this to be the law (as to which we express no 
 opinion) the question arises whether proof of the parol waiver was 
 admissible. 
 
 It is the long established law of this state that the terms of a con- 
 tract under seal cannot be varied except by an instrument of the same 
 dignity. Ryan v. Cooke, 172 111. 302; Starin v. Kraft, 174 111. 120. 
 And this is so even if the contract would have been valid without a 
 seal. Hume v. Taylor, 63 111. 43 ; Leach v. Farnim, 90 111. 638. But 
 a mere waiver of a term or condition may be shown where it is in the 
 nature of a release or a discharge and leaves the contract otherwise 
 unchanged and introduces no new element into it. Mose v. Loomis, 
 156 111. 392; Starin v. Kraft, supra; Palmer v. Meriden B. Co., 188 
 111. 608; Dauchy Iron Works v. Toles, 75 111. App. 669; Robinson v. 
 Nessel, 86 111. 212. In the case at bar the waiver operated as a release 
 of the provision requiring appellee to furnish an abstract of title and 
 was proper to be shown. 
 
 The circumstance that the conversation constituting the waiver was 
 held bet wen the execution of the contract and that of the duplicate
 
 THE PAROL EVIDENCE RULE 805 
 
 original, is of no importance. When the instrument first executed by 
 the parties had been signed and delivered, there was a valid and bind- 
 ing contract even if the duplicate had not been executed. Hence the 
 rule that a written contract cannot be altered or modified by proof of 
 what was said by the parties before or during the making of it, does 
 not apply. 
 
 Reversed and remanded on another ground. 
 
 HEALY v. YOUNG. 
 21 Minn. 389. (1875) 
 
 Action for rent reserved in a written lease of the Federal Union 
 printing office, material, etc., at Rochester, Minn. Defense, that after 
 the rent became due, the plaintiff, in consideration of $1,500, sold to 
 defendant the property leased and relieved him from liability for the 
 rent due. At the trial in the District Court for Olmstead County, be- 
 fore Mitchell, J., defendants had a verdict; a new trial was refused, 
 and plaintiff appealed. 
 
 GILFILLAN, C. C. In this case there are two points made by appel- 
 lant. First. That the verdict was against the evidence. Second. 
 Error of the court below in admitting evidence. 
 
 The action was to recover for rent of certain personal property, 
 under a contract dated February i, 1873. One defence was that about 
 September, 1873, the plaintiff, in consideration of $1,500 paid by de- 
 fendant Young to plaintiff, sold to said Young the property, and re- 
 leased the defendants from all claims which he might have against 
 them growing out of said contract, and especially the claim set up in 
 the complaint. It is in respect to this defense that the alleged errors 
 arise. 
 
 There was a motion for a new trial before the judge who tried the 
 cause; and on looking over the evidence, we think there was such a 
 conflict as to the release, that, unless there was error in admitting the 
 evidence, the verdict ought not to be set aside. The sale of the prop- 
 erty by plaintiff to Young was by a bill of sale in writing, in the follow- 
 ing words : "For value received, and for and in consideration of the 
 sum of fifteen hundred dollars paid and secured to me, the receipt of 
 which is hereby acknowledged, I have and do hereby sell, assign and 
 transfer unto H. H. Young all and singular the property known as the
 
 806 CASES ON EVIDENCE 
 
 Federal Union printing office, at Rochester, Minnesota, including all 
 material, and all sums due said newspaper; said Young to pay all 
 debts owing by said office, or on account of its business, while in my 
 control. 
 
 "Attest: Geo. Healy." 
 
 "R. A. Jones." 
 
 The defendant, having introduced this bill of sale, then offered oral 
 testimony to prove the release of the claim for rent, and the question 
 is, Was such testimony competent? There is no question made as to 
 the rule that where a contract is reduced to writing, parol evidence is 
 inadmissible to contradict or vary it. But to give the writing this 
 conclusive effect, the agreement itself must be reduced to writing. 
 The rule does not apply where the written agreement is merely given 
 in part-performance of the contract. The theory of the defendant is 
 that the plaintiff agreed to release the debt and convey the property, 
 and, in part-performance of that agreement, made the bill of sale. As 
 the agreement to release relates to an entirely different subject-matter 
 from that covered by the bill of sale, this theory, so far as it presents 
 the question of law, is correct. The case is not distinguishable from 
 Clarke v. Tappin, 32 Conn. 56; Baker v. Bradley, 42 N. Y. 316; and 
 Jordan v. White, 20 Minn. 91. It is distinguishable from Cook v. 
 Finch, 19 Minn. 407; for, in that case, it was attempted to show, by 
 parol, that a bill of sale was intended to pass property not specified 
 in it. 
 
 We think, therefore, the order denying a new trial should be affirmed. 
 
 PHELPS v. ABBOTT. 
 114 Mich. 88. (1897) 
 
 MONTGOMERY, J. Plaintiff and defendant were in 1886 and 1887, 
 both breeders of blooded cattle. The plaintiff resided near Pontiac, and 
 the defendant at Lapeer. In April, 1887, plaintiff had a public sale of 
 stock at Pontiac, at which defendant was a bidder, and became the pur- 
 chaser of a cow and calf at $300, and a heifer for $195. After the sale 
 defendant gave his note to plaintiff for the sum of $495, due in one year 
 the note being in the usual form of a negotiable promissory note. 
 Shortly thereafter the heifer was returned, and the purchase price, 
 $195, credited on the note. This action is brought to recover the resi-
 
 THE PAROL EVIDENCE RULE 807 
 
 due of the note $300, and interest. The defense set up is that, in the 
 spring of 1886, defendant purchased of plaintiff a thoroughbred Here- 
 ford heifer named Rosabel at the price of $300, and gave his note in 
 payment ; that Rosabel was purchased for breeding purposes, but proved 
 to be barren ; that, prior to the public sale in 1887, defendant informed 
 plaintiff that Rosabel was barren; and that the cow and calf and heifer 
 bought in 1887 were purchased by defendant relying upon a statement 
 then made by the plaintiff to defendant that, if future developments 
 disclosed that Rosabel was in fact barren, plaintiff would adjust the 
 purchase price which defendant had agreed to pay for Rosabel in any 
 way that defendant thought would be right, and that such adjustment 
 would be made by allowing such credit on the note in suit as defend- 
 ant should think just and right, if said heifer Rosabel in fact proved 
 barren. This defense prevailed in the circuit, and plaintiff brings error. 
 
 The testimony by which defendant made his case was given by 
 himself. 
 
 But we think it was not competent to vary the terms of this note by 
 showing by parol an agreement to reduce the amount agreed to be paid 
 by the amount of damages which defendant may have sustained by 
 reason of the heifer Rosabel having turned out to be barren. The 
 note was absolute in form. By it defendant promised to pay a definite 
 sum at a definite time. The testimony offered was for the purpose 
 of showing that this sum was not payable absolutely, but that in a 
 certain event a less sum was to be accepted in discharge of the note. 
 It is a general rule of law that parol evidence is inadmissible to vary 
 or contradict a written contract ; therefore, if a bill or note be absolute 
 upon its face, no evidence of a verbal agreement made at the same 
 time, qualifying its terms, can be admitted, i Daniel, Neg. Inst. sec. 
 80. It cannot be shown that the sum agreed to be paid was different, 
 nor that an additional sum agreed to be paid was different, nor that an 
 additional sum was to be paid in a certain contingency, nor that a 
 certain sum was to be deducted from the note, or the value of a certain 
 article credited upon it. Id. sec. 81. 
 
 It is true that it is always competent to show by parol a total or par- 
 tial failure of consideration, or that fraud or illegality taints the instru- 
 ment. But the parol undertaking attempted to be shown in the present 
 case does not fall within these apparent exceptions. It must be kept 
 in mind that in case the attempt is not to assert a set-off. Defendant's 
 claim, if any, was unliquidated. The defense was possible in this ac- 
 tion only if the defendant could attach his alleged agreement to the 
 note itself, and show that plaintiff had agreed to reduce the amount
 
 808 CASES ON EVIDENCE 
 
 of the note by such a sum as should be found his due on the original 
 transaction, if any. Nor was there a failure of consideration for the 
 note. The attempt is to show that the promise which was made in 
 writing is not in truth the promise which defendant made. We think, 
 under the authorities cited, this should be held incompetent. 
 
 Judgment reversed, and a new trial ordered. 
 
 GERMANIA BANK OF MINNEAPOLIS v. C. F. OSBORNE. 
 8 1 Minn. 272. (1900) 
 
 LEWIS, J. Action on a promissory note for $400, due ninety days 
 after date, payable in United States gold coin or its equivalent, with 
 interest. 
 
 To the complaint on this note defendant alleged, as a "defense and 
 counterclaim," that to induce the defendant to purchase four shares 
 of its capital stock, so that he might continue to be one of the directors 
 of the bank, the plaintiff agreed with defendant that, if he would pur- 
 chase the four shares, it would receive as the purchase price thereof 
 defendant's promissory note for $400, payable ninety days after date, 
 with interest at three per cent, per annum, and renew the same from 
 time to time as it became due by accepting and receiving a new note 
 of like tenor and effect ; that at any time defendant ceased to be di- 
 rector of said bank, plaintiff would take back and repurchase the same 
 and pay the same price paid by defendant therefor, surrendering and 
 delivering to him said note so given as the purchase price of said 
 stock, or any note for $400 given by defendant in renewal thereof; 
 that, in pursuance of such agreement, the stock was issued to defend- 
 ant, and he gave his note therefor in the sum of $400, and that the 
 note upon which the action is based was the last renewal of the same ; 
 that, long prior to the commencement of this action, defendant, having 
 resigned as director of said bank, and being desirous of returning, 
 surrendering and reselling the stock to plaintiff, offered to resell, as- 
 sign, transfer, indorse, and surrender the same to plaintiff, and offer 
 to pay the interest upon the note, and demanded that plaintiff surrender 
 and deliver the note to defendant, which was refused. 
 
 Issue having been joined, when the cause came on for trial in the 
 court below plaintiff introduced the note, and rested; whereupon de- 
 fendant attempted to prove the facts set forth in the answer. Ob-
 
 THE PAROL EVIDENCE RULE 809 
 
 jection was made upon the ground that the examination called for oral 
 testimony which tended to vary or alter the terms of the note. The 
 objection was sustained, and the court directed a verdict for plaintiff 
 in the full amount of the note and interest. From an order denying 
 his motion for a new trial, defendant appeals. 
 
 In what respect written contracts may be affected by parol testimony 
 is a problem frequently confronting the practitioner and demanding 
 the attention of the courts, and in respect to that particular phrase 
 of its application involved in the case before us able courts have ar- 
 rived at different conclusions. We should first determine what the 
 contract was between these parties, and what relation the note bears 
 to it. The contract was, in substance, a sale of the stock in considera- 
 tion of the execution and delivery of the note, coupled with the right 
 to return the stock and take up the note. The note expresses only 
 the method of payment in case the maker did not exercise the right to 
 return the stock. The note is in terms just what the parties agreed 
 it should be. The contract preceded the execution and delivered as a 
 result of the contract, not as itself the contract. The consideration for 
 the note was the stock, provided the maker exercised the option to re- 
 tain it. 
 
 The consideration for the delivery of the stock was the payment of 
 $400, according to the terms of the note, provided the maker exercised 
 the same option. Although the whole transaction was an entirety, and 
 the agreement for the sale was in a sense contemporaneous with the 
 execution of the note, yet the parties did not reduce the agreement for 
 the sale to writing in the terms of the note. 
 
 In the case before us the defensive matter contained in the answer 
 is set forth as a counterclaim, and affirmative relief is demanded. The 
 evidence in support of the counterclaim tended to make out a case 
 which would defeat the collection of the note, but it did not change its 
 terms. The evidence was directed to the right to enforce payment, 
 not the method of payment. If payment could be enforced at all, it 
 must be according to the terms of the note. Such was the issue ten- 
 dered by plaintiff. But there was, under the issue tendered by the 
 counterclaim, the question of the right to enforce payment of the note. 
 Hence it follows that the evidence offered did not tend to change the 
 terms of the written instrument. 
 
 Order reversed and a new trial granted.
 
 8io CASES ON EVIDENCE 
 
 GILBERT & CO. v. McGINNIS et al. 
 114 Illinois. (1885) 
 
 MR. JUSTICE MULKEY delivered the opinion of the court: 
 
 On the i6th of February, 1881, Patrick McGinnis, the appellee, 
 sold to the appellants, Herbert S. Gilbert & Co., seven thousand bushels 
 of corn, at thirty-nine cents per bushel, to be delivered in the months 
 of August and September following. As a part of the same agree- 
 ment the appellants promised to make advances on the contract to 
 appellee of what money he might, from time to time, require. A short 
 time after the making of this agreement, appellee called on the appel- 
 lants, at their business house in Ottawa, and requested an advance on 
 the contract, as per agreement. The clerk in charge of their business 
 told him he could have the money, and commenced writing a note for 
 the amount, whereupon appellee stated to the clerk he would not sign 
 a note, remarking, in effect, that if he wanted to obtain money in that 
 way he could get it from the bank. Appellants refused to make the 
 required advance unless appellee would give his note for the amount. 
 This he declined to do, and informed the clerk at the time he would 
 not let appellants have the corn. The corn not having been delivered 
 within the time specified in the agreement, the appellants, on the 3d 
 day of October, 1881, commenced an action of assumpsit, against 
 appellee, in the Circuit Court of La Salle County, to recover damages 
 for the non-delivery of the corn, which resulted in a judgment in 
 favor of the defendant, for costs. This judgment having been affirmed 
 by the Appellate Court for the Second District, the plaintiffs appealed 
 to this court. 
 
 On the trial the plaintiffs offered to show there was a general cus- 
 tom among grain merchants to take notes from the seller for the amount 
 of advances made under contracts for the sale of grain, like the one 
 in question. They also proposed to prove that on previous occasions 
 there had been contracts and dealings, similar in character to the one 
 sued upon, and that the manner of dealing between the parties was, 
 when an advance was made, memoranda or notes should be taken for 
 the money advanced. The court declined to admit evidence to the jury 
 in support of either of these positions, and the ruling of the court in 
 this respect presents the only question for determination. The same 
 question is raised by certain refused instructions asked on behalf of 
 the appellants. 
 
 The rule is well recognized that where a commercial contract is in
 
 THE PAROL EVIDENCE RUUJ 8n 
 
 any respect ambiguous, a particular custom or usage of trade known 
 to the parties, or which, under the circumstances, they are presumed 
 to know, or any previous course of dealing between them that will 
 have a tendency to disclose the real intentions of the parties, and to 
 aid the court in arriving at its true construction, will be admissible 
 in evidence. Such evidence is not only admissible for the purpose ot 
 explaining the terms of a contract, but also for the purpose of in- 
 grafting, as it were, new terms into it, subject, however, to the qualifi- 
 cation that such new terms are not expressly or impliedly excluded 
 by the express agreement, (i Smith's Leading Cases, 307, et seq.) 
 To have this effect, however, the usage must be reasonable, and not in 
 conflict with any general rule of law. (Macy et al. v. Wheeling Ins. 
 Co., 9 Mete. 354.) The proof offered in this case was clearly not for 
 the purpose of explaining any ambiguity in the contract, or for the 
 purpose of showing that some particular word or phrase in it is used 
 out of its ordinary signification. No claim of this kind is made. It 
 is conceded by both parties that appellants were to make advances 
 that is, let appellee have money, from time to time, as he might need 
 it, under the contract. So far there is no controversy. But appel- 
 lants contend that a custom or usage prevailed, not adverted to in the 
 express agreement, which required the appellee to give to them his 
 note upon receiving any such advances. The usage here sought to be 
 shown, it is clear, was for the purpose of adding a stipulation on the 
 part of appellee which, it is conceded, is not found in the express 
 agreement. This, as we have already seen, may sometimes be done ; 
 but whether it could be done in this particular case depends upon 
 whether the stipulation thus to be added is inconsistent or in conflict 
 with that part of the agreement which is expressed, and about which 
 there is no controversy. We are clearly of opinion that it is, and that 
 the trial court therefore ruled properly in excluding the evidence and 
 in refusing the instructions complained of. 
 
 An advance or payment of money on a contract of sale, without 
 doubt, is altogether a different thing from that of obtaining money 
 from the purchaser on the seller's own note. The legal effect of the 
 transaction in the first case is to extinguish, pro tanto, the seller's 
 claim and the purchaser's corresponding liability. In the second, no 
 part of either is extinguished. Instead of collecting something on his 
 corn, as provided by the agreement, the seller is offered a loan of 
 money on his individual note, which would be a complete change of 
 the legal relations of the parties. Whereas the seller was, before, a 
 mere creditor of the purchaser, he at once, upon giving such a note,
 
 812 CASES ON EVIDENCE 
 
 becomes the debtor of the purchaser, and no part of the debt due him 
 on account of the sale is thereby discharged. Thus it is seen the legal 
 effect in the one case is practically the very opposite of what it is in 
 the other, and might in many cases result in the grossest injustice. 
 For instance, had appellee given his note for the required advance, 
 the appellants might, the next hour thereafter, have transferred it to 
 another for value, and appellee would have been compelled to pay it, 
 whether he ever got a cent for his corn or not. This is apparent. 
 That one will not be permitted to prove a custom or usage the effect 
 of which will be to add to an express agreement a condition or limita- 
 tion which is repugnant to or inconsistent with the agreement itself, 
 will hardly be questioned. This is not only the universally received 
 doctrine on the subject, but it has been often fully recognized by this 
 court. Cadwell v. Beek, 17 111. 220; Bissel v. Ryan, 23 id. 566; 
 Deshler v. Beers, 32 id. 368; Wilson v. Bauman, 80 id. 493. In the 
 editor's note to Wigglesworth v. Dalleson, Smith's Leading Cases, 
 309, it is said: "Evidence of usage, though sometimes admissible to 
 add to or explain, is never to vary or to contradict, either expressly 
 or by implication, the terms of a written instrument," citing in sup- 
 port of the proposition, Magie v. Atkinson, 2 M. & W. 442, Adams v. 
 Worldley, i id. 374. Freeman v. Loeder, 1 1 A. & E. 589, and Gates v. 
 Pym, 6 Taunt. 445. The rule here stated is equally applicable to a 
 verbal contract, where the terms of it are definitely fixed, as they are 
 in the present case. 
 
 It follows from what we have said, and the authorities cited, the 
 judgment of the Appellate Court must be affirmed. 
 
 Judgment affirmed. 
 
 THE BAGLEY AND SEWALL COMPANY v. THE SARANAC 
 RIVER PULP AND PAPER COMPANY. 
 
 135 N. Y. 626. (1892) 
 
 Appeal from judgment of the General Term of the Supreme Court 
 in the third judicial department, entered upon an order made No- 
 vember 30, 1891, which affirmed a judgment in favor of plaintiff, en- 
 tered upon a verdict and denied a motion for a new trial. 
 
 This was an action to recover the contract price for certain ma- 
 chinery sold by plaintiff for defendant.
 
 THE; PAROL EVIDENCE RULE 813 
 
 The facts, so far as material, are stated in the opinion. 
 
 The guaranty for the breach, of which the defendant sought to 
 counterclaim damages, is contained in the written proposition made by 
 the plaintiff to the defendant October 30, 1888, and orally accepted 
 by the defendant, for the sale to the defendant of two "wet machines", 
 to be used in the manufacture of wood pulp, after the process of 
 grinding the pulp had been done by other machines constructed for 
 that purpose. 
 
 The clause of guaranty is as follows : "We will guaranty the above 
 machines to take care of all the pulp produced from four Scott grind- 
 ers, and deliver the pulp 50 per cent dry." When the proposition 
 was made, the defendant was engaged in erecting a pulp mill on his 
 premises, and had contracted with the manufacturer of the Scott 
 grinders for four grinders to be placed in the mill. They were subse- 
 quently placed in teh mill, as were also the machines purchased from 
 the plaintiff. 
 
 The defendant, in support of its contention, gave evidence tending 
 to show that' the machines bought of the plaintiff would not take care 
 of all the pulp produced by the four grinders placed in the mill, and 
 deliver it fifty per cent dry. The four grinders would produce about 
 eight tons of pulp a day, and the machines purchased of the plaintiff, 
 while they would provide for that quantity, would not deliver it fifty 
 per cent dry, but forty to forty-five per cent dry. It was established 
 on the part of the plaintiff that the machines would take care of at 
 least six tons of pulp per day, and deliver it fifty per cent dry, being 
 an amount equal to 3,000 pounds of pulp for each grinder. 
 
 The plaintiff in answer to the alleged counterclaim was permitted 
 to show that the guaranty was given upon the representation of the 
 defendant that the Scott grinders, for which they had contracted, had 
 a capacity of producing each 3,000 pounds of pulp per day, and that 
 the proposition and guaranty were based upon this production. The 
 point insisted upon in behalf of the defendant is that this evidence was 
 inadmissible, because in violation of the rule excluding oral evidence 
 to contradict a written contract. Whether this evidence was in viola- 
 tion of the rule invoked is the main question in the case. The nego- 
 tiation between the parties did not have its inception at the date of 
 the proposition (Oct. 30, 1888). On June 27, 1888 the defendant 
 addressed a letter to the plaintiff saying: "We have already made a 
 trade for four grinders, that are guaranteed each to make 3,000 pounds 
 every 24 hours, dry weight, and now we want to get a press to take 
 care of it." In another letter of October 16, 1888, the defendant said :
 
 814 CASES ON EVIDENCE 
 
 "The machines we are putting in are guaranteed each to make 3,000 
 pounds, dry weight, pulp each 24 hours, or the four machines will 
 turn out six tons a day. Now will one of your 72-in. machines take 
 care of this amount of pulp?" The conversation between the parties 
 concurrently with the date of the proposition (Oct. 16, 1888), shows 
 that the guaranty was made upon the basis that the capacity of the 
 Scott grinders to be placed in the mill was 3,000 pounds per day. 
 
 The inequity of the alleged counterclaim is apparent. But this is 
 no answer to the rule of law invoked, if by its proper application it 
 excludes a consideration of the facts referred to. 
 
 We think it may well be doubted whether the letters of June 27, 
 1888, and October 16, 1888, may not be considered as parts of the 
 written contract for the sale of the machines. The proposition of 
 guaranty of October 30, 1888, was its culmination, but the previous 
 letters of the defendant explain the application of the guaranty, and 
 being themselves in writing their consideration does not contravene 
 the principle upon which oral terms are forbidden to be engrafted 
 upon written contracts. But passing this we are of opinion that the 
 oral evidence was competent to ascertain and define the capacity of 
 the grinders to which the guaranty related. The parties were con- 
 tracting for machines which would take care of the pulp produced 
 by "four Scott grinders," and deliver it at a certain dryness. The 
 amount of pulp produced depends, as the evidence shows, upon the 
 capacity of the grinders and the power applied. Scott grinders are 
 manufactured of varying capacity. The plaintiff had no knowledge 
 of the capacity of the grinders which were to be placed in the mill, 
 except as informed by the defendant. It would be unreasonable to 
 suppose that in making the contract with the plaintiff, the parties con- 
 tracted without reference to the capacity of the grinders to be used, 
 or that by the words, "all the pulp produced by four Scott grinders," 
 the parties intended all the pulp which could be produced by any 
 Scott grinders operated with any power, however great. The ex- 
 trinsic circumstances show that they had reference to the production 
 of the four grinders contracted for, having the capacity represented 
 by the defendant. 
 
 In interpreting the guaranty, parol evidence indentifying the ma- 
 chines known as Scott grinders is essential. The fact that the grind- 
 ers are of different productive capacity, involves the further inquiry, 
 to grinders of what capacity did the parties refer? This we think 
 was the subject of explanation by parol evidence. Such evidence does 
 not contradict the written contract, nor does it add a new term thereto.
 
 THE PAROL EVIDENCE RULE 815 
 
 It simply makes intelligible what needs explanation, full force is given 
 to all the words, without adding to or detracting anything therefrom. 
 (See Chapin v. Dobson, 78 N. Y. 74; Schmittler v. Simon, 114 id. 177; 
 I Green Ev. 227 et seq.} 
 
 The parol evidence was not admitted to limit the guaranty to a part 
 of the product of the Scott grinders which the parties had in mind, 
 but to show the particular grinders referred to and their capacity, and 
 that the contract related to grinders of that description. 
 
 The conclusion we have reached renders it unnecessary to consider 
 any of the other questions in the case. The facts as to the contem- 
 poraneous oral understanding of the parties and the other extrinsic 
 facts are undisputed, and the plaintiff was entitled to judgment thereon. 
 
 The judgment below is therefore affirmed, with costs. 
 
 MAURIN v. LYON. 
 dp Minn. 257. 
 
 Action in the District Court for Stearns County by Marcus Maurin 
 and Peter Maurin, co-partners as Maurin Brothers, against* George 
 Tilestone to recover the purchase price of 1,520 bushels of wheat sold 
 by plaintiffs to defendant at the agreed price of 86 cents per bushel. 
 Defendant in his answer set up a counterclaim for $1,041.96, alleged 
 to be due defendant for wheat sold to plaintiffs under another contract. 
 The case was tried before a referee, who found in defendant's favor 
 on his counterclaim. While the action was pending defendant died, 
 and D. E. Lyon, his executor, was substituted as defendant. From 
 an order, Searle, J., denying plaintiffs' motion for a new trial, they 
 appealed. Reversed. 
 
 MITCHELL, J. Defendant's counterclaim is founded on an alleged 
 purchased of 5,000 bushels of wheat by the plaintiffs from the de- 
 fendant's testate, Tileston. The principal points urged by the plain- 
 tiffs are (i) that there was no sufficient memorandum of the contract 
 of purchase to take the case out of the statute of frauds, and that 
 parol evidence was improperly admitted to explain the terms of the 
 written memorandum; (2) that the alleged purchase was the indi- 
 vidual transaction of the plaintiff Marcus Maurin, and not within the 
 scope of the partnership business.
 
 816 CASKS ON EVIDENCE 
 
 i. The written memorandum was in the words and figures fol- 
 lowing : 
 
 "St. Cloud 
 "7-6-96 
 
 "Sold Maurin Bros. 
 "Cold Springs 
 "5000, i July Del. 
 "99 c. Duluth 
 "(Signed) Geo. Tileston & Co. 
 
 "Maurin Bros. 
 
 Both parties were engaged in buying and selling grain, and were 
 presumably acquainted with technical terms of the trade. The Referee 
 who tried the cause admitted, over the objection and exception of 
 the plaintiffs, parol evidence that in the trade, among buyers and 
 sellers of wheat, the character "i" was used to indicate the grade 
 of the wheat, and meant, "Grade No. i Northern wheat" ; also, that 
 'July Del." meant July delivery (that is, that the wheat was to be 
 delivered during July) ; that "99 c. Duluth" indicated the price per 
 bushel and the place of delivery Duluth; that these were the meanings 
 of the characters and terms used in the memorandum, as understood 
 by the usages and customs of the trade among wheat men. 
 
 This evidence to show that abbreviations, and apparently ambiguous 
 statements of description, price, etc., have a recognized meaning in 
 the trade, and hence are a sufficient statement of the terms of the 
 contract. This is the rule as to various abbreviations and apparent 
 ambiguities of this nature in brief notes of mercantile contracts which 
 are often composed, to use the language of Parje, E., in Marshall v. 
 Lynn, 6 Mees. & W. 109, 118, in "a sort of mercantile shorthand, 
 made up of few and short expressions, which generally express the 
 full meaning and intention of the parties." Browne, St. Frauds, 380. 
 See, also, Paine v. Smith, 33 Minn. 495, 24 N. W. 305 ; Olson v. 
 Harpless, 53 Minn. 91, 55 N. W. 125; Merchant v. Howell, 53 Minn. 
 295, 55 N. W. 125; Merchant v. Howell, 53 Minn. 295, 55 N. W. 131. 
 The parol evidence admitted in this case neither varied nor added to 
 the written memorandum, but merely translated it from the language 
 of the trade into the ordinary language of people generally. The 
 memorandum, as thus translated, fulfilled all the requirements of the 
 statute of frauds.
 
 THE; PAROL EVIDENCE RULE 817 
 
 LEBUS v. BOSTON etc. 
 707 Ky. 98. (1899-1900) 
 
 JUDGE BURNHAM delivered the opinion of the court. 
 
 This action was brought by appellant against appellees to recover 
 damages for obstructing a passway leading from a public highway over 
 the lands of appellees to those of appellant, and to enjoin the further 
 interference of the use of said passway by appellant. 
 
 It is earnestly insisted by counsel for appellant in their petition for 
 rehearing that parol evidence is inadmissible to show that at the time 
 of the conveyance it was agreed between the grantor and the grantee 
 that there was no necessity for the passway, as the grantor had another 
 outlet to another pike, and other ways to get out, and that it was then 
 agreed that there was to be no passway over the land conveyed, and 
 the deed was accepted only on this distinct understanding. Counsel 
 insist that the passway, being an interest in land, can only be created 
 or destroyed by a contract or agreement in writing, and that to admit 
 the parol evidence referred to is to depart from those broad, funda- 
 mental principles of law that have been recognized for time imme- 
 morial. This would be true if the evidence infringed the terms of the 
 deed, but that is not the case. The grantor by his deed in this case 
 conveyed to the grantee the whole boundary of land described in the 
 deed. This passed the entire title to all within the boundary so de- 
 scribed, from the center of the earth usque ad coelum, including the 
 ground over which the passway ran. The passway was therefore 
 included by the terms of the deed, and prima facie passed under it. 
 But, as said in the opinion, the one exception allowed by the author- 
 ities in favor of a grantor where he has conveyed the fee of land "is 
 ways or easements of necessity." And, as is well said by the learned 
 author there quoted, "it is only in cases of the strictest necessity, and 
 where it would not be reasonable to suppose that the parties intended 
 the contrary, that the principle of implied reservation can be invoked." 
 (Jones on Easements, section 136.) Appellant's entire claim to the 
 passway rests upon this doctrine of implied reservation. Whether 
 this is a case of strictest necessity, where it would not be reasonable 
 to suppose that the parties intended the contrary, the court can only 
 know when the facts are shown by parol evidence. When these facts 
 are shown by parol evidence, then the presumption of an implied 
 reservation arises. But it is well settled that a presumption .raised 
 by parol evidence may also be rebutted by parol evidence. The rule 
 is thus well stated in 3 Greenleaf on Evidence, section 366:
 
 818 CASES ON EVIDENCE 
 
 "In certain cases of presumption of law, also, parol evidence is ad- 
 mitted in equity to rebut them. But here a distinction is to be ob- 
 served between those presumptions which constitute the settled legal 
 rules of construction of instruments, or, in other words, conclusive 
 presumptions, where the construction is in favor of the instrument, 
 by giving to the language its plain and literal effect, and those presump- 
 tions which are raised against the instrument, imputing to the lan- 
 guage, prima facie, a meaning different from its literal import. In 
 the latter class of cases parol evidence is admissible to rebut the pre- 
 sumption and give full effect to the language of the instrument, but 
 in the former class, where the law conclusively determines the con- 
 struction, parol evidence is not admissible to contradict or avoid it." 
 
 In Wharton on Evidence, sections 973, 974, the same rule is fully 
 stated and illustrated. 
 
 Though the terms of the deed prima facie convey the entire bound- 
 ary, including the passway, parol evidence of the absolute necessity 
 of the passway is admitted in this case to raise a presumption against 
 the instrument, imputing to it a meaning different from its literal im- 
 port. The presumption against the instrument may be rebutted by 
 parol evidence, so as to give to its language its plain and literal effect. 
 The proof offered by appellant to show the necessity of the passway 
 might be rebutted by proof that it was unnecessary. It would not, 
 perhaps, occur to counsel that parol evidence for the appellee showing 
 that the passway was unnecessary would be inadmissible. But there 
 is no better proof that it was unnecessary than the agreement of the 
 parties at the time of the conveyance that the grantor had another 
 outlet, and did not need this one. When he agreed it was not neces- 
 sary, and not to reserve it, in order to induce the grantee to accept 
 the deed, the estoppel may be shown by the same kind of evidence as 
 the implied right. 
 
 Petition overruled. 
 
 BRICK v. BRICK. 
 98 U. S. 514. (1878) 
 
 MR. JUSTICE FIELD delivered the opinion of. the court. 
 In 1864, between the 7th and 27th of September, the appellant, 
 Samuel R. Brick, a resident of Philadelphia, purchased eight hundred
 
 THE; PAROL EVIDENCE RULE 819 
 
 and ninety-two shares of stock in the Washington Gas-light Company, 
 a corporation existing in the District of Columbia, chartered by Con- 
 gress, paying for the same $17,277. Of this stock, two hundred and 
 fifty shares were afterwards transferred by his direction on the books 
 of the company to his brother, Joseph K. Brick, a resident of Brook- 
 lyn, N. Y., to whom a certificate was issued and from whom a check 
 for $5,250 was received. The question presented is whether this 
 transaction between the brothers was a sale of the stock, or a loan of 
 money on its pledge. Joseph K. Brick is dead, and the evidence as 
 to the character of the transaction is conflicting, as is generally the case 
 when the object of parties in the execution of instruments is not ex- 
 pressed in writing, and is sought years afterwards to be shown by 
 parol. But notwithstanding such conflict, there are certain facts es- 
 tablished, indeed not controverted, which must control our judgment. 
 
 In the first place, it appears that in September, 1864, the appellant 
 was anxious to purchase stock in the gas company. He had become 
 acquainted with its affairs, and knew that it intended to apply to 
 Congress for power to increase its capital, and was convinced that 
 with such increase the value of the stock would be greatly enhanced. 
 He expressed this conviction in letters to his son, which the com- 
 plainants produced ; and, acting upon it, he purchased to an extent 
 beyond his means of immediate payment, and gave his note for a 
 portion of the purchase-money. 
 
 In the second place, the appellant applied to his brother, Joseph, 
 for a loan of money, at the time he was expressing his anxiety to buy 
 the stock of this company, and his brother replied that the money 
 could be raised on call. It was not many days afterwards when a 
 check for the $5,250 was sent. 
 
 In the third place, in May and July, 1866, Joseph stated, under 
 oath, that he was not the owner of the stock. In the previous year 
 he had given to the board of assessors of Brooklyn a statement of 
 his personal property, in which he had specified the stock of the gas- 
 light company, valuing it at $5,000, and was accordingly assessed upon 
 it. In May, 1866, he made oath that he had been thus erroneously 
 assessed, and that the error had arisen from his having inserted in 
 the statement the stock held by him for his brother, in which he had 
 no pecuniary interest. The assessment was accordingly corrected. 
 On the same day, he wrote to his brother what he had done, saying 
 that he had told the assessors he held the stock for the latter's benefit, 
 and requesting him to advise the president and secretary of the com- 
 pany th?t such was the case. And in the statement of his personal
 
 820 CASES ON EVIDENCE 
 
 property for that year, made in July following, he omitted the stock 
 in question, and verified the statement with his oath that he had no 
 personal property not included in it. 
 
 So far from questioning the character of this testimony, the com- 
 plainants refer to it in their bill, annex copies of the oaths taken, and 
 observe that the stock was purchased to aid Samuel in some matters 
 of business, and was often spoken of as his, though not so in fact, 
 but that being unproductive, the oaths were made by Joseph in order 
 to get rid of the tax assessed against him and make Samuel pay it. 
 as if this circumstance could possibly extenuate what, if not true, was 
 simple perjury. 
 
 This bill is signed by the widow of the deceased, and the suit is 
 prosecuted by her and the executors of his will ; but we do not think 
 that the evidence in the case justifies the reproach they would cast 
 upon his name and character. There are casual observations made 
 by him, sometimes in loose conversation, mostly in friendly letters, 
 which, unexplained, would indicate that he was owner instead of 
 mortgagee of the stock, expressions not at all unnatural where one 
 holds the absolute title to property; but there is nothing in them 
 which overcomes the weight of his affirmation under oath, supported 
 as that is by all the attendant circumstances. 
 
 We are satisfied that the certificate of the two hundred and fifty 
 shares was issued to the deceased as security for a loan, and not upon 
 a purchase. It is competent to show by parol what the transaction 
 was. In the late case of Peugh v. Davis (96 U. S. 336), we stated 
 the doctrine of equity on this subject, where an instrument was in 
 form a conveyance, but was in fact intended as a security ; and though 
 the instrument there was a deed of real property, the principle applies 
 when the instrument purports to transfer personal property. A court 
 of equity, we there said, "looks beyond the terms of the instrument 
 to the real transaction ; and when that is shown to be one of security, 
 and not of sale, it will give effect to the actual contract of the parties. 
 As the equity, upon which the court acts in such cases, arises from 
 the real character of the transaction, any evidence, written or oral, 
 tending to show this is admissible. The rule which excludes parol 
 testimony to contradict or vary a written instrument has reference to 
 the language used by the parties. That cannot be qualified or varied 
 from its natural import, but must speak for itself. The rule does not 
 forbid an inquiry into the object of the parties in executing and re- 
 ceiving the instrument. Thus, it may be shown that a deed was made 
 to defraud creditors, or to give a preference, or to secure a loan, or
 
 THE PAROL EVIDENCE RULE 821 
 
 for any object not apparent on its face. The object of parties in such 
 cases will be considered by a court of equity; it constitutes a ground 
 for the exercise of its jurisdiction, which will always be asserted to 
 prevent fraud or oppression and to promote justice/' Hughes v. Ed- 
 wards, 9 Wheat. 489; Russell v. Southard, 12 How. 139; Taylor v. 
 Luther, 2 Sumn. 228; Pierce v. Robinson, 13 Cal. 116. 
 
 As in our opinion the appellant is the owner of the stock in question, 
 and his brother held it merely as collateral security for the $5,250 
 loaned, it is unnecessary to consider what, if any, effect is to be given 
 to the decree obtained in the former case of Samuel Brick against 
 the executors of the deceased. Assuming that the District Court 
 never acquired jurisdiction over the executors resident in the State- 
 of New York, the situation of the parties remains as previously; and 
 upon payment of the loan with interest, after proper credits for the 
 dividends received, the appellant will be entitled to the possession of 
 the certificate. The present suit proceeds upon the theory that the 
 stock belongs to the estate of the deceased, and is not held as secur- 
 ity. It seeks to enforce a claim of ownership to the property, and 
 not the payment of the loan by its sale. 
 
 The decree must, therefore, be reversed, with directions to the 
 court below to dismiss the bill; and it is 
 
 So ordered. 
 
 MARCH v. McNAIR. 
 
 pp .V. Y. 174. (1885) 
 
 EARL, J. In 1869 the plaintiff and her two sons, John R, and Charles 
 H. Marsh, resided at Avon in this State. At the same time Chauncey 
 W. Gibson resided at Lima in the same county where he carried on 
 the business of a private banker under the name of the Exchange 
 Bank, and he was a local agent of the National Life Insurance Com- 
 pany. In April of that year John R. and Charles H., through Gibson 
 as agent of the company, procured two policies of insurance on their 
 own lives for $5,000 each. The policy on the life of John R. was 
 payable to Charles H. as the assured, and that on the life of Charles 
 H. was payable to Mary Marsh, the plaintiff, as the assured. These 
 policies remained in the possession of Gibson down to the 23d day 
 of May, 1872, and during that time he advanced the money to pay the
 
 822 CASES ON EVIDENCE 
 
 premiums upon them, John R. and Charles H. giving him their checks 
 upon his bank for the amounts thus advanced ; and during that time 
 it appears that he held the policies as collateral security for a large 
 indebtedness due from them to him. On the 23d day of May, 1872, 
 the plaintiff assigned the policy on the life of Charles H., in which she 
 was interested, to Gibson by an assignment, absolute in form, for the 
 expressed consideration of $i, "and for other valuable considerations." 
 On the same day, and at the same place, she, with her two sons, also 
 executed an instrument, of which the following is a copy : "This is to 
 certify that in consideration of crediting C. H. March at the Exchange 
 Bank of Lima $353.72, paying mortgage (on property formerly deeded 
 by J. R. Marsh, in Avon, to C. W. Gibson) given by William F. 
 Russell to C. H. Marsh, $110.46, and indorsing $35.82 upon a note 
 made by C. M. Marsh June 8, 1871, for $300, we jointly and severally 
 sell, assign and transfer all our right, title and interest in two policies, 
 Nos. 4277 and 4287, upon the lives of Charles H. Marsh and John 
 R. Marsh, issued by the National Life Insurance Company of the 
 United States of America to Chauncey W. Gibson, of Lima, N. Y. 
 "Dated Avon, N. Y., May 23, 1872. 
 
 "J. R. Marsh, 
 
 "C H. Marsh, 
 
 "Mary Marsh." 
 
 In February, 1874, Gibson, having become insolvent, made a general 
 assignment for the benefit of his creditors to the defendant McNair, 
 and assigned that policy to him as a part of his assets. McNair, subse- 
 quently, by a suit against the insurance company, recovered the amount 
 insured; and then in the year 1876, the plaintiff claiming that the 
 assignment to Gibson was made merely as collateral security for an 
 indebtedness to him of $500, due to him from her sons, tendered him 
 that amount and demanded the money recovered by him on the policy ; 
 and upon his refusal to pay she commenced this action. In her com- 
 plaint she demanded, besides other relief, judgment against him that 
 the instrument above set forth be reformed, so as to conform to the 
 agreement and intention of the parties thereto, by reciting and stating 
 therein that the same was made and executed as collateral security 
 for the payment to Gibson of the sum of $500, and interest. The 
 defendant in his answer claimed that the assignment was absolute and 
 not given as collateral security. Upon the trial, the plaintiff gave parol 
 evidence, tending to show that the instrument was executed by the 
 plaintiff, upon an assurance that it was only intended as collateral 
 security for $500, and that she signed it for that purpose. At the
 
 THE PAROL EVIDENCE RULE 823 
 
 close of the evidence the defendant moved to dismiss the complaint 
 upon several grounds, one of which was that the plaintiff was con- 
 cluded by the agreement contained in the assignment executed by her, 
 and her two sons, for the reason that the contract made by the writing 
 could not be varied or contradicted by parol evidence. The court 
 denied the motion and defendant's counsel excepted, whereupon the 
 court made findings, among which is the following: "That the said 
 assignments were and each of them was executed and delivered by the 
 plaintiff, upon the representations and agreements of the said Gibson 
 and of his agents who procured the same to be executed, that the 
 same were intended to be held and used as collateral security to an in- 
 debtedness of the said J. R. Marsh and Charles H. Marsh to the said 
 Gibson in the sum of $500, and for no other purpose." And he or- 
 dered judgment in favor of the plaintiff for the sum of $6,710.12, 
 which was the balance of the money in defendant's hands received 
 upon the policy, including interest after deducting the $500, and the 
 premium paid by Gibson April 7, 1873. 
 
 There was no allegation in the complaint that the plaintiff was in- 
 duced to execute the instrument by any fraud, or that it was executed 
 by the parties under any mutual mistake of facts ; and there was no 
 finding by the trial judge that any fraud was perpetrated upon her, 
 or that the parties labored under any mistake in executing the instru- 
 ment. The finding was simply that the instrument was intended to be 
 held and used as collateral security. It was not reformed or annulled 
 by the judgment, and the plaintiff was permitted to recover by simply 
 proving by parol that the instrument absolute in form was intended 
 as collateral security; and the sole question for our determination is, 
 whether the parol evidence was competent, and sufficient to show that 
 the instrument was to have force and effect only as collateral security 
 and not as an absolute transfer of the policy. 
 
 We are of opinion that the parol evidence was incompetent, and 
 that upon the case as it appears in the record, the plaintiff was not 
 entitled to recover. It is well settled in the law of this state, that an 
 instrument assigning or conveying real or personal property in abso- 
 lute terms may by parol evidence be shown to have been intended as 
 security only. While this rule is an exception to the general rule of 
 evidence, forbidding the contradiction or explanation of written instru- 
 ments by parol evidence, it has long been established in the law of this 
 state. It grew up in the equity courts from the efforts of equity 
 judges to prevent forfeitures, to relieve against frauds, and to en- 
 force the equitable maxim, "once a mortgage always a mortgage."
 
 824 CASES ON EVIDENCE 
 
 It was supposed that the evidence did not contradict the instrument, 
 but simply showed the purpose for which it was given, and that the 
 instrument, although purposely made absolute, was so made, however, 
 simply for the purpose of giving security to the party to whom it 
 was given, which was not really inconsistent with its form. Hence, 
 it was conceived that parol evidence showing the purpose was not an 
 invasion of the general rule forbidding such evidence to vary, explain 
 or contradict a written instrument. The rule having been established 
 in chancery, was finally, after the Code, and the union of law and 
 equity jurisdiction in the same court, made applicable to cases both 
 in law and in equity. So, if this were simply an absolute assignment 
 of the policy to Gibson, there could be no question under the law of 
 this state, that the plaintiff could be permitted to show by parol that it 
 was intended as collateral security. But here there was more than a 
 simple assignment. Both instruments, executed at the same time, and 
 relating to the same transaction, must be considered together, and 
 hence the effect of both is really to be found in the instrument above 
 set out. 
 
 By its terms the precise consideration upon which the policy was 
 assigned is specified, and that is stated to be that Gibson was to 
 credit Charles H. Marsh with the sum of $353.72 at his bank, which 
 sum was in fact an overdraft by Charles at the bank; and that credit 
 was made. Gibson was also to pay a certain mortgage upon real estate 
 which John R. Marsh had conveyed to him, and, as otherwise appears, 
 which he had conveyed with covenants that the premises were free 
 and clear of incumbrances ; and he was to indorse $35.82 upon a note 
 for $300, which he held against Charles H., and that indorsement 
 he made; and these sums together amounted to the precise sum of 
 $500. This instrument is more than an assignment. It contains what 
 both parties agreed to do. It shows that the assignment was made for 
 the purposes mentioned, and precisely what Gibson was to do in con- 
 sideration thereof. He became bound to do precisely what was speci- 
 fied for him to do, and he could have been sued by the assignors for 
 damages if he had failed to perform. Hence the instrument is not 
 a mere assignment or transfer of the policy. It is a contract in writ- 
 ing within the rule which prohibits parol evidence to explain, vary or 
 contradict such contracts. 
 
 It is believed that no case can be found where parol evidence has 
 been received for the purpose of showing that such an instrument 
 was given merely as collateral security and not for the precise pur- 
 pose mentioned in it. Without commenting upon the authorities the
 
 THE PAROL EVIDENCE RULE 825 
 
 following are ample to show that the evidence was not competent. 
 ( i Greenl. on ev., 275 ; McCrea v. Purmort, 16 Wend. 461 ; Keilogg 
 v. Richards, 14 id. 117; Goodyear v. Ogden, 4 Hill, 104; Graves v. 
 Friend, 5 Sandf. 568; Coon v. Knap, 8 N. Y. 402; Cocks v. Barker, 
 49 id. 107; Hinckley v. N. Y. C. & H. R. R. R. Co., 56 id. 429; Van 
 Bokkelen v. Taylor, 62 id. 105; Shaw v. The Republic L. Ins. Co., 
 69 id. 286 ; Cram v. Union Bank, I Abb. Ct. App. Dec. 461 ; Wilson 
 v. Been, 74 N. Y. 531 ; Eighmie v. Taylor, 98 id. 288.) 
 
 If the plaintiff could show that this agreement by the mutual mis- 
 take of the parties did not express their real intention, she could have 
 it reformed; or if she could show that she was induced to execute 
 it by the fraud of Gibson, she might have it annulled. But in the 
 absence of an allegation and of proof and finding that there was 
 either fraud or mutual mistake, the instrument must have force and 
 effect according to its terms, and cannot be varied, explained or con- 
 tradicted by parol evidence. 
 
 It follows from these views that the judgment of the General Term 
 should be reversed and a new trial ordered, costs to abide the event. 
 
 All concur, except RUGER, Ch. J., dissenting. 
 
 Judgment reversed. 
 
 Notes. The parol evidence rule is exceedingly vague, and the decisions 
 pertaining thereto are, in some respects, quite conflicting. 
 
 The term "parol" is of French origin, and has various meanings. Its 
 literal meaning is word or speech. In this sense it is synonymous with 
 the term oral which is restricted to spoken words. The terms oral and 
 verbal, although frequently used interchangeably, are not synonymous. The 
 latter term is equally applicable to both spoken and written words. Strictly 
 speaking, therefore, it would be more appropriate to use the term "verbal 
 evidence rule." The term parol, as used in the rule, is misleading. As 
 said by Dean Wigmore, "It must be understood to be employed in a purely 
 unnatural and conventional sense" (Wigmore on Evid., vol. IV, 3369). 
 
 Professor Thayer, in speaking of the parol evidence rule, says, "Few 
 things in our law are darker than this, or fuller of subtle difficulties" (6 
 Harvard Law Review 325). Much of the confusion and conflict in the 
 decisions, as regards the application of the rule, is the fact that courts 
 frequently apply it to matters where no law of evidence is involved. In 
 its application, the rule is restricted to written instruments; but it does not 
 follow from this that the rule is applicable to any writing involved in a 
 case, under all circumstances. In many cases the admissibility of testi- 
 mony concerning writings is governed by rules of the substantive law, in 
 which cases the parol evidence rule has no application. 
 
 The chief reason assigned for the existence of the rule are uncertainty 
 of "slippery memory" and danger of falsehood. 
 
 The rule had its origin in the common law. In some states, however, 
 there are statutes declaratory of the common law.
 
 PART VI. 
 -WEIGHT AND SUFFICIENCY. 
 
 .THOMPSON LUMBER CO. v. INTERSTATE COMMERCE 
 
 COMMISSION. 
 
 193 Fed. Rep. 682. (1912) 
 
 Petition by the Thompson Lumber Company and others against the 
 Interstate Commerce Commission, in which the United States and the 
 Illinois Central Railroad Company intervened. Demurrer to petition 
 overruled, with leave to answer. 
 
 ARCHBALD, Judge. This case does not differ in principle from that 
 of Russe & Burgess, 193 Fed. 678, just decided. Indeed, the two are 
 linked together by the Commission, the decision in the one on the sub- 
 ject of laches being given as a reason for the decision in the other. 
 
 The rate complained of before the Commission was that on hard- 
 wood lumber from Memphis to New Orleans for export. The rate 
 charged was 12 cents a hundred pounds, and complaint was made 
 against the Illinois Central Railroad, the Yazoo & Mississippi Valley 
 Railroad, and the St. Louis, Iron Mountain & Southern Railroad ; these 
 being the three lines by which shipments of such lumber are made be- 
 tween the points mentioned at the rate in question. The Commission 
 dismissed the complaint as to the St. Louis, Iron Mountain & Southern, 
 but held that as to the Illinois Central and the Yazoo & Mississippi 
 Valley the 12-cent rate was unreasonable; 10 cents per hundred pounds 
 being fixed as the maximum. The Yazoo & Mississippi Valley was not 
 served in the present case and has not appeared, and the case therefore 
 proceeds only against the Illinois Central. 
 
 As to the reparation claimed on the lo-cent basis, the Commission 
 said: 
 
 "We cannot award damages in this case based upon the use of the 
 12-cent rate up to the date of the filing of the complaint because of 
 the laches of the complainants and because the record does not con- 
 clusively disclose that the rate was unreasonable prior to said date. 
 The questions of law as to the reparation and the amount thereof 
 
 826
 
 WEIGHT AND SUFFICIENCY 827 
 
 under the above ruling will be reserved for consideration at a later 
 date." 
 
 Not satisfied with the situation in which the case was so left, the 
 petitioners applied for a rehearing and modification of the order, 
 assigning among other things that the Commission erred in the ruling 
 made; it being urged in that connection in the brief filed that there 
 was no place for the application of the doctrine of laches, nor for any 
 limitation other than that imposed by the statute, and that in holding 
 the petitioners to conclusively prove the unreasonableness of the rate 
 prior to the filing of the complaint the Commission was enforcing a 
 degree of proof not justified upon any principle. But notwithstanding 
 this, and with its attention thus called to the matter, the Commission 
 in a further report declined to modify the order. The present bill was 
 then filed, the same as in the Russe & Burgess Case, in the Circuit 
 Court of the United States for the Northern District of Illinois, and 
 after same intermediate proceedings comes up now on demurrer by the 
 Interstate Commerce Commission joined in by the United States and 
 the Illinois Central Railroad intervening. 
 
 1 i ) Nothing need be added to what is said in the Russe & Burgess 
 Case on the subject of laches. So far as the action of the Commission 
 in refusing complete reparation is based on the application of that 
 doctrine to shipments which preceded the filing of the complaint, it is 
 clearly invalid. 
 
 (2) The other ground assigned by the Commission for its action, 
 in our judgment, is equally untenable. To require conclusive proof of 
 the unreasonableness in the past of the rate complained of was to set 
 up a standard which is exacted, if ever, in only the most extreme cases. 
 
 "Where an adverse presumption is to be overcome, or, on grounds 
 of public policy and in view of peculiar facilities for perpetrating in- 
 justice by fraud and perjury, a degree of proof is sometimes required 
 which is variously designated as 'clear', and 'conclusive', 'clear, precise, 
 and indubitable', 'convincing', 'unequivocal', etc." 17 Cycl. 771. 
 
 Conclusive evidence is that which is incontrovertible ; that is to say, 
 either not open or not able to be questioned. Wood v. Chapin, 13 N. 
 Y. 509, 515, 67 Am. Dec. 62. Where it is said that a thing is conclu- 
 sively proved, it means that that result follows from the facts shown 
 as the only one possible. People v. Stephenson, n Misc. Rep. 141, 
 32 N. Y. Supp. 1 1 12, 1114. Conclusive proof means either a presump- 
 tion of law, or evidence so strong as to overbear everything to the 
 contrary. Haupt v. Pohlmann, 24 N. Y. Super. Ct. 121, 127. 
 
 (3) In a civil action the complainant is never bound to do more
 
 828 CASES ON EVIDENCE 
 
 than sustain his case by a preponderance of the credible evidence. 
 Louisville & Nash. R. R. v. Jones, 83 Ala. 376, 3 South. 902 ; Ford v. 
 Chambers, 19 Cal. 143; Treadwell v. Whittier, 80 Cal. 574, 22 Pac. 
 266, 5 L. R. A. 498, 13 Am. St. Rep. 175; Williams v. Watson, 34 
 Mo. 95 ; Stearns v. Field, 90 N. Y. 640; Crabtree v. Read, 50 111. 206; 
 McDeed v. McDeed, 67 111. 545; Graves v. Colwell, 90 111. 612. To 
 instruct a jury that they must be conclusively convinced is a manifest 
 error. Hiester v. Laird, I W. & S. (Pa.) 245. 
 
 (4) In the case in hand it was only necessary for the petitioners 
 to show by a preponderance of proof that the rate in the past as it 
 was found by the Commission that it would be for the future was 
 not a just or reasonable rate; and, if they did this, it was all that 
 could be required of them. No doubt the Commission had the right to 
 call for proof that was reasonably convincing. But it had no right 
 to array itself against that which was produced, to the extent of hold- 
 ing that it was not conclusive ; which was in effect saying that nothing 
 short of what was incontrovertible would satisfy it. 
 
 Nor can this be passed over as an inadvertence or as meaning no 
 more than that the evidence so far as concerned the past was not 
 satisfactory. If this was all there was to the case, of course nothing 
 could be made of it. But by the petition for a rehearing and the argu- 
 ment that was made in that connection the attention of the Commis- 
 sion was directly called to the effect of the ruling, and after due consid- 
 eration it was adhered to. If therefore the matter was left in any doubt 
 by the original report, there can be none by the later one. By the 
 express reiteration of the former ruling it was thereby declared, not 
 that the evidence was not satisfactory or unconvincing, but that it was 
 not conclusive, and that none other would be sufficient. This was 
 asking more of the petitioners than was warranted, and the action of 
 the Commission in refusing reparation as to the past upon that ground 
 is invalid. 
 
 The demurrer is overruled with leave to respondents to answer over.
 
 WEIGHT AND SUFFICIENCY 829 
 
 NEAL v. RAILWAY CO. 
 129 Iowa 5. ( 1905) 
 
 Action to recover damages for the death of plaintiff's intestate al- 
 leged to have resulted from injuries received by him while in defend- 
 ant's employ as switch tender, and to have been due to defendant's 
 negligence. Verdict and judgment for plaintiff. Defendant appeals. 
 Reversed. 
 
 McCLAiN, J. The appellant's contention is that the trial court erred 
 in overruling a motion to direct a verdict in its favor and in submitting 
 to the jury the question whether the deceased was injured by reason 
 of defendant's negligence, assuming that there was evidence tending to 
 show negligence on the part of defendant in having defective blocking 
 between the rails at the switch where deceased was injured; and the 
 sole question argued is as to whether there is sufficient evidence to sup- 
 port a verdict for the plaintiff. 
 
 The evidence relied upon for the plaintiff as tending to show that 
 the accident was the result of defendant's negligence was to the effect 
 that the wooden blocking between the movable rail and the stationary 
 rail at the north side of this switch was loose, so that it would press 
 down with the weight of a person stepping upon it and allow the foot 
 of such person to be caught between the two rails which were separated 
 about five inches when the switch was open, as at the time of the acci- 
 dent. This piece of wooden blocking was three or four feet long, the 
 eastern end about eight or ten feet from the point of the switch. The 
 theory of counsel for plaintiff is that the deceased caught his right foot 
 between the rails as a result of stepping on the eastern end of this 
 blocking and was thus held until the car ran over or against him ; and, 
 as supporting this theory, they rely upon evidence that the right shoe 
 and overshoe of deceased were torn open at the heel from the vamp 
 upward and his shoestring was broken, and, also, that a piece of the 
 trousers of deceased and a portion of his right kneecap were found 
 next morning forced in betwen the ball of the north rail and the wooden 
 blocking which was bolted on the inside thereof, between the ball and the 
 base at the west end of the blocking, which has just been described as 
 filling the space between the two rails. This is the only evidence in 
 the record which can be claimed in any way to directly support the 
 theory that the accident was due to the defective blocking. 
 
 The burden was on the plaintiff to establish, not only that the de- 
 fendant was negligent in having a defective blocking between the rails
 
 830 CASES ON EVIDENCE 
 
 at this switch, but also that the injury to deceased resulted from this 
 defect. It is conceded that the connection between the defect and the 
 injury was established, if at all, only by circumstantial evidence. "A 
 theory cannot be said to be established by circumstantial evidence, even 
 in a civil action, unless the facts relied upon are of such nature and 
 so related to each other that it is the only conclusion that can fairly 
 or reasonably be drawn from them. It is not sufficient that they be 
 consistent merely with that theory, for that may be true and yet they 
 may have no tendency to prove the theory. This is the well-settled 
 rule." Asbach v. Chicago,- B. & Q. R. Co., 74 Iowa, 251. If other 
 conclusions may reasonably be drawn as to the cause of the injury 
 from the facts in evidence than that contended for, the evidence does 
 not support the conclusion sought to be drawn from it. Verdicts must 
 have evidence to support them, and the jury will not be permitted 
 merely to conjecture how the accident occurred. In matters of proof 
 they are not justified in inferring from mere possibility the existence 
 of facts. Wheelan v. Chicago, M. & St. P. R. Co., 85 Iowa, 167. If 
 it appears that the facts and circumstances from which a conclusion 
 is sought to be deduced, although consistent with that theory, they do 
 not support the theory contended for. Rhines v. Chicago & N. W. 
 R. Co., 75 Iowa, 597. 
 
 We reach the conclusion that the evidence does not tend to support 
 the claim that the accident resulted from deceased's foot being caught 
 by reason of the defective blocking, and on no other theory could the 
 verdict of the jury under the instructions have been for the plaintiff. 
 The jury are not permitted to find material facts without evidence, or 
 on mere conjectures as to the truth of one of two or more equally 
 probable or possible theories having different legal results. Reynolds 
 v. Burgess Sulphite Fiber Co., (N. H.) 59 Atl. Rep. 615. 
 
 The judgment of the trial court is therefore reversed. 
 
 WARD v. NEW YORK LIFE INSURANCE CO. 
 225 N. Y. 314. (1919) 
 
 Appeal from judgment of the Appellate Division of the Supreme 
 Court in the third judicial department, entered November 17, 1916, 
 affirming a judgment in favor of defendants entered upon a dismissal 
 of the complaint by the court on trial at Special Term.
 
 WEIGHT AND SUFFICIENCY 831 
 
 HISCOCK, Ch. J. The New York Life Insurance Company issued 
 a policy on the life of one Ward in the sum of $5,000, payable on death 
 of the insured to his executors, administrators or assigns. The policy 
 also contained a provision that the insured might at any time change 
 the beneficiary under said policy by written notice and indorsement of 
 the change on the policy by the. company. When Ward died opposing 
 claimants to the proceeds of the policy appeared. One side were his 
 sons who a short time before his death had been duly designated and 
 by the company recognized as beneficiaries under the policy. On the 
 other side appeared the wife who claimed the proceeds of the policy 
 under an equitable parol assignment for value antedating the designa- 
 tion of the beneficiaries. The company paid the proceeds into court 
 to be contested for by the opposing claimants and judgment has thus 
 far proceeded in favor of the beneciaries as against the alleged assignee. 
 
 While there is no claim that the designation of the defendant bene- 
 ficiaries was for a valuable consideration, there is on the other hand 
 no question that their designation was made in proper form. The 
 claim of the appellant to an assignment of the policy rests entirely on 
 parol testimony. Two witnesses gave evidence to the effect that the 
 insured had in substance stated that he had made an assignment of his 
 insurance to his wife. The main testimony, however, to sustain the 
 alleged assignment was given by the wife herself who first testified 
 that on one occasion some time before her husband's death, when he 
 desired to borrow some money from her he stated in substance that 
 he would execute as security for new loans assignments of life insur- 
 ance policies, which it may be inferred included the present one, and 
 that thereupon she loaned him some money. In subsequent testimony, 
 however, she varied her account of this interview and testified to state- 
 ments then made by her husband- which were in conformity with those 
 said to have been made by him at various subsequent times and which 
 were to the effect that he had assigned his life insurance policies to 
 her, that she did not need be afraid to loan him money because she 
 would 'be repaid or was secured by assignments of his insurance, etc. 
 These statements, which are the ones relied upon on this appeal, were, 
 therefore, to the effect that the insured had assigned to the appellant 
 this life insurance or his life insurance policies, and she says that on 
 the strength of these statements she from time to time loaned him 
 various sums of money reaching in the aggregate a considerable amount. 
 There is no other intelligible evidence tending to support the theory 
 of an assignment. 
 
 As has been pointed out, the only evidence of assignment cited or
 
 832 CASES ON EVIDENCE 
 
 relied upon on this appeal consists of statements made by the insured 
 that he had assigned his insurance to the appellant and we do not 
 think that this may be sufficient to establish an assignment. It very 
 likely may be that under some circumstances a borrower might make 
 statements respecting a transfer of securities to a proposed lender 
 upon which the latter would be entitled to rely in making loans. But 
 that does not seem to be this case. The appellant could not have been 
 misled by the statements of her husband and there is no element of 
 estoppel involved by virtue of which equity will treat as having been 
 done that which ought to be done. The appellant knew whether an 
 assignment had been made. She was not deceived by her husband's 
 statements. She knew that he had never executed and delivered to 
 her any written assignment of the insurance policy; that he had never 
 in appropriate and effective language made a present transfer of. the 
 policy by parol to her ; that she had never had possession of the policy, 
 and that he had never done anything to, by or with her, symbolically 
 or otherwise, to give her control of the policy. She had never given 
 to or received from the insurance company any notice indicating trans- 
 fer of ownership to her and she had no assurances that the insured 
 was not exercising control and ownership over the policy as in fact 
 he did do. Under these circumstances it seems to us that the loose, 
 general statements by the insured that he had made a transfer of the 
 policy were not sufficient evidence to establish even an equitable parol 
 assignment to the appellant. 
 
 We are not adopting this view on the theory that because this assign- 
 ment is claimed to have been made by a dead person it can only be 
 established by a different kind and quality of evidence than would be 
 sufficient if the transaction were alleged to have been with a living 
 person, and for which theory support is sometimes supposed to be 
 found in what was said in Rousseau v. Rouss, (180 N. Y. 116) ; Ham- 
 lin v. Stevens, (177 N. Y. 39) ; Wallace v. Wallace, (216 N. Y. 28) 
 and other similar cases. The rule in any civil case is that the plaintiff 
 must establish his claim by a fair preponderance of evidence. He need 
 do no more than this if his claim deals with a dead person; he cannot 
 do less if he is attacking the rights and property of a living person. 
 The general rule as to weight and quality of evidence is no different 
 in one case than in the other. In applying the rule and test to specific 
 evidence, however, it very likely will and should occur that the triers 
 of fact will more carefully and critically scrutinize evidence offered 
 against a dead person's estate for the purpose of deciding whether it 
 does make the necessary weight and preponderance of evidence, than
 
 , WEIGHT AND SUFFICIENCY 833 
 
 would be done if the testimony was offered against one who was alive 
 to contradict it. This is what we construe the expressions in the opin- 
 ions to which we have referred to mean. As was said by Judge Crane 
 in McKeon v. Van Slyck (223 N. Y. 392, 397), writing upon this 
 subject: "In civil cases a plaintiff is never required to prove his case 
 by more than a preponderance of evidence. This is as true of actions 
 against an executor, founded on claims put forward for the first time 
 after the death of the testator, as it is of other actions. No doubt in 
 determining whether the preponderance exists, the triers of the facts 
 must not forget that death had then sealed the lips of the alleged prom- 
 isor. They may reject evidence in such circumstances which might 
 satisfy them if the promisor were living. They must cast in the bal- 
 ance the evidence offered upon the one side and the opportunities for 
 disproof upon the other. They may, therefore, be properly instructed 
 that to make out a preponderance the evidence should be clear and con- 
 vincing. But all these instructions in the last analysis are mere coun- 
 sels of caution." 
 
 Our conclusion is that measuring appellant's case by the ordinary 
 and standard rules she failed as matter of law to produce evidence 
 which would have permitted the court to find that an assignment had 
 been made. (Wallace v. Ingersoll, 89 N. Y. 508, 521 ; Rupp v. Blan- 
 chard, 34 Barb. 627, 629; Holmes v. Evans, 129 N. Y. 140, 145 ; N. W. 
 Mut. Life Ins. Co. v. Wright, 153 Wis. 252; Richardson v. White, 167 
 Mass. 58; Bowers v. Johnson, 49 N. Y. 432, 434; Cuyler v. Wallace, 
 183 N. Y. 291 ; Donovan v. Middlebrook, 95 App. Div. 365. 
 
 For these reasons we think the judgment should be affirmed, with 
 costs. 
 
 COLLIN, CUDDEBACK, POUND and ANDREWS, JJ., concur ; CHASE, J., 
 concurs in result ; CARDOZO, J., not voting. 
 
 Judgment affirmed. 
 
 ROBERGE v. BONNER. 
 185 N. Y. 265. (1906) 
 
 Appeal from a judgment of the Appellate Division of the Supreme 
 Court in the first judicial department, entered May 26, 1904, affirming 
 a judgment in favor of defendants entered upon a verdict and an order 
 denying a motion for a new trial.
 
 834 CASES ON EVIDENCE 
 
 PER CURIAM. This action is founded upon an alleged verbal agree- 
 ment under which the plaintiff claims that the defendants' testator 
 promised to pay him the sum of $100,000 during the lifetime of the 
 testator, or to leave him that sum in his will, as compensation for 
 services alleged to have been rendered in the capacity of a veterinary 
 surgeon. The jury rendered a verdict in favor of the defendants, and 
 upon appeal the judgment entered upon that verdict was affirmed by 
 the Appellate Division. 
 
 Since it is practically conceded that there was sufficient evidence 
 upon the general issue to justify the verdict rendered, the only ques- 
 tions open for consideration on this appeal arise upon two exceptions. 
 The first relates to the exclusion of certain evidence, and the second 
 to a portion of the trial court's charge made in response to a request 
 of defendants' counsel. 
 
 (1) As to the first exception which arises upon the exclusion of 
 certain entries made by the testator in a diary which he kept, and which 
 the plaintiff relies upon to corroborate his evidence as to the contract 
 alleged to have been made, it is sufficient to say that an examination 
 of these entries discloses clearly that they in no way tended to prove 
 the alleged agreement, and the ruling, therefore, did no harm. 
 
 (2) At the conclusion of the charge in chief the counsel for the 
 defendants made the following request: "Your Honor also used the 
 expression that the plaintiff must satisfy the jury by a fair preponder- 
 ance of evidence of the justice of his claim. My contention is that he 
 must satisfy them by clear, conclusive and convincing evidence of this 
 character." To this the learned trial judge replied: "I do not object 
 to charging that. If not so understood I will tell the jury that was my 
 intention. The proof must be clear, convincing and conclusive in 
 your minds. I will so charge." It is doubtless true that in complying 
 with this request the court committed a technical error, since this por- 
 tion of the charge went beyond the rule as to the degree of evidence 
 required to justify or support a verdict in a civil case, the rule being 
 in such a case that the jury must be satisfied by a fair preponderance 
 of the evidence. It was in the light of this rule, and to emphasize its 
 extent as well as its limitations, that Judge Vann, in writing for this 
 court in a recent case involving an unusual contract and open to sus- 
 picion, said : "We have repeatedly held that such a contract must not 
 only be definite and founded on an adequate consideration, but also 
 that it must be established by the clearest and most convincing evi- 
 dence." (Rosseau v. Rouss, 180 N. Y. 116, 121.) The language 
 quoted clearly defines the rule applicable to such a case as this. Proof
 
 WEIGHT AND SUFFICIENCY 835 
 
 may be required to be clear and convincing without transcending the 
 rule of preponderance. But the word "conclusive" has a larger mean- 
 ing, and, when used in connection with the evidence required to prove 
 a given fact, calls for a much higher degree of proof than has ever 
 been held to be necessary in a civil action. 
 
 We are not satisfied, however, that this error was of such a sub- 
 stantial character as to require a reversal of the judgment herein. 
 When the passage of the charge referred to is considered in connec- 
 tion with that part of the charge in which the learned trial judge had 
 fairly and correctly laid down the rule in such cases, it is quite evident 
 that the jury could not have been misled. Referring to this rule of 
 evidence the trial court instructed the jury as follows : "The law in 
 this case, and indeed in every case, is that a party coming into a court 
 of justice must satisfy the jury by what is called a fair preponderance 
 of evidence as to the justice of his claim. What we mean by the fair 
 preponderance of evidence is this : Preponderance refers to something 
 that may be weighed. Of course, we cannot get a pair of scales, and 
 by some arbitrary method put on one side the testimony of the plain- 
 tiff and on the other side the testimony of the defendant and say which 
 one outweighs the other, or whether it is evenly balanced, but you are 
 to try to do that mentally as far as possible. The law says that unless 
 the plaintiff satisfies you throughout the entire case of the correctness 
 of his story to such an extent that it outweighs the proof of the de- 
 fendants, he cannot recover. In other words, if the testimony is evenly 
 balanced, it shows that there is some doubt in your mind; that is not 
 sufficient; that is, if the testimony of the plaintiff weighs just the same 
 as that of the defendant you must find for the defendant; that is the 
 law. The plaintiff can only recover where his testimony outweighs 
 that of the defendant." 
 
 More might be quoted from the charge to show that the trial court 
 most cogently and clearly impressed upon the minds of the jury their 
 duty to weigh the evidence of the respective litigants and that their 
 verdict must follow the preponderance of the evidence. Under these 
 circumstances we think the error in the charge complained of is more 
 technical than substantial, and therefore, the judgment herein should 
 be affirmed, with costs. 
 
 HAIGHT, VANN, WERNER and HISCOCK, JJ., concur ; GULDEN, Ch. J., 
 and O'BRIEN, J., not voting; WIIXARD BARTLETT, J., taking no part. 
 
 Judgment affirmed.
 
 836 CASKS ON EVIDENCE 
 
 HARTMAN BREWING CO. v. CLARK. 
 P4 Md. 520. (1902) 
 
 McSnERRY, C. J., delivered the opinion of the court. 
 
 On the twenty-sixth day of January, nineteen hundred and one, 
 Eugene Clark executed and delivered to his wife, Kate Clark, a bill of 
 sale of certain personal property in consideration of an alleged ante- 
 cedent indebtedness due by the husband to the wife. On the eighteenth 
 day of February following the appellant, The Hartman and Fehren- 
 bach Brewing Company, caused an execution to be issued on a judg- 
 ment which the company had obtained against Clark on December the 
 eighteenth, eighteen hundred and ninety-nine; and the sheriff of Cecil 
 County levied on the personal property described in and covered by 
 the above-mentioned bill of sale. Thereupon Mrs. Clark filed a claim 
 of property and the judgment debtor and creditor were summoned to 
 answer the claim. The judgment creditor interposed several pleas. 
 Those pleas put in issue the wife's alleged ownership of the property 
 levied on and asserted that the bill of sale was fraudulent and void. 
 The issues thus made went to trial before a jury. Evidence was of- 
 fered by the claimant tending to show that the transfer of the property 
 by the husband to the wife was bona fide and for a valuable considera- 
 tion, and that it had not been made with intent to hinder and delay 
 the creditors of the husband. On the part of the judgment creditor 
 evidence was adduced tending to prove precisely the contrary. At 
 the close of the evidence each side asked instructions to the jury. 
 Without setting forth the several prayers at length it will suffice to 
 say that the point of divergence between them is sharply and distinctly 
 marked ; and has relation, not to the legal sufficiency, but to the char- 
 acter of the evidence entitling the claimant to a verdict. Both sides 
 agree as to the substantive law of the case. Both agree that if the 
 transfer from the husband to the wife was not bona fide, or was made 
 without consideration, the claimant is not entitled to recover. But 
 they differ as to the quality of the evidence necessary to support the 
 claim of property. The prayer presented in behalf of Mrs. Clark con- 
 cedes that it was incumbent on her to establish the relation of debtor 
 and creditor between her husband and herself; whilst those offered by 
 the appellant insist this relation must be proved "by the clearest and 
 most satisfactory evidence." 
 
 By the second, third and fourth prayers of the judgment creditor 
 the trial court was asked to rule that before the claimant could re-
 
 WEIGHT AND SUFFICIENCY 837 
 
 cover a verdict there must be "the clearest and most satisfactory evi- 
 dence," or, "evidence of the clearest and most satisfactory character" 
 that the relation of debtor and creditor existed between the husband and 
 the wife when the bill of sale was made. In the first prayer granted 
 at the instance of the judgment creditor the court instructed the jury 
 that the claimant could not sustain her claim unless she established 
 by "preponderating testimony" that the bill of sale had been given for 
 a valuable consideration and had been made in good faith. The verdict 
 of the jury was in favor of the claimant, Mrs. Clark, and from the 
 judgment entered on that verdict the creditor of the husband has ap- 
 pealed. The error assigned is that the court refused to instruct the 
 jury that the claimant must show "by the clearest and most satisfac- 
 tory evidence" the existence of the relation of debtor and creditor be- 
 tween the husband and the wife at the time of the execution of the 
 bill of sale. 
 
 The phrase "th clearest and most satisfactory evidence" has been 
 taken from an opinion of this court in Stockslager v. Mechanics Loan 
 Inst., 87 Md. 235 ; and the contention is that by its use in that case 
 this court established a rule of law as to the quality or character of 
 the evidence required to be adduced by the wife in cases of this kind 
 to sustain a conveyance to her by her husband when that conveyance 
 is assailed by a pre-existing creditor of the husband. In the case 
 above referred to this court was dealing with both the law and the 
 facts in an equity proceeding, and in dealing with both and therefore 
 with the sufficiency of the evidence and its probative value, it was 
 said that the wife could not sustain her title to the property acquired 
 from her husband in prejudice of the rights of his creditors except 
 by the clearest and most satisfactory evidence. But it will be observed 
 that this was laying down no new rule of law; nor was it formulating 
 any special rule of evidence as applicable to this particular class of 
 cases. In dealing with the whole evidence its weight and legal suffi- 
 ciency it was entirely proper to say that the evidence to support the 
 wife's title must be the clearest and most satisfactory; but how could 
 it be possible to convey to the minds of jurors any definite or adequate 
 notion of the sufficiency of evidence to prove an issue, if they were told 
 that the claimant must establish her case "by the clearest and most 
 satisfactory evidence?" Can it be assumed that the jurors know what is 
 the clearest and most satisfactory evidence to establish any asserted 
 fact? If they were told that they could not find for the claimant ex- 
 cept upon the clearest and most satisfactory evidence, without defining 
 to them what was meant by those terms, would not the instruction be.
 
 838 CASES ON EVIDENCE 
 
 most misleading and, therefore, clearly erroneous? What is and what 
 is not the clearest and most satisfactory evidence is essentially a rela- 
 tive question, and a relative question of law and not of fact. A court 
 in weighing facts which it has to pass on may well use the expression, 
 because the expression as thus used conveys a definite meaning; but 
 when a jury is instructed that they are confined to the clearest and 
 most satisfactory evidence without a suggestion as to what is meant 
 by the terms, confusion and uncertainty will inevitably result. If the 
 judgment creditor thought that the evidence adduced by the claimant 
 was not legally sufficient to sustain Mrs. Clarke's claim of property 
 because not the clearest and most satisfactory evidence that could have 
 been presented, the judgment creditor could have procured a ruling 
 on that proposition by asking an instruction that there was no legally 
 sufficient evidence to entitle the claimant to a verdict. The legal suffi- 
 ciency which, of course, includes the probative value of the evidence, 
 would have been called on to scrutinize it and to determine whether 
 it was the clearest and most satisfactory evidence to establish the fact 
 to prove which it had been offered. Such a course would have been 
 widely different from allowing a jury to speculate and grope about 
 without a guide or direction, in a vain attempt to find what was the 
 clearest and most satisfactory evidence. 
 
 For the reasons we have given we think the Circuit Court was 
 clearly right in its rulings on the prayers and the judgment appealed 
 against will be affirmed. 
 
 Judgment affirmed with costs above and below. 
 
 MERRILL v. THOMPSON. 
 252 Mo. 714. (1913) 
 
 WOODSON, P. J. This was a bill in equity instituted in the Circuit 
 Court of Livingston County, by the plaintiffs against the defendants, 
 to quiet title, but in reality, to specifically enforce an oral contract 
 alleged to have been entered into by and between Harriett A. Merrill, 
 nee Thompson, and her sister Sophia, with Nathan Thompson, their 
 father, whereby he agreed to convey to them a certain forty acres of 
 land situated in said county, and particularly described in the bill, in 
 consideration that the former agreed to live with, care for, support
 
 WEIGHT AND SUFFICIENCY 839 
 
 and maintain him and his wife, their mother, during their natural lives ; 
 Harriett, alleging and claiming that she, prior to the institution of the 
 suit, purchased the interest of her sister Sophia, and that she inter- 
 married with her co-plaintiff, William T. Merrill. 
 
 A trial was had and the court found the issues as to the contract 
 (title also having been alleged to have been acquired by the Statute of 
 Limitation) in favor of the plaintiffs (there being no finding either 
 way as to the claim of title by adverse possession), and in due time 
 and in proper manner defendant duly appealed the cause to this court. 
 
 Before considering this assignment of errors we will dispose of a 
 general objection urged by counsel against the correctness of the de- 
 cree, and that is, that "the proof to sustain the alleged contract is based 
 solely upon the evidence of Fountain K. Thompson, a brother of the 
 plaintiff," and, therefore, the evidence is insufficient to sustain the 
 decree. 
 
 If we correctly understand this contention it challenges the suffi- 
 ciency of the strength of the testimony of any one witness to support 
 a judgment or decree in a case of this character regardless of his in- 
 telligence, character and standing in the community for honesty, truth 
 and veracity. 
 
 Even if this insistence was based upon undisputed facts (which it 
 is not, for he is strongly corroborated by almost every physical and 
 undisputed fact in the case, which facts are many, as will be presently 
 noted), we would be unable to lend our concurrence thereto, for the 
 simple reason that the weight and convincing character of testimony 
 does not depend so much upon the number of witnesses who testify 
 in a cause, but more upon the intelligence, honesty and veracity of 
 those who give evidence in a cause. 
 
 This rule has been so long and so firmly established in our system 
 of jurisprudence, it would be more than a useless waste of time and 
 energy to cite authority in support thereof. 
 
 We, therefore, rule this insistence against appellant. 
 
 Finding no error in the record, the judgment of the Circuit Court 
 is 
 
 Affirmed.
 
 840 CASES ON EVIDENCE 
 
 GAGE v. EDDY. 
 179 ///. 492. (1899) 
 
 MR. JUSTICE CRAIG delivered the opinion of the court: 
 This was an action of ejectment brought by William H. Eddy 
 against Henry H. Gage, to recover the south twenty acres of the north 
 half of the east half of the northwest quarter section 28, township 38, 
 north, range 14, east, in Cook County. The action was brought in 
 1889, an d the first trial was had in April, 1892, when the Circuit Court 
 instructed the jury to find for the defendant. On appeal we held the 
 instruction was erroneous and reversed the judgment. (Eddy v. Gage, 
 147 111. 162.) A second trial resulted in a verdict and judgment in 
 favor of the plaintiff, but upon appeal the judgment was reversed on 
 account of an error in the exclusion of certain evidence. (Gage v. 
 Eddy, 167 111. 102.). A third trial resulted in a verdict and judgment 
 in favor of the plaintiff, to reverse which the present appeal is prose- 
 cuted. 
 
 Objection is made to instructions I, 2, 3, 4 and 5 given for the 
 plaintiff. These instructions are substantially like the ones given in 
 Sullivan v. Eddy, 154 111. 199, and which were approved in that case. 
 The eighth instruction is also criticised. It is as follows : 
 "The jury are instructed that the fact that the number of witnesses 
 testifying on one side is larger than the number testifying on the other 
 side does not necessarily alone determine that the preponderance of 
 evidence is on the side for which the larger number testified. In or- 
 der to determine that question the jury must be governed by and take 
 into consideration the appearance and conduct of the witnesses while 
 testifying; the apparent truthfulness of their testimony or the lack of 
 it; their apparent intelligence or the lack of it; their opportunity of 
 knowing or seeing the facts or subjects concerning which they have 
 testified, or the absence of such opportunity; their interest or the ab- 
 sence of interest in the result of the case ; and from all these facts 
 as shown by the evidence, and from all the other facts and circum- 
 stances so shown, the jury must decide on which side is the prepon- 
 derance. After fairly and impartially considering and weighing all 
 the evidence in this case, as herein suggested, the jury are at liberty 
 to decide that the preponderance of evidence is on the side which in 
 their judgment is sustained by the more intelligent, the better informed, 
 the more credible and the more disinterested witnesses, whether these 
 are the greater or the smaller number. But the jury have no right
 
 WEIGHT AND SUFFICIENCY 841 
 
 to disregard capriciously the testimony of the larger number of wit- 
 nesses, nor to refuse to give whatever consideration, in their judgment, 
 should attach naturally to the fact that the larger number testify one 
 way. The element of" numbers should be considered, with all the 
 other elements already herein suggested, for whatever in the judgment 
 of the jury that element is worth, and the evidence of the smaller num- 
 ber cannot be taken by the jury in preference to that of the larger 
 number unless the jury can say, on their oaths, that it is more reason- 
 able, more truthful, more disinterested and more credible." 
 
 We perceive no substantial objection to the instruction. The appel- 
 lant called more witnesses than the plaintiff, and the instruction in- 
 formed the jury that they had no right capriciously to disregard the 
 testimony of the larger number of witnesses. Surely the jury could 
 not have been misled by anything contained in the instruction. 
 
 We are satisfied that the judgment of the Circuit Court is correct, 
 and it will be affirmed. 
 
 Judgment affirmed. 
 
 KIRCHNER v. COLLINS. 
 
 152 Mo. S94- ( l8 99) 
 
 
 GANTT, P. J. This is an action by plaintiff for alleged services ren- 
 dered to him by defendant as an architect in drawing certain plans 
 and specifications for an apartment building in the city of St. Louis, 
 at the corner of Lindell boulevard and Vandeventer avenue. 
 
 The issues of fact before the jury were, whether the services whose 
 value was sued for, were rendered to defendant Collins or to said Truitt, 
 and whose testimony should be credited by the jury, Truitt's or de- 
 fendant's. 
 
 The verdict was for defendant and plaintiff appeals. 
 
 The second instruction for defendant is also challenged for the use 
 of the word "fair" in connection with the word "preponderance." That 
 instruction is as follows : 
 
 "The court instructs the jury that the burden of proof is upon the 
 plaintiff to maintain the issue in this case on his part, by a fair pre- 
 ponderance of evidence as to whether or not the plaintiff was employed 
 by the defendant to perform the services sued for and testified to by 
 the plaintiff ; and unless the jury believe from the evidence that the
 
 842 CASES ON EVIDENCE 
 
 plaintiff has so maintained the said issue, they will find a verdict for 
 the defendant." 
 
 It is earnestly insisted that this qualification of the word prepon- 
 derance is reversible error. 
 
 The rule that a jury should find in favor of the preponderance of 
 the evidence is very old and the addition of words of qualification 
 such as "clear", "satisfactory" and "fair" should be avoided lest they 
 be construed by the jury as requiring a higher degree of proof than is 
 furnished by the preponderance alone. 
 
 In this case most learned counsel have favored us with different 
 constructions to be placed on the word "fair." 
 
 While it is to be avoided we are not disposed to view it under the 
 circumstances of this case as reversible error and we can find no case 
 where it has been regarded of such weight. On the contrary it has 
 been expressly ruled insufficient to work a reversal in our sister State 
 of Texas. (McBride v. Banguss, 65 Tex. 174; Adams v. Eddy, 29 S. 
 W. Rep. 180; Cabell v. Menczer, 35 S. W. Rep. 206.) 
 
 The judgment is affirmed. BURGESS, J., concurs; SHERWOOD, J., ab- 
 sent. 
 
 KNOP v. NATIONAL FIRE INS. CO. 
 107 Mich. 323. (1895) 
 
 Assumpsit by August Knop against the National Fire Insurance 
 Company of Hartford, Connecticut, on a fire policy. From a judg- 
 ment for plaintiff, defendant brings error. Reversed. 
 
 GRANT, J. This is an action to recover for loss by fire upon a policy 
 of insurance which covered $300 on a one-story dwelling house, and 
 $300 on household furniture and other contents. The principal de- 
 fense was that the plaintiff had made a false statement under oath of 
 the amount of the loss, and that he himself set the fire with intent 
 to defraud the defendant. 
 
 i. The Circuit Court instructed the jury as follows: 
 
 "Now I come to a very important question. It is called in law 
 'fraud'. Fraud is a trick, a deceit, a device, whereby one misleads 
 another to do something to his prejudice. In law, however, it is not 
 to be presumed. It is not even to be guessed at, and not arrived at 
 by slight circumstances, It must be proven the same as any other
 
 WEIGHT AND SUFFICIENCY 843 
 
 substantial fact in the case. The burden of proving fraud is upon 
 the one that claims it the one that charges it because it is out of 
 the ordinary. It may be proven by circumstantial evidence; but if 
 proven by circumstantial evidence, the rule of circumstantial evidence 
 being a rather strict one, it must be proven with force and conclusive- 
 ness to this degree that all the circumstances (where circumstances 
 are relied upon to make the proof) must point to the one thing claimed, 
 and admit of no other reasonable explanation. That is the rule always 
 for circumstantial evidence that this must always converge or direct 
 your mind between the points, and not admit of any other reasonable 
 explanation." 
 
 The error in this charge is manifest. It virtually instructed the jury 
 that the defense must be established beyond a reasonable doubt. Mor- 
 ley v. Insurance Co., 85 Mich. 219. In that case the erroneous in- 
 struction was as follows : "Proof of fraud should be of such a char- 
 acter as to be inconsistent with any other view than that Mr. Lenhoff 
 was guilty of fraud." In the present case the court instructed them, 
 in substance, that the facts relied upon to show fraud must not admit 
 of any other reasonable explanation. It is perhaps fair to the jury 
 in this case to say that they must have understood this instruction to 
 mean that they must find the fraud proven beyond any reasonable 
 doubt, for they were not controlled in their verdict by the clear pre- 
 ponderance of the evidence. The above instruction was given near 
 the close of the charge, and there is no other language in it to explain 
 or modify it. The charge, in fact, is entirely silent as to the prepon- 
 derance of evidence. 
 
 LONG, J. We concur with Mr. Justice Grant on the first point in his 
 opinion, and for that reason a new trial must be granted. 
 
 McGRATH, C. J., MONTGOMERY and HOOKER, JJ., concurred with 
 LONG, J. 
 
 GRELLA, Admin, v. LEWIS WHARF CO. 
 211 Mass. 54.. (1911) 
 
 .Three actions of Tort, the first by Marciano Grella as administrator 
 of the estate of his child Margherita Grella, under R. L. c. 171, sec. 2, 
 as amended by St. 1907, c. 375, for causing the death of the plaintiff's 
 intestate, a girl fourteen months old, by negligently failing to keep in
 
 844 CASES ON EVIDENCE 
 
 repair a balustrade or railing on the second floor of a tenement build- 
 ing of the defendant numbered 259 on North street in Boston, the 
 second action, brought also as administrator, to recover for conscious 
 suffering of the plaintiff's intestate, and the third action by the plain- 
 tiff personally for expenses incurred by reason of the injury and death. 
 Writs dated July 17, 1908. 
 
 DECOURCY, J. The deceased, a child fourteen months old, fell 
 through an opening caused by broken banisters in a tenement house of 
 the defendant, and struck on the floor below. These actions are 
 brought, one for her death, one for her conscious suffering, and the 
 third for the medical and funeral expenses. 
 
 i. The defendant's first request, that upon all the evidence the 
 plaintiff cannot recover, was rightly refused. The defendant was the 
 landlord of the plaintiff Marciano Grella and retained control of the 
 common hallway where the accident happened. This opening in the 
 balustrade was made after the tenancy began, had remained unguarded 
 for two or three months before the accident, had been called to the 
 attention of the defendant's agent and could have been repaired at a 
 trifling expense. That this constituted sufficient evidence of negli- 
 gence is not questioned by the defendant. Faxon v. Butler, 296 Mass. 
 500. 
 
 But it is urged that the plaintiff has not sustained the burden of 
 showing due care. The deceased was a child of such tender years 
 that she was incapable of exercising care, and this issue must be de- 
 termined by the conduct of those in charge of her. The mother testi- 
 fied that she entrusted the child to the custody of Angelina Cardarelli, 
 the fifteen year old daughter of a neighboring tenant, who had taken 
 care of the little one on other occasions; and the case apparently was 
 tried on the assumption that Angelina's due care must be shown. 
 Norris v. Anthony, 193 Mass. 225. 
 
 The judge was right in refusing to give the third request that the 
 mother's due care in the death case must be proved beyond a reason- 
 able doubt. The history of our statutes authorizing recovery for death 
 caused by negligence was thoroughly reviewed in the recent cases of 
 Hudson v. Lynn & Boston Railroad, 185 Mass. 510, and Brooks v. 
 Fitchburg & Leominster Street Railway, 200 Mass. 8, but the question 
 now raised was not discussed. The only remedy provided in death 
 cases was by indictment until St. 1881, c. 199, first introduced a civil 
 action in cases against common carriers and towns. When the statutes 
 were revised in the Public Statutes of 1882, the indictment form of 
 remedy was left out of the laws relating to highways and common
 
 WEIGHT AND SUFFICIENCY 845 
 
 carriers, although retained in those concerning railroads and street raH- 
 ways. Pub. Sts. c. 52, 17; c. 73, 6; c. 112, 212, 213. In 1886 
 (c. 140) an action of tort was allowed against street railways in case 
 of the death of persons other than employees. The employers' liabil- 
 ity act of 1887 ( c - 2 7) provided a civil remedy for the instantaneous 
 death of an employee, and this was extended to cases of death after 
 conscious suffering by St. 1892, c. 260. St. 1897, c. 416, relating to 
 gas and electric light corporations and St. 1898, c. 565, extending liabil- 
 ity to all individuals and corporations for the death of persons not in 
 their employ, contain no provision for an indictment. This last statute 
 was re-enacted in R. L. c. 171, 2, and under it (as amended by St. 
 1907, c. 375) the present action was brought. It is apparent from this 
 review that the liability created by the statute in question is one for 
 which the only form of remedy is a civil proceeding, and presumably 
 the rules of civil procedure are applicable. 
 
 Generally the rule of evidence requiring proof beyond a reasonable 
 doubt in criminal proceedings does not apply to civil actions even when 
 they arise from an act which is penal in its nature. Thus in com- 
 plaints under the bastardy statute, it is sufficient to prove the charge 
 by a preponderance of the evidence. Richardson v. Burleigh, 3 Allen. 
 479. Young v. Jakepeace, 103 Mass. 50. So in an action to recover 
 a forfeiture for the sale of intoxicating liquor to a minor, the rule 
 requiring proof beyond a reasonable doubt does not apply. Roberge 
 v. Burnham, 124 Mass. 277. So also in an action on a policy of in- 
 surance the defendant is not bound to prove beyond a reasonable doubt 
 that the fire was occasioned by the wilful and fraudulent act of the 
 plaintiff. Schmidt v. New York Union Mutual Fire Ins. Co., i Gray, 
 529. And see Gordon v. Parmalee, 15 Gray, 413; Anderson v. Ed- 
 wards, 123 Mass. 273 ; 4 Wigmore on Evidence, 2498. Whether 
 St. 1907, c. 375, be considered as essentially a remedial and remu- 
 nerative statute or as a penal one, the action brought under it has the 
 elements and characteristics of a civil rather than a criminal proceed- 
 ing. As was said by C. Allen, J., in Kelley v. Boston & Maine Rail- 
 road, 135 Mass. 448, 449: "The civil action differs in important par- 
 ticulars from the remedy by indictment. The latter is not available 
 as a matter of right, but is a remedy in the name of the Common- 
 wealth, dependent upon the action of the grand jury, and to be enforced 
 by or under the direction of a public officer, and according to the 
 forms of criminal proceedings. The civil action may be instituted 
 by the executor or administrator of the deceased person of his own 
 motion ; the trial will be before the court, without a jury, unless a jury
 
 846 CASKS ON EVIDENCE 
 
 trial is demanded by one of the parties ; in case of trial by jury, the 
 damages are to be assessed by the jury; the burden of proof will be 
 sustained by proving the issue by a preponderance of evidence ; and the 
 plaintiff will recover or be liable to costs, as the result of the case may 
 be." 
 
 The charge on the question of due care was ample and correct. 
 
 BAUR GROCERY CO. v. SANDERS & HENRICH. 
 74 Mo. App. 657. (1898) 
 
 BOND, J. Plaintiffs are creditors of Mary E. Sanders and Charles 
 Henrich, as copartners under the firm of Sanders and Henrich, and 
 on the twenty-third of March, 1897, plaintiffs brought an attachment 
 suit for $457.04 and caused the writ to be levied upon certain merchan- 
 dise as belonging to their said debtors. The property was sold by or- 
 der of the court. Thereafter B. H. Sanders interpleaded in the cause 
 and alleged that he was the owner of the attached property. Upon 
 issues attacking his title for fraud, the case was tried, and after a 
 verdict in his favor, a judgment "of restitutipn of the property in 
 controversy" was entered, from which plaintiffs appealed to this court. 
 
 The first instruction given for interpleader, over plaintiffs objection, 
 is, to wit: 
 
 "The court instructs the jury that fraud is never presumed, but 
 must be clearly proven to entitle a party to relief on the ground of 
 fraud, and the presumption of law is that the business transactions of 
 every man are done in good faith and for an honest purpose, and any- 
 one who alleges that such acts are done in bad faith or for a dis- 
 honest purpose takes upon himself the burden of showing, by specific 
 acts and circumstances tending to prove fraud, that such acts were 
 done in bad faith." 
 
 This instruction is "clearly" erroneous. It violates the fundamental 
 governing the triers of the fact in purely legal actions, which is, that 
 is sufficient to entitle a party having the affirmative of an issue to a 
 verdict that the facts and circumstances tending to prove the proposi- 
 tion asserted by him should outweigh the evidence to the contrary. 
 When the equilibrium of proof is destroyed, it matters not how slightly, 
 the jury in a civil action are warranted in rendering a verdict in favor
 
 WEIGHT AND SUFFICIENCY 847 
 
 of the side to which the beam tilts. In strictly legal actions, fraud, 
 like any other fact, may be established by a mere preponderance of the 
 evidence, and the issue as to fraud must be submitted to the jury when- 
 ever it is inferable from all the evidence and circumstances character- 
 izing the transaction. State to use v. Mason, 112 Mo. Coc. cit. 382. 
 Contrary to these principles the court in the instruction under review 
 in effect told the jury that to entitle plaintiff to relief on the issue of 
 fraud, it must be clearly proven, thereby making the verdict of the 
 jury depend not on the preponderance of the testimony, but upon a 
 degree of proof implied by the terms "clearly proven", which terms 
 signify a greater degree of proof than is implied in mere preponderance 
 of the evidence. This is not the law. Marshall v. Ins. Co., 43 Mo. 
 586, affirmed in Edwards v. Knapp, 97 Mo. 432. As this conclusion 
 necessitates the reversal of this case, it is unnecessary to discuss the 
 other objections urged by appellant. It may be well, however, to call 
 the attention of the court to the fact that the judgment rendered in 
 this case was erroneous in so far as it ordered the return of the prop- 
 erty which had already been disposed of under the orders of the court. 
 The judgment is reversed and the cause remanded. 
 All concur. 
 
 DECKER v. SOMERSET INS. CO. 
 66 Me. 406. (1877) 
 
 Case upon an insurance policy against fire. 
 
 The verdict was for the plaintiff and the defendants alleged excep- 
 tions. 
 
 WALTON, J. This case is before the law court on motion and ex- 
 ceptions. It is an action on an insurance policy against fire. One 
 ground of defense is that the fire was willfully set by the plaintiff 
 himself, or by his procurement. 
 
 The presiding judge instructed the jury that in order to establish 
 this defense, they must find that it had been reasonably established; 
 that is, that it had been established to their reasonable satisfaction; 
 that they were to require more evidence than they would to establish 
 payment of a note, or prove an account in set-off ; that they would con- 
 sider the gravity of the charge, and require stronger proof of its truth- 
 fulness than they would in ordinary cases arising out of matters of
 
 848 CASKS ON EVIDENCE 
 
 i 
 
 contract. Such was the substance of the charge upon this point ; and 
 it is claimed that it must have given the jury to understand that some- 
 tiling more than a mere preponderance of evidence was necessary to 
 establish the defense, and was therefore erroneous. We think the 
 objection is not sustained. Certainly the judge did not say in so many 
 words that anything more than a preponderance of evidence was 
 necessary. Nor do we think it is implied in what he did say. 
 
 To create a preponderance of evidence, the evidence must be sutti- 
 cient to overcome the opposing presumptions as well as the opposing 
 evidence. Presumptions, like probabilities, are of different degrees of 
 strength. To overcome a strong presumption requires more evidence 
 than to overcome a weak one. To fasten upon a man a very heinous 
 or repulsive act requires stronger proof than to fasten upon him an 
 indifferent act, or one in accordance with his known inclinations. To 
 fasten upon a man the act of willfully and maliciously setting fire to 
 his own buildings, should certainly require more evidence than to es- 
 tablish the fact of payment of a note, or the truth of an account in 
 set-off; because the improbability or presumption to be overcome in 
 the one case is much stronger than it is in the other. Hence it can 
 never be improper to call the attention of the jury to the character 
 of the issue, and to remind them that more evidence should be re- 
 quired to establish grave charges than to establish trifling or indiffer- 
 ent ones. Such an instruction does not violate the rule that in civil 
 suits a preponderance of evidence is all that is required to maintain 
 the affirmative of the issue ; for, as already stated, to create a pre- 
 ponderance of evidence, it must be sufficient to overcome the opposing 
 presumptions as well as the opposing evidence. Ellis v. Buzzell, 60 
 Maine, 209. Knowles v. Scribner, 57 Maine, 495. 
 
 Motion and exceptions overruled. 
 
 APPLETON, 'C. J., DICKERSON, BARROWS, DANFORTH and LIBBEY, JJ., 
 concurred. 
 
 ROBERGE v. BURNHAM. 
 124 Mass. 277. (1878) 
 
 Tort to recover a forfeiture of $100, under the St. of 1875, c. 99, 
 No. 15, for selling intoxicating liquor to John Roberge, a minor son of 
 the plaintiff. At the trial in the Superior Court, before Pitman, J.,
 
 WEIGHT AND SUFFICIENCY 849 
 
 the jury returned a verdict for the plaintiff, and the defendant alleged 
 exceptions, the material parts of which appear in the opinion. 
 
 MORTON, J. The statute under which this action is brought pro- 
 vides that "whoever, by himself or his agent or servant, shall sell or 
 give intoxicating liquor to any minor, or allows a minor to loiter upon 
 the premises where such sales are made, shall forfeit one hundred 
 dollars for each offense, to be recovered by the parent or guardian of 
 such minor in an action of tort." St. 1875, c. 99, No. 15. It was 
 the plain purpose of the Legislature to make a person, who, like the 
 defendant, keeps a place for the sale of intoxicating liquor, responsible 
 to the parent or guardian if he, or an agent or servant in his employ, 
 sells liquor to a minor. It does not make knowledge or guilty intent 
 one of the elements of his liability. As in the analogous case of the 
 keeper of a billiard room or table, he is required to see at his peril 
 that liquor is not sold to a minor, either by himself personally or by 
 his agents or servants. Commonwealth v. Emmons, 98 Mass. 6. The 
 facts, therefore, which the defendant offered to prove, that his agent 
 who made the sale to the minor, John Roberge, did not know that he 
 was a minor, and that the defendant had instructed his agent not to 
 sell to minors, were immaterial; and the judge rightly ruled that, if 
 the jury were satisfied that the person making the sale was the agent 
 of the defendant, and acting within the general scope of his agency, 
 the defendant would be liable, though the agent was violating the 
 particular instructions of his principal. 
 
 The defendant asked the court to instruct the jury "that their ver- 
 dict should be for the defendant unless upon the evidence they were 
 satisfied beyond a reasonable doubt that the defendant, by himself or 
 his agent or servant, committed the offense of selling intoxicating 
 liquor to a minor." The presiding judge refused this request. 
 
 The rule of evidence requiring proof beyond a reasonable doubt is 
 generally applicable only in strictly criminal proceedings. It is founded 
 upon the reason that a greater degree of probability should be required 
 as a ground of judgment in criminal cases, which affect life or liberty, 
 than may safely be adopted in cases where civil rights only are as- 
 certained. 2 Russell on Crimes (7th Am. ed.) 727. It often hap- 
 pens that civil suits involve the proof of acts which expose the party 
 to a criminal prosecution. Such are proceedings under the statute for 
 the maintenance of bastard children, proceedings to obtain a divorce 
 for adultery, actions for assults, actions for criminal conversation or 
 for seduction, and others which might be named. And in such actions, 
 which are brought for the determination of civil rights, the general
 
 850 CASES ON EVIDENCE 
 
 rule applicable to civil suits prevails, that proof by a reasonable pre- 
 ponderance of the evidence is sufficient. Richardson v. Burleigh, 3 
 Allen, 479. Young v. Makepeace, 103 Mass. 50. Anderson v. Ed- 
 wards, 123 Mass. 273. 
 
 We are of opinion that the same rule applies in the case at bar. The 
 penalty to which the defendant is liable can be recovered only in an 
 action by the parent or guardian, and not by indictment or complaint 
 under the Gen. Sts. c. 176, No. 2. The statute gives the plaintiff the 
 right to maintain an action of tort, which is a civil action. It is an 
 action given to the party aggrieved only, and is in the nature of a 
 remedial suit. It has all the characteristics of a civil suit ; it is begun 
 by a writ in the usual form; it is at all times under the control of the 
 plaintiff, at a term of the court for civil business; it is governed by 
 the provisions of the practice; and an adverse judgment against the 
 defendant could not be held to be a conviction of a crime which could 
 be shown to affect his credibility as a witness. Levy v. Gowdy, 2 Allen, 
 320. Williams v. Taunton, 16 Gray, 288. 
 
 It is true that this action, like all penal actions, partakes somewhat 
 of the character of punishment, but this does not make it a criminal 
 prosecution. When the Legislature gives to the plaintiff a civil action, 
 partly remedial in its nature, it is to be presumed that it is intended 
 that the usual incidents of all civil actions should attach, one of which 
 is that proof by a reasonable preponderance of the evidence is suffi- 
 cient. 
 
 We are therefore of opinion that the judge properly refused to rule 
 as requested by the defendant. 
 
 Exceptions overruled. 
 
 LONIS v. LAKE SHORE, etc., R. CO. 
 in Mich. 458. (1897) 
 
 Case by Minor Lonis against the Lake Shore & Michigan Southern 
 Railway Company for personal injuries. Fr"om a judgment for plain- 
 tiff, defendant brings error. Affirmed. 
 
 GRANT, J. This case is the companion of McDuffie v. Railway Co., 
 98 Mich. 356. McDuffie was driving, and Lonis was riding in the same 
 wagon with him. The issue in this case is the same as in the other, 
 and the testimony the same, except some discrepancies between the
 
 WEIGHT AND SUFFICIENCY 851 
 
 testimony of Lonis and McDuffie upon this trial and that given in the 
 other case. All the propositions, except one, now urged by the learned 
 counsel for the defendant, are substantially the same as were urged in 
 that case. That decision is the law of this case, unless the defendant 
 has now established facts which were not established in the former 
 case. Just after the accident, both McDuffie and Lonis made written 
 statements to the agents of the defendant detailing how the accident 
 occurred. Those statements differed from their testimony given upon 
 the trial. It was held in that case that this conflict was not so great as 
 to justify the court in directing a verdict for the defendant on the 
 ground of contributory negligence. We find no such conflict in the 
 three versions of the accident as to justify the court in directing a ver- 
 dict for the defendant on the ground of contributory negligence. 
 We find no such conflict in the three versions of the accident as to 
 justifying the court in saying that either McDuffie or Lonis was 
 barred of recovery on account of this conflict. The jury, under proper 
 instructions, were left to determine what credence they would give to 
 the testimony of these parties. 
 
 One question which was not raised upon the McDuffie trial is now 
 raised. The following request was preferred and refused: 
 
 "The jury are instructed that, as to the question of the giving of 
 the signals as to whether or not the whistle was blown and the bell 
 rung the difference between positive and negative testimony is very 
 marked, and the positive testimony of witnesses who had opportunity 
 to know that the signals were given should outweigh the testimony of 
 witnesses who did not hear it, unless in some manner their attention 
 had been called to it." 
 
 Five witnesses for the plaintiff swear positively that the signals were 
 not given, and give their reasons why they so testified. One other wit- 
 ness, John Williams, testified that he was "looking right at the en- 
 gine," and that he did not hear any bell or whistle. On cross-examina- 
 tion he said "he did not think he was thinking anything at all about 
 any train coming; that his attention was not called directly as to 
 whether the train whistled or whether it did not, although, being out 
 of doors, he would have heard it, probably, if it had whistled; that he 
 would hardly think the bell would ring without he noticed it at such a 
 time as that in fact, he was talking about it right away." On the part 
 of the defendant, 18 witnesses testified positively that the signals were 
 given. We do not think there was negative testimony to which the 
 request would have been applicable. The only testimony to which 
 that term could possibly be applied was that of Williams. But he said
 
 852 CASES ON EVIDENCE 
 
 that he was looking at the engine, was out of doors, and within hearing 
 distance. It seems improbable, as he testified, that he would not have 
 heard them under these circumstances. The situation before the jury 
 was one of positive testimony against positive testimony, and their ver- 
 dict depended upon which they believed. They have said by their ver- 
 dict that they believed the 5 witnesses for plaintiff, and did not believe 
 the 1 8 witnesses for the defendant. If there was any remedy for the 
 defendant, it lay with the circuit judge, who saw the witnesses, and 
 was better able than we are to determine whether the jury disregarded 
 the rule as to preponderance of evidence, so as to justify him in grant- 
 ing a new trial. 
 
 The judgment is affirmed. 
 The other Justices concurred. 
 
 BURLES v. OREGON, etc., R. R. CO., et al. 
 4P Mont. 129. (1914) 
 
 MR. JUSTICE HOLLOW AY delivered the opinion of the court. 
 
 This action was prosecuted by the administrator of the estate of 
 Goldie May Buries, deceased, to recover damages alleged to have been 
 suffered by her during her lifetime as the proximate result of defend- 
 ant's refusal to stop train No. 3 at Barrett's Station on June 27, 1910, 
 and carry her to Butte. From a judgment in favor of plaintiff, and 
 from an order denying a new trial, defendants appealed. 
 
 Finally, it is insisted that the evidence is insufficient to justify the 
 verdict. It is not controverted that plaintiff gave a proper signal to 
 stop the train ; but it is most earnestly urged upon us that the evidence 
 is overwhelmingly preponderant that the engineer did not see it and 
 could not have seen it under the circumstances of the case as narrated 
 by the plaintiff, and that no answering signal was given. It is true 
 that the engineer, the fireman, and brakeman on the train at the time 
 each testified that the stop signals two short blasts of the whistle 
 were not given, and the engineer, fireman, and two other employees of 
 the company expressed opinions that a person in the situation of the 
 plaintiff, dressed as he was, could not be seen for 1,000 feet, and that 
 the engineer could not have distinguished that he was attempting to 
 stop the train for more than "200 or 300 feet" (Hughes) ; "300 or 400 
 feet" (Palmer) ; "200 feet" (Hale) ; "350 or 400 feet" (Elwin). The
 
 WEIGHT AND SUFFICIENCY 853 
 
 plaintiff testified that he was about 1,000 feet from the train when his 
 signals were answered by the engineer. L. K. Adams, a witness for 
 the plaintiff, testified that he had stopped this same train at Barrett's 
 during April and May, by merely waving his hand, when the train was 
 1,050 feet away, and that his signal had been seen and answered. The 
 preponderance of the evidence does not depend alone upon the number 
 of witnesses who testify to a fact. The court very properly told the 
 jury that, in determining upon which side was the preponderance of 
 the evidence, they "should take into consideration the opportunities 
 of the several witnesses for seeing or knowing the things about which 
 they testify, their conduct and demeanor while testifying, their interest 
 or lack of interest, if any, in the result of the suit, the probability or 
 improbability of the truth of their several statements, in view of all 
 the other evidence, facts and circumstances proved on the trial." 
 
 In view of the many facts and circumstances appearing upon this 
 record which the jury might have considered as supporting plaintiff's 
 story, and which they doubtless did consider in weighing the evidence 
 given by the witnesses for the defendants, we cannot say that a dif- 
 ferent result should have been reached. 
 
 We do not find any reversible error in the record. The judgment 
 and order are affirmed. 
 
 Affirmed. 
 
 MR. CHIEF JUSTICE BRANTI^Y and MR. JUSTICE SANNER concur.
 
 PART VH 
 TOPICS NOT PECULIAR TO EVIDENCE. 
 
 JUDICIAL NOTICE.1 
 
 UNITED STATES v. CRAVES. 
 
 159 U. S. 452. (1895) 
 i 
 
 This is an appeal on behalf of the United States from a decree of 
 the Court of Private Land Claims, made on the 26th day of September, 
 1892, in the matter of the claim for certain lands in Valencia County, 
 New Mexico, commonly called the "Cubero" land grant. 
 
 The case as presented in the pleadings is as follows : 
 
 It is claimed by the petitioners that in the year 1833 the Republic 
 of Mexico, by Francisco Sarricino, the governor of the Territory of 
 New Mexico, granted to Juan Chaves, and about sixty others, "and 
 to the town of Cubero, whose establishment and incorporation were in- 
 tended and declared by the terms of said grant," a tract of land now 
 situated in the county of Valencia, New Mexico. 
 
 MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of 
 the court. 
 
 A question is raised in the brief for the government whether the 
 courts of the United States can take judicial notice of the laws and 
 regulations of Mexico pertaining to grants made prior to the cession. 
 It was said in Fremont v. United States, 17 How. 542, 557, referring 
 to a similar question under the treaties with Spain, ceding territories 
 to the United States, "it is proper to remark, that the laws of these 
 territories under which 'titles were claimed, were never treated by the 
 court as foreign laws, to be decided as a question of fact. It was 
 always held that the court was bound judicially to notice them, as 
 much so as the laws of a State of the Union. In doing this, however, 
 it was undoubtedly often necessary to inquire into official customs 
 and forms and usages." 
 
 The same position was asserted in the case of United States v. 
 Perot, 98 U. S. 428. 
 
 Affirmed. 
 
 iHughes on Evidence, p. 4. 
 
 854
 
 JUDICIAL NOTICE 855 
 
 MALONEY v. WINSTON BROS. CO. 
 18 Ida. 740, 757. (1910) 
 
 Action by the plaintiff for damages for personal injury. Judgment 
 for plaintiff and defendant appealed. Judgment modified and affirmed. 
 
 AILSHIE, J. This action was prosecuted for the recovery of damages 
 for personal injuries received by the plaintiff while working in what 
 is known as the St. Paul pass tunnel, which was being cut through 
 the Bitter Root mountains for the use of the Chicago, Milwaukee & 
 St. Paul Ry. Co. The east end of this tunnel starts a short distance 
 from the town of Taft, in Montana, while the west end of the tunnel 
 is in Idaho. The plaintiff recovered judgment for $15,000 and de- 
 fendant moved for a new trial and its motion was denied, and it has 
 appealed from the judgment and order denying the motion. 
 
 The judgment will be affirmed to the extent of $10,000 on condition 
 that the respondent file within thirty days after going down of the 
 remittitur a waiver of the excess of $5,000 and an acceptance of the 
 judgment as thus modified. On failure to do so the judgment will be 
 reversed in toto and a new trial granted. Modified and affirmed ac- 
 cordingly, with costs in favor of respondent. 
 
 SULLIVAN, C. J., and STEWART, J., concur. 
 
 ON REHEARING. 
 
 (December 7, 
 
 AILSHIE, J. A rehearing was granted in this case, and the matter 
 was argued exhaustively orally, and four separate briefs by different 
 counsel have been filed on behalf of appellants, in which the questions 
 of fact involved are discussed and the authorities bearing on the case 
 have been exhaustively analyzed and considered. 
 
 The accident in this case occurred in the tunnel on the Montana side 
 of the line between Idaho and Montana. It has been argued on the re- 
 hearing that under the statutes and decisions of Montana, a recovery 
 could not be had in this case in Montana, and that it is accordingly 
 the duty of this court to deny the respondent any relief. On the propo- 
 sition that respondent could not recover in Montana, counsel cite two 
 cases from the Supreme Court of that state Cummings v. Teins Cop- 
 per Co., 40 Mont. 599, 107 Pac. 904, and Osterholm v. Boston & Mon- 
 tana C, C, & S, M, Co., 40 Mont, 508, 107 Pac. 499; and on the general
 
 856 CASES ON EVIDENCE 
 
 proposition that the respondent is bound by the law of the place where 
 the injury occurred, counsel cite: Baltimore & Ohio S. W. R. Co. v. 
 Reed, 158 Ind. 25, 92 Am. St. 293, 62 N. E. 488, 56 L. R. A. 468, 
 Chicago & E. I. R. Co. v. Rouse, 178 111. 132, 52 N. E. 951, 44 L. R. 
 A. 410; Alabama G. S. R. Co. v. Carroll, 97 Ala. 126, 38 Am. St. 163, 
 ii So. 803, 18 L. R. A. 433 ; Kansas City Ft. S. & M. R. Co. v. Becker, 
 67 Ark. i, 77 Am. St. 78, 53 S. W. 406, 46 L. R. A. 814; Turner v. 
 St. Clair Tunnel Co., in Mich. 578, 66 Am. St. 397, 70 N. W. 146, 
 36 L. R. A. 134 ; Mexican Nat. R. Co. v. Jackson, 89 Tex. 107, 59 Am. 
 St. 28, 33 S. W. 857, 31 L. R. A. 276. The trouble with the application 
 of the rules announced by these authorities is that in the present case 
 the appellant failed to plead and prove in the lower court the laws of 
 Montana as a defense to the action. We cannot take judicial notice 
 of the laws of a sister state. In the absence of pleading and proof 
 as to what the laws are in a sister state, we must assume that the same 
 law prevails in the foreign state that prevails here. The authorities 
 are uniform to this effect. 
 
 Where the question before the court is governed by the rule of the 
 common law instead of by statute, the court will presume, in the ab- 
 sence of proof to the contrary, that the common law prevails in the 
 state where the injury occurred and that it is the same in that state 
 as in the state of the forum. (5 Ency. of Ev. 817-820; Mountain Lake 
 Land Co. v. Blair, 109 Va. 147, 63 S. E. 751 ; Taber v. Seaboard Air 
 Line Ry. Co., 81 S. C. 317; 62 S. E. 311. 
 
 After a somewhat laborious and tedious examination of this case a 
 second time, we feel that the original opinion correctly states the princi- 
 ples of law applicable to the case, and that the conclusion reached on 
 the former hearing should stand as the judgment of the court in this 
 case. The judgment of the trial court will therefore be affirmed to 
 the extent of $10,000, on condition that the respondent file within 
 thirty days after the going down of the remittitur a waiver of the ex- 
 cess of $5,000 and an acceptance of the judgment as thus modified. 
 On failure to do so, the judgment will be reversed in toto and .a new 
 trial granted. Modified and affirmed acordingly, with costs in favor 
 of the respondent. 
 
 SULLIVAN, C. J., concurs. 
 
 Hughes on Evidence, p. 4.
 
 JUDICIAL NOTICE 857 
 
 HANKINSON v. TRENTON. 
 51 N. J. 495- (1889) 
 
 The opinion of the court was delivered by 
 
 GARRISON, J. This certiorari brings up the record of the summary 
 proceedings had before one of the police justices of the city of Trenton, 
 which resulted in the conviction of the prosecutor of the violation of 
 an ordinance of the board of excise commissioners of the said city. 
 Of the various reasons presented by the prosecutor for the reversal 
 of the judgment against him, it will be necessary to consider but one, 
 viz., that the ordinance of the excise board, for the alleged violation 
 of which he was convicted, was not offered or introduced in evidence 
 on the trial before the magistrate. 
 
 The complaint filed with the justice alleges that a certain sale of 
 spirituous liquors by the prosecutor was "contrary to and violative of 
 the ordinance entitled 'An ordinance concerning inns and taverns, 
 saloons and bowling alleys, and the sale of intoxicating liquors in the 
 city of Trenton,' passed by the board of excise commissioners of the 
 said city of Trenton, on the eleventh day of May, eighteen hundred 
 and eighty-seven." 
 
 The existence of this ordinance is obviously the foundation of the 
 entire proceeding against the prosecutor. The record of a conviction, 
 resting solely upon this enactment as its foundation, would be fatally 
 defective if it failed to show that the justice had, as part of the case 
 before him, legal evidence of the existence of the ordinance which was 
 the gravamen of the complaint. When a special power is given to a 
 magistrate by statute to convict an offender in a summary manner, 
 without a trial by jury, the record must show everything necessary 
 to constitute a legal conviction. Keeler v. Milledge, 4 Zab. 142; 
 Doughty v. Conover, 13 Vroom 193. 
 
 The transcript of the proceedings before the police justice in the 
 present case shows that, after both sides had rested, a motion was 
 made on behalf of the prosecutor, that the case be dismissed, upon the 
 ground that it had not been shown that any ordinance had been violated 
 "no ordinance having been introduced in evidence" which motion 
 the justice denied. 
 
 It was suggested upon the argument that the ordinance in question* 
 was one of which judicial notice might be taken. By this view it is 
 assumed, as a rule of evidence, that the acts of a municipality will be 
 noticed judicially by all the courts thereof. This position, which finds
 
 858 CASES ON EVIDENCE 
 
 some support from the text writers, need not now be examined, inas- 
 much as the ordinance in question is not an enactment of the munici- 
 pality of which the police justice is a judicial officer, but is a by-law 
 or ordinance of one of the city departments, to wit, the board of ex- 
 cise commissioners. 
 
 This board is erected under the provisions of "An act to establish 
 an excise department in cities in this state," approved April 8th, 1884 
 (Pamph. L,., p. 133), whereby the city council of any city is author- 
 ized to provide for the establishment of a board of excise commis- 
 sioners, who shall, when organized, have the sole power to make by- 
 laws or ordinances regulating the liquor traffic in said city, and pre- 
 scribing and enforcing the penalty for the violation thereof. 
 
 The ordinances thus to be enacted are not submitted to city council 
 for approval, but remain the sole and separate acts of the board of 
 excise commissioners. 
 
 The extension of the doctrine of judicial notice to by-laws and enact- 
 ments such as these would be to lay down the rule, that, before any 
 municipal court, no proof need be offered of the acts or proceedings 
 of any other department or subordinate body owing its existence to 
 the same municipality. Such a doctrine need but be stated to be its 
 own best refutation. It is, perhaps, needless to say, that not a vestige 
 of authority for such a position can be found. 
 
 The record of this conviction therefore failing to show the ordinance 
 of the board of excise commissioners upon which it rests, is fatally 
 defective, and the judgment of the police justice must, for this reason, 
 be reversed. 
 
 FREMONT v. THE UNITED STATES. 
 58 U. S. 542. (1854) 
 
 This was an appeal from the District Court of the United States for 
 the Northern District of California. 
 
 Fremont, the appellant, claimed title to a large tract of land, and 
 prosecuted his claim before the board of commissioners, who decided 
 in his favor. That decision having been reversed by the District Court, 
 the case is now brought here by appeal. 
 
 The title of Fremont was derived from Juan Alvarado, to whom a 
 grant was issued, in 1844, by Manuel Micheltorrena, then governor
 
 JUDICIAL NOTICE 859 
 
 and commandant-general of the department of the Californias, pur- 
 porting to be founded upon the patriotic service of Alvarado. 
 
 MR. CHIEF JUSTICE TANEY delivered the opinion of the court. 
 
 The court have considered this case with much attention. It is not 
 only important to the claimant and the public, but it is understood that 
 many claims to land in California depend upon the same principles, 
 and will, in effect, be decided by the judgment of the court in this case. 
 
 It is proper to remark, that the laws, of these territories under which 
 titles were claimed, were never treated by the court as foreign laws, 
 to be decided as a question of fact. It was always held that the court 
 was bound judicially to notice them, as much so as the laws of a State 
 of the Union. In doing this, however, it was undoubtedly often neces- 
 sary to inquire into official customs and forms and usages. They con- 
 stitute what may be called the common or unwritten law of every 
 civilized country. And when there are no published reports of judicial 
 decisions which show the reconstruction of a statute, and the powers 
 exercised under it by the tribunals or officers of the government, it 
 is often necessary to seek information from other authentic sources, such 
 as the records of official acts, and the practice of the different tribunals 
 and public authorities. And it may sometimes be necessary to seek 
 information from individuals whose official position or pursuits have 
 given them opportunities of acquiring knowledge. But it has always 
 been held that it is for the court to decide what weight is to be given 
 to information obtained from any of these sources. It exercises its 
 discretion when it refers to the different reported decisions of state 
 courts, and compares them together, in order to make up an opinion 
 as to the unwritten law of the state, or the construction given to one 
 of its statutes. 
 
 With these principles, which have been adjudicated by this court, 
 to guide us, we proceed to examine the validity of the grant to Alva- 
 rado, which is now in controversy. 
 
 Upon the whole, it is the opinion of the court that the claim of the 
 petitioner is valid, and ought to be confirmed. The decree of the 
 district court must, therefore, be reversed, and the case remanded, 
 with directions to the district court to enter a decree conformably to 
 this opinion. 
 
 ORDER. 
 
 This cause came on to be heard on the transcript of the record from 
 the district court of the United States for the northern district of 
 California, and was argued by counsel. On consideration whereof, it 
 is the opinion of this court that the claim of the petitioner to the land,
 
 860 CASES ON EVIDENCE 
 
 as described and set forth in the record, is a good and valid claim ; 
 whereupon it is now here ordered, adjudged, and decreed by this court, 
 that the decree of the said district court in this cause be and the same 
 is hereby reversed, and that this cause be and the same is hereby 
 remanded to the said district court for further proceedings to be had 
 therein, in conformity to the opinion of this court. 
 
 EASTERN BUILDING AND LOAN ASSOCIATION v. 
 WILLIAMSON. 
 
 l8<? U. S. 122. (190^) 
 
 MR. JUSTICE BREWER delivered the opinion of the court. 
 
 The law of New York was so proved in this case, and the conten- 
 tion is that it was not rightly construed by the South Carolina courts ; 
 that the law of New York which entered into and formed a part of 
 the contract sued on was not given by those courts the same force and 
 effect that it had in New York, and that hence the rights secured by 
 the Constitution of the United States to the plaintiff in error were 
 denied. If it appeared that the South Carolina courts, without question- 
 ing the validity, simply construed a statute of New York, no Federal 
 question would be presented. 
 
 But it is contended that the construction of the New York statutes as 
 applicable to this contract was shown by the decisions of the courts 
 of that state and the opinion of one learned in its laws; that there was 
 no contradictory testimony, and, therefore, it was the duty of the South 
 Carolina courts to find as a fact that such was the true construction. 
 
 After the decisions of the courts of New York were received in 
 evidence, their meaning and scope became matters for the same con- 
 sideration. While statutes and decisions of other states are facts to 
 be proved, yet when proved their construction and meaning are for 
 the consideration and judgment of the courts in which they have been 
 proved. Nor is the rule changed by the testimony given in the deposi- 
 tion of defendant's counsel, for, as he states, his opinion is based on 
 the statutes, the articles of incorporation and the decisions of other 
 states under like statutes, articles of incorporation and by-laws. No 
 witness can conclude a court by his opinion of the construction and 
 meaning of statutes and decisions already in evidence. Laing v. Rigney,
 
 JUDICIAL NOTICE 86 1 
 
 1 60 U. S. 531. The duty of the court to construe and decide remains 
 the same. 
 
 Neither was the promise ultra vires the corporation. We are saved 
 from the necessity of an extended discussion of these questions by a 
 recent opinion of the Court of Appeals of New York in the case of 
 Vought v. this defendant, Eastern Building & Loan Association, de- 
 cided December 2, 1902, 172 N. Y. 508. It is true that the decision 
 was not offered in evidence on the trial of this case in the South Caro- 
 lina court. It had not then been announced. And it is also true that 
 we do not take judicial notice of the decisions of the courts of one 
 state in a case coming to us from the courts of another. Hanley v. 
 Donoghue, 116 U. S. i, 6; Chicago & Alton Railroad v. Wiggins Ferry 
 Co., 119 U. S. 615-622; Loyd v. Matthews, 155 U. S. 222, 227. But 
 nevertheless we may properly refer to the opinion as a construction 
 of the law, and the views therein expressed not only commend them- 
 selves to our judgment as intrinsically sound, but also, as the views 
 of the law of New York entertained by the justices of its highest 
 court, have a peculiar and persuasive appropriateness. 
 
 We deem it unnecessary to add any observations of our own to these 
 satisfactory declarations of the law of New York. 
 
 We see no error in the record, and the judgment of the Supreme 
 Court of South Carolina is 
 
 Affirmed. 
 
 LAMAR v. MICOU. 
 114 U. S. 218. (1884) 
 
 MR. JUSTICE GRAY delivered the opinion of the court. 
 
 This is a petition for a rehearing of an appeal from a decree of the 
 Circuit Court of the United States for the Southern District of New 
 York, upon a bill filed against the executor of a guardian by the admin- 
 istratrix of his ward. 
 
 The law of any State of the Union, whether depending upon statutes 
 or upon judicial opinions, is a matter of which the courts of the United 
 States are bound to take judicial notice, without plea or proof. Owings 
 v. Hull, 9 Pet. 607; Pennington v. Gibson, 16 How. 65; Covington 
 Drawbridge Co. v. Shepherd, 20 How. 227. And nothing has now 
 been adduced tending to show that, as applied to the facts admitted by
 
 862 CASES ON EVIDENCE 
 
 the parties, either the law of Georgia or the law of New York was 
 other than we have held it to be. 
 
 The question whether, as matter of fact, Lamar acted with due care 
 and prudence in making his investments, was argued at the former 
 hearing, and no reason is shown for reopening that question. 
 
 Rehearing denied. 
 
 UNITED STATES v. PEROT. 
 98 U. S. 428. (1878) 
 
 Appeal from the District Court of the United States for the District 
 of Louisiana. 
 
 MR. JUSTICE BRADLEY delivered the opinion of the court. 
 
 The claim in this case is for four leagues of land granted by Bernardo 
 Fernandez, commandant of the post of Nacogdoches, under the Spanish 
 government, in the Province of Texas, to Pedro Dolet, on the 27th of 
 December, '1795, and extended in possession on the I4th of January, 
 1796. 
 
 The claimants obtained a decree below for four American or Eng- 
 lish leagues ; and such leagues may have been inadvertently allowed 
 in some previous cases. But it is evident that no such leagues were 
 in the minds of the parties. The leagues intended were Spanish leagues, 
 such as were used in land measures and grants in Mexico and Texas 
 at that period. Now we are bound to take judicial notice that the 
 Mexican league was not the same as the American league. The laws 
 of Mexico, of force in Texas previous to the Texan revolution, were 
 the laws not of a foreign, but of an antecedent government, to which 
 the government of the United States, through the medium of the Re- 
 public of Texas, is the direct successor. Its laws are not deemed 
 foreign laws ; for as to that portion of our territory they are domestic 
 laws ; and we take judicial notice of them. Fremont v. United States, 
 17 How. 542, 557. 
 
 It is important that the uniform practice and usage of a country 
 should be observed in the construction of all grants made therein whilst 
 such usage prevailed. 
 
 For this reason, we think that in Texas, and in relation to grants 
 emanating from the Mexican government in that province, before its
 
 JUDICIAL NOTICE 863 
 
 separation from the parent State, the vara and league recognized in 
 land measures there should be respected. 
 
 Allowing the claimant, therefore, at the rate of 4,428.4 acres to the 
 league, according to the rate above referred to, he is entitled to a 
 decree for 17,713.6 acres, instead of 23,040, as decreed by the court 
 below, requiring a deduction of 5,326.4 acres. If the claimant will 
 remit this excess, he will be entitled to an affirmance for the balance, 
 namely, for 17,713.6. 
 
 On filing such remitter, a decree may be entered accordingly ; and it is 
 
 So ordered. 
 
 CUBA RAILROAD COMPANY v. CROSBY. 
 222 U. S. 473. (1911) 
 
 The facts are stated in the opinion. 
 
 MR. JUSTICE HOLMES delivered the opinion of the court. 
 
 This is an action for the loss of a hand through a defect in ma- 
 chinery, in connection with which the defendant in error, the plaintiff, 
 was employed. The plaintiff had noticed the defect and reported it, 
 and, according to his testimony, had been promised that it should be 
 repaired or replaced as soon as they had time, and he had been told to 
 go on in the meanwhile. The jury was instructed that if that was 
 what took place the defendant company assumed the risk for a reason- 
 able time, and, in effect, that if that time had not expired the plaintiff 
 was entitled to recover. The jury found for the plaintiff. The acci- 
 dent took place in Cuba, and no evidence was given as to the Cuban 
 law, but the judge held that if that law was different from the lex 
 fori it was for the defendant to allege and prove it, and that as it had 
 pleaded only the general issue the verdict must stand. 158 Fed. Rep. 
 144. The judgment was affirmed by a majority of the Circuit Court 
 of Appeals. 170 Fed. Rep. 365. 95 C. C. A. 539. 
 
 The court below went on the ground that in the absence of evidence 
 to the contrary it would "apply the law as it conceives it to be, ac- 
 cording to its idea of right and justice ; or, in other words, according to 
 the law of the forum." We regard this statement as too broad, and as 
 having been wrongly applied to this case. 
 
 It may be that in dealing with rudimentary contracts or torts made 
 or committed abroad, such as promises to pay money for goods or
 
 864 CASES ON EVIDENCE 
 
 services, or battery of the person or conversion of goods, courts would 
 assume a liability to exist if nothing to the contrary appeared. Parrot 
 v. Mexican Central Railroad Co., 207 Massachusetts, 184. Such mat- 
 ters are likely to impose an obligation in all civilized countries. But 
 when an action is brought upon a cause arising outside of the juris- 
 diction it always should be borne in mind that the duty of the court 
 is not to administer its notion of justice but to enforce an obligation 
 that has been created by a different law. Slater v. Mexican National 
 R. R. Co., 194 U. S. 120, 126. The law of the forum is material only 
 as setting a limit of policy beyond which such obligations will not be 
 enforced there. With very rare exceptions the liabilities of parties to 
 each other are fixed by the law of the territorial jurisdiction within 
 which the wrong is done and the parties are at the time of doing it. 
 American Banana Co. v. United Fruit Co., 213 U. S. 347, 356. See 
 Bean v. Morris, 221 U. S. 485, 486, 487. That and that alone is the 
 foundation of their rights. 
 
 The language of Mr. Justice Bradely in The Scotland, 105 U. S. 24, 
 with regard to the application of the lex fori to a case of collision 
 between vessels belonging to different nations and so subject to no 
 common law, referred to that class of cases and no others, and was 
 used only in coming to the conclusion that foreign vessels might take 
 advantage of our Limited Liability Act. See also The Chattahoochee, 
 173 U. S. 540, 550. Other exceptional cases are referred to in Amer- 
 ican Banana Co. v. United Fruit Co., ubi supra, such as those arising 
 in regions having no law that civilized countries would recognize as 
 adequate. But as to causes of action arising in a civilized country the 
 disregard of the foreign law occasionally indicated by some English 
 judges before the theory to be applied was quite worked out must be 
 disregarded in its turn. The principle adopted by the decisions of this 
 court is clear. See also Dicey, Confl. of Laws, 2d ed., 647 et seq. 
 
 We repeat that the only justification for allowing a party to recover 
 when the cause of action arose in another civilized jurisdiction is a 
 well founded belief that it was a cause of action in that place. The 
 right to recover stands upon that as its necessary foundation. It is 
 part of the plaintiff's case, and if there is reason for doubt he must 
 allege and prove it. The extension of the hospitality of our courts to 
 foreign suitors must not be made a cover for injustice to the defend- 
 ants of whom they happen to be able to lay hold. 
 
 In the case at bar the court was dealing with the law of Cuba, a 
 country inheriting the law of Spain and, we may presume, continuing 
 it with such modifications as later years may have brought There is
 
 JUDICIAL Nonce 865 
 
 no general presumption that that law is the same as the common law. 
 We properly may say that we all know the fact to be otherwise. Good- 
 year Tire & Rubber Co. v. Rubber Tire Wheel Co., 164 Fed. Rep. 869. 
 Whatever presumption there is is purely one of fact, that may be cor- 
 rected by proof. Therefore the presumption should be limited to cases 
 in which it reasonably may be believed to express the fact. Generally 
 speaking, as between two common law countries, the common law of 
 one reasonably may be presumed to be what it is decided to be in the 
 other, in a case tried in the latter state. But a statute of one would 
 not be presumed to correspond to a statute in the other, and when we 
 leave common law territory for that -where a different system pre- 
 vails obviously the limits must be narrower still. Savage v. O'Neil, 
 44 N. Y. 298. Crashley v. Press Publishing Co., 179 N. Y. 27, 32, 33. 
 Aslanian v. Dostumian, 174 Mass. 328, 331. 
 
 Even if we should presume that an employe could recover in Cuba 
 if injured by machinery left defective through the negligence of his 
 employer's servants, which would be going far, that would not be 
 enough. The plaintiff recovered, or, under the instructions stated at 
 the beginning of this decision, at least may have recovered, notwith- 
 standing his knowledge and appreciation of the danger, on the strength 
 of a doctrine the peculiarity and difficulties of which are elaborately 
 displayed in the treatise of Mr. Labatt. i Labatt, Master & Servant, 
 ch. 22, esp. Sec. 424. To say that a promise to repair or replace 
 throws the risk on the master until the time for performance has gone 
 by, or that it does away with or leaves to the jury what otherwise 
 would be negligence as matter of law is evidence of the great considera- 
 tion with which workmen are treated here, but cannot be deemed a 
 necessary incident of all civilized codes. It could not be assumed 
 without proof that the defendant was subject to such a rule. 
 
 There was some suggestion below that there would be hardship in 
 requiring the plaintiff to prove his case. But it should be remembered 
 that parties do not enter into civil relations in foreign jurisdictions 
 in reliance upon our courts. They could not complain if our courts 
 refused to meddle with their affairs and remitted them to the place 
 that established and would enforce their rights. A discretion is as- 
 serted in some cases even when the policy of our law is not opposed 
 to the claim. The Maggie Hammond, 9 Wall. 435. The only just 
 ground for complaint would be if their rights and liabilities, when 
 enforced by our courts, should be measured by a different rule from 
 that under which the parties dealt. 
 
 Judgment reversed.
 
 866 CASES ON EVIDENCE 
 
 CASE v. MAYOR OF MOBILE. 
 30 Ala. 538. (1857) 
 
 The appellant was fined $50 by the mayor of the city of Mobile, for 
 an alleged violation of an ordinance, prohibiting the selling of liquor 
 without a license ; and removed the proceedings, by appeal, into the city 
 court, where the following complaint was filed against him: 
 
 "Mayor, Aldermen, and 
 Common Council of Mobile Plaintiff claims of defendant $50, for 
 
 vs. violation of the ordinance set forth. 
 
 John Case. 
 
 "Plaintiff claims the sum of $50 as a fine, for that the defendant, 
 on the 4th May, 1856, did sell to certain slaves, whose names and 
 owners are unknown, one a yelloy boy, about thirty-four years of age, 
 and one a black boy, about twenty-two years of age, in the city of 
 Mobile, spirituous liquors, without the written permission of the owner, 
 master, or agent, contrary to the ordinance of said corporation then 
 in force, a copy of which is hereto attached." 
 
 The defendant demurred to this complaint, for uncertainty and in- 
 sufficiency, ist, in not giving the names of the slaves or their owners ; 
 2d, in not setting out the ordinance alleged to have been violated; and 
 3d, in not alleging a breach of any ordinance. The overruling of this 
 demurrer is now assigned as error. 
 
 Chamberlain & Robinson, for appellant. 
 
 Daniel Chandler, contra. 
 
 RICE, C. J. In declaring on a b"y-law, the liability of the defendant 
 must distinctly appear. As the appellee in the present case is a munic- 
 ipal, or public corporation, the courts of this State will take judicial 
 notice of its charter, and of its power to make by-laws ; but not of the 
 by-laws made by it. In a complaint for a penalty under one of its 
 by-laws, the by-law must be set forth, and the breach of it, and the 
 right of the plaintiff to sue for the penalty. Company of Feltmakers 
 v. Davis, i Bos. & Pul. 98; I Saund. PI. & Ev. 324; Comyn's Dig., 
 title, Pleader, (2 W. n). 
 
 Tested by the principles above stated, the complaint in this case is 
 not sufficient ; and the court below erred in overruling the demurrer 
 to it. For that error, the judgment is reversed, and the cause re- 
 manded.
 
 JUDICIAL NOTICE 867 
 
 ATKINSON v. MOTT. 
 102 Ind. 431. (1885) 
 
 BLACK, C. The appellees, Prudence Mott and her husband, sued 
 the appellant to recover damages for injuries to the property of said 
 Prudence, done by trespassing cattle of the appellant. 
 
 The defendant's demurrer to each paragraph of the complaint for 
 want of sufficient facts was overruled. There was- an answer in denial. 
 A jury returned a verdict for the plaintiff. The defendant's motion 
 for a new trial was overruled, and judgment was rendered on the 
 verdict. 
 
 The statute of 1877, section 4835, R. S. 1881, provides: "If any 
 domestic animal break into an inclosure or wander upon the lands of 
 another, the person injured thereby shall recover the amount of dam- 
 age done, provided, that in townships where, by order of the board 
 of county commissioners, said domestic animals are permitted to run 
 at large, it shall appear that the fence through which said animal broke 
 was lawful; but where such animal is not permitted to graze upon the 
 uninclosed commons, it shall not be necessary to allege or prove the 
 existence of a lawful fence in order to recover for the damage done." 
 
 The making of the order of the board of county commissioners, to 
 which reference is made in this statute, is a matter of which courts, in 
 such cases, will not take notice, unless it be shown as other facts must 
 be shown; and in the absence of any averment that such an order had 
 been made, it must be assumed, for the purposes of the ruling upon the 
 demurrer, that there was no such order, and that, as at common law, 
 the owner of the trespassing cattle was responsible to the person in- 
 jured. 
 
 We find no error in the record. 
 
 PER CURIAM. It is ordered, upon the foregoing opinion, that the 
 judgment be affirmed, at the costs of the appellant.
 
 868 CASES ON EVIDENCE 
 
 WATT v. JONES. 
 60 Katis. 201. (1899) 
 
 The opinion of the court was delivered by SMITH, J. : The plaintiff 
 was a candidate for the office of councilman of the fifth ward on the 
 populist or citizens' ticket, he being a duly qualified elector of said 
 ward and city, and the said defendant was a candidate for the same 
 office, in opposition to the plaintiff. The prayer was for a judgment 
 of ouster, asking that the defendant Watt be excluded from the said 
 office, and that the plaintiff Jones be awarded the same, and for costs. 
 
 This was a civil action between individuals, and we think the rule is 
 well established that, in such cases, an ordinance, which is a mere by- 
 law of a municipal corporation, must be pleaded either by quoting its 
 language or stating the substance of its provisions. A reference to 
 the title is not sufficient. Ordinances stand on the same footing as 
 private and special statutes, the laws of other states, and of foreign 
 countries, and must be averred and proved like other facts. (17 A. 
 & E. Encycl. of L. 262 ; City of Austin v. Walton, 68 Tex. 507, 5 S. 
 W. 70.) 
 
 Upon this question this court has heretofore gone no further than to 
 hold that in misdemeanor cases, where an appeal is taken from the 
 police court of a city to the District Court, the latter will take judicial 
 notice of the ordinance under which the defendant is being prosecuted. 
 In such cases the District Court is pro hoc vice the police court. (City 
 of Solomon v. Hughes, 24 Kan. 740, 14 Pac. 281.) 
 
 The judgment of the court below will be affirmed. 
 
 GEORGE W. WICKERSHAM v. RICHARD JOHNSTON. 
 104 Col. 407. (1894) 
 
 McFARLAND, J. The plaintiff brought three actions against the de- 
 fendant, each upon a promissory note made by the defendant to one 
 John Lancaster, since deceased, who was a British subject and a resi- 
 dent of England, where he died testate on the 2ist of April, 1884. 
 The three actions were by the consent of parties and an order of the 
 court consolidated. The court rendered judgment for plaintiff for the
 
 JUDICIAL NOTICE 869 
 
 amount of the principal and interest of said three notes, with costs, 
 etc. Defendant appeals from the judgment. 
 
 The judgment of the lower court went upon the theory, founded upon 
 the findings, that the two sons of the deceased, George Grantville Lan- 
 caster and John Lancaster (Jr.), were appointed by the will of the 
 deceased as the executors thereof and qualified as such ; and were also 
 appointed "administrators of the personal estate" of the deceased John 
 Lancaster ; that the will of the deceased was duly probated in an Eng- 
 lish court; that by said will the said sons were also made residuary 
 legatees; and that on November 15, 1880, the said sons, George and 
 John, as such executors and administrators, and being the owners of 
 said notes, "sold, transferred, and set over' the same to the plaintiff 
 herein. 
 
 The main evidence in the case introduced by plaintiff is found in a 
 certain commission to take the testimony of said George and John Lan- 
 caster, issued to John C. New, consul general of the United States at 
 London, by which it was undertaken to prove all the foregoing facts 
 as to the death of John Lancaster, deceased, the existence of the will, 
 its probate, issuance of letters testamentary and letters of administra- 
 tion to the sons, etc. Many objections were made by appellant to vari- 
 ous parts of the evidence contained in said commission ; but we will 
 assume for the present that the evidence contained in said commission 
 sufficiently shows the facts above referred to. There was no evidence 
 at all tending to show what the law was in the foreign country touch- 
 ing any of the questions which are raised here; and it must, therefore, 
 be assumed that the law with respect to those matters was the same 
 there as in California. (Norris v. Harris, 15 Cal. 254; Hickman v 
 Alpaugh, 21 Cal. 226; Hiss v. Crigby, 32 Cal. 55; Marsters v. Lash, 
 6 1 Cal. 624; Monroe v. Douglas, 5 N. Y. 447; Liverpool etc. Co. v. 
 Phenix Ins. Co., 129 U. S. 445.) This rule applies to England as well 
 as to sister states of the American nation. In Liverpool etc. Co. v. 
 Phenix Ins. Co., 129 U. S. 445, the Supreme Court of the United 
 States say : "The law of Great Britain since the Declaration of Inde- 
 pendence is the law of a foreign country, and like any other foreign 
 law is matter of fact, which the courts of this country cannot be pre- 
 sumed to be acquainted with, or to have judicial knowledge of, unless 
 it is pleaded and proved." 
 
 The julgment is reversed and the cause remanded for a new trial.
 
 870 CASES ON EVIDENCE 
 
 NEESE v. THE FARMER'S INSURANCE CO. 
 55 Iowa 602. (1881) 
 
 Action upon a policy of insurance. There was a verdict and judg- 
 ment for plaintiff ; defendant appeals. The facts of the case are stated 
 in the option. 
 
 BECK, J. The plaintiff was permitted to read to the jury the deposi- 
 tions of plaintiff and his wife, giving material testimony in his behalf. 
 The deposition was taken in Nebraska, before a notary public and his 
 official seal did not disclose his name. Objection to the deposition, on 
 the grounds that the seal of the notary did not show the name of the 
 officer, was made by motion to suppress, and at the trial the objection 
 was renewed. It is not shown that the seal of the notary is sufficient 
 under the law of Nebraska. We will not take judicial notice of the 
 statutes of Nebraska, and, in the absence of proof, will presume them 
 to be the same as our own. Our statute requires the seal of the no- 
 tary to show the name of the officer. The attestation of the notary 
 was therefore, insufficient. Stephens v. Williams, 46 Iowa, 540. The 
 depositions ought to have been excluded. 
 
 Reversed. 
 
 DENVER & RIO GRANDE RAILROAD COMPANY v. UNITED 
 
 STATES. 
 
 p N. M. 389. (1898) 
 
 MILLS, C. J. The above entitled causes were considered and heard 
 as one in this court. They grow out of a suit in trover brought in the 
 first judicial district of this territory by the United States against the 
 Denver & Rio Grande Railroad Company, to recover five thousand 
 dollars alleged damages for the conversion of certain timber and rail- 
 road ties taken by the defendant from the public lands. Judgment was 
 given in favor of the United States for one hundred and seventy-four 
 dollars. Both sides sued out writs of error alleging on the one side 
 that no judgment for any amount should have been given and upon the 
 other that it was too small. No evidence was taken in the trial before 
 the lower court, as the case was submitted entirely upon a stipulation 
 and the rulings thereon.
 
 JUDICIAL NOTICE 871 
 
 This stipulation evidently does not cover all the facts in the case, 
 as it fails to show the contents of a special act of congress, approved 
 June 8, 1872, and an act amendatory thereof approved March 3, 1877, 
 and as the law required special acts to be proven on the trial of a 
 cause the same as any other fact, as its contents do not appear in the 
 record we can not take judicial knowledge thereof. Leland v. Wilkin- 
 son, 6 Peters 317; i Wharton on Ev., 8, 291, and cases cited in note. 
 
 Re-versed. 
 
 GREEN v. THE CITY OF INDIANAPOLIS. 
 22 Ind. 192. (1864) 
 
 (Complaint under a city ordinance.) 
 
 PERKINS, J. Neither the by-law, (the ordinance on which the suit 
 was based) nor any section of it, nor a copy of either, was filed with 
 the complaint, or anywhere appears in the record. The complaint is 
 fatally defective for this reason. 5 Blackf. 236, 8 Ind. 130, 16 Ind. 
 
 273- 
 
 In this state, where municipal corporations are organized under the 
 general law, the court would take judicial notice of their powers to 
 enact by-laws, but not of the fact that any given one had been enacted. 
 As the by-law or ordinance in question, then, is not in the record, and 
 the court does not take judicial notice of such corporate acts, we can 
 not pass upon its legal construction or validity. Indeed, we do not 
 know that any such exists. 
 
 A public statute need not be set out in pleading, nor, in this state, 
 need a private act of the legislature, 2 G. & H. p. 109. But statutes 
 of other states, relied upon must be set out by copy, and so must by- 
 laws of corporations, for they are not statutes of the state. 
 
 If there was no appeal from the judgment of the mayor in these 
 cases, it might well be that by-laws should not be set out, but should 
 be judicially noticed by the mayor; but as appeals are allowed to the 
 state courts, the acts of the corporations relied on as foundations of 
 suits or defenses must be set out in the pleadings, and proved on trials 
 to bring them before the Appellate Courts. 
 
 The record before us shows no cause of action. It is as important 
 that a by-law sued on be set out, as it is that a written instrument 
 should be.
 
 872 CASES ON EVIDENCE 
 
 PER CURIAM. The judgment below is reversed, with costs. Causes 
 remanded, etc. 
 
 OWINGS & OWINGS v. JAMES F. HULL. 
 34 U. S. 607. (1835) 
 
 MR. JUSTICE STORY, after stating the facts, delivered the opinion of 
 the court. 
 
 The original suit was brought to recover back the purchase-money 
 paid by the defendant in error for the slaves, and other compensation 
 for the defect of title. The jury found a verdict for the original plain- 
 tiff, for two thousand six hundred and thirty-six dollars and ninety- 
 six cents, upon which judgment was rendered accordingly; and the 
 present writ of error is brought to revise that judgment upon certain 
 bills of exceptions taken at the trial, on behalf of the plaintiffs in error. 
 
 The next objection was,, that the copy of the original bill of sale of 
 the slaves to Hull, on record in the notary's office, was not evidence, 
 unless the plaintiff accounts for the non-production of the original. 
 The validity of this objection depends upon this consideration, whether 
 the non-production of the original was sufficiently accounted for. It 
 was not accounted for by any proofs offered on behalf of the plain- 
 tiff; and unless the Circuit Court could judicially take notice of the 
 laws of Louisiana, there was nothing before the court to enable it to 
 say, that the non-production of the original was accounted for. 
 
 We are of opinion, that the Circuit Court was bound to take judicial 
 notice of the laws of Louisiana. The Circuit Courts of the United 
 States are created by Congress, not for the purpose of administering 
 the local law of a single state alone, but to administer the laws of all 
 the states in the Union, in cases to which they respectively apply. The 
 judicial power conferred on the general government, by the Constitu- 
 tion, extends to many cases arising under the laws of the different 
 states. And this court is called upon, in the exercise of its appellate 
 jurisdiction, constantly to take notice of and administer the jurispru- 
 dence, to be proved in the courts of the United States, by the ordinary 
 modes of proof by which the laws of a foreign country are to be es- 
 tablished; but it is to be judicially taken notice of in the same manner 
 as the laws of the United States are taken notice of by these courts. 
 
 Under these circumstances, we are at liberty to examine the ob-
 
 JUDICIAL NOTICE; 873 
 
 jection above stated, with reference to the known laws of Louisiana. 
 Now, in Louisiana, as, indeed, in all countries using the civil law. 
 notaries are officers of high importance and confidence; and the con- 
 tracts and other acts of parties, executed before them and recorded by 
 them, are of high credit and authenticity. Some contracts and convey- 
 ances are not valid, unless they are executed in a prescribed manner, 
 before a notary; others again, if executed by the parties elsewhere, 
 may be recorded by a notary, the protocol or original remains in his 
 possession apud acta; and the act is deemed, what is technically called, 
 an "authentic act ;" and a copy of such act, certified as a true copy by 
 the notary, who is the depositary of the original, or his successor, is 
 deemed proof of what is contained in the original, for the plain reason 
 that the original is properly in the custody of a public officer, and not 
 deliverable to the parties. This will abundantly appear, by a reference 
 to the Civil Code of Louisiana, from article 2231 to article 2250. Now, 
 the bill of sale in the present case, is precisely in that predicament. It 
 was executed before a notary in the manner prescribed by the laws of 
 Louisiana ; the original is in his possession, and is an authentic act, 
 apul acta; and, therefore, the party is not entitled to the possession 
 of it, but only to a copy of it. So that the absence of the original is 
 sufficiently accounted for; and the copy being duly proved, was prop- 
 erly admissible in evidence. There was no error, therefore, in the 
 Circuit Court, in admitting this evidence. 
 
 Reversed and remanded on other grounds. 
 
 LARUE v. INSURANCE CO. 
 68 Kan. 539. (1904) 
 
 The opinion of the court was delivered by SMITH, J. : Edward 
 LaRue, son of the plaintiff in error, was insured in the sum of $1000 
 by the Kansas Mutual Life Insurance Company under a policy which 
 contained the following condition: 
 
 "Military or Naval Service. The insured under this policy is per- 
 mitted to serve in the militia or in the military or naval force of the 
 United States in time of peace without prejudice to his policy ; and he 
 may so serve in time of war by giving the company notice in writing, 
 and paying an extra premium therefor, not to exceed three per cent 
 per annum upon the amount insured. But should such notice not be
 
 874 CASES ON EVIDENCE 
 
 given and the extra premium for war hazard not be paid at the time 
 the risk is incurred, the company will be liable for the reserve only on 
 this policy, computed according to the actuaries' table of mortality and 
 four per cent interest." 
 
 In September, 1899, the policy being in force, LaRue enlisted in the 
 volunteer service of the United States and went with his regiment to 
 the Philippine islands. No extra premium was paid on the policy. In 
 May, 1900, he was killed at the village of Loculan in the island of 
 Mindanao, by a blow from a weapon known as a bolo, in the hands of 
 an insurrecto. Such facts appeared in the proofs of death given to 
 the company. This was an action by the mother of the deceased, and 
 beneficiary under the policy, to recover the full amount of the insur- 
 ance. She was defeated in the trial court. 
 
 Plaintiff below offered to prove that Loculan, the place where the 
 assured was killed, was in a region where there was no armed resist- 
 ance against the forces of the United States ; that the insured with his 
 company, was sent there from the island of Luzon, after a period of 
 active service, for the purpose of having an opportunity to rest; that 
 the soldiers stood guard with empty guns ; that prior to the death of the 
 insured there was no disturbance of any kind on that island or at that 
 place. The offer of this proof was rejected, on the ground that the 
 court took judicial notice that the inhabitants of the island of Min- 
 danao were at the time in a state of insurrection against the sover- 
 eignty of the United States government. 
 
 We judicially know that under the treaty of Paris between the United 
 States and the kingdom of Spain, signed December 10, 1898, the 
 Philippine islands became a part of the territory of the United States, 
 and that after that time the inhabitants of those islands were in a state 
 of insurrection against our government. The existence of war is a 
 political question and not a judicial one. Courts take notice, without 
 proof, of the acts of the different political departments of the govern- 
 ment. (See Phillips v. Hatch, i Dill. (C. C.) 571, Fed. Cas. No. 
 11,094.) 
 
 In passing on a claim of Lieutenant Stickle for property lost en 
 route from West Point to Manila, the war department, in December, 
 1901, through Secretary Root, announced: 
 
 "The insurrection in the Philippines against the sovereignty of the 
 United States and the authority of the government of the Philippine 
 islands is of such character and extent as requires the United States 
 to prosecute its rights by military force, and therefore creates the con- 
 dition of war in said archipelago."
 
 JUDICIAL NOTICE 875 
 
 This expression, however, was made at a date subsequent to the 
 death of LaRue. On July 4, 1902, the president issued a proclamation 
 of amnesty as follows : 
 
 "Whereas, The insurrection against the authority and sovereignty 
 of the United States is now at an end, and peace has been established 
 in all parts of the archipelago, except in the country inhabited by the 
 Moro tribes, to which this proclamation does not apply; and 
 
 "Whereas, During the course of the insurrection against the king- 
 dom of Spain and against the government of the United States persons 
 engaged therein, or those in sympathy with or abetting them, commit- 
 ted many acts in violation of the laws of civilized warfare, but it is 
 believed that such acts were generally committed in ignorance of those 
 laws and under orders issued by the civil or insurrectionary leaders; 
 
 "Now, therefore, be it known, That I, Theodore Roosevelt, presi- 
 dent of the United States of America, by virtue of the authority and 
 power vested in me by the constitution, do hereby proclaim and de- 
 clare, without reservation or condition, except ashereinafter provided, 
 a full and complete pardon and amnesty to all persons in the Philippine 
 archipelago who have participated in the insurrection aforesaid." 
 
 The Moro tribes mentioned in the preamble of the proclamation 
 inhabit the island of Mindanao, where the insured was killed. The 
 existence of an insurrection there was in this form expressly recog- 
 nized by the government. 
 
 It being established that an insurrection existed in 1901 and 1902, 
 the question still remains whether courts will take knowledge of such 
 insurrection at a prior date, in the absence of a formal declaration of 
 war. In Prize Cases, 2 Black, 635, 666, 17 L. Ed. 459, the Supreme 
 Court of the United States has said : 
 
 "Insurrection against a government may or may not culminate in an 
 organized rebellion, but a civil war always begins by insurrection 
 against the lawful authority of the government." 
 
 The hostile opposition which continued in the Philippine islands af- 
 ter the treaty of Paris was in the nature of a civil war which, as 
 stated in the above opinion, begins by insurrection, and the courts 
 take judicial notice of it as a fact in history. In City of Topeka v. 
 Gillett, 32 Kan. 431, 437, 4 Pac. 800, Mr. Justice Valentine, speaking 
 for the court on the subject of judicial notice, said: 
 
 "Courts may take judicial notice of the census returns, of the gen- 
 eral history of the country, of what the members of the legislature 
 ought to know when passing the statute which the courts are called
 
 876 CASES ON EVIDENCE 
 
 upon to construe; and, indeed, of what all well-informed persons ought 
 to know." 
 
 Every well-informed person knows the history of the late war with 
 Spain and its results. The accession of foreign territory is a part of 
 the world's history. The existence of an insurrection in the newly 
 acquired islands which continued against the authority of the United 
 States after that territory had been obtained from Spain is an event 
 in our national career which every schoolboy knows. Courts would 
 stultify themselves by requiring proof of such public matters, con- 
 cerning which judges are informed in common with all other persons 
 who read. 
 
 Knowing judicially that there was a state of war against the author- 
 ity of this nation in the Philippine islands immediately after they were 
 acquired from Spain, in 1898, we also know by recitals in the presi- 
 dent's proclamation that the insurrection had not ended in 1902, so far 
 as the island of Mindanao was concerned. While stationed on this 
 island the command to which LaRue was attached was in a country 
 whose inhabitants were in a state of hostility to the national authority 
 which he was enlisted to defend. The warlike spirit of these inhab- 
 itants increased the peril of a soldier, active or at rest, within that 
 territory in the service of a country to which such insurgents dis- 
 claimed allegiance. 
 
 The judgment of the court below will be affirmed. All the judges 
 concurring. 
 
 HANLEY v. DONOGHUE. 
 116 U. S. i. (1885) 
 
 This was an action brought by Michael Hanley and William F. 
 Welch against Charles Donoghue in the Circuit Court of Baltimore 
 County, in the State of Maryland, upon a judgment for $2000, recov- 
 ered by the plaintiffs on June 4, 1877, in an action of covenant against 
 the defendant, Charles Donoghue, together with one John Donoghue, 
 in the Court of Common Pleas of Washington County in the State 
 of Pennsylvania, and there recorded. 
 
 The declaration contained three counts. The first count set forth 
 the recovery and record of the judgment as aforesaid in said Court of 
 Common Pleas, and alleged that it was still in force and unreversed.
 
 JUDICIAL NOTICE 877 
 
 The second count contained similar allegations, and also alleged that in 
 the former action Charles Donoghne was summoned, and property of 
 John Donoghue was attached by process of foreign attachment, but 
 he was never summoned and never appeared, and that the proceedings 
 in that action were duly recorded in that court. The third count re- 
 peated the allegations of the second count, and further alleged that 
 "by the law and practice of Pennsylvania the judgment so rendered 
 against the two defendants aforesaid is in that state valid and enforce- 
 able against Charles Donoghue and void as against John Donoghue," 
 and that "by the law of Pennsylvania any appeal from the judgment 
 so rendered to the Supreme Court of Pennsylvania (which is the cn!y 
 court having jurisdiction of appeals from the said Court of Common 
 Pleas) is required to be made within two years of the rendition of the 
 judgment, nevertheless no appeal has ever been taken from the judg- 
 ment so rendered against the said defendants, or either of them." 
 
 The defendant filed a general demurrer to each and all of the counts, 
 which was sustained, and a general judgment rendered for him. Upon 
 appeal by the plaintiffs to the Court of Appeals of the State of Mary- 
 land, the judgment was affirmed. 59 Maryland, 239. The plaintiffs 
 thereupon sued out this writ of error, on the ground that the decision 
 was against a right and privilege set up and claimed by them under 
 the Constitution and laws of the United States. 
 
 MR. JUSTICE GRAY delivered the opinion of the court. 
 
 No court is to be charged with the knowledge of foreign laws ; but 
 they are well understood to be facts, which .must, like other facts, be 
 proved before they can be received in a court of justice. Talbot v. 
 Seeman, i Cranch, I, 38; Church v. Hubbart, 2 Cranch, 187, 236; 
 Strother v. Lucas, 6 Pet. 763, 768; Dainese v. Hale, 91 U. S. 13, 20. 
 It is equally well settled that the several states of the Union are to be 
 considered as in this respect foreign to each other, and that the courts 
 of one state are not presumed to know, and therefore not bound to take 
 judicial notice of, the laws of another state. In Buckner v. Finley, 2 
 Pet. 586, in which it was held that bills of exchange drawn in one of 
 the states on persons living in another were foreign bills, it was said 
 by Mr. Justice Washington, delivering the unanimous opinion of this 
 court : "For all national purposes embraced by the Federal Constitu- 
 tion, the citizens thereof are one, united under the same sovereign 
 authority, and governed by the same laws. In all other respects, the 
 states are necessarily foreign to and independent of each other. Their 
 constitutions and forms of government being, although republican, 
 altogether different, as are their laws and institutions." 2 Pet. 590.
 
 878 CASES ON EVIDENCE 
 
 Judgments recovered in one State of the Union, when proved in 
 the courts of another, differ from judgments recovered in a foreign 
 country in no other respect than that of not being re-examinable upon 
 the merits, nor impeachable for fraud in obtaining them, if rendered 
 by a court having jurisdiction of the cause and of the parties. Buck- 
 ner v. Finley, 2 Pet. 592; M'Elmoyle v. Cohen, 13 Pet. 312, 324; 
 D'Arcy v. Ketchum, n How. 165, 176; Christmas v. Russell, 5 Wall. 
 290, 305 ; Thompson v. Whitman, 18 Wall. 457. 
 
 Congress, in the execution of the power confered upon it by the 
 Constitution, having prescribed the mode of attestation of records of 
 the courts of one state to entitle them to be proved in the courts of 
 another state, and having enacted that records so authenticated shall 
 have such faith and credit in every court within the United States as 
 they have by law or usage in the state from which they are taken, a 
 record of a judgment so authenticated doubtless proves itself without 
 further evidence; and if it appears upon its face to be a record of a 
 court of general jurisdiction, the jurisdiction of the court over the 
 cause and the parties is to be presumed unless disproved by extrinsic 
 evidence or by the record itself. Knowles v. Gaslight & Coke Co., 19 
 Wall. 58 ; Settlemier v. Sullivan, 97 U. S. 444. But Congress has not 
 undertaken to prescribe in what manner the effect that such judgments 
 have in the courts of the state in which they are rendered shall be 
 ascertained, and has left that to be regulated by the general rules of 
 pleading and evidence applicable to the subject. 
 
 Upon principle, therefore, and according to the great preponderance 
 of authority, (as is shown by the cases collected in the margin) when- 
 ever it becomes necessary for a court of one state, in order to give full 
 faith and credit to a judgment rendered in another state, to ascer- 
 tain the effect which it has in that state, the law of that state 
 must be proved, like any other matter of fact. The opposing 
 decisions in Ohio v. Hinchman, 27 Penn. St. 479, and Paine v. Schen- 
 ectady Ins. Co., n R. I. 411, are based upon the misapprehension that 
 this court, on a writ of error to review a decision of the highest court 
 of one state upon the faith and credit to be allowed to a judgment ren- 
 dered in another state, always takes notice of the laws of the latter 
 state; and upon the consequent misapplication of the postulate that 
 one rule must prevail in the court of original jurisdiction and in the 
 court of last resort. 
 
 When exercising an original jurisdiction under the Constitution and 
 laws of the United States, this court, as well as every other court of
 
 JUDICIAL NOTICE; 879 
 
 the National Government, doubtless takes notice, without proof, of the 
 laws of each of the United States. 
 
 But in this court, exercising an appellate jurisdiction, whatever was 
 matter of law in the court appealed from is matter of law here, and 
 whatever was matter of fact in the court appealed from is matter of 
 fact here. 
 
 In the exercise of its general appellate jurisdiction from a lower 
 court of the United States, this court takes judicial notice of the laws 
 of every State of the Union, because those laws are known to the 
 court below as laws alone, needing no averment or proof. Course v. 
 Stead, 4 Dall. 22, 27, note; Hinde v. Vattier, 5 Pet. 398; Owins v. 
 Hull, 9 Pet. 607, 625 ; United States v. Turner, 1 1 How. 663, 668 ; 
 Pennington v. Gibson, 16 How. 65 ; Covington Drawbridge Co. v. 
 Shepherd, 20 How. 227, 230; Cheever v. Wilson, 9 Wall. 108; Junc- 
 tion Railroad Co. v. Bank of Ashland, 12 Wall. 226, 230; Lamar v. 
 Micou, 114 U. S. 218. 
 
 But on a writ of error to the highest court of a state, in which the 
 revisory power of this court is limited to determining whether a ques- 
 tion of law depending upon the Constitution, laws or treaties of the 
 United States has been erroneously decided by the state court upon 
 the facts before it while the law of that state, being known to its 
 courts as law, is of course within the judicial notice of this court at 
 the hearing on error yet, as in the state court the laws of another state 
 are but facts, requiring to be proved in order to be considered, this 
 court does not take judicial notice of them, unless made part of the 
 record sent up, as in Green v. Van Buskirk, 7 Wall. 139. The case 
 comes, in principle, within the rule laid down long ago by Chief Jus- 
 tice Marshall: "That the laws of a foreign nation, designed only for 
 the direction of its own affairs, are not to be noticed by the courts of 
 other countries, unless proved as facts, and that this court, with respect 
 to facts, is limited to the statement made in the court below, cannot 
 be questioned." Talbot v. Seeman, i Cranch, i, 38. 
 
 Where by the local law of a state, (as in Tennessee, Hobbs v. Mem- 
 phis & Charleston Railroad, 9 Heiskell, 873), its highest court takes 
 judicial notice of the laws of other states, this court also, on writ of 
 error, might take judicial notice of them. But such is not the case 
 in Maryland, where the Court of Appeals has not only affirmed the 
 general rule that foreign laws are facts, which, like other facts, must 
 be proved before they can be received in evidence in courts of justice; 
 but has held that the effect which a judgment rendered in another state 
 has by the law of that state is a matter of fact, not to be judicially
 
 880 CASKS ON EVIDENCE 
 
 noticed without allegation and proof; and consequently that an allega- 
 tion of the effect which such a judgment has by law in that state is 
 admitted by demurrer. Baptiste v. De Volunbrun, 5 Har. & Johns, 
 86, 98; Wernwag v. Pawling, 5 Gill & Johns. 500, 508; Bank of United 
 States v. Merchants' Bank, 7 Gill, 415, 431; Coates v. Mackey, 56 
 Maryland, 416, 419. 
 
 From these considerations, it follows that the averment, in the third 
 count of the declaration, that by the law of Pennsylvania the judgment 
 rendered in that state against Charles Donoghue and John Donoghue 
 was valid and enforceable against Charles, who has been served with 
 process in that state and void against John, who had not been so 
 served, must be considered, both in the courts of Maryland, and in this 
 court on writ of error to one of those courts, an allegation of fact, ad- 
 mitted by the demurrer. 
 
 Upon the record before us, therefore, the plaintiff appears to be en- 
 titled, under the Constitution and laws of the United States, to judg- 
 ment on this count. It having been admitted at the bar that the other 
 counts are for the same cause of action, it is unnecessary to consider 
 them. The general judgment for the defendant is erroneous, and the 
 rights of both parties will be secured by ordering, in the usual form, 
 that the 
 
 Judgment of the Court of Appeals of Maryland be reversed, and 
 the case remanded to that court for further proceedings not inconsistent 
 with this opinion. 
 
 PBESUMPTIONS.1 
 
 EUREKA SPRINGS RY. v. TIMMONS. 
 
 51 Ark. 459. (1888) 
 
 . 
 
 HUGHES, J. While a passenger in one of the coaches on the rail- 
 way of appellant en route from Seligman, Missouri, to Eureka Springs, 
 Arkansas, appellee received personal injuries, by the coach in which he 
 was seated leaving the track of the road, and turning over down an 
 embankment. 
 
 The court overruled the motion for a new trial, defendant excepted 
 and appealed to this court. 
 
 1 Hughes on Evidence, p. 9.
 
 PRESUMPTIONS 881 
 
 The appellants counsel insist that the injury, if any, was received 
 in the State of Missouri on the Missouri and Arkansas Railway, which 
 is a corporation existing in said state, and organized under its laws, and 
 that no action will lie in Arkansas, unless it be shown, first, that the 
 Eureka Springs Railway Company had purchased or leased the road 
 owned by the Missouri corporation, or that said road had been legally 
 consolidated with the Arkansas road as provided in sees. 5511, 5516, 
 Mansfields Digest; and cites authorities to show that a corporation 
 can exist only in the state of its creation. The complaint alleges, how- 
 ever, and the answer does not deny that the Eureka Springs Railway 
 Company was operating its trains over the other road at the time the 
 accident occurred and, therefore, if the evidence warrants, the company 
 is liable at common law, being at the time a common carrier. In the 
 absence of proof to the contrary the courts of this state will presume 
 the common law to be in force in Missouri. Thorn v. Weatherly, 50 
 Ark., 237, and cases cited. 
 
 Finding no substantial error the judgment is affirmed. 
 
 MCLAUGHLIN v . SOUVEREIGN CAMP, w. o. w. 
 
 p/ Neb. 71. (1914) 
 
 SEDGWICK, J. This is an action on a fraternal beneficiary certificate 
 for $1,000 issued by defendant to James W. McLaughlin. Plaintiff is 
 the mother of assured, and is named in the certificate or insurance con- 
 tract as beneficiary. In the petition it is alleged that assured is dead, 
 and that he and plaintiff performed all of the conditions of the contract 
 on their part. These allegations and the liability of defendant are 
 denied in its answer. From judgment in favor of plaintiff for the full 
 amount of her claim, defendant has appealed. 
 
 There is no direct evidence that the assured is dead. To establish 
 the fact and the resulting liability of defendant, plaintiff relied on 
 proof of assured's absence without tidings for more than seven years. 
 The beneficiary certificate became effective as an insurance contract 
 May 2, 1900. At that time assured was an unmarried man, about 24 
 years of age, resided with his father and mother and other members of 
 their family at O'Neill, Nebraska. Shortly afterwards he went to 
 Park City, Utah, and worked in a mine. While there he wrote and 
 posted family letters regularly, and sent money to his mother. Early in
 
 882 CASES ON EVIDENCE 
 
 1904 he left Utah and went to Lima, Peru. His father and mother re- 
 ceived from him a letter dated at that place March 30, 1904, in which he 
 said he had changed his residence because he thought he could do better 
 down there, and stating: "I am going up to a place called Cerro de 
 Pasco, so I cannot give you any address with letter, but will write you 
 when I get settled." A companion, who went with him to Lima, but 
 who promptly returned to Park City, wrote to assured's father as fol- 
 lows : "We stayed in the city of Lima, Peru, a couple of weeks and 
 I not seeing any favorable chances for work and not liking the climate, 
 started for home. Jim refused to come with me, saying that he would 
 try the mines first. On the day that I left there I saw him at the 
 train starting for the mines of the Cerro de Pasco Mining Company 
 which are located about sixty miles from the city." Assured has never 
 since been heard of. 
 
 The best authorities, with substantial unanimity, hold that whether 
 seven years' continued absence from one's usual place of residence 
 will raise the presumption of death must depend largely upon the cir- 
 cumstances and conditions of each particular case. Upon this point 
 the Supreme Court of Kansas, which has perhaps required as strict 
 proof to raise this presumption as has any court in this country, said : 
 "It is conceived, however, that the character of the inquiry, the per- 
 sons of whom it must be made, and the place or places where it must 
 be made are all to be determined by the circumstances of the case." 
 Modern Woodmen of America v. Gerdom, 72 Kan. 391. In that case 
 and in Renard v. Bennett, 76 Kans. 848, the court appears to adopt 
 the rule that, when a young unmarried man leaves the home of his 
 parents and goes from place to place for some time, corresponding, 
 and nothing is heard from him for more than seven years, inquiry 
 must be made at all places and of all people where there was any 
 probability that information might be obtained. But, in general, the 
 courts of this country have held, as did the supreme court of Wis- 
 consin, that it "does not require proof of diligent search and inquiry 
 in order to establish the presumption of death when a person has 
 absented himself from his home or place of residence for seven years." 
 Miller v. Souvereign Camp, W. O. W., 140 Wis. 505. The Supreme 
 Court of Minnesota approved this instruction: "If you find from 
 the evidence that on the I7th day of July, 1901, Behlmer (that is, 
 Fred) left his home, wife, and children, and that he has never re- 
 turned, and that no tidings from him have ever been received by his 
 family, a presumption arises after seven years that he is dead." Behl-
 
 PRESUMPTIONS 883 
 
 mer v. Modern Woodmen of America, 146 la. I ; Oziah v. Howard, 
 149 la. 199. 
 
 In Thomas v. Thomas, 16 Neb. 553, it was held that a wife could not 
 rely upon the presumption of the death of her husband because of 
 his absence from her for a period of seven years,, when she, after he 
 had left her, removed from state to state, establishing new places of 
 residence, and had made no inquiry at her place of residence at the 
 time her husband left her. And, when the same case was before this 
 court upon a subsequent appeal (19 Neb. 81), the court held that the 
 fact that the husband had been seen alive within the seven years over- 
 came the presumption of his death. But upon the first appeal it was 
 definitely decided that, if he had been absent for a period of seven 
 years, and during that time had not been heard from "by those who, 
 were he living, would naturally hear from him," this was sufficient to 
 raise the presumption of death. Surely it cannot be said that, under the 
 evidence in this case, the finding of the trial court is so unsupported 
 that we must say, as matter of law, that it is clearly wrong. 
 
 The findings and judgment of the trial court are not so unsupported 
 by the evidence that we can say they are clearly wrong. The judgment 
 is therefore 
 
 Affirmed. 
 
 COE v. NATIONAL COUNCIL OF K. & L. of S. 
 pd Neb. 130. (1914) 
 
 LETTON, J. This is an action to recover upon an insurance certifi- 
 cate. Plaintiff recovered, and defendant appeals. 
 
 Harry F. Ganson, on September 8, 1910, was a dentist, residing in 
 Nebraska City, about 44 years of age. He had been married twice. 
 The family consisted of his second wife with their three children, the 
 oldest being 8 and the youngest 4 years of age. The ward of plain- 
 tiff, who is a daughter by the first wife, also lived in the family. Dr. 
 Ganson had lived in Nebraska City for about 8 or 9 years. At the 
 time of coming there he had but little of this world's goods, but was 
 successful in his business, and by September, 1910, he had fully paid 
 for his office building and fixtures, had purchased and furnished a 
 home, a mortgage upon which was held by a building and loan asso- 
 ciation and was partly paid. He also had purchased and paid for three
 
 884 CASES ON EVIDENCE 
 
 or four city lots. His income was from $1,800 to $2,000 a year from 
 his business. He carried $5,000 fraternal life insurance, $3,000 of 
 which was in favor of his daughter Josephine. Eight days before his 
 disappearance he allowed a $2,500 accident insurance policy to lapse. 
 Some bills he was sending out were found on his desk, and some den- 
 tal supplies he had ordered on the ijth came in on the iQth. He was 
 a man of domestic tastes and spent most of his spare time with his 
 family. His wife testifies that because his business kept him closely 
 engaged he purchased a bicycle and it was his custom to take a ride 
 each morning, leaving before the family were up 'and returning for 
 breakfast. He was fond of fishing and swimming, and was a kind 
 and indulgent husband and father. The family spent part of the 
 summer of 1910 in Ohio, the doctor joining them, staying about two 
 weeks, and coming home with them about the beginning of August. 
 He was a member of the official board of the Methodist church, a 
 member of the choir, and had no bad habits of any kind. He was 
 fond of the open air, and while the family were in Ohio he pitched a 
 tent in Riverside Park, near the Missouri River, and slept there during 
 their absence, and on their return moved the tent to his back yard and 
 slept there with his little boy. On Saturday, September 17, the family 
 with some friends went to Riverside Park for a moonlight picnic. They 
 returned home a little after 9 o'clock. The family soon retired, leaving 
 Dr. Ganson sitting reading. About half past 2 in the morning Mrs. 
 Ganson was awakened by the little boy crying, and found the doctor 
 was not in the tent with him. She testifies he had drunk two cupfuls 
 of coffee at the picnic, and he could not sleep when he drank coffee. 
 His nightgown was hanging on the side of the bed where he had hung 
 it. All of his clothing, except a pair of khaki trousers, a shirt and a 
 pair of bicycle shoes, were in the places where they were usually kept. 
 About 6 in the morning the doctor's bicycle was found at Riverside 
 Park on the crest of the bluff overlooking the river. A stick was stuck 
 in the mud on the bank of the river and the clothing taken by him 
 was hanging upon this stick. His bicycle shoes and his socks were 
 on the- ground beside it. Tracks of a barefooted man led from this 
 point to the water's edge, and there were other tracks coming from the 
 water and leading to a drift or log that was lying partly in the water, 
 and which had been used by boys to jump into the river. The bank 
 of the river was muddy, but there were no footprints leading back to 
 the solid ground. The sheriff, who reached the scene about 7 oclock 
 in the morning, with others went up and down the river bank for a 
 distance of between a half mile and a mile to see if they could find
 
 PRESUMPTIONS 885 
 
 any fresh tracks leading out of the river, but were unable to find any. 
 In the afternoon the river, which was from 6 to 9 feet deep at that 
 point, was dragged, and afterwards on Sunday and Monday dynamite 
 was used in the attempt to raise the body. Search was also made for 
 footprints for about a mile on the other side of the stream, but none 
 were found, though the character of the bank was such that an imprint 
 would have been left if a man had walked over it. The following 
 Tuesday some men who were working at a brick-yard at a point about 
 a mile below testify they saw an object which they believed to be a 
 naked body coming down the river. When asked as to the color of the 
 object, a witness answered: "Why, he was white and shiny you could 
 see hair, you know; it looked like a man's or woman's body." This 
 object was out about 150 yards. Some of the men went after a boat, 
 but before they got it launched and reached the spot the object had 
 disappeared. Another witness watched the body while the men went 
 for the boat. He says it was rolling along on the edge of a sand-bar, 
 and sank before the boat reached the spot. 
 
 Notices were printed and distributed along the river and elsewhere. 
 Mrs. Ganson wrote to many of his relatives and old school friends, 
 and caused many inquiries to be made, but neither she nor any one 
 else ever received any communication from him or from any other 
 persons who saw him afterwards. 
 
 No evidence was introduced by the defendant. This action was be- 
 gun about a year after the disappearance. The principle governing this 
 case is well expressed, as follows, by Judge Sanborn in a case from 
 this state, citing Cox v. Ellsworth, 18 Neb. 664, and other cases : "The 
 established presumption of fact from the disappearance of an individual 
 under ordinary circumstances, from whom his relatives and acquaint- 
 ances have never afterwards heard, is that he continues to live for 
 seven years after his disappearance. If this presumption was unaffected 
 by countervailing facts, it would continue in the case at bar until August 
 22. 1899; but this presumption of fact is not conclusive. It may be 
 overcome, not only when the testimony of those who saw the insured 
 die or saw his body after his death is produced, or when he was last 
 seen in a peril that might probably cause his death, but also, when all 
 the facts and circumstances of the case the possible motives, if any, 
 of the lost one to absent and conceal himself in view of approaching 
 failure, disgrace, or punishment, his possible motives, if any for re- 
 turning to his family and occupation, his attachments to the members 
 of his family and his friends, his interest and prospects in his business 
 or occupation, and the extent of the unavailing search that has been
 
 886 CASES ON EVIDENCE 
 
 made for him are such that they would take the case out of the 
 category of an ordinary disappearance, and would lead the unpreju- 
 diced minds of reasonable men, exercising their best judgment, guided 
 by the established rule that life is presumed to continue seven years 
 after an unexplained disappearance, to the conviction that death had 
 intervened at an earlier date." Northwestern Mutual Life Ins. Co. 
 v. Stevens, 71 Fed. 258. See, also, Winter v. Supreme Lodge, K. of 
 P., 96 Mo. App. i, 101 Mo. App. 550. 
 
 While there is a possibility that Dr. Ganson may still be alive, we 
 are of the opinion that a consideration of his whole history, his tastes, 
 his habits, his occupation and his manner of life, when taken in con- 
 nection with the facts that all the clothing which he is known to have 
 been possessed of has been accounted for, that it was not shown that he 
 was in possession of any money at the time of his disappearance, that 
 his last known appearance in life was when he stood unclad upon the 
 bank of the treacherous Missouri river, that what was believed by sev- 
 eral witnesses to be the naked body of a human being a few days after- 
 wards was seen in the river at a point below, was sufficient to justify 
 the District Court in finding that he died as alleged in the petition. 
 We have been cited in defendant's brief to numerous instances of the 
 disappearance of persons who were afterward found to be alive, but in 
 none that have been called to our attention are the circumstances similar 
 to those in this case. 
 
 The judgment of the District Court was warranted by the evidence, 
 and it is therefore 
 
 Affirmed. 
 
 MARQUET v. INSURANCE CO. 
 128 Tenn. 213. (1913) 
 
 MR. JUSTICE BUCHANAN delivered the opinion of the court. 
 
 This suit is based upon an insurance contract. The breach relied 
 on is the failure to pay $2,000, the amount of the policy, upon proofs 
 of death of the insured. 
 
 The defenses are two : First, that the payee or beneficiary, in the 
 policy sued on, at the date of its insurance, had no insurable interest in 
 the life of the insured, and the contract sued on is therefore a wager- 
 ing one and unenforceable; second, that the proofs do not show the
 
 PRESUMPTIONS 887 
 
 death of the insured, and therefore no breach is shown justifying a 
 recovery. 
 
 There was a decree below for $2,132.50 and costs, from which the 
 insurance company appealed, and has here assigned errors based on 
 the defense above. 
 
 At the time of the issuance of the policy sued on, complainant 
 was the lawful wife of Gus Marquet, and his was the life 
 insured. The policy was issued April 7, 1893, and soon thereafter it 
 was delivered to complainant, who paid all premiums which became 
 due upon it after its issuance. Three years and over after its issuance 
 on, to wit, April 21, 1898, at the suit of complainant she was granted 
 absolute divorce from Gus Marquet by the Chancery Court of Hamil- 
 ton County upon the ground of habitual drunkenness by Gus Marquet 
 after his marriage to her, failure by him to provide for her and her 
 children by him, etc. There followed an entire estrangement between 
 Gus Marquet and complainant and her children. The latter were two 
 sons, respectively, about twenty-one and twenty years of age, and a 
 daughter about eighteen years old at the time of the divorce. The 
 children were in sympathy with the mother in that suit. 
 
 Prior to the divorce, for many years, the home of the family and 
 of Gus Marquet had been in Chattanooga, Tenn., but soon after the 
 divorce, or during the years 1898 or 1899, he left Chattanooga, and 
 took up his residence at Oakdale, Tenn., where he remained until 
 about the year 1900, when he left Oa,kdale for a trip to New Orleans, 
 and has not, as complainant insists, been heard from directly since that 
 time, except through a letter supposed to have been from him, ad- 
 dressed to one of his nephews residing in Chattanooga in the year 
 1904. By one rumor he is said to have been seen in Detroit, Mich., 
 by another in Memphis, Tenn., but the persons said to have seen him 
 are not examined as witnesses ; nor do the dates appear when they 
 claim to have seen him. 
 
 The policy in suit, by its terms, was to live for a period of ten years 
 from its date, in consideration of a fixed semi-annual premium to be 
 paid the company. But it provided that at its expiration it might be 
 renewed by the issuance of a new policy. 
 
 The second assignment of error, based on the second defense above, 
 is that the court was in error in decreeing complainant a recovery of 
 the amount of the policy sued on, because the evidence in this case 
 does not justify the presumption in law that Gus Marquet was dead 
 when this suit began. 
 
 Positive proof is always required where, from the nature of the
 
 888 CASES ON EVIDENCE 
 
 case, it appears it might possibly have been had. But next to positive 
 proof, circumstantial evidence, or the doctrine of presumption must 
 take place, for where the fact itself cannot be demonstratively evinced, 
 that which comes nearest to the proof of the fact is the proof of such 
 circumstances which either necessarily or usually attend such facts, 
 and these are called presumptions, which are only to be relied on until 
 the contrary be actually proved. Stabitur praesumptio donee probetur 
 in contraium. Violent presumption is many times equal to full proof, 
 for there those circumstances appear which necessarily attend the fact." 
 Blackstone, vol. 2, book 3, sec. 341. 
 
 Presumption is no magic or short-cut way by which proof of the 
 essential and determinative fact may be dispensed with, for we see from 
 the above quotation that "positive proof is always required, where, 
 from the nature of the case, it appears that it might possibly have been 
 had." And, evidently, by the next sentence in the quotation, it is meant 
 to be said that a presumption is only a name for a conclusion reached 
 by means of the weight of proven circumstances; and, which attend 
 must be in evidence. Proof of the essential fact must be had, either 
 direct or positive by witnesses who know the fact, or circumstantial 
 by witnesses who know and testify to facts which tend to establish or 
 prove the essential fact; and only when the circumstances are, in the 
 judgment of the court or jury, such as usually or necessarily attend 
 the essential fact are they sufficient in law to warrant a verdict, judg- 
 ment, or decree establishing as a fact that which has not been proved 
 by direct or positive evidence. This principle was applied by us in 
 Dunlap v. State, 126 Tenn. 415, 150 S. W. 86. 
 
 The essential fact in the present case is the death of Gus Marquet. 
 Upon satisfactory proof of his death, the contract sued on binds the 
 insurance company to pay. There is no direct or positive proof of 
 his death, no witness who testifies that he saw him die, or that he saw 
 his body after death. It is then clearly a case where proof of the 
 essential fact must be made by circumstantial evidence. 
 
 The main insistence for the complainant is that, under the proof of- 
 fered by her in this record, a presumption that Gus Marquet is dead 
 arises. 
 
 "The inference of death to be derived from unexplained absence is, 
 at most, only a presumption, and it cannot arise unless the absence 
 remains unexplained after diligent inquiry is made of the persons and 
 at the places where tidings of the absentee, if living, would most 
 probably be had." Renard v. Bennett, 76 Kan. 854, 93 Pac. 263, 14 
 Ann. Cas. 240, and authorities cited.
 
 PRESUMPTIONS 889 
 
 "According to the weight of modern authority, diligent inquiry 
 among friends and relatives, and any others who would probably hear 
 of an absentee, is necessary to raise a presumption of the latter's death, 
 after an unexplained absence -of seven years from home or place of 
 residence." Modern Woodmen of America v. Gerdom, 72 Kan. 391, 
 82 Pac. 1 100, 2 L. R. A. (N. S.) 178, 133 Am. St. Rep. 1095. 
 
 "Mere absence is not sufficient to raise the presumption. * * * 
 Evidence of absence from his original place of residence will not raise 
 the presumption of death, where it appears that he has moved to an- 
 other place." Hansen v. Owens, 132 Ga. 652, 64 S. E. 800; Went- 
 worth v. Wentworth, 71 Me. 74. 
 
 The complainant calls as witneses none of the collateral relatives 
 of Gus Marqnet who resided in Chattanooga. Her sole evidence to 
 establish the presumption of death in this case is made by herself and 
 her son, W. L. Marqnet, who, as shown by the divorce bill, had re- 
 fused to reside under the same roof with his father before the bill 
 was filed. 
 
 Without going into the evidence touching inquiries made by the 
 complainant in further detail, it suffices to say that, in our opinion, the 
 evidence here does not warrant a finding that Gus Marquet was dead 
 when this bill was filed. Complainant testified that he was up to the 
 time she last saw him, always in good health, and that she had never 
 known him to be sick as much as one day. 
 
 Wherefore the decree appealed from must be reversed. We think 
 that we can see from this record that justice will in all probability be 
 done by remanding this cause, with leave to each side to take further 
 proof, and it is so ordered. Bank v. White, 114 Tenn. 73, 84 S. W. 
 697. 
 
 NEWELL v. NICHOLS. 
 75 AT. Y. 78. (1878) 
 
 CHURCH, Ch. J. The able and elaborate opinion delivered by Judge 
 Van Vorst, who tried the case at Special Term, renders it unnecessary 
 to elaborate the question involved. I have examined with care all the 
 points presented, and I concur fully with the opinion upon all of them, 
 and with the views expressed therein. 
 
 The principal points decided are: ist. That the appellants who
 
 890 CASES ON EVIDENCE 
 
 claim through a survivorship must prove the survivorship. 2d. That 
 there is no presumption in law of survivorship in the case of persons 
 who perish by a common disaster, as in this case, by shipwreck, with- 
 out other evidence tending to prove the fact, and hence that the party 
 upon whom the onus lies fails to establish it. 
 
 I should be content to adopt the opinion without further remark 
 but for considerations which have suggested themselves to some of my 
 brethren in respect to the question of survivorship, as applicable to the 
 position of the appellants, which will be briefly noticed. The sugges- 
 tion, as I understand it, is, that conceding the burden of proving survi- 
 vorship to be upon the appellants, and that in this case there is no 
 presumption that either particular child survived, yet as the law will 
 not presume that they died at the same time, a presumption may be 
 indulged that there was a survivor, and that it makes no difference 
 which child survived as he would inherit the share of the other, and 
 create a new line of descent for that share which would embrace the 
 appellants. This of course would affect but one of the children's 
 share, or one-quarter of the estate. The suggestion although appar- 
 ently plausible in statement, cannot be sustained. 
 
 In the first place assuming such a presumption, it may be observed 
 that the appellants are required to prove their right or title. Can a 
 party successfully claim that as he is entitled to one thing or another, 
 and as they are alike he will take either? It is an accidental circum- 
 stance that the shares of these children were alike in amount or kind. 
 Suppose they had been unequal in amount, or that one had been in 
 land, and the other in money, could the appellants have claimed either ? 
 Clearly not. As to the daughter's share there was a failure to prove 
 a title because it does not appear that the son survived the daughter, 
 and the same is true of the share of the son. The appellants hold the 
 affirmative, and must establish their title to some specific share or in- 
 terest, which they fail to do by an alternative claim. As they cannot 
 claim either have they not failed as to both? A somewhat similar 
 point, though upon a different ground was presented in Wing v. An- 
 gram (8 H. L. 183). The estate was limited to one Wing upon certain 
 conditions in the respective wills of husband and wife, who were lost 
 at sea. The husband gave everything to the wife, and adds: "And 
 in case my wife shall die in my lifetime * * * then I give all my 
 estate to William Wing." And the wife gave everything to the hus- 
 band, and stated, "and in case my husband should die in my lifetime, 
 then I devise, bequeath, and appoint the said property to the use of 
 William Wing." Wing claimed under both wills, but the court denied
 
 PRESUMPTIONS 891 
 
 his claim under either, because he could not prove that either husband 
 or wife survived. It is true in that case that the wills created a condi- 
 tion precedent, but as the condition was the same in each will the ulti- 
 mate legatee claimed under both on the ground that it was immaterial 
 which survived. Lord Chelmsford, in answering this point said: "If 
 different persons had been entitled under the two wills, each must have 
 established his claim solely by the will in his favor, independently of 
 the other, and no difference can be made in the rules of evidence, be- 
 cause the appellant accidentally happened to be the ultimate legatee 
 in each will." The claim was not predicated upon the presumption 
 of a survivor as here, but upon a unity of rights and interests, as 
 legatee under both wills. 
 
 I do not think an alternative claim can be sustained, conceding the 
 presumption of survivorship. However this may be a decisive answer 
 to the suggestion is, that there is no legal presumption which courts 
 are authorized to act upon that there was a survivor any more than 
 there is any legal particular survivor. It is not claimed that there is 
 any legal presumption that the children died at the same time. Indeed 
 it may be conceded that it is unlikely that they ceased to breathe at 
 precisely the same instant, and as a physical fact it may perhaps be 
 inferred that they did not. But this does not come up to the standard 
 of proof. The rule is that the law will indulge in no presumption on 
 the subject. It will not raise a presumption by balancing probabilities, 
 either that there was a survivor, or who it was. In this respect the 
 common law differs from the civil law. Under the latter, certain rules 
 prevail in respect to age, sex, and physical condition, by which survivor- 
 ship may be determined; but nothing can be more uncertain, or un- 
 satisfactory than this conjectural mode of arriving at a fact, which 
 from its nature must remain uncertain, and often upon existence of 
 which the title to large amounts of property depend. In the language 
 of the Lord Chancellor, in Wing v. Underwood, (4 DeGex, M. & G. 
 633), "We may guess, or imagine, or fancy, but the law of England 
 requires evidence." There are cases where a strong probability in 
 theory at least would arise, that one person survived another, and per- 
 haps as strong as that that there was a survivor, and yet the common 
 law wisely refrains from acting upon it in either case. It is regarded 
 as a question of fact to be proved, and evidence merely that two per- 
 sons perished by such a disaster, is not deemed sufficient. If there 
 are other circumstances shown, tending to prove survivorship, courts 
 will then look at the whole case for the purpose of determining the 
 question, but if only the fact of death by a common disaster appears
 
 892 CASES ON EVIDENCE 
 
 they will not undertake to solve it on account of the nature of the 
 question, and its inherent uncertainty. It is not impossible for two 
 persons to die at the same time, and when exposed to the same peril 
 under like circumstances, it is not a question of probability very un- 
 likely to happen. At most the difference can only be a few brief sec- 
 onds. The scene passes at once beyond the vision of human penetra- 
 tion, and it is as unbecoming as it is idle for judicial tribunals to 
 speculate or guess whether during the momentary life struggle one or 
 the other may not have ceased to gasp first, especially when the trans- 
 mission of title to property depends upon it, and hence in the absence 
 of other evidence the fact is assumed to be unascertainable, and prop- 
 erty rights are disposed of as if death occurred at the same time. This 
 is done not because the fact is proved, or that there is any presumption 
 to that effect, but because there is no evidence, and no presumption 
 to the contrary. The authorities are uniform upon this doctrine, but 
 the expressions of some of the judges in announcing it are liable to 
 be misunderstood as indicating a presumption of simultaneous death 
 which is not the rule. For instance, Sir William Wynne said: "I 
 always thought it the most natural presumption that all died together, 
 and that none could transmit rights of property to another." (Rex. 
 v. Hease, 2 Salk. 593; 2 Phill. 296, note c. ; 5 B. & Ad. 91, 92.) 
 
 Sir John Nicoll said: "I assume that both perished in the same 
 moment." (Taylor v. Diplock, 2 Phill. 261.) In the Matter of Sel- 
 wyn (3 Hagg. EC. R. 748), the court said: "But in the absence of 
 clear evidence, it has generally been taken that both died in the same 
 moment." Sir Herbert Jenner said: "The parties must be presumed 
 to have died at the same time." (i Curties, 705.) 
 
 These expressions only mean that as the fact is incapable of proof, 
 the one upon whom the onus lies fails, and the persons thus perishing 
 must be demed to have died at the same time, for the purpose of their 
 property. The Lord Chancellor in Wing v. Underwood (supra), 
 recognized the distinction, and explained the meaning of the rule. In 
 commenting upon a similar expression of the Master of the Rolls to the 
 effect that he must assume that Mr. and Mrs. Underwood both died 
 together, the chancellor said: "From personal communication with 
 his honor, I know that he is not aware that he ever used such an ex- 
 pression, and all he ever meant to say was that the property must be 
 distributed just as it would have been if they had both died at the 
 same moment." And Mr. Best in his work on Presumptions, after 
 laying down the general rule, states, that it is not correct to infer from 
 this that the law presumes both to have perished at the same moment,
 
 BURDEN of PROOF 893 
 
 and adds : "The practical consequence is however nearly the same, 
 because if it cannot be shown which died first, the fact will be treated 
 by the tribunal as a thing unascertainable, so that for all that appears 
 to the contrary, both individuals may have died at the same moment." 
 All the common law authorities are substantially the same way, and 
 the rule, which I think is wise and safe, should be regarded as settled. 
 Its propriety is not weakened by the circumstance that its first applica- 
 tion in this court prevents this estate from being turned into channels 
 never contemplated or intended by the testatrix. 
 
 Judgment affirmed. 
 
 BURDEN OF PROOF.l 
 
 GIBSON, Admr. v. SWOFFORD. 
 122 Mo. App. 126. (1906) 
 
 ELLISON, J. The plaintiff is public administrator of the estate of 
 W. C. Swofford, deceased, and the defendant is the father of the de- 
 ceased. The son was married to Delia E. Swofford and she was ap- 
 pointed administratrix of his estate and, as such, brought this action 
 in replevin for a lot of personal property. She married and then the 
 present plaintiff was substituted in her stead as plaintiff. The jury 
 found for the plaintiff and assessed the value of the property at the 
 time of the trial at $100 and likewise assessed the damages at $10. 
 
 There was no substantial dispute as to defendant's having the prop- 
 erty and that originally it belonged to his son. He, however, claimed 
 to have purchased a part of it of the son prior to his death. Ordi- 
 narily, the burden of proof is on the plaintiff, but on issue as here 
 presented it devolved upon defendant to show that he bought the 
 property of his son. Instructions on this head were proper. 
 
 Judgment affirmed. 
 
 iHughes on Evidence, p. 15.
 
 894 CASES ON EVIDENCE 
 
 STATE ex rel. LEONARD v. ROSENTHAL. 
 123 Wis. 442. (1905) 
 
 This is an action of quo warranto brought by the relator to remove 
 from the office of assessor of the village of West Allis the respondent, 
 August Rosenthal. 
 
 WINSLOW, J. The trial court charged the jury upon the subject of 
 the burden of proof as follows: 
 
 "The burden of proof in this case as to all the material facts neces- 
 sary to sustain the plaintiff's claim is upon the plaintiff. He must 
 show or prove by competent evidence, so as to satisfy your minds by 
 a preponderance of all the evidence, that such facts exist as alleged 
 by him that is, the plaintiff contends you should answer them, you 
 must be satisfied by a preponderance of all the evidence that his con- 
 tention is correct. 
 
 "The defendant has alleged, among other things, that he received 
 the greatest number of votes cast by the duly qualified electors of said 
 village for the office of assessor. The burden of proof in this action 
 as to all the material facts necessary to sustain the defendant's allega- 
 tions is upon the defendant. He must show or prove by competent 
 evidence, so as to satisfy your minds by a preponderance of all the 
 evidence, that such facts exist as alleged by him that is, the defend- 
 ant has the burden of proof as to such matters, as he alleges and, in 
 order for you to answer the questions which will be submitted to you 
 as the defendant contends you should answer them, you must be satis- 
 fied by a preponderance of all the evidence that his contention is cor- 
 rect." 
 
 "I further charge you, gentleman of the jury, it is conceded that 
 the defendant received a certificate of election as assessor, issued by 
 the proper officers, in proper legal form; and the jury is instructed 
 that said certificate is prima facie evidence of the defendant's right 
 and title to said office, and his said right and title to said office can 
 only be overcome by some positive testimony that illegal votes suffi- 
 cient to change the result of said election were cast and counted for 
 the defendant. But when it shows by satisfactory evidence that the 
 certificate does not state the truth as to the result of such election, the 
 presumption in favor of the incumbent, based upon such certificate, 
 is rebutted, and then the burden is thrown upon the defendant to es- 
 tablish his right to the office by other competent evidence, to show
 
 BURDEN OF PROOF 895 
 
 that he has received an equal number or a greater number of legal 
 votes than the plaintiff." 
 
 There is certainly confusion here, rather than helpfulness. The 
 first portion of these instructions says, in effect, that the burden of 
 proof is upon both parties at the same time. It was proven at the 
 inception of the case that the defendant was declared elected by the 
 board of canvassers of the election, and was holding the office under 
 such determination. This created a presumption in his favor that he 
 had received the number of votes stated in the certificate, and cast 
 upon the relator the burden of .showing the certificate was false, thus 
 rebutting the presumption. When this has been done by competent 
 evidence, it then devolves upon the defendant to establish his right (i. 
 e., the fact that he received the greater number of votes) by other 
 evidence, in order to prevent a judgment of ouster. State ex rel. 
 Swenson v. Norton, 46 Wis. 332, I N. W. 22. These rules should 
 have been given to the jury. 
 
 Reversed. 
 
 
 DORRELL v. SPARKS. 
 142 Mo. App. 460. (1910) 
 
 GRAY, J. November 17, 1908 the plaintiff filed in the office of the 
 circuit clerk of Greene County, Missouri, his petition in this cause, 
 to which the defendant in due time answered. On the i5th day of 
 October, 1909, the cause was tried to 'a jury and a verdict in favor 
 of the plaintiff, signed by nine of the jurors, returned. Judgment was 
 entered upon this verdict, and the plaintiff, after an unsuccessful effort 
 to obtain a new trial, appealed his cause to this court. 
 
 The burden of proof means the burden of establishing the case, and 
 remains unchangeable throughout the entire case exactly where the 
 pleadings originally placed it ; that is, on him alone who has the affirm- 
 ative, though the burden of the evidence may, during the trial, be 
 shifted from scale to scale. (McCartney v. Ins. Co., 45 Mo. App. 
 373; Feurt v. Ambrose, 34 Mo. App. 360.) 
 
 In this case the petition alleged that the notes were the property 
 of the estate of H. M. Simcox. The defendant admitted all the formal
 
 896 CASES ON EVIDENCE; 
 
 parts of the petition and admitted that H. M. Simcox at one time was 
 the owner of the notes, but that at a certain time he gave the notes to 
 his wife, and delivered the possession of the same to her. Under this 
 answer, there was but one disputed fact, and that was : Did the hus- 
 band give the notes to his wife? If he did not, the plaintiff was en- 
 titled to recover; and if he did, he was not. 
 
 There being but one issue in the case, as we have just stated, and 
 this issue being sharply drawn, the burden of proof being upon the 
 defendant, his counsel was entitled to open and close the argument 
 to the jury. (Grant Quarry Co. v. Lyons Const. Co., 72 Mo. App. 
 531; Absher v. Franklin, 121 Mo. App. 29, 97 S. W. 1002.) 
 
 Counsel for the respondent claims that the right to award the open- 
 ing and closing argument is within the discretion of the court, and not 
 'grounds for reversal of the judgment. This is the general rule with the 
 addition that the court will not reverse the judgment unless it is ap- 
 parent that such refusal has produced a wrong to the party. (Reichard 
 v. Ins. Co., 31 Mo. 1. c. 520.) 
 
 The agreed statement of facts herein admit that both the plaintiff 
 and the defendant introduced testimony tending to prove the respec- 
 tive issues. The verdict of the jury was not unanimous, but the plain- 
 tiff only succeeded in getting just sufficient members to return a ver- 
 dict. A practicing lawyer of any experience recognizes the great value 
 of the close case. And in a case like this one, where the court has 
 told the jury that the burden of proving the only contested issue in 
 the case is upon the defendant, and then has awarded the closing ar- 
 gument to the plaintiff's counsel, and a verdict is secured by the plain- 
 tiff by only nine of the jurors concurring therein, it seems that the 
 burden of showing that defendant was not injured by the action of the 
 court in refusing him permission to close the argument, should be upon 
 the plaintiff. 
 
 The premises being considered, we are of the opinion that the court, 
 in refusing defendant's counsel the right to open and close the argu- 
 ment, committed substantial error, against the appellant, and for which 
 he is entitled to have a new trial, and accordingly the judgment will 
 be reversed and the cause remanded. All concur.
 
 BURDEN OF PROOF 897 
 
 SCOTT v. WOOD. 
 81 Col. 3p8. (1889) 
 
 HAYNE, C. This action was to recover under a contract between 
 the plaintiff and the firm of Hobart, Wood & Co. for services as sales- 
 man. Pending the action Hobart died, and the case was continued 
 against Wood as surviving partner. The plaintiff had a verdict, and 
 the defendant Wood appeals from the judgment, and from an order 
 denying a new trial. 
 
 The case turned upon the question whether, during a portion of the 
 period in which the plaintiff rendered services his salary was $200 or 
 $250 per month. Upon this question the evidence was confliction. 
 The defendant testified that the salary had been fixed at $200 a month 
 in the beginning of 1870, and the plaintiff testified that it had not. 
 The court instructed the jury in relation to the matter as follows: 
 "The jury are instructed that the defendants admit employing the 
 plaintiff on July 3, 1869, at the rate of $250 per month, and that he 
 worked for them continually until the first day of April, 1885 ; and that 
 the burden of proof is upon the defendants to show that plaintiff's 
 compensation was changed; that unless the defendants established by 
 a preponderance of testimony that plaintiff, in 1870, or at some other 
 time, agreed for the defendants during the years 1870 and 1871 at the 
 monthly compensation of $200, then they must find for the plaintiff." 
 This was excepted to, and is specified as error. 
 
 We think that the court erred in telling the jury that the defendant 
 was required to have a preponderance of testimony upon the question 
 mentioned. 
 
 The term "burden of proof" is used in different senses. Sometimes 
 it is used to signify the burden of making or meeting a prima facie 
 case, and sometimes the burden of producing a preponderance of 
 evidence. These burdens are often on the same party. But this is not 
 necessary or always the case. And it is by no means safe to infer that 
 because a party has the burden of meeting a prima facie case, there- 
 fore he must have a preponderance of evidence. It may be sufficient 
 for him to produce just enough evidence to counterbalance the evi- 
 dence adduced against him. This is illustrated by a very common case. 
 Suppose that upon an issue as to the performance of a contract sued 
 upon the plaintiff should testify to facts showing non-performance. 
 In such case, if the defendant produced no evidence the plaintiff must 
 prevail. This is often expressed by saying that the burden has shifted
 
 898 CASES ON EVIDENCE 
 
 to the defendant. And so it has in one sense. But suppose that the 
 defendant should take the stand and deny the truth of the facts 
 testified to by the plaintiff oath being opposed against oath. Would 
 it be correct to say that the defendant must have a preponderance of 
 evidence? It most certainly would not. And this, though the "bur- 
 den of proof" had been transferred to him. Nor would it be correct 
 to say that the burden had "shifted back" to the plaintiff, if the burden 
 of producing a preponderance of evidence was meant. For that never 
 was on the defendant. The two burdens are distinct things. One may 
 shift back and forth with the ebb and flow of the testimony. The 
 other remains with the party upon whom it is cast by the pleadings 
 that is to say, with the party who has the affirmative of the issue. 
 
 In the present case we think that the learned judge of the trial 
 court fell into error from overlooking the distinction above pointed out. 
 Why was the defendant required to have a preponderance of evidence ? 
 Did he have the affirmative of the issue ? We think not. 
 
 We advise that the judgment and order appealed from be reversed, 
 and the case remanded for a new trial. 
 
 BUSWELL v. FULLER. 
 89 Me. 600. 
 
 PETERS, C. J. This is an action of replevin for a horse that was 
 distrained by a town collector for a tax against the plaintiff. The 
 horse, having been kept four days by the collector, while about to be 
 sold by him at auction was replevied by the owner upon the ground 
 that the horse had not been properly cared for during the four days; 
 the owner alleging that the horse was sound when distrained, and had 
 been injured during the time of his detention by the negligence of the 
 collector. The ownej claims the fault of the horse's hip got out of 
 joint by some accident caused by the fault of the collector. Upon 
 this issue of negligence the case was tried and a verdict rendered for 
 the defendant. 
 
 The only exception, out of several taken, which is now relied on is 
 that relating to the burden of proof. The plaintiff asked the court 
 to instruct the jury, "that the defendant was bound to produce the 
 distress at the time and place of sale in as good order and condition 
 as when he distrained it, and that if the distress was injured while in
 
 BURDEN OF PROOF 899 
 
 his custody, so to render it of less value, the defendant became a 
 wrongdoer and the burden was upon the defendant to show that he 
 was not at fault." 
 
 The presiding justice ruled that the burden of proof was upon the 
 plaintiff to establish the fact, by preponderance of testimony, that the 
 horse was injured because the defendant did not exercise the due and 
 proper care for the distraint while in his custody. 
 
 Generally the burden of proof upon any affirmative proposition 
 necessary to be established as the foundation of a suit does not shift 
 from plaintiff to defendant, while the burden of evidence, or the bur- 
 den of explanation, may shift from one side to the other according to 
 the testimony. There is a manifest distinction between the burden of 
 proof and the burden of evidence. How far the burden of evidence 
 may bear upon a party to a litigation is usually more for the jury to 
 determine as a matter of fact than for the ruling of the court as matter 
 of law. 
 
 Generally, where a plaintiff, as his cause of action, alleges negligence 
 against a defendant, the burden of proof is upon the plaintiff through- 
 out the trial, even though in instances the burden of evidence may 
 change. And very many English and American cases hold the doctrine 
 that the rule, requiring that a plaintiff who alleges negligence must 
 affirmatively prove it, applies in any case of bailment where the bailor 
 sues the bailee for not returning the articles bailed in suitable condition, 
 or does not even return them at all, at the time when the bailee was to 
 turn them over, and that an omission so to do does not of itself establish 
 the bailee's negligence or default. But this doctrine is stoutly opposed 
 by other strong and leading authorities. Judge Story in his book on 
 bailments espouses the doctrine, and Dr. Wharton in several of his 
 treatises bluntly opposes it. The idea on which the doctrine is grounded 
 is that negligence is not to be assumed or presumed, but must be 
 proved, and in the case of an officer the theory is made stronger, per- 
 haps, because it is aided by the presumption that an officer, who has 
 no motive to commit wrong, is presumed to act correctly. 
 
 And still there is really something illogical and unnatural in saying, 
 if a person to whom I commit my property to keep for me neglects 
 to return it to me when demanded of him, that I rather than he must 
 show the cause of his default; that I, knowing nothing of the cause 
 for the neglect of my bailee to return my property must give the 
 explanation rather than he give the explanation who knows all about 
 it. The folly of the rule, if applied literally, is vigorously assailed by
 
 900 CASES ON EVIDENCE 
 
 Peckham, J., in Collins v. Bennet, 46 N. Y. 480, in the case of a hired 
 horse returned to the bailor in a foundered condition. 
 
 And so it is that many courts have attempted to qualify the rule 
 by annexing exceptions to it. Judge Story thought there might be 
 an exception in complicated cases, and he would apply the rule in the 
 law of bailments and not to common carriers, and that eminent jurist 
 intimates that an exception should obtain in a case where the bailor 
 demands a thing loaned, and the bailee makes a general refusal .without 
 offering any special excuse therefor. Story, Bailments, 213, 298. The 
 Pennsylvania Court in Clark v. Spratt, 10 Watts, 335, places the bur- 
 den of explanation on the bailee so far as to say that he is required 
 to show that the goods have been lost and the manner they were lost, 
 although the presumption is that a bailee has been faithful to his trust, 
 and that the general burden of proof, after this exposure of facts by 
 the bailee (in court or out of court we assume) rests upon the bailor 
 to show the contrary. This case was approved by this court in Mills 
 v. Gilbreth, 47 Maine, 320, a case in principle very much like the 
 present. 
 
 There are two doctrines, therefore, to be found in the books on this 
 subject one that the burden of proof shifts, and the other that it does 
 not. But those who maintain the latter position admit that, while the 
 general burden of proof does not change, if a bailor does not get any 
 account of the loss of, or an injury to, the articles bailed, the proof 
 of the fact of demand and refusal without such explanation will make 
 out a prima facie case for the bailor, and a conclusive case unless the 
 bailee assumes the burden of evidence and shows facts proving the 
 contrary. Mr. Schouler, in his valuable work on bailments, discusses 
 this vexed and rather intricate question very instructively, and adduces 
 the leading authorities on both sides. In a note he undertakes to con- 
 struct a test which will be in consonance with the rule and its com- 
 plicated exceptions. Schouler, Bailments, 22, 23, 24, and note. 
 
 Exceptions overruled. 
 
 CENTRAL BRIDGE CORPORATION v. BUTLER. 
 68 Mass. 130. (1854) 
 
 Assumpsit for tolls. Plea, the general issue. Trial in the court of 
 common pleas, before Hoar, J., when the plaintiffs introduced evidence
 
 BURDEN OF PROOF 901 
 
 that the defendant, who resided in Lowell, and his servants, with 
 horses, carriages and other vehicles, within the time mentioned in the 
 writ, often passed over the plaintiffs' bridge from Lowell to Dracut, 
 without paying the tolls granted to the plaintiffs by law. 
 
 The defendant contended that he was not liable to pay toll, because 
 he and his servants passed the bridge on the way to and from the 
 lands named in a vote of the plaintiff corporation, purporting to exempt 
 from the payment of toll certain persons named, and all persons who 
 might thereafter have their homes upon certain lands in Dracut, and 
 all persons going to or from any of said lands upon the business, of 
 any person owning or having his home thereon, and all carriages, etc., 
 going to or from any of said lands upon such business, or for the pur- 
 pose of conveying any of said persons to or from the lands described. 
 
 A witness called by the defendant testified that he and another per- 
 son had been permitted to pass the plaintiffs' bridge, without paying 
 tolls to go to the house of Dr. Hildreth, the father-in-law of the de- 
 fendant, in Dracut, to which it was admitted that the defendant and 
 members of his family frequently went, over the plaintiff's bridge. 
 The plaintiffs objected to the admission of this testimony; but their 
 objection was overruled. 
 
 The plaintiffs asked the judge to rule that the passing of the plain- 
 tiffs' bridge by the defendant, without paying toll, being proved, the 
 burden of proof was upon the defendant to prove that he had a right 
 to pass the bridge without paying toll, and that no such defense was 
 open to the defendant on the general issue. But the judge ruled that 
 the burden of proof was upon the plaintiffs, to prove not only the 
 passing of the bridge by the defendant, but also that he had not the 
 right to do so by virtue of the vote above mentioned. 
 
 The jury returned a verdict for a part only of the plaintiffs' claim; 
 and the plaintiffs alleged exceptions. 
 
 BIGELOW, J. It was incumbent on the plaintiffs to prove a liability 
 on the part of the defendant to pay the tolls which they sought to 
 recover in this action. Far this purpose they relied on the implied 
 assumpsit arising from proof that the defendant had passed their 
 bridge without paying the usual tolls. This made out a prima facie 
 case, and would entitle them to recover unless the defendant offered 
 some evidence to rebut it. But it does not follow that the burden of 
 proof was thereby shifted. On the contrary, in the absence of any 
 matter in avoidance or discharge, the fact to be proved remained the 
 same. By showing that certain persons were by the votes of the cor- 
 poration exempt from toll, and by proof tending to show that the de-
 
 902 CASES ON EVIDENCE 
 
 fendant was included among them, he only endeavored to meet and 
 overthrow the case which the plaintiffs, by their evidence, had sought 
 to establish. The plaintiffs averred the legal liability of the defendant 
 to pay tolls. To this averment the evidence on both sides was di- 
 rected; and as the plaintiffs affirmed it as the foundation of their 
 claim, so they were bound to sustain it by proof in all stages of the 
 trial. 
 
 The burden of proof and the weight of evidence are two very dif- 
 ferent things. The former remains on the party affirming a fact in 
 the support of his case, and does not change in any aspect of the cause ; 
 the latter shifts from side to side in the progress of a trial, according 
 to the nature and strength of the proofs offered in support or denial 
 of the main fact to be established. In the case at bar, the averment 
 which the plaintiff was bound to maintain was, that the defendant 
 was legally liable for the payment of tolls. In answer to this, the de- 
 fendant did not aver any new and distinct fact; such as payment, ac- 
 cord and satisfaction, or release; but offered evidence to rebut this 
 alleged legal liability. By so doing, he did not assume the burden of 
 proof, which still rested on the plaintiffs ; but only sought to rebut the 
 prima facie case which the plaintiffs had proved against him. The 
 ruling of the court on this point was therefore right. 
 
 Exceptions overruled. 
 
 CODY v. MARKET ST. RAILWAY CO. 
 148 Cal. po. (1905) 
 
 ANGELLOTTI, J. This is an action for damages for personal injuries, 
 alleged to have been received by plaintiff through the negligence of 
 defendant while alighting from one of defendant's cars, upon which 
 she was a passenger. She obtained judgihent for seven hundred and 
 fifty dollars, and defendant appeals from an order denying its motion 
 for a new trial. The only points made on this appeal relate to the 
 action of the trial court in the matter of instructing the jury. 
 
 The trial court, at the request of plaintiff, instructed the jury as 
 follows, viz : "The rule concerning the obligations of common carriers 
 of passengers is thus stated by the Supreme Court of this state in 
 McCurrie v. Southern Pacific Co., 122 Cal. 561, (55 Pac. 325) : The 
 carriers of passengers are required to exercise the highest degree of
 
 BURDEN OF PROOF 903 
 
 care in their transportation, and are responsible for injuries received by 
 them while in the course of transportation which might have been 
 avoided by the exercise of such care. Hence, when it is shown that 
 the injury to the passenger was caused by the act of the carrier in 
 operating the instrumentalities employed in his business, there is a 
 presumption of negligence which throws upon the carrier the burden 
 of showing that the injury was sustained without any negligence on 
 his part.' " It is claimed that the court erred in giving this instruc- 
 tion. 
 
 It is suggested that the effect of this instruction was to make it in- 
 cumbent on defendant to overcome the showing of plaintiff by a pre- 
 ponderance of evidence, whereas under the universally recognized rule 
 no verdict could be rendered for plaintiff in the absence of a pre- 
 ponderance of evidence showing negligence on the part of defendant. 
 That this contention is not well founded is shown by the opinion of 
 this court in several cases where the question has been discussed. 
 Such an instruction simply informs the jury that, when the facts stated 
 therein are shown, a presumption of negligence on the part of the 
 carrier arises, which is sufficient to make out a prima facie <jase for 
 the plaintiff, and require the defendant to meet the case thus made, or, 
 in other words, to answer the prima facie case, or it will prevail. But 
 it does not require a defendant to show want of negligence by a pre- 
 ponderance of evidence. It does no more than to require him to make 
 such showing as to want of negligence as will leave the jury, With all 
 the evidence before it, unsatisfied as to whether there was negligence 
 on defendant's part, and if on the whole case the scale does not pre- 
 ponderate in favor of the presumption of negligence and against the 
 defendant's proof, plaintiff is not entitled to verdict, for he has not 
 established his case by a preponderance of evidence, as he was com- 
 pelled to do under the well-settled rule. The term "burden" or "bur- 
 den of proof" is frequently used to signify simply the burden of meet- 
 ing a prima facie case, rather than the burden of producing a 
 preponderance of evidence, and as used in the instruction in question 
 imported nothing more. The distinction is clearly shown in the opin- 
 ions of this court in Scott v. Wood, 81 Cal. 398, 400, (22 Pac. 871) ; 
 Patterson v. San Francisco etc. Ry. Co., (Cal.) 81 Pac. 531, 533; and 
 Kahn v. Triest etc. Co., 139 Cal. 340, 344, (73 Pac. 164). Upon 
 the proposition that it was necessary for the plaintiff to prove her case 
 by a preponderance of evidence, the trial court correctly instructed the 
 jury that they should find a verdict for the defendant "unless the 
 plaintiff has shown by a preponderance of the evidence that she was
 
 904 CASKS ON EVIDENCE 
 
 injured by the negligence of the defendant," and there could not rea- 
 sonably have been any misunderstanding on the part of the jury as to 
 the meaning of the instruction complained of. It is the settled law 
 in this state that such an instruction may properly be given where the 
 circumstances of the case justify it, and that it is not open to the ob- 
 jection under discussion. (Osgood v. Los Angeles Traction Co., 137 
 Cal. 280, 283, (79 Pac. 169, 92 Am. St. Rep. 171); Green v. Pacific 
 Lumber Co., 130 Cal. 435, 440, [62 Pac. 747].) The instruction 
 correctly stated the law applicable to common carriers of passengers 
 (McCurrie v. Southern Pacific Co., 122 Cal. 558, 561, (55 Pac. 324), 
 and the rule stated therein is as applicable to street-railway companies 
 as it is to other carriers. (Bosqui v. Sutro Railroad Co., 13! Cal. 
 390, 400, [63 Pac. 682].) 
 
 The order denying the motion for a new trial affirmed. 
 
 SHAW, J., and VAN DYKE, J., concurred. 
 
 DIETERLE v. BEKIN. 
 143 Cal. 683. (1904) 
 
 GRAY, C. This is an action for damages for the conversion of cer- 
 tain personal property belonging to the plaintiffs, and in the complaint 
 alleged to have been delivered to defendant in the ordinary course of 
 business for storage in his warehouse in the city of Los Angeles. The 
 complaint alleges that subsequent to the storage, plaintiffs being still 
 the owners of said property and entitled to its possession, demanded 
 possession thereof, and defendant refused to comply with the demand. 
 
 The answer, in addition to numerous denials, sets up as a separate 
 defense that the property was deposited for storage with the defend- 
 ant, and that thereafter and before any demand was made upon the 
 defendant, the said personal property "was without fault or negli- 
 gence of this defendant destroyed by fire." 
 
 The defendant also pleaded as a separate defense that he received 
 the property under a written agreement to the effect that the "de- 
 fendant should be under no liability for loss of said personal property 
 by fire." 
 
 The findings substantiate the allegations of the complaint, except as 
 to the value of the property, which is found to be fifteen hundred 
 dollars.
 
 BURDEN OF PROOF 905 
 
 Upon these findings the defendant had judgment for costs. The 
 plaintiffs appeal from said judgment and from the order thereafter 
 made denying their motion to vacate said judgment and enter a differ- 
 ent judgment in plaintiff's favor for fifteen hundred dollars. 
 
 We think the judgment should be reversed. 
 
 The plaintiffs made out their case when they established to the satis- 
 faction of the court the allegations of their complaint. It was then 
 for the defendant to establish the allegations of his affirmative de- 
 fense if he could do so. The court has found that he was grossly 
 negligent in the matter of exposing the property to loss by fire, and 
 that the property was destroyed by fire of an unknown origin. The 
 facts found suggest at least a probability that the fire came from the 
 same source from which emanated the "more than ordinary risk" under 
 which the property was so negligently placed by the defendant. Under 
 the circumstances disclosed by the findings, the burden which the de- 
 fendant had assumed in his affirmative defense was upon him to satis- 
 fy the court that the fire did not come from this source. 
 
 It is not necessary to hold that the burden of proof was upon the 
 defendant solely for the reason that he had assumed it in his answer. 
 Irrespective of any consideration upon whom the burden of proof lay, 
 the issue before the court was to determine whether the defendant had 
 exercised the ordinary care required of him as a warehouseman, and 
 whether his negligence in that respect had contributed to the loss of 
 the plaintiffs' property, and upon this issue the court has not made any 
 finding. Whether the fire occurred without his knowledge, or whether 
 the origin of the fire was unknown, were not in themselves conclusive 
 of this question. The character of the building provided by him for 
 the storage of the property, the character of the business for which he 
 had permitted a portion of the building to be used, and in view thereof 
 the precautions taken by him for the prevention of fire and for its 
 extinguishment were also elements proper to be considered in deter- 
 mining this issue. 
 
 For the reasons given in the foregoing opinion the judgment is re- 
 versed, with directions to the lower court to make a finding upon the 
 evidence already before it and such other evidence as the parties may 
 present upon this issue as to defendant's negligence, and to render 
 judgment accordingly. 
 
 HlNSHAW, J., LORIGAN, J., McFARIAND, J.
 
 906 CASES ON EVIDENCE 
 
 ST. LOUIS & S. F. R. CO. v. DREYFUS et al. 
 42 Okla. 401. (1914) 
 
 Opinion by HARRISON, C. This is an appeal from a judgment ren- 
 dered upon two separate causes of action based upon an alleged negli- 
 gence in delivery of two separate shipments of bananas. There was no 
 separate finding as to liability in each shipment, but a general verdict 
 for the sum of $314.12 was found in favor of plaintiffs below. The 
 grounds for reversal arose from the issues involved in the first cause 
 of action, which was based upon the allegation that, by the careless and 
 negligent failure to deliver a car of bananas, the fruit became frozen 
 and damaged to the amount sued for. The carrier defended on the 
 ground that the damage was not the result o*f the carrier's negligence, 
 but the result of a severe snowstorm which froze and blocked up the 
 switches and covered the tracks to such an extent that the car could 
 not be delivered sooner than it was. The facts are that the car of fruit 
 arrived at Tulsa between seven and eight o'clock on the evening of the 
 1 5th of February; that during the night of the I5th a blizzard and 
 snowstorm came up and the weather turned severely cold; that the 
 blizzard raged throughout the day and night of the i6th, and the car 
 was not set at plaintiffs' warehouse until the I7th. 
 
 The decisive issue of fact in this case was whether the storm was 
 in fact so severe that the carrier could not have set the car at plain- 
 tiffs' warehouse on the i6th, and thereby averted the loss. This court 
 in M., K. & T. Ry. Co. v. Johnson, 34 Okla. 582, 126 Pac. 567, held : 
 
 We think the facts that the company was operating passenger trains, 
 and the testimony that a switch engine was seen operating in the yards 
 during the day of the i6th, and the fact that the car was delivered 
 on the 1 7th, which it is admitted was colder than the i6th, were suffi- 
 cient to raise the issue as to whether the carrier, by the exercise of 
 reasonable efforts, could have delivered the fruit on the i6th, and that 
 it was not improper to submit such issues to the jury. 
 
 But the court, in paragraph 6 of its charge, instructed the jury as 
 follows : 
 
 "The court instructs the jury that the burden of proof is upon the 
 defendant to satisfy the jury by its evidence, not only that the loss 
 sustained by the plaintiff in its first cause of action was occasioned 
 by the act of God, but also that the defendant exercised due care and 
 diligence in the performance of its duty and was not in any manner
 
 BURDEN OF PROOF 907 
 
 negligent in doing or omitting to do any act that might have averted 
 the loss." 
 
 This instruction was excepted to by defendant and presented as 
 ground for reversal in the original brief of the company, but the error 
 in this instruction was overlooked in the original opinion on which the 
 judgment of the lower court was affirmed. But in the petition for re- 
 hearing the error contended for therein is pointed out with more clear- 
 ness and argued with more force, and, upon reconsideration of this 
 instruction, we believe the contention of plaintiff in error should be 
 sustained. This instruction unqualifiedly places the burden upon the 
 defendant to satsfy the jury that the loss was occasioned by an act 
 of God, and to further satisfy them that the loss could not have been 
 averted by the exercise of all due care and diligence. The burden was 
 not on the defendant until plaintiffs had made a prima facie case which, 
 without further proof, would have entitled them to recover. And the 
 question of defendant's negligence in the failure to deliver the car 
 on the 1 6th being a close question of fact, it is readily seen that the 
 jury could have been easily misled by the foregoing instruction, espe- 
 cially so since it was unqualified by any other paragraph in the charge. 
 The correct rule as to the burden of proof in such cases is stated by 
 this court in Armstrong, Byrd & Co. v. 111. Cent. R. Co., 26 Okla. 352, 
 109 Pac. 216, 29 L. R. A. (N. S.) 671, wherein the principal question 
 was the burden of proof. The court in the syllabus, after defining 
 what constitutes a prima facie case, says: 
 
 "(a) The carrier, by proving the damage was due entirely to the 
 flood or act of God, overcomes such prima facie case, and the burden 
 shifts to the shipper, then, to show that negligence on the part of the 
 carrier co-operated with the act of God in bringing about the damage 
 to the shipment, in order to recover." 
 
 For the error contained in the above instruction, the former opinion, 
 affirming the judgment, is withdrawn, and this one filed instead, and 
 the judgment reversed, and the cause remanded. 
 
 By the court: It is so ordered.
 
 908 CASES ON EVIDENCE 
 
 FOSS v. McRAE. 
 105 Me. 140. (1909) 
 
 Action on an alleged guaranty by the defendants' testator of the 
 payment of some fifty overdue promissory notes transferred by him to 
 the plaintiff. 
 
 SPEAR, J. This case comes upon exceptions to instructions given 
 by the 'presiding justice to the jury. The case does not show but, in- 
 asmuch as the exceptions are by the plaintiff, we assume that the 
 verdict was for the defendant. 
 
 The case involved an action on the alleged guaranty by the defend- 
 ants' testator of the payment of certain over-due promissory notes 
 transferred by him to the plaintiff. To sustain her allegations the 
 plaintiff offered in evidence a typewritten instrument bearing the signa- 
 ture of the defendant's testator of the following tenor: 
 
 "Machias, Maine, April n, 1907. 
 
 This is to certify that I have this day in a settlement of business 
 transacted with Mary E. Foss, conveyed and sold to her a lot of notes 
 for which I have received payment in full. And will guarantee 
 them. 
 
 (Signed) Asa T. McRae. (Witness) M. E. McRae." 
 
 The defendants had seasonably given written notice to"*the plaintiff 
 of their denial of the execution of this instrument, and at the trial, 
 the subscribing witness, who was one of the defendant's executors, 
 testified that at the time of the execution and delivery of the instru- 
 ment it did not contain the last four words "And will guarantee 
 them." There was also evidence upon both sides of this issue. 
 
 The plaintiff contended that upon this issue the burden of proof 
 was upon the defendants, but the presiding justice instructed the jury 
 as follows, viz: 
 
 "So the question is narrowed right down to this : Were those words, 
 the final four words in this paper, written on there when Mr. Asa 
 T.v McRae signed that paper? And the burden is upon the plaintiff, 
 Mrs. Foss, or her agents, who conduct the suit, to convince you by 
 evidence that in fact and in truth those words were upon that paper 
 when signed by Asa T. McRae; and has she done so? She claims 
 that she has, and she first relies upon the circumstances that the words 
 are found to be on the paper now. 
 
 That is prima facie. By prima facie we mean that, if nothing more 
 appeared, if that was all there was, just the paper itself, with no con-
 
 BURDEN OF PROOF 909 
 
 tradiction, it would be taken as sufficient evidence that they were there 
 when signed ; but, it appearing that it is disputed that they were there, 
 being some evidence to the contrary, the burden is still upon the plain- 
 tiff throughout to convince you by evidence that, upon the whole, 
 you believe the words were there when signed." 
 
 The instructions were correct. The plaintiff under the notice and 
 rule was required to prove the execution of the instrument upon 
 which she sought to recover. To accomplish this, the subscribing 
 witness was put upon the stand. His evidence clearly developed the 
 real issue in the case. When he had testified to the execution of the 
 paper, as we presume he did under the notice, the plaintiff had estab- 
 lished a prima facie case, as the words in dispute appeared upon the 
 face of the paper whose execution had been proved. Had the case 
 stopped here the plaintiff would have been entitled to recover. This 
 is precisely what the presiding justice instructed the jury at this stage 
 of the-proceedings. But the case did not stop here. The very witness 
 the plaintiff relied upon to prove execution, testified that the disputed 
 words the substance of the plaintiff's case were not upon the in- 
 strument when he witnessed the defendant's signature. Again, it is 
 apparent, if the case had stopped at this point, the defendant would 
 have been entitled to the verdict, as the testimony of the witness, show- 
 ing a material alteration, is undisputed and must therefore prevail. 
 Hence, it follows that it was incumbent upon the plaintiff, to entitle 
 her to recover, to proceed further and introduce evidence tending to 
 overcome the testimony of the attesting witness. 
 
 The issue of alteration now having been raised, it became her duty 
 to assume the burden upon all the evidence of persuading the jury that 
 the words of guaranty were upon the paper when it was executed. 
 
 Now, while the burden of evidence may be said to have shifted from 
 the plaintiff to the defendant, when she had made out a prima facie 
 case, and from the defendant to the plaintiff, again, when their evi- 
 dence had overcome the prima facie case, the burden of proof had 
 not changed at all. It was incumbent upon the plaintiff, in the end, 
 upon all the evidence, however it may have shifted from one side to the 
 other, to establish the truth of the allegation upon which she sought 
 to 'recover, that the instrument contained the disputed words. 
 
 "Burden of proof" and "burden of evidence" are often confused. 
 The phrase, burden of proof is in fact more philosophical than prac- 
 tical. 
 
 It means generally that a plaintiff, however often the evidence shifts, 
 must upon the whole, persuade the jury, by legal evidence, that his
 
 9io CASES ON EVIDENCE 
 
 contention is right. The risk of non-persuasion is all the time upon 
 him. If he fails to persuade, he loses his case. This risk of non- 
 persuasion is the burden which he must assume. 
 
 Exceptions overruled. 
 
 Note. The term "burden of proof" is used in a double sense. This has 
 caused much confusion in the decisions (Supreme Tent v. Stensland, 206 111. 
 124, 99 Am. St. Rep. 137). In its primary and true sense it means the duty 
 of establishing one's case. In its secondary sense it means the duty of going 
 forward with evidence. This confusion would be eliminated by restricting 
 the use of the term to its primary meaning and using the term "burden of 
 evidence" when referring to the duty of going forward with evidence.
 
 TABLE OF SELECTED CASES 
 
 A. 
 
 PAGE 
 
 Alford v. Johnson, 103 Ark. 236 57 
 
 Allen & Trainmell v. Turnham, 83 Ala. 323 733 
 
 Allen et al. v. Furbish, 70 Mass. 504 673 
 
 Alonzo v. State, 15 Tex. App. 378 516 
 
 Alquist v. Eagle Iron Works, 126 la. 67 82 
 
 Anchor Milling Co. v. Walsh, 108 Mo. 277 330 
 
 Anderson v. Berrum, 36 Nev. 463 95 
 
 Andrews, Allen & Moorefield v. Tucker, 127 Ala. 602 777 
 
 Anna Ames v. Anna Brown et al., 22 Minn. 257 566 
 
 A. T. &. S. S. Ry. Co. v. Johns, 36 Kan. 769 409 
 
 Appeal of John F. Hartranft et al., 85 Pa. 433 73 
 
 Atkinson v. Mott, 102 Ind. 431 867 
 
 Atlantic Coast Line Ry. Co. v. Hill, 12 Ga. App. 392 668 
 
 Architects & Builders v. Stewart, 68 W. Va. 507 352 
 
 Armstrong v. Granite Co., 147 N. Y. 495 772 
 
 Arnold v. Estate of Arnold, 13 Vt. 362 16 
 
 Austin v. Galloway, 73 W. Va. 231 600 
 
 B. 
 
 Bank v. Zorn, 14 S. C. 444 136 
 
 Banning v. Banning, 80 Cal. 271 .- 508 
 
 Barbee v. Goodale, 28 Ore. 465 793 
 
 Barhyte v. Summers, 68 Mich. 341 79 
 
 Bauer Grocery Co. v. Sanders & Henrich, 74 Mo. App. 657 846 
 
 Becker v. Kock, 104 N. Y. 394 100 
 
 Bennett v. Beam, 42 Mich. 346 476 
 
 Bertram v. Witherspoon's Admr., 138 Ky. 116 318 
 
 Blanchard v. Ridgeway, 179 Mich. 491 708 
 
 Bliss v. Mclntyre et al., 18 Vt. 466 560 
 
 Bellinger v. Gallagher, 170 Pa. St. 84 781 
 
 Bonicamp v. Starbuck, 25 Okla. 483 801 
 
 Bernstein v. Berliner, 184 111. App. 519 593 
 
 Boston Water Power Co. v. Hanlon, 132 Mass. 483 312 
 
 Eowland v. McDonald, 82 Kan. 84 616 
 
 Boyle v. The State, 97 Ind. 322 222 
 
 Brick v. Brick, 98 U. S. 514 818 
 
 Brentner v. The C. M. & St. P. Ry. Co., 58 la. 625 669 
 
 Brock v. Satchell, 130 La. 853 624 
 
 911
 
 tji2 CASES ON EVIDENCE 
 
 PACK 
 
 Brott v. State, 70 Neb. 395 546 
 
 Brown v. Com., 73 Pa. St. 100 208 
 
 Bunnell v. Butler, 23 Conn. 65 99 
 
 Buries v. Oregon, etc., R. R. Co. et al., 49 Mont. 129 852 
 
 Burke v. Dulaney, 153 U. S. 228 754 
 
 Burns & Smith Lumber Co. v. Doyle, 71 Conn. 742 735 
 
 Buswell v. Fuller, 89 Me. 600 898 
 
 Butler v. Mail & Express Pub. Co., 171 N. Y. 208 640 
 
 C. 
 
 Cadwalader v. Price, 111 Md. 310 306 
 
 Cairnes v. Mooney, 62 Vt. 172 3 
 
 California Title etc. Co. v. Pauly, 111 Cal. 123 730 
 
 Campbell et al. v. Campbell et al., 130 111. 466 37 
 
 Campion v. McCarthy, 228 111. 87 250 
 
 Case v. Mayor of Mobile, 30 Ala. 538 866 
 
 Central Bridge Corporation v. Butler, 68 Mass. 130 , 900 
 
 Central Savings Bank v. O'Connor, 132 Mich. 578 709 
 
 Cerny v. Glos, 261 111. 331 587 
 
 C. R. I. & P. R. R. Co. v. Bell, 70 111. 102 Ill 
 
 C. & E. I. R. R. Co. v. Chancellor, 165 111. 438 386 
 
 C. & E. I. R. R. Co. v. Wallace, 202 111. 129 482 
 
 C. & N. W. R. R. Co. v. Ingersoll, 65 111. 399 596 
 
 C. St. L.. & N. O. R. R. Co. v. Benedict's Admr., 154 Ky. 675 633 
 
 Channel Commercial Co. v. Hourihan, 20 Cal. App. 647 773 
 
 Chateaugay Iron Co. v. Blake, 187 U. S. 476 327 
 
 Chicago & Alton R. R. Co. v. Mahon and Hunt, 42 111. 158 401 
 
 Cheever v. Congdon, 34 Mich. 296 628 
 
 Chisholm v. The Beaman Machine Co., 160 111. 101 350 
 
 Christensen v. Thompson, 123 la. 717 89 
 
 Citizens' Rapid Transit Co. v. Dew, 100 Tenn. 318 276 
 
 City of South Bend v. Turner, 156 Ind. 418 525 
 
 Clark v. Turner, 50 Neb. 290 450 
 
 Coffiman v. Malone, 98 Neb. 819 690 
 
 Cohee et al. v. Turner & Wiggins, 37 Okla. 778 789 
 
 Colonial Jewelry Co. v. Brown et al., 38 Okla. 44 763 
 
 Cody v. Market St. Ry. Co., 148 Cal. 90 902 
 
 Coe v. National Council of K. & L. of S., 96 Neb. 130 883 
 
 Com. v. Culver, 126 Mass. 464 5 
 
 " v. Sapp, 90 Ky. 580 33 
 
 " v. Griffin, 110 -Mass. 181 65 
 
 " v. Cronin, 185 Mass. 96 65 
 
 " v. Dorr, 216 Mass. 314 88 
 
 " v. Jeffs, 132 Mass. 5 141 
 
 " v. Churchill, 52 Mass. 538 161 
 
 " v. Union Ins. Co. etc., 41 Okla. 342 590 
 
 " v. O'Brien, 119 Mass. 342 . 171
 
 TABLE OF CASES SELECTED 913 
 
 PAGE 
 
 " v. Myers, 160 Mass. 530 179 
 
 " v. Mathews, 89 Ky. 287 231 
 
 " v. Van Horn, 188 Pa. St. 143 382 
 
 " v. M. Pike, 57 Mass. 181 427 
 
 " v. Sturtivant, 117 Mass, 122 461 
 
 " v. Merriam, 31 Mass. 518 497 
 
 " v. Bradford, 126 Mass. 42 499 
 
 " T. Bank, 98 Mass. 12 583 
 
 " v. Blood, 77 Mass. 74 595 
 
 " v. Stevenson, 142 Mass. 466 '629 
 
 " v. Morrell, 99 Mass. 542 671 
 
 " v. Trefethen, 157 Mass. 180 373 
 
 Conely v. McDonald, 40 Mich. 150 7 
 
 Connecticut Fire Ins. Co. v. Moore, 154 Ky. 18 623 
 
 Connecticut Mutual Life Ins. Co. v. Lathrop, 111 U. S. 612 457 
 
 Connecticut Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285 389 
 
 Continental National Bank v. First National Bank, 108 Teiia. 374 360 
 
 Continental Casualty Co. v. Wynne, 36 Okla. 325 519 
 
 Cook et al. v. Castner et al., 63 Mass. 266 . 62 
 
 Corr v. Sellers, 100 Pa. St. 169 '.,... 333 
 
 Coombs et al. v. Cook, 35 Okla. 326 655 
 
 Coonrod v. Madden, 126 Ind. 197 598 
 
 Copperman v. People, 50 N. Y. 591 495 
 
 Corona Kid Co. v. Lightman, 84 N. J. L. 363 601 
 
 Cornell v. Green, 10 S. & R. (Pa.) 16 197 
 
 County of Bibb v. Reese, 115 Ga. 346 547 
 
 County of Mahaska v. Ingalls, 16 la. 81 280 
 
 Cragin v. Carleton, 21 Me. 492 719 
 
 Crelier v. Mackey, 243 Pa. St. 363 786 
 
 Croswell v. Labree, 81 Me. 44 573 
 
 Crocker v. McGregor, 76 Me. 282 152 
 
 Currier v. Gale, 80 Mass. 504 292 
 
 Cummings v. Nichols, 13 N. H. 420 325 
 
 D. 
 
 Dady v. O'Rourke, 172 N. Y. 447 720 
 
 Davis v. Com., 95 Ky. 19 189 
 
 Davis v. State, 46 Fla. 138 545 
 
 Davis v. Steele & Co. v. Eppler et al., 38 Kan. 629 572 
 
 Davis v. Montgomery, 205 Mo. 273 663 
 
 De Haven v. De Haven, 77 Ind. 236 118 
 
 Dean v. Wilkerson, 126 Ind. 338 277 
 
 Decowski v. Grabarski, 181 111. App. 279 795 
 
 Decker v. Somerset Ins. Co., 66 Me. 406 847 
 
 Denver v. Rio Grande R. R. Co. v. United, 9 N. M. 389 870 
 
 Derby v. Thrall, 44 Vt. 413 579 
 
 Dohmen Co. v. Niagara Fire Ins. Co., 96 Wis. 38.. . 356
 
 9M CASES ON EVIDENCE 
 
 PAGE 
 
 Dickinson v. White, 26 N. D. 523 643 
 
 Dieterle v. Bekin, 143 Cal. 683 904 
 
 Dover v. Robinson et al., 64 Me. 183 561 
 
 Dorrell v. Sparks, 142 Mo. App. 460 895 
 
 E. 
 
 Eastman v. Dunn, 34 R. I. 419 589 
 
 Eastern Bldg. and Loan Assoc. v. Williamson, 189 U. S. 122 860 
 
 Edwards v. Tracy, 62 Pa. St. 376 635 
 
 Elmer v. Fessenden, 151 Mass. 359 397 
 
 Empire Co. v. Lindenmeir, 54 Colo. 497 619 
 
 Enfleld v. Woods, 212 Mass. 547 301 
 
 Ennis v. Wright, 217 Mass. 40 766 
 
 Eltringham v. Earhardt, 67 Miss. 492 165 
 
 Eureka Springs Ry. Co. v. Timmons, 51 Ark. 459 880 
 
 F. 
 
 Fairbank v. Hughson, 58 Cal. 314 1 
 
 Farwell v. St. Paul Trust Co., 45 Minn. 495 698 
 
 Federal Chemical Co. v. Jennings, 112 Miss. 514 608 
 
 Firemen's Ins. Co. et al. v. Seaboard Air Line Ry., 50 S. E. R. 452 
 
 (N. C.) 370 
 
 Fisher v. King, 153 Pa. St. 3 569 
 
 First Nat. Bank v. Jamieson, 63 Ore. 163 630 
 
 Flora v. Anderson, 75 Fed. Rep. 217 245 
 
 Forsyth Mfg. Co. v. Castlen, 112 Ga. 199 704 
 
 Foss v. McRae, 105 Me. 140 908 
 
 Freda v. Tishbein, 174 Mich. 391 413 
 
 Fulkerson v. Holmes, 117 U. S. 389 237 
 
 Funderberg v. The State, 100 Ala. 36 132 
 
 Fuller v. Green, 64 Wis. 159 667 
 
 G. 
 
 Gabriel v. McMullen, 127 la. 426 71 
 
 Gaither v. Blowers, 11 Md. 536 ,. 162 
 
 Gage v. Eddy, 179 111. 492 840 
 
 Gates et al. v. Bennett, 33 Ark. 475 ' 732 
 
 Gertz v. Fitchburg R. R. Co., 137 Mass. 77 169 
 
 Germania Bank of Minneapolis v. Osborne, 81 Minn. 272 808 
 
 Gibson v. Poor, 21 N. H. 441 315 
 
 Gilbert & Co. v. McGinnis et al., 114 111. 28 810 
 
 Gibson v. Swofford, 122 Mo. App. 126 893 
 
 Gladstone Lumber Co. v. Kelly, 64 Ore. 163 632 
 
 Gleason v. Hamilton, 138 N. Y. 353 570 
 
 Glos v. Cessna, 207 111. 69 619
 
 TABLE OF CASES SELECTED 915 
 
 PAGE 
 
 Grabowski v. State, 126 Wis. 447 121 
 
 Grand Trunk R. R. Co. v. Richardson, 91 U. S. 454 147 
 
 Grant v. State, 124 Ga. 757 432 
 
 Grand Lodge B. of R. T. v. Randolph, 186 111. 89 520 
 
 Greenlaw v. King 1 Beav. 137 45 
 
 Green v. Almand, 111 Ga. 735 259 
 
 Green v. City of Indianapolis, 22 Ind. 192 871 
 
 Green v. Sneed, 101 Ala. 205 563 
 
 Greenfield Savings Bank v. Stowell, 123 Mass. 196 552 
 
 Grella v. Lewis Wharf Co., 211 Mass. 54 /. . 843 
 
 Greason v. St. L. I. M. & S. Ry. Co., 112 Mo. App. 116 739 
 
 Greinke v. The Chicago City Ry. Co., 234 111. 564 444 
 
 Grocery Co. v. Bradford, 70 W. Va. 496 641 
 
 Granger v. Darling, 156 Mich. 31 92 
 
 H. 
 
 Hagan v. Merchant's & Banker's Ins. Co., 81 la. 321 581 
 
 Hammond v. Marian, 54 N. Y. 398 468 
 
 Hanley v. Donoghue, 116 U. S. 1 876 
 
 Hapke v. Davidson, 180 Mich. 138 765 
 
 Hardage v. Durrett, 110 Ark. 63 693 
 
 Harman v. Fisher, 90 Neb. 688 749 
 
 Hartmyer v. Everly, 73 W. Va. 88 770 
 
 Harrison v. Morrison, 39 Minn. 319 682 
 
 Hartman Brewing Co. v. Clark, 94 Md. 520 836 
 
 Hardy v. Merrill, 56 N. H. 227 453 
 
 Harriman et al. v. Stowe, 57 Mo. 93 426 
 
 Harland v. Eastman, 107 111. 535 243 
 
 Hathaway v. Goslant, 77 Vt 199 308 
 
 Harwood v. The People, 26 N. Y. 190 156 
 
 Hatton v. Robinson, 31 Mass. 416 42 
 
 Hartford v. Palmer, 16 Johns. (N. Y.) 143 26 
 
 Haycock v. Johnson, 81 Minn. 49 728 
 
 Hatch v. Hyde et al., 14 Vt 25 684 
 
 Harbison-Walker Refractories Co. v. Scott, 185 Ala. 641 618 
 
 Hay v. Fire Clay Co., 179 Mo. App. 567 631 
 
 Hatt v. May, 144 Mass. 186 174 
 
 Haynes v. Trenton, 123 Mo. 326 524 
 
 Healy v. Young, 21 Minn. 389 805 
 
 Herriott v. Kersey, 69 la. Ill 347 
 
 Hewitt v. Taunton St. Ry. Co., 167 Mass. 483 154 
 
 Hibernia Savings and Loan Society v. Boyd, 155 Cal. 193 662 
 
 Higginbotham v. Campbell, 85 Ga. 639 2 
 
 Hill v. Montgomery, 184 111. 220 112 
 
 Hill v. Eldridge, 126 Mass. 234 629 
 
 Hoblit v. Howser, 171 111. App. 19 613 
 
 Holloman v. So. Ry. Co., 172 N. C. 372 . 639
 
 916 CASES ON EVIDENCE 
 
 Hoisting Machine Co. v. Goelier Iron Works, 84 N. J. L. 504 ........ 661 
 
 Howard v. McDonough, 77 N. Y. 592 ........... ..................... 134 
 
 Hodges v. Percival, 132 111. 53 ...................................... 490 
 
 House v. Metcalf, 27 Conn. 631 ......... . ........................... 145 
 
 Houghtaling v. Kelderhouse, 2 Barb. (N. Y.) 149 .................... 158 
 
 Hudson v. C. & N. W. R. R. Co., 181 111. 323 ........................ 144 
 
 Humes v. O'Bryan & Washington, 74 Ala. 64 ........................ 284 
 
 Hutcheis v. Cedar Rapids & Marion City R. R. Co., 128 la. 279 ...... 443 
 
 I. 
 
 I. C. R. R. Co. v. The People, 143 111. 434 ............................ 489 
 
 Illinois Cent. R. R. Co. v. Button, 42 111. 438 ........................ 402 
 
 In re Daniel Burns' Will, 121 N. C. 336 .............................. 396 
 
 Inness v. R. R. Co., 168 Mass. 432 .................................. 400 
 
 Inhabitants of N. B. v. Inhabitants of W., 82 Mass. 170 .............. 247 
 
 J. 
 
 Jackson v. Lawson, 15 Johns. (N. Y.) 539 ............................ 195 
 
 Jackson v. State, 81 Wis. 127 ........................................ 203 
 
 Jamestown Business Coll. Assoc. v. Allen, 172 N. Y. 291 .............. 756 
 
 Jenkins v. Springfield Reduction and Chem. Co. et al., 168 Mo. App. 534 747 
 
 J. J. Crable & Son v. O'Connor, 21 Wyo. 460 ........................ 787 
 
 Johnson v. State, 50 Ala. 456 ........................................ 216 
 
 Johnson v. Elnien, 94 Tex. 168 ...................................... 677 
 
 Johnson v. Manufacturing Co., 165 N. C. 105 ........................ 715 
 
 Jones v. Reilly, 174 N. Y. 97 ........................................ 70 
 
 Jones v. State, 52 Ark. 345 .......................................... 224 
 
 Jones v. Fuller, 19 S. C. 66 .......................... v ............. 486 
 
 Jones v. Royster Guano Co., 6 Ga. App. 503 ........................ 541 
 
 Jordan et al. v. Farren et al., 63 Mass. 266 .......................... 62 
 
 Jordan v. State, 81 Ala. 20 .......................................... 433 
 
 Judkins v. Woodman, 81 Me. 351 .................................... 659 
 
 J. W. Rlpy & Son v. Art Wall Paper Mills, 41 Okla. 20 .............. 778 
 
 K. 
 
 Kankakee v. 111. Cent. Ry. Co., 258 111. 368 .......................... 94 
 
 Keith et al. v. Kibbe, 10 Cush. (Mass.) 35 .......................... 329 
 
 Keesling, Treas., et al. v. Powell, 149 Ind. 372 ............... , ...... 279 
 
 Keys v. City of Cedar Falls, 107 la. 509 ............................ 384 
 
 King v. Hudson River Realty Co., 210 N. Y. 467 .................... 779 
 
 King v. Ashley, 179 N. Y. 281 ...................................... 49 
 
 King v. Randlett, 33 Cal. 318 ...................................... 611 
 
 Kltza v. Oregon Short Line Ry. Co., 169 111. App. 609 .............. 621 
 
 Kirchner v. Collins, 152 Mo. 394 .................... : ............... 841 
 
 Knoblauch v. Foglestone, 38 Minn. 352 .............................. 707
 
 TABLE OF CASES SELECTED 917 
 
 PAGE 
 
 Knop v. National Fire Ins. Co., 107 Mich. 323 842 
 
 Knowlton v. Knowlton, 84 Me. 283 660 
 
 Kraimer v. State, 117 Wis. 350 123 
 
 L. 
 
 Lake St. Eler. R. R. Co. v. Shaw, 203 111. 39 406 
 
 Lane v. Moore, 151 Mass. 87 396 
 
 Lane v. Boicourt, 128 Ind. 420 52 
 
 Lamar v. Micou, 114 U. S. 218 861 
 
 Larue v. Ins. Co., 68 Kan. 539 873 
 
 Lander v. The People, 104 111. 248 435 
 
 Lawrence v. Tennant, 64 N. H. 532 313 
 
 Lebus v. Boston, etc., 107 Ky. 98 817 
 
 Lessor of Scott et al. v. Ratliffe et al., 5 Peters (U. S.) 80 415 
 
 Lindsay v. City of Chicago, 115 111. 120 311 
 
 Lisman v. Early et al., 12 Cal. 282 35 
 
 Lord Electric Co. v. Morrill, 178 Mass. 304 509 
 
 Loring v. Worcester & Nash. R. R. Co., 131 Mass. 469 154 
 
 Louisville & N. R. R Co. v. Kice, 109 Ky. 786 268 
 
 Lowman v. The State, 109 Ga. 501 486 
 
 Lynch v. Smith, 104 Mass. 52 479 
 
 M. 
 
 Maloney v. Winston Bros. Co., 18 Ida. 740 855 
 
 Mann v. State, 134 Ala. 1 77 
 
 Marcy v. Barnes, 82 Mass. 161 532 
 
 Martin v. Mask, 158 N. C. 436 750 
 
 March v. McNair, 99 N. Y. 174 821 
 
 Marquet v. Ins. Co., 128 Tenn. 213 886 
 
 Maurin v. Lyon, 69 Minn. 257 815 
 
 Masons v. Fuller, 45 Vt. 29 256 
 
 Mathes v. Lumber Co., 173 Mo. App. 239 612 
 
 Massey v. Farmers Nat. Bank, 104 111. 327 105 
 
 Mayor of New York v. Second Ave. R. R. Co., 102 N. Y. 572 365 
 
 Mayville v. French, 246 111. 434 91 
 
 McLaughlin v. Souvereign Camp W. 0. W., 97 Neb. 71 881 
 
 McLean v. State, 16 Ala. 672 225 
 
 McMurtrey v. Sparks, 71 Mo. App. 126 562 
 
 McDonald v. Erbes, 231 111. 295 653 
 
 McQuigan v. D. L. & W. R. R. Co., 129 N. Y. 50 523 
 
 Merritt v. Boyden & Son, 191 111. 136 576 
 
 Messee-Felton Lumber Co. v. Sirmans, 122 Ga. 297 286 
 
 Michael v. Matson, 81 Kan. 360 11 
 
 Midland Roofing Mfg. Co. v. Pickens, 96 S. C. 286 783 
 
 Miller v. Spring Garden Ins. Co., 202 Fed. Rep. 442 685 
 
 Miller v. Preble, 142 Ind. 632 137
 
 918 CASES ON EVIDENCE 
 
 PAGE 
 
 Miller v. Pendleton, 74 Mass. 547 150 
 
 Miller Bros. v. McCall Co., 37 Okla. 643 695 
 
 Miles v. Andrews, 153 111. 262 511 
 
 Mima Queen and Child v. Hepburn, 7 Cranch (U. S.) 291 190 
 
 Mitchell v. Colglazies, 106 Ind. 464 473 
 
 Moon v. Harris, 122 Minn. 138 626 
 
 Morey v. Hoyt, 62 Conn. 542 603 
 
 Morrison v. Porter, 35 Minn. 425 472 
 
 Moore v. State, 12 Ala. 764 232 
 
 Morrison v. Price & Co., 130 Ky. 139 666 
 
 Morrison v. Weik, 19 Cal. App. 139 665 
 
 Moorhouse v. Terrill, 111 111. App. 460 803 
 
 N. 
 
 Naive v. Baird, 12 Ind. 318 51 
 
 Neal v. R. R. Co., 129 la. 5 829 
 
 Neese T. The Farmer's Ins. Co., 55 la. 602 870 
 
 Newell v. Nichols, 75 N. Y. 78 889 
 
 Nickerson v. Spindell, 164 Mass. 25 '. 504 
 
 Northern Pacific R. R. Co. T. Urlin, 158 U. S. 271 420 
 
 0. 
 
 O'Brien v. Frasier, 47 N. J. L. 349 163 
 
 Osborne v. City of Detroit, 32 Fed. Rep. 36 539 
 
 Oskamp v. Gadsen, 35 Neb. 7 503 
 
 Overlook v. Hall, 81 Me. 348 658 
 
 Overtoom v. C. & E. I. R. R. Co., 181 111. 323 139 
 
 Owings et al. v. Hull, 34 U. S. 607 872 
 
 P. 
 
 Page v. Parker, 40 N. H. 47 87 
 
 Pallister v. Camenisch, 24 Colo. App. 79 701 
 
 Parkhurst v. Krellinger, 69 Vt. 375 419 
 
 Pedigo v. Com., 103 Ky. 41 543 
 
 Peebles v. O'Gara Coal Co., 239 111. 370 92 
 
 People's Nat. Bank v. Rhoades, 90 Atl. Rep. 409 (Del.) 363 
 
 People v. Cole, 43 N. Y. 508 114 
 
 People v. Darr, 262 111. 202 117 
 
 People v. Robinson, 135 Mich. 511 119 
 
 People v. Lem You, 97 Cal. 224 207 
 
 People v. McMahon, 15 N. Y. 384 176 
 
 People v. Ratz, 115 Cal. 132 262 
 
 People v. Gage, 62 Mich. 271 424 
 
 People v. Green, 1 Denio (N. Y.) 614 29 
 
 Peters & Roberts Furniture Co. v. Queen City Ins. Co., 63 Ore. 382 636
 
 TABLE of CASES SELECTED 919 
 
 PAGS 
 
 Peterson & Lott v. Lott, 11 Ga. App. 536 '. . 548 
 
 Phelps v. Abbott, 114 Mich. 88 806 
 
 Phillips v. Chace, 201 Mass. 444 47 
 
 Pitt v. Emmons, 92 Mich. 542 652 
 
 Post v. Leland, 184 Mass. 601 , 588 
 
 Pratt v. White, 132 Mass. 477 337 
 
 Pringey v. Guss, 16 Okla. 82 646 
 
 Provident Sav. Life Assoc. v. Shearer, 151 Ky. 298 727 
 
 Provision Co. v. City of Chicago, 111 111. G51 502 
 
 Prussing v. Jackson, 208 111. 85 614 
 
 Putman Foundry & Machine Co. v. Canfleld, 25 R. I. 548 784 
 
 Q. 
 
 Quarry Co. v. Clements, 38 Ohio 587 759 
 
 R. 
 
 Railway v. Com., 110 Pa. St. 100 210 
 
 Railway Co. v. Truskett, 67 Kan. 26 744 
 
 Railway Co. v. Henderson, 57 Ark. 402 358 
 
 Redus v. Mattison, 30 Okla. 720 601 
 
 Regina v. Roden, 12 Cox Cr. Ca. 630. 173 
 
 Regina v. Hill, 2 Cox Cr. Ca. 259 23 
 
 Re Mary A Myer's Will, 184 N. Y. 54 53 
 
 Reutkemier v. Nolte, 179 la. 342 58 
 
 Rex v. Derrington, 2 Car. & P. 650 182 
 
 Richardson v. Emery et al. f 23 Vt. 220 332 
 
 Richardson v. Sketchley, 150 la. 393 733 
 
 Riggs v. Sterling, 60 Mich. 644.. 123 
 
 Riley v. Boehm, 167 Mass. 183 343 
 
 Ringhouse v. Keever, 49 111. 470 263 
 
 Risher v. Madsen, 94 Neb. 72 607 
 
 Roberge v. Burnham, 124 Mass. 277 : . . . 848 
 
 Roberge v. Bonner, 185 N. Y. 265 833 
 
 Robinson v. Smith, 111 Mo. 205 328 
 
 Robinson v. N. Y. Elev. Ry. Co., 175 N. Y. 219 97 
 
 Roesner v. Darrah, 65 Kan. 599 393 
 
 Rogers v. State, 88 Ark. 451 417 
 
 Rollins v. State, 160 Ala. 82 83 
 
 Rollins v. Wicker, 154 N. C. 559 260 
 
 Rose v. Order of Patricians, 126 Mich. 577 55 
 
 Roosa v. Boston Loan Co., 132 Mass. 439 408 
 
 s. 
 
 Samuel H. Chute Co. v. Latta, 123 Minn. 69 741 
 
 Saveland v. Green, 40 Wis, 431 509
 
 920 CASES ON EVIDENCE 
 
 PAGE 
 
 Sewing Machine Co. v. Dakin, 86 Mich. 581 574 
 
 S. E. Bowser & Co. v. Fountain, 128 Minn. 198 752 
 
 Sexton v. Lamb, 27 Kan. 426 485 
 
 Sharp v. Hamilton, 12 N. J. L. 109 594 
 
 Shawyer v. Chamberlain, 113 la. 742 507 
 
 Sherwood v. Sherwood, 45 Wis. 357 724 
 
 Smith Carey & Co. v. Live Stock Co., 92 Kan. 5 617 
 
 Smith v. Brown, 151 Mass. 338 ^ 609 
 
 -Smith v. Lehigh Valley R. R. Co., 177 N. Y. 379 533 
 
 Smith and Whiting v. Easton, 54 Md. 138 506 
 
 State v. Linkhaw, 69 N. C. 214 538 
 
 State v. Anica Garrett and Lucy Stanley, 71 N. C. 85 536 
 
 State v. Rinehart, 106 N. C. 787 515 
 
 State v. Caldwell, 67 Tenn. 576 516 
 
 State v. Isaacson, 8 So. Dak. 69 540 
 
 State ex rel. Leonard v. Rosenthal, 123 Wis. 442 894 
 
 State of Iowa v. Harvey, 112 la. 416 530 
 
 State v. Lovan, 245 Mo. 516 722 
 
 Stanley v. Fireman's Ins. Co., 34 R. I. 491 798 
 
 St. Louis & S. F. R. Co. v. Dreyfus et al., 42 Okla. 401 906 
 
 Sullivan v. Kuykendall, 82 Ky. 483 512 
 
 Swan v. Thurman, 112 Mich. 416 348 
 
 Swan et al. v. County of Middlesex, 101 Mass. 173 477 
 
 Swayne v. Felice, 84 Conn. 147 703 
 
 Sweet v. Stevens, 7 R. I. 375 674 
 
 T. 
 
 Tedens v. Schumers, 112 111. 263 104 
 
 The Bagley & Sewall Co. v. The Saranac etc. Paper Co., 135 N. Y. 626 812 
 
 The Queen v. Thompson, 2 Q. B. D. 12 185 
 
 The Chicago & Alton Ry. Co. v. The Amer. Strawboard Co., 190 111. 268 361 
 
 The People v. Lehr, 196 111. 361 484 
 
 The City of Delphi v. Lowery, 74 Ind. 520 493 
 
 The A. T. S. F. R. R. Co. v. Thul, 29 Kan. 466.. 527 
 
 The People v. James Hope, 62 Cal. 291 542 
 
 The Chicago, Kansas & Neb. Ry. Co. v. Brown, 44 Kan. 384 597 
 
 The People v. Henkle, 256 111. 584 606 
 
 The Oak Ridge Co. v. John Toole, 82 N. J. Eq. 541 683 
 
 Throckmorton v. Holt, 180 U. S. 552 438 
 
 Thompson v. German Valley Ry. Co., 22 N. J. Eq. Ill 72 
 
 Thompson v. Libby, 34 Minn. 374 686 
 
 Thompson Lumber Co. v. Interstate Com. Commission, 103 Fed. Rep. 
 
 682 826 
 
 Thurston v. Fitz, 91 Kan. 468 218 
 
 Town of Jepson, 133 Mich. 673 t 800 
 
 Totten v. United States, 92 S. C. 105 76 
 
 Tower v. Whip, 53 W. Va. 158 470 
 
 Toll v. State, 40 Fla. 169 500
 
 TABLE OF CASES SELECTED 921 
 
 PAGE 
 
 Townsend v. Fontenot, 42 La. An. 890 714 
 
 'Trainor v. Lee, City Treasurer, 34 R. I. 345 588 
 
 Tracy v. The Union Iron Works, 104 Mo. 193 774 
 
 u. 
 
 Uihlein v. Mathews, 172 N. Y. 154 771 
 
 United Surety Co. v. Meenan, 211 N. Y. 39 791 
 
 United States v. Chaves, 159 U. S. 452 854 
 
 United States v. Perot, 98 U. S. 428 862 
 
 Union Pacific Ry. Co. v. Botsford, 141 U. S. 250 521 
 
 Union Central Life Ins. Co. v. Pollard, 94 Va. 146 320 
 
 United States v. Macomb, 5 McLane's Rep. 286 205 
 
 V. 
 
 Veiths v. Hagge, 8 la. 163 321 
 
 Vandine v. Burpee, et al., 54 Mass. 288 481 
 
 Vantine v. Butler, 240 Mo. 521 272 
 
 Vinton v. Peck, 14 Mich. 287 f 465 
 
 Vogt v. Schienebeck, 122 Wis. 491 768 
 
 w. 
 
 Wade v. Withington, 83 Mass. 561 558 
 
 Wall v. Lubbock, 52 Tex. Civ. App. 408 264 
 
 Watt v. Jones, 60 Kan. 201 868 
 
 Ward v. New. York Life Ins. Co., 225 N. Y. 314 830 
 
 Ware v. Allen, 128 U. S. 590 696 
 
 Warder, Bushnell & Glessner Co. v. Willyard, 46 Minn. 531 553 
 
 Warren et al. v. Nichols, 47 Mass. 261 200 
 
 Warfield v. Railroad, 104 Tenn. 74 124 
 
 Waterman v. Whitney, 11 N. Y. 157 447 
 
 Watson v. Lawrence, 134 La. 194 591 
 
 Webster & Hubbard v. Paul, 10 Ohio 531 679 
 
 Wells v. Hays, 93 S. C. 167 .' 336 
 
 Wentworth v. Manhattan Market Co., 216 Mass. 374 780 
 
 Wheaton Roller-Mill Co. v. John T. Noye Manuf. Co., 66 Minn. 156 712 
 
 Whelan v. Lynch, 60 N. Y. 469 ' 374 
 
 Wheeler v. United States, 159 U. S. 523 19 
 
 Whitman v. Heneberry, 73 111. 109 314 
 
 Whittey Grocery Co. v. Roach, 115 Ga. 918 345 
 
 Whitby v. Motz, 125 Minn. 40 717 
 
 Wickersham v. Johnston, 104 Cal. 407 868 
 
 Wilson v. Wright, 8 Utah 215 649 
 
 Wilson v. Hayes et al., 40 Minn. 531 555 
 
 Wilson v. Vanleer, 127 Pa. St. 372 469 
 
 Wilson v. Coleman & Ray, 81 Ga. 297 505 
 
 Wilson v. Sheppard, 28 Ala. 623 28
 
 922 CASES ON EVIDENCE 
 
 PAGE 
 
 Wiseman v. N. P. R. R. Co., 20 Ore. 425 604 
 
 Wilkerson v. State, 91 Ga. 729 64 
 
 Winn v. Peckham, 42 Wis. 493 158 
 
 Wise v. Wynn, 59 Miss. 588 252 
 
 Willard v. Ostrander, 51 Kan. 481 578 
 
 Wood v. Steele, 6 Wall. (U. S.) 80 550 
 
 Worthington v. Scribner, 109 Mass. 487 75 
 
 Wright v. State, 88 Md. 705 - 376 
 
 Y. 
 
 Yale v. Comstock, 112 Mass. 267 193 
 
 York v. Pease, 68 Mass. 282 128 
 
 Young v. Oilman, 46 N. H. 84 30 
 
 Young v. Shulenberg, 165 N. Y. 385 265 
 
 Young v. Jones, 8 la. 220 323 
 
 Young v. The People, 221 111. 51.... 647
 
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