!M;r iom Only / / \ y \. THE ENCYCLOPAEDIA OF EVIDENCE EDITED BY EDGAR W. CAMP VOL. 1 LOS ANGELES, CAL. L. D. POWELL COMPANY 1902 COPYRIGHT 1902 BY L. D. POWELL COMPANY TIMES-MIRROR PRINTING AND BINDING HOUSE LOS ANGELES, CAL. For Reading Uoom Only h 6C PREFACE Encyclopedias of law have justified themselves to the profession. Questions of evidence are continually arisinsj in ]jractice, requirino- quick and accurate solution — not the theories of authors are needed, but the law as fixed by the courts of final resort. To search out and arrange in compact form these fixed rules, from encyclopedias of general law and digests, requires time and patience as well as access to a very complete library, ■v This work is intended to present these rules, with the decided !i^ cases, in such form that they shall be ready for instant use when "^ wanted. The aim is to present all the law of evidence, so that the practitioner may here find help on the most difficult and obscure questions, and find it readily. The system of cross references and ^ catch lines in large type, to be found in the notes as well as the ^ text, will aid the seeker in quickly and easily finding the precise point for which he is searching. Instead of giving long lists of cases upon general propositions, we have differentiated the authori- ties ; thus enabling the lawyer to turn to the precise question, or the very subdivision of the general subject which he has in hand. C^ We shall bring citations down, as nearly as practicable, to the J date of publication, and shall make a point of citing the late and latest cases ; and shall cite not only the official reports but also the > National Reporters System, the American Decisions, American ^ Reports, American State Reports, and Lawyers' Reports Annotated. The limits of this work cannot be precisely determined by defini- tion of the word " evidence " but must be fixed by the use and wont of lawyers in investigating matters in litigation. The efTort will be made to include all for which a lawyer would naturally examine books on evidence, and to exclude all for which he would more naturally turn to others. Edc,.\r W. Camp. Los Angeles, Cal., J.\nuary 23, 1903. 168901 TABLE 01- TITLES. .\uaxdoxment i Abatement 14 Abbreviations 23 Abduction 32 Abortion 53 Abstracts of Title (^<^ Accessories, Aiders and Abettors 71 Accomplices 92 Accord and Satisfaction 117 Accounts, Accounting and Accounts Stated 129 Acknowledgments 185 Adjoining Land (h\-.\ERS 208 Admiralty 219 Admissions 348 Adulteration 616 Adultery 623 Adxerse Possession' 63('i Ai''iti)a\its • 702 Al•■l■'KA^■ J2/ Agic 731 Ali iu 740 Alienating Ai-Ei^cTroNS ys^^ Almanac "('j Alteration oI'' rxsTKUMiCNTS 770 Am liiGuiTY 823 Ancient Documents 857 Animals 888 AnSW ERS 904 Appeal Bonds 940 Apprentices 994 Arbitration and Award 948 A RsoN 980 ASSAI'LT AND I '.ATri^RN" (X)4 ABANDONMENT. Bv Lewis R. Works. I. DEFINITION. I II. WHAT MAY BE ABANDONED, i III. ELEMENTS, 3 1. The Act] 3 2. Tlic Intent, 4 A. IVhat Does and Docs Not Sliozv, 5 ^. /;; Whose Favor May Be Made, 7 IV. QUESTION, HOW DETERMINED, 8 1. Nature of Question, 8 2. Burden of Proof, 10 3. Presumptions, 10 4. What Should Co to the Jury, 13 CROSS-REFERENCES. Adverse Possession ; Bills of Particulars ; Contracts ; Copyright ; Dedication ; Divorce ; Easements ; Eminent Domain ; Estoppel ; Execution ; Factors ; Highways ; Homestead ; Insurance ; Liens ; Patents ; Prescription ; Trade Marks and Trade Names ; Waiver. I. DEFINITION. Abandonment is the actual leaving of property with a final relinquishment of all claim thereto and without conveyance or gift to any particular person or persons. II. WHAT MAY BE ABANDONED. Personal property generally is susceptible of abandonment.' Easements and servitudes may be abandoned, those acquired by prescri]5tion being so lost by mere non-user,- while in the case of 1. McGoon i". Ankeny, II 111. 558; Me. 394, 399; French v. Braintree Haslam v. Lockwood, 37 Conn. 500, Mfg. Co., 23 Pick. (Mass.) 216, 221; 9 Am. Rep. 350. Smyles v. Hastings, 22 N. Y. 217, 2. Robie v. Sedgwick, 35 Barb. 224; Jewett v. Jewett, 16 Barb. (N. (N. Y.) 319; Dikes v. Miller, 24 Y.) 150, 157; Canny z;. Andrews, 123 Tex. 417, 424; Farrar v. Cooper, 34 Mass. 155. 1 , Vol. I 2 ABANDONMENT. those ac(|iiiiT(l by deeil, further evuk'iicc of intent to abandon is necessary.-' Tailings from niines^ and patent rights to inventions'* may be aljandoned, as may also mining claims" and water rights.' Highways ma\- be abandoned by cities, counties and other bodies politic* Inchoate claims, equitable titles or possessory rights to real prop- erty and the rights acquired therein by settlers under the public land laws previous to patent are the subject of abandonment," and 3. United States. — Townsend v. Mich. Cent, Ry. Co., loi . Fed. 757. /rfa/io.— Welch v. Garrett (Idaho), 51 Pac. 405- Illinois. — Kuechen v. Voltz, no 111. 264. loica.—NoU i: Dubuque H. & M. R. R. Co., 32 Iowa 66. Kansas. — Edgerton v. Mc.Mullau, 55 Kan. 90, 39 Pac. 102 1. Kentuekv. — Curran v. Louisville, 83 Ky. 628. Massachusetts. — Barnes v. Lloyd, 112 Mass. 224; Arnold v. Stevens, 24 Pick. 106, 35 Am. Dec. 305 ; But- terfield v. Reed, 160 Mass. 361, 35 N. E. 1 128. Michigan. — Day v. Walden, 46 Mich. 575, ID N. W. 26; Lathrop v. Eisner, 93 Mich. 599, 53 N. W. 791. Nciv Jersey. — Riehle v. Heulings, 38 N. J. Eq. 20; Dill V. School Board, 47 N. J. Eq. 421, 20 Atl. 7.W, 10 L. R. A. 276. Ne'M York. — Longendyck v. Ander- son, 59 How. Pr. I ; Marshall v. Wenninger, 20 Misc. 527, 46 I'l. Y. Supp. 670; Welsh V. Taylor, 19 N. Y. St. 735, 2 N. Y. Supp. 815; Valentine V. Sclireiber, 7}, N. Y. St. 838, 38 N. Y. Supp. 417; Smiles v. Hastings, 24 Barb. 44; Smyles v. Hastings, 22 N. Y. 217. As to Different Kinds of Ease- ments "• There i^ a material dis- tinction between an easement ac- quired by prescription, and one created by deed.'" (AngcU on Watercourses, Ed. of 1850, p. 269, § 252.) This writer says, "An ease- ment, to become extinguished by disuse, must have been acquired by use ; and the doctrine of extinction by non-user does not apply to ser- vitudes or easements created by deed. In the one case, mere disuse is sufficient ; but in the latter there must not only be disuse by the owner Vol. I of the land dominant, but there must be an actual adverse user by the owner of the land servient." Jewett V. Jewett, 16 Barb. (N. Y.) 150. 157. 4. Dougherty v., Creary, 30 Cal. 290, 89 Am. Dec. 116. 5. Pennock v. Dialogue, 2 Pet. i, 16; Planing Machine Co. v. Keith, lOi U. S. 479; Bell z: Daniels, i Bond 212, I Fish. Pat. Cas. 372, Merw. Pat. Inv. 616, 3 Fed. Cas. No. 1247; Pitts V. Hall, 2 Blatchf. 229, 19 Fed. Cas. No. 11,192. 6. Weill V. Lucerne Min. Co., II Nev. 200; Richardson v. McNulty, 24 Cal. 339; Depuy v. Williams, 26 Cal. 309; Harkrader v. Carroll, 76 Fed. 7. Dodge V. Marden, 7 Or. 450; Hewitt V. Story, 51 Fed. loi ; North Am. E. Co. V. Adams, 104 Fed. 404; Utt V. Frey, 106 Cal. 392, 39 Pac. 807. 8. Los Angeles v. Colin, lOi Cal. 373. 35 Pac. 1002 ; Town of Derby v. Ailing, 40 Conn. 410, 436; Hutto v. Tindall. 6 Rich. Law ( S. C.) 396; Jeflfersonville M. & I. R. R. Co. v. O'Connor, 37 Ind. 95: Larson v. Fitzgerald, 87 Iowa 402, 54 N. W. 441 ; Hewes v. Village of Crete, 175 111. 348, SI N. E. 696. 9. United States. — Carroll v. Price, 81 Fed. 137. .f/d/xi/na.— Louisville & N. R. Co. i: Philyaw, 88 Ala. 264, 6 So. 837- California. — Gluckauf i'. Reed. 22 Cal. 468; Ferris v. Coover, 10 Cal. 589. Kentucky.Smhh v. Morrow, 7 J- J. Marsh. 442. il/n;«c.— Hamilton z: Paine, 17 Me. 219; Schwartz v. Kuhn. 10 Me. 274, 25 Am. Dec. 239. il/i'.s.fi.'r.n'/'/ij.— Harper z: Tapley, 35 Miss. 506. Peniisyh'ania. — Mayor v. Riddle, 25 Pa. St. "259: Gibson v. Robbins, 9 .'IB.INDONMENT. 3 sonictinK'S even tlic perfected title to real property may he so sur- rctulered,'" although the i^jeneral rule is to the contrary" even where the title has arisen merely hy adverse ]iossession.'- III. ELEMENTS. 1. The Act. — To establish an abandonment, there must first be shown an actual, complete and voluntary leaving", relinquishment or surrender of possession Ijy tlie owner.''' Must be Voluntary. — Hence, where one is ousted from the possession of property, he can not be charged with abandonment,^* nor can he be where he is prevented from using or occupying by injunction or other judicial order-'^ as the relinquishment is not Watts 156; Philips -.■. Shaffur, 5 Serg. & R. 215. South Carolina. — Garlington v. Copeland, 32 S. C. 57. 10 S. E. 616. Texas. — Sideck v. Duran, 67 Tex. 256, 3 S. W. 264; Hollingswortn v. Holshoiisen, 17 Tex. 41; DiUe; v. Miller, 24 Tex. 417. 10. Fine v. St. Louis Puljlic Schools, 30 Mo. 166, 175; Clark v. Hammerle, 36 AIo. 620, 639 ; Landes V. Perkins, 12 Mo. 238, 256 ; Dikes v. Miller, 24 Tex. 417, 424. 11. Hummel v. Cumberland Val. R. Co., 175 Pa. St. 537. U Atl, S48; Robie V. Sedgwick, 35 Barb. (N. Y.) 319, 329; Mayor v. Riddle, 25 Pa. St. 259, 263 ; Davenport v. Turpin, 43 Cal. 597, 602 ; Ferris v. Coover, 10 Cal. 589, 631. 12. School Dist. V. Benson, 31 Me. 381, 52 Am. Dec. 618. 13- United States. — Dawson v. Daniel, 2 Flip. 305, 7 Fed. Cas. No. 3669; Integral Quicksilver M. Co. v. Altoona Quicksilver M. Co.. 75 Fed. .379; Harkrader i\ Carroll, 76 Fed. 474- California. — Judson v. Malloy, 40 Cal. 299; Richardson v. McNulty, 24 Cab 339; Keane v. Cannovan, 21 Cal. 291, 82 Am. Dec. 738; Bell v. Bed Rock T. & M. Co., 36 Cal. 214; Utt v. Frey, 106 Cal. 392, 39 Pac. 807. Connecticut. — Stevens v. Norfolk. 42 Conn. i77. Maine. — Livermore v. White, 74 Me. 452, 43 Am. Dec. 600. Missouri. — Clark v. Hammerle, 36 Mo. 620; Page V. Scheibel, Ti Mo. 167; Landes v. Perkins, 12 Mo. 238; Fine V. St. Louis Public Schools. 30 Mo. 166; Hickman v. Link, Ii6 Mo. 123, 22 S. W. 472. Montana. — Gassert v. Noyes, 18 Mont. 216, 44 Pac. 959. Oregon. — Dodge v. Marden, 7 Or. 456- Pcnnsvhaitia. — Miller v. Cresson, 5 Watts" & S. 284. Tennessee. — Breedlove v. Stump, 11 Tenn. 257 ; Masson v. .\nderson, 3 Baxt. 290. rt\ra.f.— McMillan v. Warner, 38 Tex. 410. 14. Wrongful Ouster. — Cook v. McCord, 9 Okla. 200, 60 Pac. 497. Ousted From Property "If the plaintiff was rightfully in possession of the mine, and seeking to hold it, and the time had not expired within which he was allowed to do the work and perfect his location, and if during this time the defendant wrongfully intruded upon his possession, and ousted him from the mine, then the plaintiff could not be charged with abandonment. Abandonment can not be charged against the locator of a claim if, while in his possession, his claim has been seized by another, who holds the possession of it ad- versely to him." Lockhart v. Wills, 9 N. M. 263, so Pac. 318, 321. 15. Cook I'. McCord, 9 Okla. 200, 60 Pac. 497. Dispossessed Under Order of Court. '■ From 1889 to i8gi, inclusive, the waters of Blackfoot River were in- volved in litigation, and the court appointed a water master, who shut the water off from the ditch in ques- tion, and refused to permit the water to be used by plaintiff during said Vol. I / / 4 .IBANDONMIiXT. voluntary in (.■ilhcr case. The same rule Imlds \Vliere one is forced to relinquish the possession of property hy stress of weather or hy other circumstances over which he has no control ;"' but abandon- ment may result where one is compelled to desert property by a superior force, and, either at the time of or after the act, relin- quishes all intention to return or to reclaim.'' 2. The Intent. — Couplctl with the leaving, there must be present in the mind of the abandoner an unequivocal intent not to make further claim to the tliino- or right abandoned.'** litigation. . . . Tlie non-user of the ditch, or any part thereof, during that portion of the time that its use was prevented by circumstances over which tlie plaintiff had no control, is not evidence of abandonment of, or intention to abandon, such ditch." Welch V. Garrett (Idaho), 51 Pac. 405. 16. Livermore v. White, 74 Mc. 452, 43 Am. Dec. 600; Whitwell v. Wells, 24 Pick. (Mass.) 25; Wyman V. Hurlburt, 12 Ohio 81, 40 Atn. Dec. 461. 17. See post, note 27. 18. England. — Moore v. Rawson, 3 Barn. & C. 332, 5 Dowl. & Ry. 234, 3 L. J. K. B. 32, 27 Rev. Rep. 375; Liggins V. Inge, 7 Bing. 682, 33 Rev. Rep. 615. United States. — Paine v. Griffiths, 86 Fed. 452 ; Harkrader v. Carroll, 76 Fed. 474; Integral Quicksilver M. Co. V. Altoona Q. M. Co., 75 Fed. 379- California. — Richardson i'. Mc- Nulty, 24 Cal. 339. 345; Judson v. Malloy, 40 Cal. 299, 309; Morenhaut V. Wilson, 52 Cal. 263 ; Keane v. Cannovan, 21 Cal. 291, 303, 82 Am. Dec. 738; St. John v. Kidd, 26 Cal. 263, 272; Davis V. Perley, 30 Cal. 630; Sweetland v. Hill, 9 Cal. 556; Moon V. Rollins, 36 Cal. 333, 95 Am. Dec. 181 ; Bell V. Bed Rock T. & M. Co., 36 Cal. 214; Smith v. Gushing, 41 Cal. 97 ; Marqnart v. Bradford, 43 Cal. 526; Sweeney v. Reilly, 42 Cal. 402 ; Douglierty v. Creary, 30 Cal. 290, 89 Am. Dec. 116; Myers v. Spooner, 55 Cal. 257, 260; Stone v. Geyser Q. M. Co., 52 Cal. 315: Jones V. Jackson, 9 Cal. 237, 245 ; Utt v. Frcy, 106 Cal. 392, 39 Pac. 807. Connectieut. — Stevens v. Norfolk, 42 Conn. 377, 384; Ilasleni v. Lock- Vol. I wood, 3y Conn. 500. 9 Am. Rep. 350. Illinois. — McNeil v. Chicago City Ry. Co., 61 111. 150; McGoon v. Ankeny, 11 111. 558. Kentucky. — Kercheval v. Ambler, 4 Dana 166 ; Speed i>. Ripperdan, I Litt. 189. Maine. — Livermore v. White, 74 Me. 452, 43 Am. Dec. 600; Pratt v. Sweetser, 68 Me. 344; Ross v. Gould, 5 Greenl. 204. Massacliusetts. — Howard v. Fes- senden, 14 Allen 124; Dyer v. San- ford, 9 Mete. 395, 43 Ain. Dec. 399; Canny v. Andrews, 123 Mass. 155. Mississiffi- — Hicks v. Steigleman, 49 Miss. ^77, 385. .Montana. — Sloan v. Glancy, 19 Mont. 70, 47 Pac. 334. Missouri. — Hickman v. Link, 116 Mo. 123, 22 S. W. 472; Fine v. St. Louis Public Schools, 30 Mo. 166, 175; Page V. Scheibel, 11 Mo. 167, 184; Tayon z'. Ladew, 3^ Mo. 205, 208 ; Clarke v. Hammerle, 36 Mo. 620. 639; Landes v. Perkins, [2 Mo. 238, 257. Nevada. — Mallett i'. Uncle Sam M. Co., I Nev. 188, 204, 90 Am. Dec. 484 ; Oreamuno v. Uncle Sam M. Co., I Nev. 215; Weill v. Lucerne M. Co., 11 Nev. 200, 212. Nezv York. — Wiggins v. Mc- Cleary, 49 N. Y. 346. Oregon. — Dodge v. Marden, 7 Or. 456. 460. Pennsylvania. — McLaughlin v. Maybury, 4 Yeates 534; iMnler v. Crcsson, 5 Watts & S. 284. South Carolina. — Parkins v. Dun- ham, 3 Strob. Law 224, 228 ; Poison V. Ingram, 22 S. C. 541, 546. 7V.raj.— Sideck v. Duran, 67 Tex. 256, 3 S. W. 264; McMillan -.'. War- ner, 38 Tex. 410, 414. ABANDONMENT. 5 Is Principal Element. — The question of intent is the principal sub- ject of inquiry in abandonment cases.'" A. What Does and Does Not Show. — What will or will not show an intent to abandon must be determined upon the circum- stances of each particular case. The statement of fixed rules on the subject is next to impossible, but a few may be ventured. Failure to TJse not Enough — Exception. — The mere failure to use proiierty, in whole or in part, or to exercise a right, does not alone show an intent to abandon,-" unless the non-user continue for so great a length of time as to raise the presumption of such an intent under the rules laid down Ijelow.-' Evidence of Failure to TJse Competent. — lUit a failure to use may be shown in evidence in connection with other circumstances going to establish the intent. -- 19. Sweeney v. Reilly, 42 Cal. 402, 407; McMillan v. Warner, 38 Tex. 410, 414 ; Grain v. Fox, 16 Barb. (N. Y.) 184; City of Cleve- land V. Cleveland C, C. & St. L. Ry. Co., 93 Fed. 113, 122; Townsend V. Michigan Cent. R. Co., loi Fed. 757. 761 ; Raritan W. P. Co. v. Veghte, 21 N. J. Eq. 463, 479. Intent Paramount Question "In determining whether one has aban- doned his property or rights, the intention is the first and paramount object of inquiry; for there can be no strict abandonment of property without the intention to do so." Mallett V. Uncle Sam M. Co., I Nev. 188, 204. 90 .A.m. Dec. 484. 20. Sloan v. Glancy, 19 Mont. 70, 47 Pac. 334; Turner v. Cole, 31 Or. 154, 49 Pac. 971 ; McNamara V. Minneapolis St. P. etc. Ry. Co., 95 Mich. 545, 55 N. W. 440; City of Madison v. Mayers, 97 Wis. 399, 73 N. W. 43, 65 Am. St. Rep. 127,. 40 L. R. A. 635 ; Brown v. Hiatt, 16 Ind. App. 340, 45 N. E. 481. Failure to Use Highway. — "When first laid out, there anoears to have been a very poor and dilapidated fence along or near the section line and center of said highway, and that the travel sometimes was through and on the west side of it, and the part of the highway on the east side of said fence has been con- stantly used when necessary, ever since it was laid out, as the main (raveled way out to and upon the highway with which it is connected at the north end. But the contention in respect to such user is that, inas- much as the west half of such high- way has not been used, at least that part of it has ceased to be a highway by non-user and abandonment. Upon the same ground all parts of any highway not actually traveled, or kept suitable for travel, would cease to be parts of such highway, and might be treated as abandoned. This would be placing highways on too narrow ground to be of much use to the public, and make them liable to abandonment by willful encroach- ment. We think there was suffi- cient evidence that the highway has been worked and traveled as such when necessary, during all the time since it was laid out ; and that there has been no abandonment of it by the public." Moore v. Roberts, 64 Wis. 538, 25 N. W. 564. 21. See post, note 36. 22. Non-User Evidence of Intent. " From 187 1 to 187s, according to the proofs, each of the three ditches constructed in 1870 and 1871 was neglected, and probably used but little during one or more of the seasons ; but we cannot say that the evidence sufficiently establishes an intention to abandon either of them, or the right to water acquired thereby. A failure to use for a time is compe- tent evidence on the question of abandonment ; and if such non-user continued for an unreasonable per- iod, it may fairly create a presump- tion of intention to abandon ; but this presumption is not conclusive, and may be overcome by other Vol. I 6 ABANDON Mli.xr. Effect of Failure to Pay Taxes. — An intent to abandon real property is not shown by a failure to pay taxes assessed against it, discon- nected from otlier circumstances.-^ Removal from House. — The mere removal from a house does not show an intent to abandon the ownership of it.-' Gradual Escape from Possession. — Where parts of property of a movable nature are allowed by the owner to escape from him day by day, an abandonment of those parts may result, but such an abandonment for past days does not show an intent to abandon for the future and the escapement may be stopped.-^ Property Derelict. — It is the general rule that property is not abandoned, in a legal sense, when it is left derelict, or is jettisoned at sea;-" but when at the time or after the property is relinquished, the owner gives up all hope of, or intent to reclaim it. an abandon- ment will result.-' satisfactory proofs." Seiber z: Frink, 7 Colo. 148, 2 Pac. 901. 23. Mayor v. Riddle, ^5 Pa. St. 25Q- Non-Payment of Taxes "Title to another man's property cannot be acquired by the payment of the taxes thereon. And the payment of the taxes by the occupant in the present case for a portion of the time he was in possession was not of itself, dis- connected from other circumstances, evidence that the owner had aban- doned the property." Keane v. Can- novan, 21 Cal. 219, ^3, 82 .'\ni. Dec. 738. 24. Removal from House, Effect of — "As tenant in connnon. Fcsscn- den could lawfully occupy or au- thorize another to occupy any part of the land. His permission to Day to occupy with his buildings that portion of the land which they covered gave him all the rights of a tenant at will; at least until the other tenants in common should ac- tually enter upon him. The mere fact of moving out of the house, preparatory to a sale and removal of the buildings, cannot be regarded as an abandonment of his rights. If it were so, it would be ditficult to sec how a tenant at will could ever exercise his right of removal of a dwelling-house, except by moving his family in the building." Howard V. Fessendcn, 14 .Mien (Mass.) 124. 12(1. 25. Escape of Tailings. — 'So long as the miners of the basin and the Vol. I Blue Point Mining Company aban- doned the water and tailings which passed from their mining grounds, the Cheek and Ackley Flume Com- pany had the right to take and ap- propriate the same to its own use, and upon the passage of the water and earth through that flume, the Side Hill Flume had the right to take and appropriate what so passed through the Cheek and Ackley Flume to its own use; but the respective rights of these flume companies was contingent and dependent on the fact of continual abandonment of the waters and tailings by the mining company to whom the same l)elonged. If those owning and working the mining groimd elected to abandon their property at a particular point and for a particular length of time, it did not therefore become obliga- tory upon them to continue to do so." Dougherty v. Creary, 30 Cal. 290, 298, 89 Am. Dec- 116. 26. See ante, nt te 16. 27. Where Hope Of and Intention To Reclaim Abandoned — "It is found, by the jury, that when the vessel was raised, and the money in ques- tion converted by the defendants, the vessel and money were derelict property, and abandoned by the owner. Perhaps, if the term dere- lict only were used by the jury, there would he more diflicuUy in the case; for if used in its strict maritime sense, it woidd not imply that the owner was divested of all right in ABANDONMENT. 7 Where One Acts Ignorantly. — Where one acts in ignorance of, or under mistake as to his rights in the ownership of property, his acts can show no intent to abandon.-" 3. In Whose Favor May Be Made. — It is one of the essentials of abandonment that tiie thing abandoned is subject to occupancy by the first comer. Therefore, if the evidence shows that it was deHvered to a particular individual in such way that he ma)' hold and own it by virtue of the transfer, no abandonment is shown, but a gift, sale, or conveyance.-' the property: 7 Am. Jur. 30, jj. But when the jury tind the vessel and money were, also, ahandoned by the owner, we suppose they intend to be understood that all hope, e.x- pectation, and intention to recover the property were utterly and entirely relinquished; and such the judges, who tried the cause, believe was the evidence given on the trial ; and, in case of property, thus derelict and abandoned, either on the high seas or anywhere else, it belongs to the first finder who reduces it to possession." Wyman v. Hurlburt, 12 Ohio, 81, 40 Am. Dec. 461. 28. Ross V. Gould. 5 Grcenl. (Me.) 204. Acting Under Mistake "The con- tract of 1820 gave Williams a right to demand the conveyance of seventy-five acres, upon completing sales of the residue of the original tracts sold to him in January. 1818. Much the larger portion of these tracts had been then sold, so that Williams had paid the greater portio'i of the consideration for the seventy- five acres. He continued, up to 1825. assiduous to efifect a sale of the resi- due, upon the terms agreed on ; but he was unsuccessful. At that time. Champion, by conveying to Good- rich, put an end to the contract, and disabled Williams from performing that portion of it that remained un- perforiued. Williams' subsequent as- sertion that he did not look to the land, but to Cliampion. for damages. we are satisfied was made under a mistake as to what were his rights. Nothing in the case sustains the idea of abandonment. Whilst the con- tract existed, he sought to perform it. W'hen the other party put an end to it, Williams still asserted his rights under it, though not in the form he now asserts tliem. There is no pretense to sustain the position of a voluntary aliandonment." Wil- liams V. Champion, 6 Ohio 169. 29. McLeraii v. Benton, 43 Cal. 467. Can Not Be to Particular Indi- vidual — ".Admitting the interest of plaintiff in the premises such as could be divested by abandoimient, there can be no such thing as abandon- ment in favor of a particular indi- vidual, or for a consideration. Such act would be a gift or sale. An abandonment is 'the relinquishment of a right, the giving up of some- thing to which we are entitled.' " (Bouv.) "Abandonment must be made by the owner, without being pressed by any duty, necessity, or utility to him- self, but simply because he desires no longer to possess the thing; and further, it must be made without any desire that any other person shall acquire the same ; for if it were made for a consideration it would be a sale or barter, and if without consideration, but with an intention that some other person should become the possessor, it would be a gift. (lb.) "Stephens transferred the posses- sion to Hunter for the consideration of six hundred dollars: this fact is entirely inconsistent with the idea of abandonment." Stephens v. Mans- fieltl, II Cal. 363. "The next error assigned is as to an instruction given by the court, in the following words, viz : 'The abandonment must also be made without any desire that any particular person should acquire the property, for if such desire exist, the trans- action might be construed a gift.' The sentence above quoted Vol. I 8 ABANDONMENT. IV. GUESTION, HOW DETERMINED. 1. Nature of Question. — one of Fact. — It has usually been held that the c|uestion of ahandonuK'iU is one of fact for the jury,'" appears to be based upon the au- thority of Stephens v. Mansfield, 1 1 Cal. 365. ... In that case the court held that ' admitting the in- terest of the plaintiff in the prem- ises such as could be divested by abandonment, there can be no such thing as abandonment in favor of a particular individual or for a con- sideration. Such act would be a gift or sale.' ... If the gift be complete — that is to say, if the thing given be delivered, and accepted by the donee, a transfer is the result, which transfer as much precludes the idea of abandonment as a trans- fer resulting from a sale. No ques- tion of abandonment can arise where a transfer has been had by the act of two parties. To an abandonment of the character involved in this and all similar cases, there can be but one party. ... By the act of occupancy, the plaintiff made it his, and manifested his intention to do so. Once his, it continues his until he manifests his intention to part with it in some manner known to the law. He may sell it, or give it to another or transfer it in any other mode authorized by law (thereby preserving the continuity of possession), or he may abandon it. In doing the latter he must leave it free to the occupation of the next comer, whoever he may be, without any intention to repossess or reclaim it for himself in any event, and re- gardless and indifferent as to what may become of it in the future. When this is done, a vacancy in the posses- sion is created, and the land reverts to its former condition, and becomes once more publici juris, and then, and not until then, an abandomncnt has taken place. There can be no aban- donment except where the right abates, and ceases to exist. If it be continued in another, by any of the modes known to the law for the transfer of property, there has been no abandomnent. for the right, first acouired by the occupancy still exists, although vested in another. Vol. 1 and the continuity of possession re- mains unbroken. But the occupant cannot continue his right in another by the mere act of volition ; nor is his right kept alive by a mere de- sire that it may become vested in a particular person. Such a voli- tion or desire does not amount to a gift for there can be no gift with- out an acceptance. If the wish or desire is expressed to the person in whose behalf it is entertained, and thereupon he occupies the land, a gift is the result, and the transfer is made complete — and not other- wise. The mere wishes and desires of the occupant are only effectual to preserve the right in himself, and not to transmit it to another ; and the case of Stephens v. Mans- field, so far as it can be fairly con- strued to go beyond the views here expressed, is not law. "From what has been said, it fol- lows that the charge in question, so far as it instructs the jury that there can be no abandonment where the transaction amounts to a gift, is correct, but that it is erroneous so far as it instructs them that leaving the claim, with a desire that a par- ticular person may acquire it, might be construed to be a gift. The error is in the definition of «i gift, rather than in that of an abandonment." Richardson v. McNuIty. 24 Cal. .^.W- 30. United 5"to. Rines, 26 Alinn. 201, 2 N. VV. 497. IT. S. Land-Survey Abbreviations in Indictment — U. S. v- Reiclicrt, 32 Fed'. 142. The indictment was for filing a fraudulent claim for U. S. land. The court, per Field, J., says : "An indictment is to be read to the accused unless the reading is waived. The language should there- fore be so plain that one of ordinary intelligence can understand its mean- ing. For that purpose, common words are to be used as descriptive of the matters. Abbreviations of words employed by men of science or in the arts will not answer, with- out full explanation of their mean- ing in ordinary language. (But) the initials here have refer- ence to the public lands as marked on the public surveys ; they are signs used in a particular depart- ment of public business, and are not matters of general and universal knowledge by all speakers of the English language. The same objec- tion applies to the initials S. B. M., supposed to denote San Bernardino meridian. There is no averment ex- cept in this way that the land alleged to have been surveyed lies in the State of California." Abbreviations in Warrant of Ar- rest — Vivian v. State, 16 Tex. Crim. App. 262. The bail bond recited that accused had been arrested by virtue of a warrant issued by " J. R. Sweeten, J. P. Pr. No. I, D. C." Held, that the court was not author- ized to presume that the initials " D. C." signified " Dimmit County," nor that " Carrizo Springs " are in JJinnnit County, and that therefore the motion to set aside the judgment sliould have prevailed. Variance in First Initial of Per- son's Name — English v. State, 30 Tex. App. 470, 18 S. W. 94- The in- dictment was for forgery, setting out in liacc verba an instrument signed " R. M. Lewis," but alleging that the act purports to be the act of " M. R. Lewis." Held, that the variance as to the middle initial was immaterial, as the middle name is not recognized by common law as part of the name, but that the vari- ance as to the first initial was fatal. 20. People v. Tisdale, i Doug. (Mich.) 59, where it was held that a ballot for " J. A. Dyer " did not show, upon its face, that it was in- tended for the candidate " James A. Dyer." In People v. Pease. 27 N. Y. 45, 64, 84 Am. Dec. 242, in which Moses M. Smith was a candidate, Selden, J., says : " According to well settled rules, the board of can- vassers erred in refusing to allow to the relator the nineteen votes given for " Moses Smith " and " M. M. Smith." The case of People v. Tisdale, supra, was, however, followed in People V. Cicott, 16 Mich. 283, 97 Am. Dec. 141, though the majority of the court expressed the opinion that it was erroneous in principle, but had been too long (for 25 years) the settled law of the state to be dis- turbed, unless by the legislature. Qoiitpare Cooley on Cons. Lims., pp. 76s and 766. See also "Extrinsic Evidence on Abbreviations," fost, foot-note 78. Vol. I 28 ABBREVIATIONS. inconsistent with fully expressed terms of a written instrument involved.-' As to abbreviations claimed to be customary and general, it would seem that they cannot be proved extrinsically where the court or jury cannot judicially notice them,-- unless it is proved that the party to be affected actually understood and so used them.'-^ The extrinsic evidence may be written as well as oral.-* 1. Wills. — There seems no doubt that abbreviations in a will may always be explained, where the explanation does not conflict with the unambiguous terms, and that any evidence thereof, other than direct evidence of the expressed intention of the testator, is ad- missible."^ 21. Collender v. Dinsmore, $5 N. Y. 200, 2o6, 14 Am. Rep. 224, cit- ing Dana v. Fiedler, 12 N. Y. 40, 62 Am. Dec. 130, a leading case; Barton v. Anderson, 104 Ind. 578, 4 N. E. 420; Jaqna v. VVitliam, etc. Co., 106 Ind. 545, 7 N. E. 314; Pow- er V. Bowdle, 3 N. D. 107, 54 N. W. 404, 44 Am. St. Rep. 511, 21 L. R. A. 328; I Greenl. Ev., §282; Wliart. Ev., §1003; Best Ev., p. 232. Com- pare Abbott's Trial Brief on Facts. §4. 22. Power v. Bowdle, 3 N. D. 107, 54 N. W. 404, 44 Am. St. Rep. 511, 21 L. R. A. 328. The court said (p. 118): "If it be true that the symbol writing is, as alleged by the answer, used in describing land, and ' generally understood ' by the taxpayers and the people of North Dakota and throughout the western states, the judges and courts of such states are bound to judicially note the existence of such usage. To borrow the words of Chief Justice Catou, ' courts will not pretend to be more ignorant than tlie rest of man- kind.' " It was there held that ex- trinsic evidence was inadmissible to explain tlie abbreviations in question, i. e., certain abbreviations used in tax proceedings such as are often used in United States Government Surveys. 23. Jaqua v. Witham, etc. Co., 106 Ind. 545, 7 N. E. 314. I Greenl. Ev. § 283; Whart. Ev., §§954. 962; Reiss- ner v. Oxley, 80 Ind. 580. 24. State v. Collins, 68 N. H. 299. 44 Atl. 495, a proceeding to abate a liquor nuisance. A blank application for a U. S. liquor license explaining certain abbreviations was held ad- missible to explain the same abbre- viations used in the record of a reve- nue collector. 25. Peculiar Abbreviations. Schouler on Wills, 2 Ed. § 582, states the rule generally that " any obscure terms common to a calling with which the testator was familiar, or his shorthand, cipher, or other pecu- liar modes of expression, may be ex- plained by the evidence of others competent to enlighten the court, and his symbolic writing thus re- duced to its rational and consistent meaning." Kell v. Charman, 23 Beav. 195, is cited, where the testa- tor, a jeweler, used the private price- marks of his business ; and the let- ters " i X X " were explained to mean £100. Also Lord Abinger's language in Hiscocks v. Hiscocks, 5 M. & W. 363 : " The testator may have ha- liitually called certain persons or things by peculiar names, by which they were not commonly known. If these names should occur in his will, they could only be explained and construed by the aid of extrinsic evidence to show the sense in which he used them, in like manner as if his will were written in cipher or in a foreign language. The habits of the testator must be receivable as evidence to explain the meaning of his will." Compare also. Goblet v. Beechey, 3 Sim. 24 (Reversed in 2 Russ. & M. 624) ; Scott v. Neeves, 77 Wis. 305, 45 N. W. 421 ; Abbot v. Massie, 3 Ves. Jr. 148. Vol. I ABBREVIATIONS. 29 2. Contracts. — A. Formal Writings. — Abbreviations have been explained in a bill of lading;-" in contracts to buy, to sell, to buy and sell, options, etc. ;-' in negotiable instruments f in an insurance policy."'' B. Informal Writings. — Informal writings, where they may be considered as merely provisional contracts, are freely explained as to abbreviations.^" 26. Mouton v. Louisvillt; & N. R. Co. (Ala.), 29 So. 602. This was an action against a carrier for fail- ure to deliver goods. The words " K. D." and " released " were ex- plained as being technical terms. 27. Berry v. Kowalsky, (Cal.), 27 Pac. 286; Maurin v. Lyon, 6g Minn. 257, 72 N. W. ■/2, 65 Am. St. Rep. 568; Earl Fruit Co. v. McKin- ncy, 65' Mo. App. 220, 2 JMo. App. 1274, explaining " f. o. b." ; Dana v. Fiedler, 12 N. Y. 40, 46, 62 Am. Dec. 130, (a leading case); Storey V. Salomon, 6 Daly (N. Y.) 531; Silverman v. Clark, g6 N. Y. 522 ; Ottman Co. v. Martin, 16 Misc. 490, 38 N. Y. Supp. 966, which case should be compared with 96 N. Y., 524 sufra: McKee v. DeWitt, 12 .\pp. Div. 617, 43 N. Y. Supp. 132; White v. McMillan, 114 N. C. 349, 19 S. E. 234; Mercer Co. v. McKee's Adm'r., 77 Pa. St. 170; Ullman v. Babcock. 63 Te.x. 68. The Limits of Explanation In Silberman v. Clark. 96 N. Y. 522, the court draws the line as to where extrinsic explanation of a contract containing an abbreviation must stop. It says, p. 523 : " In this contract, after the letters f. o. b. are explained and understood, there is nothing ambiguous. There is no latent ambiguity which needs expla- nation. All the language has a meaning, and hence there is no room, under the rules of law, for parol evidence. The meaning of the language used cannot be changed or varied by the proof of any cus- tom, and hence there was no error in this case upon the trial in exclud- ing such proof." 28. Comstock v. Savage, 27 Conn. 184; First Nat. Bank v. Fricke, 75 Mo. 178, 42 Am. Rep. 397; Palmer 7'. c^tephens, i Denio (N. Y.) 471. citing Merchants' Bank v. Spicer, 6 Wend. (N. Y.) 443; Brown v. Butchers', etc. Bank, 6 Hill 443, 41 Am. Dec. 755 ; Williamson v. John- son, I Barn. & C. 146; Bank v. Flanders, 4 N. H. 239, 247-8; (see also 12 J. B. Moore, 219; i Camp. 513, 2 Mood & R. 221, and Add. on Contr. 46 N.) ; Hulbert v. Carver, 37 Barb. 62; Robinson v. Kanawha Bank, 44 Ohio St. 441. 8 N. E. 583, 58 Am. Rep. 829, where the extrinsic evidence was admitted by the trial court, the appellate court not pass- ing on its admissibility as being im- material ; and F. & M. Bank v. Day, 13 Vt. 36. 29. Nelson v. Sun Ins. Co., 71 N. Y. 453. The abbreviation was the technical phrase '' port-risk." The parties to the contract were familiar with its usage. 30. Lockett V. Nicklin, 2 Ex. 93; Palmer, in re, 21 Ch. D. 47; Amo- nett V. Montague, 63 Mo. 201 ; Sharp V. Radebaugh, 70 Ind. 547 ; Adams v. Sullivan, 100 Ind. 8; Bennett r. Frary, 55 Tex. 145; Walters t. Van Derveer, 17 Kan. 425'; Whart. on Contr. §639. Comfiarc also Baker on Sales, § 459, citing Salmon Falls Mfg. Co. V. Goddard, 14 How. (U. S.) 446; Scovill V. Griffiths. 2 Kern. (N. Y.) 509; Spencer v. Babcock, 22 Barb. 326; Fish v. Hubbard's Adm'rs., 21 Wend. (N. Y.) 657. " I. 0. 1J." —The letters "I. O. U." constitute a valid acknowledgement of a debt due. Kinney v. Flynn, 2 R. I. 319; and a written "I. O. U." is presumptive evidence of an ac- count stated ; Fesenmayer v. Adcock. 16 M. & W. 449; Curtis V. Richards, I Scott (N. R.) ISS; Gould v. Coombes, i C. B. 543. Cipher Telegram. — Wilsou v. Fris- bie, 57 Ga. 269. Memorandum of Contract — Wil- Vol. I 30 ABBRI'JIATIONS. 3. Writings Affecting Land. — A. Deeds, Etc. — Abbreviations in contracts to convey land may be explained ;'' and in a deed.^'' B. In Taxation Pkdckkdixgs. — Some courts have admitted evidence to explain abbreviations in assessments and tax deeds f^ other courts have rejected such evidence.^'' son V. Coleman, 8i Ga. 297, 6 S. E. 693- Order for Goods Penn. To. Co. V. Lcman. 109 Ga. 428, 34 S. E. 679. , By Letter — Jaqua v. Witham Co.. 106 Ind. 545. 7 N. E. .ii4- Extracts From Records Con- verse V. Wead, 142 III. 132. 31 N. E. 314- Agreement to Furnish Materials. Walrath v. Wliittt-kiml, 26 Kan. 4S2. Telegram Containing Technical Terms.— W. U. Tel. Co. v. Collins, 45 Kan. 88, 25 Pac. 187, 10 L. R. A. 515- Express Receipt Collender v. Dinsmore, 55 N. Y. 200. 14 .\ni. Dec. 224, reversing 64 Barb. 457. and citing Magnin v. Dinsmore. 56 N. Y. 168; Kirkland v. Dinsmore, 62 N. Y. 171 ; Taft v. Schwamb. 80 111. 289. Abbreviations in Bank Book — Wingate v. Mec. Bank, 10 Pa. St. (10 Barr) 104. Bill of Parcels George v. Joy, iq N. H. 544. Memorandum of Agreement to Deliver Dana v. Fielder, 2 Kern. (N. Y.) 40. 62 Am. Dec. 130. Order Blank Filled In — Coates, etc. V. Early, 46 S. C. 220, 24 b. E. 305. 31. Abbreviated Description of Land. — Richards v. Snider, 11 Or. 197, 3 Pac. 177. This was a suit to specifically enforce performance of a contract to convey land in which the only description of the land was "lot 8, sec. 19, 4 N., 3S E." The complaint alleged the meaning of said abbreviations and location of said land as to county and state. Plaintiff had also held possession of the land until ejected by one of the defendants. The court, p. 199. said : " II is not, however, a case of patent amliiguity, even with the description thus limited. Lot 8, in section 19, is a definite and particular tract of land under the general system of sur- Vol. I veys adopted by the United States, and of which the courts will take judicial notice. The intention of the parties to contract with reference to this particular tract and no other, is equally certain. There is no uncer- tainty as to this intention on the face of the written agreement. It is clearly a case admitting of the iden- tification of the subject of the con- tract by proof of extrinsic facts. Dougherty v. Purdy, 18 111. 206; Wilson V. Smith, 50 Tex. 365 ; Clark V. Powers, 45 111. 283. The posses- sion alone taken under the circum- stances alleged, should be held a sufficient identification. Purinton v. N. 111. R. Co., 46 111. 297; Parkhurst V. Van Cortland, 14 Johns. 15, 7 Am. Dec. 427. 32. Abbreviation of Grantee's Name. — Aultman, etc. Taylor Mfg. Co. V. Richardson, 7 Neb. i, was a suit to foreclose a mortgage. The court held that where the grantee's name is abbreviated in a mortgage, it may be explained extrinsically, citing Staak v. Sigelkow. \2 Wis. 259. 33. Sufficient Description of Land. Barton v. .A.nderson. 104 Ind. 578, 4 N. E. 420, citing I Greenl. Ev., §282; Whart. Ev., §1003. A pur- chaser on tax sale was allowed to prove the meaning of "^26 ft. Washt. St. S. W. cor. out. 66." in a tax dunlicatc. 34. Insufficient Description of Land Power v. Bowdle, 3 N. D. 107, 54 N. W. 404, 44 Am. St. Rep. 511, 21 L. R. A. 328. a leading case reviewing the question thoroughly. and par- ticularlv citing Powers v. Larabee, 2 N. D. 141, 49 N. W. 724; and Keith V. Hayden. 26 Minn. 2T2. 2 N. W. 495, where, however, no extrinsic evidence seems to have been con- sidered. Tidd V. Rines, 26 Minn. 201, 2 N. W. 497; Griffin V. Crcppin, 60 Mc. 270; Comj'arc Glass v. ABBKEl'IATIONS. 31 4. Judicial Process, etc. — A. L\ Ci\il Casks. — In suits not in volving property abbreviations may be explained, as in proceedings to abate a nuisance.''^ Abbreviations, even in an action involving property, have been judicially noticed.""' However, in an action on a judgiTient, it was held inadmissible to explain abbreviations in a justice's docket.'"' B. In Criminal Cases. — Where an instrument in writing is involved in a criminal action, abbreviations therein may lie ex- plained.^^ 5. Political Proceedings, Elections, Etc. — The rules as to admis- sibilitv of extrinsic evidence to explain abbreviations on ballots vary according to the character of the election laws of the court's juris- diction. The weight of authority is in favor of allowing explana- tion of the meaning of an abbreviation, where the election law is not mandatory to the contrary.^" 6. Miscellaneous Matters. — It is admissible to explain an abbre- viation in a record of the finding by a board of supervisors.''" In an action for breaking a close, a surveyor's mark on a tree was explained.*^ Gilbert, 58 Pa. St. 266. Com- pare Lowe V. Ekey, 82 Mo. 286 where certain abbreviations used in the description of land in the tax deed and anteriof proceedings in the case were held insufficient. 35. State r. Collins. 68 N. H. 299, .44 Atl. 495. 36. Davis v. Harnbell, (Tex.) 124 S. W. 97^. 37. Rood V. School Dist. No. 7. i Doug. (Mich.) 502. 38. In U. S. V. Hardynian, 13 Pet. 176; Hite V. State, 17 Tenn. (g Yerg.) 357, defendant was indicted for receiving certain specified treas- ury notes, set out in the indictment. There was a variance between the counts and the notes, one of which provided for interest at "M" per centum. The court said : "We think under the circumstances of the case, that parol proof may be re- ceived, to show the meaning and effect of the letter M. as inserted in the body of the note." 39. People v. Ferguson, 8 Cow. (N. Y.) 102; People v. Seaman, 5 Denio (N. Y.) 409; People v. Cook, 14 Barb: (N. Y.) 259, and 8 N. Y. 67; Atty. Gen. v. Ely, 4 Wis. 438. Compare Clark v. Co. Examiners, 126 ;Mass. 282. In Atty. Gen. v. Ely. 4 Wis. 438, votes for "D. M. Carpenter," "M. D. C-arpenter," "M. T. Carpenter," and " Carpenter " were counted for Mat- tliew H. Carpenter. State v. Elwood, 12 Wis. 615; People v. Pease, 27 N. Y. 45, 84 .\ni. Dec. 242. per Denio, Ch. j. : Talkington v. Turner, 71 111. 234; Clark v. Robinson, 88 111. 498; Kreitz i'. Behrensmeyer. 125 111. 141, 17 N. E. 232. 8 Am. St. Rep. 349; State V. Williams. 95' Mo. 159. 8 S. W. 415; State V. Gates, 43 Conn. 533, In Wimmer v. Eaton, 72 Iowa 374, 34 N. W. 170, 2 Am. St. Rep. 250, ballots for F. W. were counted for E. W.. who was a regular candidate, there being no one eligible or run- ning named F. W. To the contrary. People v. Tis- dale. I Doug. fMich.) 59; People z'. Higgins, 3 Mich. 233. 6r Am. Dec. 4QI : and People v. Cicott. 16 Mich. 283. 97 Am. Dec. 141. 40. Cameron f. Fellows. 109 Iowa 534. 80 N. W. 567. 41. 'Knox V. Clark. 123 Mass. 216. 216. Vol. I ABDUCTION. By Willouqhby Rodman. I. AS A CRIME, 34 I. The Case of the Prvseeiitioii, 34 A. Matters Essential to Conviction, 34 a. Taking Against Will, or IVitli Certain Intent, 34 (I.) Proving Taking or Detention, 34 (A.) Circumstances Sbozving That Taking Was Against Will, 35 (2.) Proving Intent, 35 (A.) Intent Must Be Shozvn, 35 (B.) Specific Intent, 36 (C.) Whose Intent Material, 2)7 (a.) Intent of Defendant Alone Mate- rial, 37 (b. ) Knowledge of Female Ininiate- rial, 37 (D.) Consent, When Immaterial, 37 b. Taking Female Under Designated Age for Certain Purpose, 37 (I.) Prostitution, 37 (A.) Character of House, 38 (L).) Character of House As Sliozving Pur- pose or Intent, 38 (2.) Concubinage, 38 (A.) Acts Necessary to Constitute, 38 (B.) Number of Acts As Shozving Pur- pose, 38 (C.) Previous Chastity Material. 39 (3.) Carnal Knowledge, 31; c. Taking Minor From Parent or Guardian Without His Consent, 39 (I.) Taking From Custody, 39 (A.) What Constitutes, 39 (a.) Fraud, 40 (b.) Bad Intent Immaterial. 40 (c.) Intent Inferred, 40 (d.) Ignorance of Minority Immate- rial, 40 (B.*) Actual Removal Necessary, 40 (a.) Constructive Custody Sufficient. 41 (b.) Constructii'e .S'erz'ice .Sufficient. 41 (c. ) [/'/;() Untitled to Custody. 41 Vol. I ABDUCTION. 33 (d.) Distance Removed or Time of De- tention Immaterial, 41 (e.) Parental Control Lost, 42 (2.) Non-Consent of Parent or Guardian, 42 (A.) Non-Consent Presumed, 42 (B.) Consent Obtained by Fraud, 42 (C.) Defendant's Knozclcdge of Non-Con- sent Immaterial, 42 (D.) Father's Treatment Immaterial, 42 (E.) Consent Immaterial, 42 d. Previous Chaste Character of Female, 43 (i.) Chastity Prior to Taking, 43 (2.) Chastity Must Be Proved, 43 (A.) Presumption of Innocence Insuffi- cient, 43 (B.) Shozi'H by Circumstances, 44 (3.) Unnecessary, JVhen, 44 (A.) When Force Is Employed, 44 (B.) Female Under Designated Age, 44 (4.) Unchastity As Defense, 44 (5.) Unchastity After Taking Immaterial, 45 B. Burden of Proof, 45 C. Evidence for Prosecution, Witnesses, 45 a. Female Taken, 45 (i.) JVife Witness for or Against Husband, 45 (2.) Corroboration, 45 (A.) JJ' hen Required, 45 (B.) Scope and Nature of Evidence, 45 (C.) Ma\i Be b\ Circumstances. 46 (D.) By 'Defendant, 47 b. Parent or Guardian, As IVitnesses, 47 2. Defendant's Evidence, 47 A. Non-Criminal Intent, 47 B. Unchastity of Prosecutrix, 48 C. Parental Control Lost, 48 D. Character of Relatives Immaterial, 48 II. AS A CIVIL ACTION, 48 I. Abduction of Minor, 49 A. Plaintiff's Case, 49 a. Ultimate Facts, 49 (i.) Custody, 49 (2.) Taking Against Consent, 49 (A.) Fraud, 49 (B.) Circumstantial Evidence Sufficient, 49 (3.) Defendant's Knozvledge of Minority and Obligation of Service, 50 3 Vol. I 34 ABDUCTION. (4.) Damages, 50 (A.) Expense of Search, 50 (B.) Mental Suffering of Plaintiff, 50 B. Defendant's Case, 51 a. Minor Not in Plaintiff's Custody, 51 b. Abandonment of Service, 51 c. Belief That Minor Left With Consent, 51 d. Voluntary Leafing by Minor, 51 e. Proper Motives, 51 f. Statements of Minor, 52 g. Mitigation of Damages, 52 I. AS A CRIME. 1. The Case of the Prosecution. — A. Matters Essential to Conviction. — a. Taking Against Will, or With Certain Intent. (1.) Proving Taking or Detention. — Where defendant is charged with taking or detaining a female against her will/ such taking or detaining is shown by proof of force," threats,^ deceit or false representations,* arts, allurements, or persuasion,^ the use of drugs or intoxicants," detaining an insane woman for purpose of carnal knowledge,'' taking liberties with a sleeping woman.' 1. Schiiickcr v. People, 88 N. Y. 192. 2. Schnicker v. People, 88 N. Y. 192; People V. Seeley, 37 Hun (N. Y.) 190; State V. Bussey, 58 Kan. 679, 50 Pac. 891 ; State v. Jamison, 38 Minn. 21, 35 N. W. 712; State v. Chisenhall, 106 N. C. 676, II S. E. 518; Scruggs V. State, go Tenn. 81, IS S. W. 1074; Carpenter v. People, 8 Barb. (N. Y.) 603; State V. Keith, 47 Minn. 559, 50 N. W. 691. 3. Russ. Crimes (9th Ed.) p. 942. 4. Beyer v. People, 86 N. Y. 369; In People v. De Leon. 109 N. Y. 226, 16 N. E. 46, 4 Am. St. Rep. 444, de- fendant was indicted for "kidnap- ping," but the facts of the case and the language used by the court make the decision applicable to this dis- cussion. 5. Arts — A taking against the will of the female is established by proof of the employment of any allurements or arts which naturally tend to induce her to submit her Vol. I will to that of the defendant or to leave her natural or legal custodian. Slocuni V. People, 90 111. 274 ; Peo- ple V. Seeley, 37 Hun (N. Y.) 190; State V. Johnson, iij ]\lo. 480, 22 S. W. 463. 6. South V. State, 97 Tenn. 496, 37 S. W. 210. 7. Insane Woman Higgins v. Com., 94 Ky. 54, 21 S. W. 231. This is upon the theory that any act done to an insane woman which is not done in kindness, or for her benefit. is done against her will. Defendant To Be Shown Cognizant of Insanity — In P.caven v. Com., (Ky.) 30 S. W. 968, it is held, in discussing certain instructions, that when it is shown that the female in question was insane, it must also be shown that the defendant knew, or had reason to know, her mental con- dition. 8. Sleeping Woman Couch v. Com.. rKy.) 29 S. W. 29. In Malone v. Com., 91 Ky. 307, 15 S. W. 856, the evidence showed that the defendant entered the room ABDUCTION. 35 (A.) Circumstances Showing That Taking Was Against Will. Evidence may be offered of facts which occurred prior to, concur- rently with and subsequent to the taking, which show, or tend to show that the female was acting under the influence of force, threats, deceit, false representations or persuasion." The female may testify as to her reason for being in the society of defendant, and may give evidence of acts or language on his part which show that he induced her to accompany him by the exercise of menace, fraud, deceit or persuasion." (2.) Proving Intent. — (A.) Intent Must Be Shown. — When intent to perform an inhibited act, other than the taking, is an essential ingredient of the oft'ense, the prosecution must prove, not only a taking against the will of the female, but that the taking was done with intent to perform the other act.'^ For methods of proving intent see the article " Intent." But certain facts which have been held to be evidence of intent in abduction cases are cited here.'- Proof of the commission of the other act does not of a young girl while she was sleep- ing ; and without waking her, pulled up the bedclothes, disarranged her garments, and took liberties with her person. Held, that the evidence showed an intent to take or detain her against her will for the purpose of carnal knowledge. 9. Schnicker v. People, 88 N. Y. 102. In this case the court says : "In this case the precautions taken to prevent the prosecutrix leaving the house, and the restraint put upon her' through her fears, by the sug- gestion that, if she left the house, she would be arrested, justified the jury in finding that she was taken by the prisoner against her will. The girl was young, in a' strange land, unacquainted with the surroundings, and the conduct of the prisoner, under the circumstances in which the prosecutrix was placed, naturally operated as potentially in restraining her actions and overcnniine her will, as if actual physical violence had been used." See also Respublica v. Hevice, 2 Yesfes. CPa.') IT4. 10. Reason For Accompanying Defendant — Beyer v. People. 86 N. Y. 360; People V. Seelev 37 Hun (N. Y.) IQO; Slociun v. People. 00 111. 274: People V. DeLeon, lOO N. Y. 226, 16 N. H. 46. 4 Atu. St. Rep. 444- In Schnicker v. People, 88 N. Y. 192, the court says : "The prosecutrix was properly allowed to state vhy she went to the prisoner's house. It was competent for the people to show that she went to the house for an innocent purpose, and not for the purpose of prostitution." 11. Intent Must Be Proved. State V. Gibson, in Mo. 92, 19 S. W. 980: State V. Jamison, 38 Minn. 21, 35 N. W. 712. 12. Intent To Defile Inferred From Defilement. — The house was a house of prostitution. The prisoner plied the prosecutrix daily with solicitation that she should have il- licit intercourse with men. When persuasion failed, the prisoner re- sorted to the compulsfon of fear, and finally the prosecutrix was defiled by force. This evidence was held amply sufficient to establish the in- tent specified in the statute. Schnicker -'. People, 88 N. Y. 192. From Taking to House of Pros- titution — "When a girl is surrepti- tiously taken from her mother's roof by a prostitute and those who keep company with her, and conducted to a house of prostitution, the fair and reasonable inference is. that she is taken there for the purpose of nroslilution." People v. Marshall, 59 Cal. 386; see also State v. Chisen- hall, T06 N. C. 676, IT S. K. .S'i8; Vol. I 36 ABDUCTION. establish the intent.''' Intent Inferred From Act. — But is admissible as tending to show the intent." Proof That Attempt Succeeded Unnecessary. — \\ hen the Statute is directed against taking with inhibited intent, the intent being estab- lished, it is not necessary to show that defendant accomplished his purpose.'-' (B.) Specific Intent. — Specific intent must be proved. The evidence for the prosecution must establish the specific intent charged in the indictment. To show an intent to commit another unlawful act, even of similar nature to that referred to, is not sufficient. '" Brown v. State, 72 Aid. 468, 20 Atl. 186. Intercourse Between Defendant and Prosecutrix, Prior to Taking. Evidence of acts of se.xual inter- course between defendant and pros- ecutrix prior to the taking is admis- sible to show defendant's intent in the taking. People v. Carrier, 46 Mich. 442, 9 N. W. 487; People v. Wah Lee Mon, 37 N. Y. St. 283, 13 N. Y. Supp. 767- Acts Subsequent to Taking May Show Intent — State v. Bobbst, 131 Mo. 32S, 32 S. W. 1 149; State v. Johnson, 115 Mo. 480, 22 S. W. 463; Henderson v. People, 124 111. 607, 17 N. E. 68, 7 ■■^m. St. Rep. 391. Attempt to Conceal Prosecutrix. State V. Gibson, in Mo. 92, 19 S. W. 980. Acts Done Outside Jurisdiction of Court.— People v. Wah Lee Mon, 37 N. Y. St. 283, 13 N. Y. Supp. 7(17. But Not Immoral Acts With Other Females — People v. Gibson, 21 N. Y. St. 59, 4 N. Y. Supp. 170. Unchastity of Prosecutrix as Bearing on Intent — Brown v. State, 72 Md. 46S, 20 Atl. 186. That defendant was told prosecu- trix was a prostitute and that he supposed she was may be shown by him to rebut intent. Reaven v. Com., (Ky.) 30 S. W. 968. 13. Intent Not Presumed From Act.— People v. Plath, 100 N. Y. 590, 53 Am. Rep. 236; State v. Gib- son, III Mo. 92, 19 S. W. 980: State V. Jamison, 38 Minn. 21, 35 N. W. 712; Lawson Presumptive Ev. p. 472. In Cochran v. State, 91 Ga. Vol. I 763, 18 S. E. 16, defendant was in- dicted under a statute which pro- vided that any one maliciously or fraudulently leading or taking away a child under eighteen years of age from its parents or guardians, or against his, her or their wills, shall be guilty of kidnapping. The evi- dence showed that defendant went with a girl under eighteen to a li- censing office, obtained a luarriage license, and married the girl. There was no proof of fraud or force prac- ticed or exerted upon the girl or her parents ; and no proof of malice. Held, that the evidence did not sus- tain a conviction. 14. State V. Keith, 47 Minn. 559, 50 N. W. 691. See also Beyer v. People, 86 N. Y. 369. 15. State V. Rorebeck, 158 Mo. 130. 59 S. W. 67; Payner v. Com. (Ivy.) 19 S. W. 927; Slocum v. People, 90 111. 274; State v. Bobbst, 131 Mo. 328, 32 S. W. 1149; State v. Keith, 47 Minn. 559, 50 N. W. 691. "The gravamen of the offense is the purpose or intent with which the enticing or abduction is done; and hence the offense, if committed at all, is complete the moment the sub- ject of the crime is removed beyond the power and control of her parents, or others having lawful charge of her, whether any illicit intercourse takes place or not." Pfendcrson i<. People, 124 111. 607, 17 N. E. 68, 7 Atri. St. Rep. 391. 16. Specific Intent. — State v. Stoyell. 54 Me. 24. 89 .^m. Dec. 716. In this case, which is the leading American case on the subjects of ABDUCTION. ?.l (C.) Whose Intent Matekial. — (a.) Intent of Defendant Alone Mate- rial. — In prosecution under statute directed against taking female with inhibited intent, it is the intent of defendant which is material, the intent of the female being immaterial." {h.) Kno-di'lcdge of Female Immaterial. — It is also immaterial that defendant's intent was not disclosed to the female.'* (D.) Consent, When Immaterial. — When the gist of the offense is the abduction of an infant, or the taking of a female under desig- nated age, for purposes of prostitution or concubinage, it is immate- rial that the taking was with the consent of the infant," or the female.-" b. Taking Female Under Designated Age for Certain Purpose. (1.) Prostitution Unnecessary to Sho-v Particular Man. — In prosecution under a statute against compelling or procuring a female to have specific intent and taking for pur- pose of prostitution, defendant was indicted under a statute which pro- vided that '■ whoever fraudulently and deceitfully entices or takes away an unmarried female from her father's house, or wherever else she may be found, for the purpose of prostitution, at a house of ill fame, assignation or elsewhere, and who- soever aids," etc. The evidence showed that the defendant, by rep- resenting to prosecutrix that he wished to take her for a drive, in- duced her to accompany him to a town not far from her home. On arriving at the town they went to a hotel, were assigned a room, where, after producing a condition of par- tial into.xication in prosecutrix, de- fendant had intercourse with her. That night they drove to her father's house, but did not enter, going, in- stead to another hotel, where they again had intercourse. Defendant was convicted. The appellate court held that the evidence did not sustain the judgment of con- viction ; that it did not show any intent to cause prosecutrix to be- come a prostitute. See also State v. Gibson, io8 Mo. 575, i8 S. W. nog; People v. Rodcri- gas, 49 Cal. 9; State v. Rorebeck, 158 Mo. 130, 59 S. W. 67; People v. Parshall, 6 Park. Crim. (N. Y.) 129 ; People v. Plath, 100 N. Y. 590, 53 Am. Rep. 236; Carpenter v. People, 8 Barb. (N. Y.) 603; State V. Ruhl, 8 Iowa 447. Proof of Intent to Seduce Not Sufficient — Evidence showing an at- tempt to commit seduction does not warrant, conviction under an indict- ment which charges defendant with taking away female with intent to compel her to be defiled. People v. Parshall, 6 Park. Crim. (N. Y.) 129. But in People v. Cummons, 56 Mich. 544, 23 N. W. 215, it was held that a conviction for enticing female under designated age, for purposes of prostitution, was sustained by evi- dence that defendant enticed the female to his photographic rooms, showed her lewd pictures, paid her small sums of money, and at various times had se.xual intercourse with her. 17. Defendant's Intent Controls. Slocum V. People, go 111. 274; State V. Bobbst, 131 Mo. 328, 32 S. W. 1149. 18. Knowledge of Female Imma- terial — Slocum V. People, 90 111. 274; E.x Parte Estrado, 88 Cal. 316, 26 Pac. 209. 19. Thwentt v. State, 74 Ga. 821 ; Tucker v. State, 8 Lea (Tenn.) 633; I Russ. Crimes, (gth Ed.) p. 953. 20. Consent of Female Immate- rial — State V. Bobbst, 131 Mo. 328, 32 S. W. 1 149; State V. Chisenhall, 106 N. C. 676, II S. E. 518; State v. Bussey, 58 Kan. 679, 50 Pac. 891 ; State V. Stone, 106 Mo., 16 S. W. 890; Scruggs V. State, go Tenn. 81, 15 S. W. 1074; South V. State, 97 Tenn. 496, 37 S. W. 210. Vol. I 1689 Ji 38 ABDUCTION. sexual intercourse with men other than the person so procuring or compelhng her, it is not necessar)- to show that defendant's purpose was to coinpel prosecutrix to have intercourse with any particular man. It will be sufficient if the evidence shows that defendant's purpose was to procure or compel her to have intercourse with another, or with others, than himself. '•'' (A.) Character OF Hou&e. — In prosecution under statute against inveigling or enticing a female into a house of ill-fame or of assig- p.ation, or elsewhere, for the purposes of prostitution, it is necessary to show that the place to which the female was taken was a place of character similar to that of houses of ill-fame or of assignation.--' (B.) Character of House As Showing Purpose or Intent. — In prose- cution for taking female for purpose of prostitution, character of house may be considered as showing defendant's purpose or intent.- ' (2.) Concubinage — (A.) Acts Necessary to Constitute. ^To estab- lish a taking for the purposes of concubinage, no given number of acts of intercourse is necessary.-'' (B.) Number of Acts As Showing Purpose. — But it is proper to show the number of acts 'which took place, and the number may be considered, in connection with other facts, and circumstances proved, in determining whether or not defendant's purpose was habitual cohabitation with the female.-'' 21. Stevens v. State, II2 Ind. 433, 14 N. E. 251. 22. In State v. McCruni, 38 Minn. 154, 36 N. W. 102, it was shown that defendant enticed prosecutrix into a dwelling house, and there had in- tercourse with her. Held, that to sustain a conviction, it should have been shown that the house was a place where prostitution of the character common at houses of ill- fame was practiced. See also Miller V. State, 121 Ind. 294, 23 N. E. 94. But see People v. Cummons, 56 Mich. 544, 23 N. W. 215. See also Reg. V. McNamara, 20 O. R. (Can.) 480. 23. Brown v. State. 72 Md. 468, 20 Atl. 186. Held, that facts that defendant kept a bawdy-house and that pros- ecutrix was brought tliere, were prima facie evidence that prosecu- tri.x was taken there for purpose of prostitution. Also held that defend- ant, to rebut this prima facie case, might prove that prosecutrix was permitted at her own request, to remain in the house, for the pur- pose of securing employment on the Vol. I day after her arrival. Also, that while in the house, prosecutrix did not have se.xual intercourse. In State v. Ruhl, 8 Iowa 447, it is stated that if it be proven that de- fendant took prosecutrix to a house of ill-fame, prostitution, or other place where she would be in the society alone of lewd and lascivious persons, a conviction might be sup- ported, upon the principle that pros- titution of the female might be regarded as almost necessarily to follow, every person being presumed to intend the natural, necessary and even probable consequences of his act. See also State v. Chisenhall, 106 N. C. 676, II S. E. 518; Reg. V. McNamara, 20 O. R. (Can.) 489. 24. U. S. V. Zes Cloya, 35 Fed. 493 ; State v. Feasel, 74 Mo. 524. Single Act Held Sufficient State V. Feasel, 74 Mo. 524. 25. U. S. V. Zes Cloya, 35 Fed. 493- In State v. Feasel, 74 Mo. 524, it was held that cohabitation for a single night with a female under the age prescribed by the statute is ABDUCTION. 39 CO Previous Chastity Material- — Previous chastity of the female must be proved.-" (3.) Carnal Knowledge. — Under some statutes the offense is com- mitted by taking a female under designated age for purpose of sexual intercourse.-' c. Taking Minor From Parent or Guardian Without His Consent. (1.) Taking From Custody. — (A.) What Constitutes — An actual for- cible removal from parent's custody need not be shown.-» It suffices to prove any act which deprives the parent of the custody or possession of his child.-'' sufficient to sustain a conviction for taking for purposes of concubinage. The question arose upon an exception to a certani instruction in whicn the court instructed the jury tliat if defendant took the female from her father for the purpose of concubin- age, that is, for the purpose of cohabiting with her as man and wife in sexual intercourse for any length of time, even for a single night, without the authority of a valid mar- riage, the jury would find defend- ant guilty. Single Act Not Sufficient — State V. Feasel, 74 Mo. 524, is overruled by State v. Gibson, ill Mo. 92, 19 S. W. 980, which is itself approved by State V. Johnson, 115 Mo. 480, 22 S. W. 463, and State v. Wilkinson, 121 Mo. 48s. 26 S. W. 366. But State V. Feasel, 74 Mo. 524, is approved in State v. Overstreet, 43 Kan. 299, 23 Pac. 572. Although in the Overstreet case the court held that there was evidence of other than one night's cohabitation which showed defendant's intent. 26. Previous Chastity — In State V. Gibson, 11 1 Mo. 92, 19 S. W. 980, defendant was indicted under a statute directed against taking female under the age of eighteen for pur- pose of concubinage. The court held that, while the statute in question did not, in terms, require that the female should have been of previous chaste character, such a requirement was necessarily included in a defini- tion of the ofifense. Contra. — State v. Johnson, 115 Mo. 480, 22 S. W. 463. 27. HufTz/. Commonwealth, (Ky.) 37 S. W. 1046; People V. Seeley, Z7 Hun (N. Y.) 190; People v. Shep- pard, 44 Hun (N. Y.) 565. As to method of proving age see the article, " Age." 28. Force Not Necessary — Roscoe Crim. Ev., /th Am. Ed., p. 263; citing Rex v. Booth, 12 Cox Crim. Cas., 231 and Reg. v. Handley, I F. & F. 648; Russ. Crimes, 9th Ed. 954- 29. Acts Which Constitute Taking From Custody Where A. went at night to house of B., and held a ladder for F., B.'s minor daughter, to descend, arid then eloped with and married her, it was held that there was a taking of the girl from the possession of her father, although F. herself proposed the use of the ladder. Roscoe Crim. Ev., 7th Am. Ed., citing Rex. v. Robins, I Car. & K. 456. So when defendant persuaded a girl to meet him secretly, and then took her away. Roscoe Crim. Ev. 7th Am. Ed., p. 263, citing Reg. v. Mank- telow, I Dears. C. C. I59, where a girl has left home without any in- ducements offered her by defend- ant, and come to defendant, if he avails himself of her having left to induce her not to return, he is guilty of an unlawful taking. Roscoe Crim. Ev. 7th Am. Ed., p. 263, citing Rex. V. Olifier, lo Cox Crim. Cas. 402. Defendant being related to the father of a girl, and frequently in- vited to the house, induced the girl to elope with and secretly marry him, using no inducements or seduction other than the ordinary blandishments of a lover. Held that, father's non-consent being shown, de- Vol. I 40 ABDUCTION. (a.) Fraud. — Defendant takes the child from the custody of its parent when he entices it away by the use of false representations.^" But it is held that the force or fraud must be exercised or practiced against the minor, and that evidence showing the exercise of force or the practice of fraud against the parent or guardian is not suffi- cient to sustain an indictment.'^ (b.) Bad Intent Immaterial. — It is immaterial that defendant was not actuated by bad intent in the taking. "- Intent. — The only intent necessary to be proven, is an intent to deprive a parent of his child.'' (c.) Intent Inferred. — An intent to abduct may be inferred from evidence of solicitations made to minor by defendant, or from preparations made by him.'* (d.) Ignorance of Minority Immaterial. — Testimony that a minor who was taken away told defendant that she was over designated age, and that he believed her, is irrelevant.'^ (B.) Actual Removal Necessary. — Custody. — Before an unlawful taking can be shown, it must be established that the minor was in the custody or charge of his parent or guardian,'" and was actually fendant was guilty of abduction. R. V. Twisleton, i Lev. 257 as cited at p. 246 of Roscoe Crim. Ev. See Reg. V. Burrell, L. & C. 354. Acts Which Do Not Constitute Taking — Defendant does not take a girl out of the possession of her father, where he finds her on the street, produces partial into.\ication, and has intercourse with her. Reg. V. Green, 3 F. & F. 274. 30. I Russ. Crimes, gth Ed. pp. 952, 9SS. Contra. — But in Reg. v. Meadows, I Car. & K. 399, it was held that inducing a girl to go with defend- ant by his representing that his mother needed a servant, and would pay her a certain sum as wages, and then taking her away with himself, did not constitute a taking from the possession or against the will of her father. This case is doubted in case of Reg. v. Manktelow, 6 Co.x. Crim. Cas. 143. 31. Reg. V. Barnett, 15 Co.x Crim. Cas. 658. Contra. — Reg. v. Hopkins, i Car. & M. 254, where it is held that of- fense is committed when consent of parent is obtained by fraud. 32. Roscoe Crim. Ev., 7th Am. Ed., p. 264, citing Re.\ v. Booth, 12 Vol. I Co.\ Crim. Cas. 231. See also I Russ. Crimes, 9th Ed., p. 955'. But in Reg. v. Tinkler, i F. & F. 513, it was held that when the evi- dence showed that defendant, who had taken a girl from the custody of a person with whom she had been placed by an elder sister, believed he had a right to the custody of the child, she being a sister of his de- ceased wife, defendant having prom- ised the child's father on his dying bed that he would take care of her, abduction was not committed, no improper motive appearing. 33. Roscoe Crim. Ev., 7th Am. Ed., p. 264, citing Re.x. v. Timmins, 8 Co.x Crim. Cas. 401. 34. Roscoe Crim. Ev., 7th Am. Ed., 264. 35. State v. Ruhl, 8 Iowa 447 ; Reg. V. Prince, L. R. 2 C. C. R. 154; I Whart. Crim. Law. §88. 36. Custody Must Be Shown. Reg. V. Miller, 13 Cox Crim. Cas. 179. In this case the evidence showed that a girl working as a servant had had various meetings with defendant. While going to visit her father, she called on de- fendant. She had leave to remain with her father from Sunday till Monday night. She left her father's ABDUCTION. 41 removed therefrom/'^ (a.) Constructive Custody Sufficient. — But it is sufficient if it be shown that the minor was constructively in the custody of his parent or guardian.^* (,b.) Constructive Service Sufficient. — And where it must be shown that services were rendered by the minor, constructive service is sufficient.^" (c.) IVIio Untitled to Custody. — It is sufficient to siio»v that the minor Hved with the guardian of his estate in the absence of his father and with the consent of the mother ; and the letters of guar- dianship of estate are admissible in evidence/" (d.) Distance Removed or Time of Detention Immaterial. — It is not necessary to show that the female was taken any given distance from the person entitled to her custody ;" or that she was detained any given time/- house Sunday ; but, instead of re- turning to service, met defendant and spent Sunday night with him ; and remained with him till Thursday, when her father accidently met her and returned her to her employer. The girl testified that she might have returned to her master's at any time after Monday night; also that she never intended to stray away till Monday night. Held, that abduction was not committed as girl was not in the custody of her father. i>ee also Reg. v. Green, 3 F. & F. 274, in which it was held that the girl was not in charge of her father. See also Reg. v. Hinkers, 10 Cox Crim. Cas. 246. Defendant's Knowledge of Custody. See Reg. v. Hilbert, II Co.x Crim. Cas. 246, in which it is held that the offense is not committed unless de- fendant knew that the girl was under the care of her father, or had reason for believing that she was. 37. Actual Removal Slocum v. People, go 111. 274. 38. Constructive Custody Suffi- cient — Possession of parent con- tinues until put an end to by de- fendant's taking the female into his own possession. Reg. v. Manktelow, I Dears. C. C. 159; and Rex v. Kipps, 4 Co.x Crim. Cas. 167. See also Russ. Crimes, (9th Ed.) p. 9S4; 2 Whart. Crim. Law (gth Ed.) §1765; State v. Round, 82 Mo. 679. If, in prosecution for abduction. the evidence shows that there was an intention on the girl's part to return home, she is still in the con- structive custody of her father. Roscoe Crim. Ev. (7th. Am. Ed.) p. 263, citing Rex. v. Mycock, 12 Cox Crim. Cas. 28. "Surely a father to protect his child ought not to be obliged to keep his arms clasped constantly around her waist." Bish. Stat. Crimes, § 636. In State v. Round, 82 Mo. 679, a girl had gone with consent of her father, who lived in Missouri, to visit an uncle in Iowa. Defendant, by false representations, induced the girl to leave her uncle's house with him. They drove into Miss- ouri, where they had se.xual inter- course. Held, that tlie girl was taken from her father's custody. 39. Gandy v. State, 81 Ala. 68, i So. 35, holding that it is presumed that the services of the minor are lawfully due to the parent as long as the child remains in the family and under the control of the parent. 40. People v. Carrier, 46 Mich. 442, 9. N. W. 487. As to custody, see State v. Ruhl, 8 Iowa 447. 41. Slocum V. People, 90 111. 274; I Russ. Crimes, (gth Ed.) p. 956; South V. State, 97 Tenn. 496, 37 S. W. 210. 42. State v. Round, 82 Mo. 679; Slocum V. People, 90 III. 274; South V. State, 97 Tenn. 496, 37 S. W. 210; Roscoe Crim. Ev. (7th Am. Ed.) Vol. I 42 ABDUCTION. (e.) Parental Control Lost. — Under indictment for forcibly, mali- ciously or fraudulently taking or enticing away from its parent a child under designated age, defendant may show that the control of the child had passed from the parent and vested in a guardian, the presumption of parental control being disputable/^ (2.) Non-Consent of Parent or Guardian. — To establish an unlawful taking of a minor, it must be shown that the taking was done with- out the consent of the parent or guardian. (A.) Non-Consent Presumed. — Want of consent of parent will be presumed, if it appears that had his consent been asked, he would have refused it.^* (B.) Consent Obtained by Fraud. — If the evidence show that parents' consent to removal was obtained by fraud, the oflfense is committed.''" (C.) Defendant's Knowledge of Non-Consent Immaterial. — In prosecutions for taking away minor female without the consent of her parent or guardian, it is immaterial whether or not defendant wa's notified of parent's unwillingness to surrender the custody of his child.*" (D.) Father's Treatment Immaterial. — Defendant will not be permitted to show that the father treated the girl harshly.*' (E.) Consent Immaterial. — In prosecution for taking female under designated age for purpose of prostitution, evidence as to the father's consent is immaterial.*' p. 263, citing Reg. v. Timmins ; 8 Cox Crini. Cas. 401. See also i Russ. Crimes (9th Ed.) 956. 43. Parental Control Lost. Pruitt V. State, 102 Ga. 688, 29 S. E. 437- 44. Roscoe Crim. Ev. (7th Am. Ed.) p. 264, citing Reg. v. Handley, I F. & F. 648. Acquiescence — In Reg. v. Primelt, I F. & F. 50, defendant met a young girl at a dance house, took her away and had intercourse with her. Held that the taking was not against the consent of her mother, when the evidence showed that the mother knew of the girl's habit of being out late at night and visiting dance houses, and permitted her to do so. See also 1 Russ. Crimes (9th Ed.) p. 958; Bish. Stat. Crimes § 635. 45. Consent By Fraud Reg. v. Hopkins, I Car. & M. 254. In this case defendant represented to a mother that he would give her daughter employment, if she should be permitted to go with him. The Vol. I father, on being informed of this statement, consented to the girl's going with defendant. Defendant did not take the girl to the place to which he had prom- ised to take her, but kept her with him, and occupied the same bed with her. The father testified that he let the girl go, relying upon defend- ant's representations. Held, that the taking was unlawful, on the ground that consent obtained by fraud is no consent. See also Roscoe Crim. Ev. (7th Am. Ed.) p. 26,3; Russ. Crimes (9th Ed.) p. 951, 46. Gravett v. State, 74 Ga. 191. 47. Gravett v. State, 74 Ga. 191. In this case defendant offered to prove that the father was harsh in his treatment of the girl taKen away, for the purpose of showing that she left home voluntarily to avoid such treatment. Held, that the testimony was properly excluded. 48. State v. Chisenhall, 106 N. C. ABDUCTION. 43 Assisting Mother in Taking Child From Parent. — In prosecution inider statute against taking child under designated age, with intent to conceal it from its parent, evidence that defendant simply assisted the mother in taking the child from the father is not sufficient to sustain conviction. ■''■' d. Previous Chaste Character of Female. — Under some statutes the offense of taking a female for certain prohibited purposes is not complete unless it be shown that the female was of chaste character previous to the taking. (1.) Chastity Prior to Taking. — To secure conviction under statutes directed against taking away a female of previous chaste character for the purposes of prostitution or concubinage, the state must prove that up to the time of the commission of the offense, she had been chaste and pure in character, conduct and principle.'*^ (2.) Chastity Must Be Proved. — Chastity must be proved by posi- tive evidence. "*- (A.) Presumption of Innocence iNSUFnciENT. — The fact of chastity is not established by applying in favor of the female the presump- tion of innocence.'^'' 676, II S. E. 518; State V. Jamison, 38 Minn. 21, 35 N. W. 712. But in Brown v. State, 72 Md. 468, 20 Atl. 186, it was held that defendant might show that prosecu- trix went with defendant with her mother's consent. 49. State v. Angel, 42 Kan. 216, 21 Pac. 1075. In this case the evi- dence showed that the mother of an infant took it away from the father, and that defendant aided and assisted her. Held, that such evidence would not sustain a conviction. The de- cision proceeded upon the theory that under the Constitution of Kan- sas the mother's right to the child was equal with that of the father ; that, consequently, she had a right to remove the child, and could not be prosecuted for so doing ; and that defendant, in assisting her in a law- ful act. committed no oflfense. 50. Previous — In such connection the word " Previous " refers to a period terminating immediately pre- vious to the commencement of the guilty conduct of defendant. Car- penter V. People, 8 Barb. (N. Y.) 603. Reformation — If the female had fallen once, but had reformed, she might be the subject i f the offense. Id. 51. Character, Not Reputation. This means actual personal virtue, chaste character, not a reputation for chastity. Carpenter v. People, 8 Barb. (N. Y.) 603; Kauffman v. People, II Hun (N. Y.) 82, 87; Slocum V. People, 90 111. 274, 281 ; Kenyon r. People, 26 N. Y. 203, 84 Am. Dec. 177. Previous Chastity — On the sub- ject of previous chastity, and the proof necessary to establish it, see Slocum V. People, 90 111. 274, 281 ; Lyons V. State, 52 Ind. 426 ; Crozier V. People, I Park. Crim. (N. Y.) 453. 52. Chastity Must Be Proved. People V. Roderigas, 49 Cal. 9; Com. V. Whittaker, 113 Mass. 224; Kaufif- man v. People, 11 Hun (N. Y.) 82. 53. Presumption of Innocence. In Com. V. Whittaker, 113 Mass. 224, it is held that the presumption of innocence, which the law indulges in favor of the female, will not so far overcome the presumption of in- nocence in favor of defendant, as to dispense with proof of chastity. Contra. — Slocum v. People. 90 111. 274. In this case the court uses this language : " It is argued that Miss Templcton was not a female of chaste life and conversation, and therefore the Vol. I 44 ABDUCTION. (B.) c>HowN BY Circumstances. — Evidence may be offered of cir- cumstances which raise presumption of chastity.^* (3.) Unnecessary, When._'(A.) When Force Is Employed.— In prose- cution under statute directed against taking any woman against her will, and by force compelling her to be defiled, evidence of previous chastity of the female is not required.'*'' (.B.) Female Under Designated Age. — So when prosecution is for taking a female under a designated age for the purpose of prostitu- tion.'*" (4.) TJnchastity As Defense. — When the rule requires proof of pre- vious chastity, defendant may show, as a defense, that previous to the time of the alleged taking, the female was unchaste, and may offer evidence of a single act of illicit intercourse on the part of prosecutrix.^'' statutory crime was not committed. We admit that this clause requires that she shall possess actual personal virtue as distinguished from a good reputation. The presumption of law is, that her previous lite and con- versation were chaste, and the onus was upon the defendants to show otherwise." To same effect is Bradshaw v. People, 153 HI- 156, 38 N. E. 652. 54. Presumption of Chastity Created by Circumstances Slocum V. People, 90 HI. 274 ; Bradshaw v. People, 153 111. 156, 38 N. E. 652. Among the circumstances compe- tent to be shown for the purpose of raising presumption of chastity, is the fact that an unmarried female was at the time of the act in ques- tion residing with her parents or guardian ; that she was living in a respectable household, or by proof of any circumstances consistent with and the usual concomitants of chaste female character. People v. Roderigas, 49 Cal. 9. In Andre v. State, 5 Iowa 389, 68 Am. Dec. 708, it is held that, to show that female was unchaste it is not necessary that it be shown that she had had se.xual intercourse. Un- chastity may be established by proof ot lewd, indecent and lascivious con- duct. 55. Taking by Force — Kauffman V. People, II Hun (N. Y.) 82. 56. Female Under Designated Age Kauffman v. People, 11 Hun Vol. I (N. Y.) 82; People v. Demousset, 71 Cal. 611, 12 Pac. 788. In the case last cited defendant was in- dicted under a statute making it an ofifense to take a female under the age of eighteen years from the per- son entitled to her custody, without his consent, for the purposes of prostitution. It was held that evi- dence, that prior to the alleged tak- ing, prosecutrix had had intercourse with a number of men, was immate- rial. See also People v. Dolan, 96 Cal. 315, 31 Pac. 107; State v. Bobbst, 131 Mo. 328, 32 S. W. 1 149. In People v. Demoussett, 71 Cal. 611, 12 Pac. 788, and People v. Do- lan, 96 Cal. 315, 31 Pac. 107, the pros- ecutions were under § 267, Penal Code of California, which is directed against taking a female under the age of eighteen from her parents for purposes of prostitution; while in People V. Roderigas, 49 Cal. 9,. prosecution was under § 266, which provides that any one taking a fe- male of previous chaste character, under the age of eighteen, for pur- pose of prostitution, is punishable, etc. 57. Unchastity As Defense. In Lyons v. State, 52 Ind. 426, the court held that it was error to ex- clude defendant's offer to prove acts of illicit intercourse on the part of prosecutrix, and that it was proper to permit the defendant to show a single act of illicit intercourse on her part. Crozier v. People, i Park. Crim. (N. Y.) 453. ABDUCTION. 45 (5.) TTnchastity After Taking Immaterial. — Defendant's evidence as to unchastity of prosecutrix is limited to time preceding the taking ; and evidence of subsequent acts of unchastity is incompetent.^** B. Burden of Proof. — The burden of proof is, of course, upon the prosecution to establish every element of thel ofifense. See " Burden of Proof." C. Evidence for Prosecution. — witnesses. — a. Female Taken. — The female who was taken may testify as to the taking, as to defendant's conduct,'*'' as to his statements to her, as to her reason for being in his society,"" or as to statements made to her, or in her presence by accomplice of defendant."^ (1.) Wife Witness For or Against Husband. — In prosecution for taking a female and marrying her by force, the female taken may testify against defendant,'-'- especiall}' when marriage is disputed."'' She may also testify for him.""' (2.) Corroboration. — (A.) When Required. — A conviction may be had upon the uncorroborated testimony of the female, unless the statute under which prosecution is conducted requires corroborating testimony."^ (B.) Scope AND Nature OF Evidence. — When corroborative testi- 58. Unchastity After Taking. Scruggs V. State, go Temi. 8i, 15 S. W. 1074. See also Slociun v. Peo- ple, 90 111. 274. In this case the court held that defendant was estopped to rely upon circumstances showing lewd life and character of female after commission of the of- fense, it being shown that defend- ant's inducements caused her to lead a life of prostitution. 59. Beyer v. People, 86 N. Y. 369; ■ Schnicker v. People, 88 N. Y. 192. 60. People v. Seely. 37 Hun 190; Slocum V. People, go 111. 274; Peo- ple V. DeLeon, 109 N. Y. 226, 16 N. E. 46, 4 Am. St. Rep. 444. 61. People V. Brown, 71 Hun 601, 24 N. Y. Supp, nil. 62. Wife Competent Against Husband — The common law inhibi- tion against a wife's testifying against her husband applies only in case of a valid marriage. There- fore, in prosecution for forcibly marrying a woman, she may testify against defendant, as there was no marriage between them, she being wife de facto only, and not dc jure. State V. Gordon, 46 N. J. Law 432 ; Respublica v. Hevice. 2 Yeates (Pa.) 114: 2 Stark. Ev., p. 711; I Greenl. (14th Ed.), §343. .See tlie article " Husband and Wife." Rule Questioned But if the wo- man freely and without constraint cohabits with defendant a considera- ble time after the marriage, it is questionable if she may be a witness against him. i Russ. Crimes (gth Ed.), 949; 2 Stark. Ev., p. 711. 63. In State v. Gordon, 46 N. J. Law 432, it is held that in cases of abduction where the female is called as a witness by the State and de- fendant objects on the ground that she is his wife, it is proper to exam- ine the woman on her voir dire, and if she denies the marriage and so states the facts as to the alleged marriage as to leave the fact of mar- riage questionable, then the State should be permitted to examine in chief. A different question, it is said, would be presented if on I'oir dire she admitted herself defendant's wife. 64. Wife Competent for Husband. I Russ. Crimes (gth Ed.) p. 949, citing Perry's case, Bristol 1794. See also 2 Stark. Ev., p. 711. 65. State v. Stone, 106 Jilo. 1. 16 S. W. 890. Vol. I 46 ABDUCTION. mony is required, it must show the existence of every fact which constitutes an ingredient of the offense. '"' But it is not required that corroborative evidence shall be in itself sufficient to convict defendant.*" (C.) May Be by Circumstances. — But, when corroborative testi- mony is required, it may be supplied by proof of circumstances which raise a presumption as to the existence or non-existence of material facts. "^ 66. Corroboration Must Extend to Every Point — In People v. Plath, 100 N. Y. 590, 53 Am. Rep. 236, tlie court uses this language : " It was essential to the support of this conviction that the people show, not only a taking by the defendant within the meaning of the statute, but also that such taking was for the purpose of prostitution. (Penal Code, § 282, as amended by § 2, chap. 46, Laws of 1884.) If the evidence establishes only a taking and fails to show that it was for the prohibited purpose, it is insufficient to sustain the conviction, and so proof of the fact that the person of the female was used for purposes of prostitution without proof of the abduction, would not bring the ac- cused within the condemnation of the statute. It is elementary, when a specific intent is required to make an act an offense, that the doing of the act does not raise a presumntion that it was done with the snecific in- tent. (Lawson on Presumptive Evi- dence, 472. V See also State v. Keith, 47 Minn. <5Q. 50 N. W. 6qi. For a full statement of the rules as to Corroboration, see tliat article. 67. State v. Keith. 47 Minn. 559. SO N. W. 601. 68. Corroboration by Circum- stances — People V. Plath. 100 N. Y. SQO, 53 Am. Ren. 236: State v. Shean, 32 Iowa 88 ; .Andre v. State, S Iowa 389. 68 Am. Dec. 708. As an examnle of circumstances held insufficient to corroborate prose- cutrix, see People v. Plath. too N. Y. "^go- See also People t'. Wah Lee Mon, 37 N. Y. St. 283, 13 N. Y. Supp. 767. In this case the court held that prosecutrix was corroborated by the Vol. I circumstances that she did come with defendant to the place where the offense was committed ; that they had had previous acquaintance; that at defendant's solicitation she entered a cab ; that defendant gave the cabman a false address ; that, when arrested, defendant made false statements as to the relations be- tween himself and prosecutrix, and as to his object in inducing her to enter the cab with him. In State v. Keith, 47 Minn. 559, S'o N. W. 691, it was held proper to permit a physician to testify that eight months after the date of the alleged offense, he examined prose- cutrix, and to state the condition of her person, and his opinion that the ascertained condition resulted from sexual intercourse. But in People v. Betsinger, 49 N. Y. St. 597. 21 N. Y. Supp. 136. it was held that the evidence of physi- cians who made an examination of prosecutrix four vears after the date of the alleged offense, during which they found certain physical condi- tions which would indicate that prosecutrix had had sexual inter- course, was not admissible. In Crozier v. People, i Park. Crim. (N. Y.) 453, it was held that a charge to the jury that evidence as to illicit intercourse was sun- ported by the fact that prosecutrix gav-e birth to a child, and that de- fendant was a regular visitor, was proper, when the evidence showed that prosecutrix had given birth to a child, that defendant was a regu- lar visitor, that he proposed mar- riage, that he admitted his engage- mumU. that he was alone with her late nt night, and that angry words passed between them when defendant was about to marrv another, ABDUCTION. 47 (D.) By Defendant. — The female may be corroborated by the tes- timony of the defendant,"" or by letters written to her by him,'" or by his confession.''' b. Parent or Guardian As IVitiiess. — When statute is directed against taking female under a designated age from the custody of her parent or guardian, the parent or guardian may testify as to her age ;'- as to his non-consent ;'^ or as to statement of other parent, showing non-consent ;'* or as to his efforts to prevent the girl's leaving home ;'"' or as to his efforts to find her ;'" or to induce her to return home ;'" or as to her habits.'' 2. Defendant's Evidence. — A. Non-Criminal Intent. — Defend- ant may offer evidence showing the existence of circumstances inconsistent with a criminal intent, and consistent with lawful con- duct and intent on his part.'" 69. Corroboration by Testimony of Defendant — People v. Wah Lee Mon, 37 N. Y. St. 283, 13 N. Y. Supp. 767. 70. Letters of Defendant Brad- shaw V. People, 153 111. 156, 38 N. E. 652. 71. Confession of Defendant. Andre v. State, 5 Iowa 389. 72. Age — Hermann v. State, 73 Wis. 248, 41 N. W. 171, 9 Am. St. Rep. 789. As to mode of Proving Age, see Article " AcE." 73. Non Consent Reg. v. Hop- kins, I Car. & M. 254 ; State v. Stone, 106 Mo. I, 16 S. W. 890. 74. Statement of Other Parent. State V. Cliisenhall, 106 N. C. 676, II S. E. 518. 75. Efforts to Prevent Departure. Gravett v. State, 74 Ga. 191. In this case it was held proper to per- mit the father to show that he kept the window of the girl's room nailed np. 76. Efforts to Find State v. Stone, 106 Mo. i. 16 S. W. 890. 77. Efforts to Induce Return. State V. Bobbst, 131 Mo. 328, 32 S. W. 1149. 78. Habits of Girl People v. Dolan, 96 Cal. 315', 31 Pac. 107, where it was held that evidence as to the habits of the girl in not being at home at night conld not be admitted to impeach the testimony of her father who had testified that it was her habit to be in at night. 79. Beaven v. Com., (Ky.) 30 S. W. 968. In this case defendant was indicted for detaining a woman against her will for purpose of carnal knowledge. Held, that it was proper to permit defendant to show that the place where the alleged detention occurred there were a number of lewd women plying their vocation, and that defendant was told that prosecutrix was of that class. Consent of Parent. — Purpose Other Tlian Tliat Cliarged. — In Brown v. State, 72 Md. 468, 20 Atl. 186, defendant was indicted for taking female under designated age for purpose of prostitution at bawdy- house kept by defendant. Held, that defendant might show that prosecutrix came to defendant's house with the consent of her mother, and was permitted to re- main over night at her own request, in order that she might seek em- ployment the next day; and, as evi- dence as to the intent, defendant might show that, while in de end- ant's house, prosecutri.x did not have intercourse. A judgment of con- viction was reversed for error in excluding such evidence. Silence of Prosecutrix When prosecutrix testifies that during sev- eral months defendant had attempted to have intercourse with her, it is proper to permit defendant to ask her why she had not sooner made known his conduct. Cargill v. Com., (Ky.), 13 S. W. 916. Vol. I 48 ABDUCTION. B. Unchastity of Prosecutrix. — In prosecution for taking female of previous chaste character for purpose of prostitution, defendant may show that, previous to the taking, prosecutrix was not of chaste character.**" C. Parental Control Lost. - — In prosecution under indictment for forcibly or fraudulently removing a child from its parent, defendant may show that control of the child has passed from the father and rested in a guardian.*^ Defendant's Ignorance of Age Inadmissible. — • In prosecution for taking female under designated age, evidence that defendant did not know her to be under the designated age, is inadmissible. '- Evidence of Harsh Treatment Inadmissible. — In such case, evidence that the father of the female treated his family harshly is not admis- sible.*^ D. Character oe Relatives Immaterial. — Evidence of lewd or immoral character of mother or sisters of prosecutrix is incom- petent.** So as to evidence that the home where prosecutrix lived with her mother was a house of ill-fame.*'* II. AS A CIVIL ACTION. Definition. • — Abduction in its civil sense, consists in taking away a wife, husband, child or ward from the husband, wife, parent or guardian, against his or her will.*" 80. Unchastity of Prosecutrix. Lyons V. State, 52 Ind. 426 ; Crozier V. People, I Park. Crim. (N. Y.) 453- Unchastity of Prosecutrix As Il- lustrative of Defendant's Intent. In prosecution for taking female under designated age for purpose of prostitution, defendant may show that prior to taking, the girl was given to indiscriminate intercourse, such evidence having a natural bear- ing upon the question whether she was enticed away, or went of her own accord and with the knowledge of her parents. Brown v. State, 72 Md. 468, 20 Atl. 186. 81. Pruitt V. State, 102 Ga. 688, 29 S. E. 437- 82. In Riley v. State, (Miss.), 18 So. 117, the court says: "One who entices away a female for the purpose of debauching her, is not reheved by the fact that he did not know her to be within the age named in the statute. It is the fact that she was that controls and fixes the offense." People V. Dolan, 96 Cal. 315, 31 Pac. 107. See also. Tores v. State, (Tex. App.), 63 S. W. 880; Roscoe Lrim. Ev., 7 Am. Ed., p. 263, citing Rex V. Mycock, 12 Cox Crim. Cas. 28, and Rex. v. Booth, 12 Cox Crim. Cas. 231; Russ. Crimes (gth Ed.), P- 953; State V. Johnson, 115 Mo. 480, 22 S. W. 463; Bish. Stat. Crimes, §§ 630, 632. Ignorance As Defense But on tlie question of ignorance of age as a defense and as to admissibility of statements of female as to her age, in case where statute provides that under certain circumstances, ig- norance of facts constitutes a de fense, see Mason v. State, (Tex.), 14 S. W. 71. 83. Evidence As to Treatment of Family — Gravett v. State, 74 Ga. 191. 84. Scruggs V. State, 90 Tenn. 81, IS S. W. 1074. 85. Kenyon v. People, 26 N. Y. 203, 84 Am. Dec. 177. Defendant in this case was indicted for seduction. 86. The coinmon law definition of abduction, considered as a cause of action, is : Taking away a man's Vol. I ABDUCTIOM. 49 For Abduction of Spouse, see " Ai^ienating AFi'iiCTioNS." 1. Abduction of Minor. — A. Plaintifi's Case. — a. Ultimate Facts. — • (1.) Custody. — \n action for damages for taking minor child or ward, plaintiff must introduce evidence showing that at the time of the alleged taking the child was in plaintiff's custody,*' and rendered service to plaintiff.^'* (2.) Takingf Against Consent. — Plaintiff' must also show that the minor was taken**" against plaintiff"'s consent. (A.) Fraud. — When a parent is induced by fraud or deceit to part with the custody of his child, the child is taken from him against his consent."" (B.) Circumstantial Evidence Sufficient."^ — But evidence of acts similar to that alleged is not admissible. "- wife, child, ward or servant without his consent. Black. Bonv. Law Diet. 87. Custody — Wodell v. Cogges- hall, 2 Mete. (Mass.) 89, 35 Am. Dee. 391. 88. Loss of Service Mage." v. Holland, 3 Dutch. (N. J.) 86, 72 Am. Dec. 341 ; Caughey v. Smith, 47 N. Y. 244. But service may be inferred from fact that minor resided with' plaintiff at time of taking. In Caughey v. Smith, supra, plaint- iff sued defendant for enticing away plaintiff's minor son, and causing him to enlist as a soldier. Defend- ant contended, among other matters, that plaintiff consented to the en- listment. Defendant offered evidence to show that plaintiff had taken out letters of administration; and had, as administrator, received bounty money due his son ; also that he had collected arrears of pay due the son. Held, that the evidence was not ma- terial, as such acts did not show an abandonment of service, or rati- fication of contract, as plaintiff re- ceived the bounty and arrears of pay, not as father but as adminis- trator. 89. 'When Force An Element. In action of trespass vi ct armis, plaintiff must show that the taking was by force, or that defendant knew that the person taken was a minor. Somboy %i. Loring, 2 Cranch. C. C. 318, 22 Fed. Cas. No. 13,168. 90. Consent Obtained by Fraud. Kreag v. Anthus, 2 Ind. App. 482, 28 N. E. 773. In this case plaintiff permitted his daughter to go to de- fendant's house to work as a servant, defendant being plaintiff's nephew. Defendant seduced the girl while she was at his IwDuse. All the evidence is not shown by the report, but the appellate court held it to be sufficient to justify the jury in finding that plaintiff's consent to his daughter's being at defendant's home was ob- tained by fraud ; and held that, under these circumstances, consent so ob- tained was not inconsistent with plaintiff's claim of abduction. The court says : "Consent obtained by fraud is, in law, no consent." See also Lawyer v. Fritcher, 130 N. Y. 239, 29 N. E. 267, 14 L. R. A. 700. 91. Circumstantial Evidence In Kreag v. .'\nthus. 2 Ind. App. 482, 28 N. E. 773, the court also says : "Because of the nature of the charge, and the difficulty of obtain- ing direct evidence in this class of cases juries are awarded a wide latitude in making deductions from suspicious conduct and circum- stances." As to defendant's knowledge of minor's obligation of service, see note 94, post. 92. Evidence of Similar Acts Inadmissible — :In action for enticing plaintiff's apprentices, evidence that the defendant had enticed away and employed apprentices of other per- sons, is not admissible. Stuart v. Simpson, i Wend. (N. Y.) 376. Vol. I 50 ABDUCTION. (3.) Defendant's Knowledge of Minority and Obligation of Service. Plaintiff must also show that when the taking occurred, defendant knt]W that the person taken was a ininor,"^ and that the person taken owed service to plaintiff.""* (4.\ Damages.— (A.) E.XPENSE OF Search. ^ — In action for damages causefl by abduction of minor child, plaintiff' may prove the amount of money expended by him in his eft'orts to regain possession :"° plaintiff may show in aggravation that defendant connived at seduc- tion of minor,'" and the mental suffering of the minor."' (B.) Mental Suffering of Plaintiff. — Evidence of damage caused to plaintiff by mental suffering, distinct from and in addition to that which shows the nature and extent of the principal injury, is not admissible."^ tices. Held, that plaintiff must prove that defendant knew the ap- prentices to be such. Also held that the circumstances that the boys were youthful ill appearance, and had mahogany dust on their clothes (plaintiff being a cabinet maker) were not sufficient to warrant the jury in finding that defendant knew the boys to be apprentices. 95. Expense As Damage. — Rice v. Nickerson, 9 Allen (Mass.) 478, 85 Am. Dec. 777 ; Magee v. Holland, 3 Dutch. (N. J.) 86, 72 Am. Dec, 93. Knowledge of Minority. Caughey v. Smith, 47 N. Y. 244; Stuart V. Simpson, i Wend. (N. Y.) 376; Cutting V. Seabury, i Sprague 522, 6 Fed. Cas. No. 3521. In action against ship owners for shipping minor son of. plaintiff as a sailor on defendant's vessel, if it be shown that the employees of the owner knew, or had reason to know, that the person taken was a ipinor, this knowledge is imputable to the owners. The Platina, 3 Ware (U. S. Dist.) 180, 21 Law Rep. 397, 19 Fed. Cas. No. 11,210. In such ac- tion exemplary damage cannot be recovered, unless it be shown that the owners had knowledge of facts of minority and taking. Sherwood v. Hall, 3 Sum. 127, 21 Fed. Cas. No. 12,777. When father sues in action of trespass vi et armis for taking away minor son, it is necessary to prove cither actual force, or knowledge on part of defendant that the young man was under age. Somboy v. Loring, 2 Cranch. C. C. 318, 22 Fed. Cas. No. 13,168. This case was decided for defendant on demurrer to evidence. 94. Knowledge of Obligation of Service — Caughey v. Smith, 47 N. Y. 244. In this case it was held that defendant's knowledge that the per- son taken was a minor and that his father was living, was sufficient to charge him with notice of father's right to service. In Stuart v. Simpson, i Wend. (N. Y.) 376, plaintiff sued defend- ant for enticing away his appren- Vol. I 341. 96. Seduction As Element of Damage — Bradley v. Shafer, 46 N. Y. §t, 462, 19 N. Y. Supp. 640. In this case defendant was sued for damages caused by enticing away the minor daughter of plaintiff. The evidence showed tnat the girl was, by defendant, entice'd— ralmost coerced — to defend- ant's house, and was there seduced by defendant's son ; that defendant prevented her return home ; that de- fendant knew that her son was hav- ing intercourse with the girl in her house, and that defendant left the two together there for days at a time. It was held that the jury might, in determining the amount of damages, take the seduction into consideration, on the theory that de- fendant connived at and aided in the seduction. 97. Suffering of Minor — Rrown V. Crockett, 8 La. Ann. 30. 98. While, in an action for damages, caused by enticing away a minor daughter, plaintiff is entitled ABDUCTION. 51 B. Defendant's Cask. — a. Minor Not in Plaintiff's Custody. Defendant may show that, at the time of the alleged taking, the minor was not in plaintiff's cnstody.'"' b. Abandonment of Service. — Ur that the father had abandoned the service of the minor. ^ c. Belief That Minor Left With Consent. ■ — Defendant may show that he believed that the minor had left home with his father's con- sen t.- d. Volnntary Leaving by Minor, or that the minor voluntarily left his father, and that defendant had not employed him until after he had left.^ e. Proper Motives. — Defendant may show that he receive, 17 Atl. 89, 14 Am. St. Rep. 362. But under a statute denouncing the selling or causing to be sold iModicines for procuring an abortion, it was held not sufficient to show that the accused advised and solicited the taking of such medicines, with- out showing that the woman took the same. Lamb v. State, 67 Md. S24, 10 Atl. 208. (But see dissent- ing opinion. Lamb v. State, 67 Md. 524, 10 Atl. 298; and State v. Mur- phv. 27 N. J. Law 112.) 33. State v. Crews, 128 N. C. s8i. .38 S. R, 293. 34. State v. Moolhart, 109 Iowa 130. 80 N. W. .301. 35. Reg. V. Goodhall, i Den. C. C. 187 ; Eggart v. State, 40 Fla. 527, 25 So. 144: Com. V. Taylor, 132 Mass. 261 ; Com. v. Follansbee, 15s Vol. I Mass. 274, 29 N. E. 471 ; State v. Fitzgerald, 49 Iowa 260, 31 Am. Rep. 148; Wilson V. Com., 22 Ky. L. Rep. 251, 60 S. W. 400. But where the terms of an English statute were " the miscarriage of any woman then being sick with child," evidence of the pregnancy was held essential. Rex v. Scudder, I Moody 216. Canada. — Pregnancy is immaterial where crime charged is using in- strument with intent to procure abortion. Reg. v. Andrews, 12 O. R. 184. 36. State v. Smith. 32 Me. 369, 54 .\m. Dec. 578; Smith v. State, 33 Me. 48. 54 Am. Dec. 607. 37. State v. Stewart. 52 Iowa 284, 3 N. W. oq; State v. Alcorn, (Idaho) 64 Pac. 1014, but in this case the indictment alleged that deceased was pregnant. 38. State v. Alcorn (Idaho") 64 Pac. 1014; State v. Slagle, 83 N. C. 6.^0; Com. V. Wood, II Gray (Mass.) 8.=;; Mills v. Com., 13 Pa. St. 631; Smith V. State, 33 Me. 48, 54 Am. Dec. 607; State v. Murphy, 27 N. J. Law 112. (See Lamb v. State, 67 Md. 524, 10 Atl. 298, the dissenting opinion of Alvey. C. J.) To Be Proved in Manslaughter From Abortion State v. Reed. 45 Ark. 333; Hatfield v. Gano, is Iowa 177: Evans 7'. People. 49 N. Y. 86. Must Be Proved At Common Law. Idalw.- — State ''. .Mcnrn, (Idaho) 64 Pac. 1014, ABORTION. 59 produce the abortion is the offense, it is not necessary to prove that in fact there was any resulting miscarriage.^" VIII. SUBSEQUENT CONDITION OF WOMAN. Tlie condition of the woman — health and spirits — after the time of the supposed commission of the offense may be shown to prove the offense,""* and to show the attitude of the woman toward the defendant and the jirobabilit)' of his guilt." IX. DEATH. 1. Of Woman. — This need not be proved,^- but may be given in evidence in aggravation of the offense,''^ and as part of the history of the case.** 2. Of Child. — Proof of the death of the child is not required." Hut under some statutes it may be necessary to sln)w that the foetus had not lost its vitality at the time the abortion was induced.*" X. ADVISING AN ABOKTION. L'nder statutes making advice to commit an abortion an oft'ense, lova. — Abrams v. Foshce, 3 Iowa 274, 66 Am. Dec. 77. Kentucky. — Mitchell v. Com., 78 Ky. 204, 39 Am. Dec. 227. Massachusetts. — Com. v. Bangs, 9 Mass. 387 ; Com. v. Parker, 9 Mete. 263, 43 Am. Dec. 396. Nciv Jersey. — State v. Cooper, 22 N. J. Law 52, 51 Am. Dec. 248. ATcic York. — Evans v. People, 49 N. Y. 86. Ohio. — Wilson v. State, 2 Ohio St. 319- 39. Colorado. — Dougherty v. Peo- ple, I Colo. 514. lo'a'a. — State v. Moothart, 109 Iowa 130, 80 N. W. 301. Kentucky. — Wilson v. Com. 22 Ky. Law 1251, 60 S. W. 400. Maine. — Smith v. State, a Me. 48, 54 Am. Dec. 607. Minnesota. — State v. Owens, 22 Minn. 238. New Jersey. — State v. Murphy, 27 N. J. Law 112. South Carolina. — State v. Morrow, 40 S. C. 221, 18 S. E. 853. Te.vas. — Willingham zi. State, 33 Tex. Crim. App. 98. 25 S. W. 424. Otherwise At Common Law. — Com. v. Bangs, 9 Mass, 387. 40. People v. Olmstead, 30 Mich. 431 ; State v. Lee, 69 Conn. 186, 37 Atl. 75'; Com. v. Wood, 11 Gray (Mass.) 85; Com. v. Follansbee, 155 Mass. 274, 29 N. E. 471 ; Com. v. Fenno, 134 Mass. 217. 41. Howard v. People, 185 111. 552, 57 N. E. 441 ; State v. Lee, 69 Conn. 186, 37 Atl. 75. 42. Com. V. Thompson, 108 Mass. 461. 43. Com. V. Adams, 127 Mass. 15; Railing v. Com., no Pa. St. 100, I .^.tl. 314. 44. People v. Van Zile, 73 Hun 534, 26 N. Y. Supp. 390. (.See Homicide.) 45. Reg. V. West, 2 Car. & K. 784; Com. z'. Snow, 116 Mass. 47. But see Mitchell v. Com. 78 Ky. 204, 39 Am. Dec. 227. 46. Com. V. Wood, 11 Gray (Mass.) 8s, where the prosecution was under a statute incriminating one who sought the miscarriage of a woman "then pregnant with child;" but under a statute, making an offender of one who thus sought the miscarriage of "any woman," it was held inadmissible as a defense to show that the foetus had lost its Vol. I 60 ABORTION. it need not be shown that the advice was acted upon," but under a statute making it an offense to provide the means with an intent to procure an abortion, proof of the mere advice will not sustain a conviction in the absence of proof that the advice was acted upon.'" XI. VARIANCE. It is sufficient to establish the essential elements of the offense and not necessary to prove every fact as laid in the indictment ;*" thus it is not a fatal variance if the evidence shows commission by means and in a manner cognate but not identical with those alleged f in a charge against two, the guilt of one only may be shown. ^^ Time is immaterial. '^" XIX. COMPETENCY OF EVIDENCE. 1. The Woman As a Witness. — The woman on whom the abor- tion was produced, although consenting, is a competent witness,'^' and is a competent witness against her husband ;^^ but the fact that vitality. Com. v. Surles, 165 Mass. 59, 42 N. E. 502; State v. Howard, 32 Vt. 380. 47. State v. Murphy, 27 N. J. Law 112; Eggert v. State, 40 Fla. 527, 25 So. 144. Contrary Rule in New York — People v. Phelps, 133 N. Y. 267, 30 N. E. 1012. 48. Lamb v. State, 67 i\id. 524, 10 Atl. 208; Cochran v. People, 175 111. 28, SI N. E. 845. 49. Scott V. People, 14: 111. lys. 30 N. E. 329; State v. Lilly, 47 W. Va. 496, 35 S. E. 837; Rhodes v. State, 128 Ind. 189, 27 N. E. 866. 25 Am. St. Rep. 429; King v. State, 35 Tex. Crim. App. 472, 34 S. W. 282. 50. Enough to Show Offense Con- summated in Pursuance of Intent. Ungland. — Re.\ v. Philips, 3 Camp. 73- Colorado. — Dougherty v. People, i Colo. 514. ///iHoi'.?.— Scott z: People. 141 111. 195, 30 N. E. 329- A/at)ic.— State v. Smith, 32 Me. 369, 54 Am. Dec. 578. Massachusetts. — Com. v. Corkin, 136 Mass. 429. Missouri. — State v. Dean, 85 Mo. App. 473- Nezi' York. — Crichton v. People, i Abb. Dec. 467. Vol. I 0/iui.— Tabler v. State, 34 Ohio St. 127. Pennsylvania. — Railing v. Com. no Pa. St. 100, I Atl. 314. South Carolina. — State v. Morrow, 40 S. C. 221, 18 S. E. 853. Tc.vas. — Moore v. State, 37 Te.\. Crim. App. 552, 40 S. \V. 287. Commission By Cognate Means. State V. Smith, 32 Me. 369, 54 Am. Dec. 578; Moore v. State, 37 Tex. Crim. App. 552, 40 S. W. 287. People -'. Abbott, 116 Mich. 263, 74 N. W. 529 ; Crichton v. People, i Abb. Dec. (N. Y.) 467. 51. Baker v. People, 105 111. 452. 52. Com. V. Snow, 116 Mass. 47; Cook V. People, 177 111. 146, 52 N. E. 273. 53. California. — People v. Jos- selyn, 39 Cal. 393. Colorado. — Solander v. People, 2 Colo. 48. Maine. — State v. Dyer, 59 Me. 303. .Massachusetts. — Com. v. Wood, 11 Cray 85. Neiv York. — People v. Costcllo, I Denio 83 ; Frazer v. People, 54 Barb. 306. Rhode Island. — State v. Briggs, 9 R. I. 361, II Am. Rep. 270. 54. State v. Moore, 25 Iowa 128. 95 Am. Dec. 776 ; State v. Dyer, 59 ABORTION. (.1 she is a consenting part} may be considered as affecting her credi- bility,"'"' rendering corroboration appropriate f'' and some statutes require such corroboration.^' In the absence of a statute denounc- ing the attempt of a woman to procure her own miscarriage, she is not regarded as an accomplice, even where her consent is shown."* Even where she is an accomplice, her uncorroborated evidence may Me- 303 ; Navarro v. State, 24 Tex. App. 378, 6 S. W. 542. " The rule of e.xclusion, it is well known, is based upon the unity in view of the law of husband and wife, and the idea that her testimony would tend to destroy domestic peace, and introduce discord, ani- mosity and confusion. The e.xcep- tions which necessity soon forced upon the courts are based primarily on the idea that the protection of the person of the wife from actual violence and assault or cruel treat- ment by the husband, is of more practical importance than the legal assumption of unity, or the theoreti- cal fears of domestic discord." State V. Dyer, 59 Me. 303. But under the Te.xas Criminal Code, Art. 775, forbidding husband and wife to testify against each other, " except in a criminal prosecu- tion for an ofTense committed by one against the other," a wife's testimony is inadmissible against her husband on his trial for an abortion com- mitted on her prior to their mar- riage. Miller v. State, 37 Tex. Crini. App. 575, 40 S. W. 313- 55. Com. v. Brown, 121 Mass. 6g ; Watson V. State, 9 Tex. App. 237 ; Frazer v. People, 54 Barb. (N. Y.) 306; Com. V. Wood, II Gray (Mass.) 85. "Assuming her not to be indict- able, still, on an indictment against the guilty party, her testimony is open to special observation, and perhaps it ought to be confirmed." I Bish. on Crim. Proc, §1173. In State v. Moothart, 109 Iowa 130, 80 N. W. 301, it was held that, where "the jury was sufficiently in- structed as to rules for determining the credibility of witnesses, and the weight to be given to their testi- mony," there was no error in failing specifically to tell the jury that the testimony of the woman is to some extent discredited because she was a willing accomplice. 56. Watson v. State, 9 Tex. App. 237; Com. V. Drake, 124 Mass. 21. 57. State v. Crook, 16 Utah 212, 51 Pac. 1091 ; People v. Josselyn, 39 Cal. 393 ; State v. Owens, 22 Minn. 23S; Wandell v. State, (Tex. Crim. .\pp.), 25 S. W. 27. 58. Woman's Testimony Suffi- cient — People V. Costello, l Denio 83; Dunn V. People, 29 N. Y. 523, 86 Am. Dec. 319; Com. v. Boynton, 116 Mass. 343. Not Accomplice Unless Made So By Statute As in England, see Bish. Stat. Crimes, §749; Reg. v. Cramp, 14 Cox C. C. 390. "Woman Regarded As 'Victim Rather Than Accomplice. — Califor- )iht. — People V. Josselyn, 39 Cal. 393. Colorado. — Solander z>. People, 2 Colo. 48. Kentucky. — Peoples v. Com., 87 Ky. 487, 9 S. W. 509. Massachusetts. ^Com. v. Wood, 11 Gray 85; Com. v. Boynton, 116 Mass. 343; Com. V. Follansbee, 155 Mass. 274, 29 N. E. 471. Minnesota. — State v. Owens, 22 Minn. 238; State v. Pearce, 56 Minn. 226, 57 N. W. 652. ■ Ne-M Jersey. — State v. Hyer, 39 N. J. Law 598. Neiu York. — Dunn v. People, 29 N .Y. 523, 86 Am. Dec. 319; People V. Vedder, 34 Hun 280; People v. McGonegal, 136 N. Y. 62, 32 N. E. 616. See Frazer v. People, 54 Barb. 306. Tt'-ra.?.— iSIiller v. State, 37 Tex. Crim. App. 575, 40 S. W. 313; Hunter v. State, 38 Tex. Crim. App. 61, 41 S. W. 602 ; Willingham v. State, 33 Tex. Crim. App. 98, 25 S. W. 424. May Be Accomplice by Rule of Statute — Fixmer v. People, 153 111. 123, 38 N. E. 667; State v. McCoy, 52 Ohio St. 157, 39 N. E. 316. Vol. I 62 ABORTION. suffice to sustain a conviction.^'' As to corroboration generally, see that article. 2. Opinion Evidence. — A. Expekts. — The physician who has examined the alleged victim of an abortion may give his opinion as to whether or not the offense has been committed,"" and as to the 59. Accomplice's Evidence Suffi- cient — Reg. V. Boyes, i B. & S. 311, loi Etig. C. L. 309; Dunn v. People, 29 N. Y. 523, 86 Am. Dec. 319; State V. Hyer, 39 N. J. Law 598. " It is a question for the jury, who are to pass upon tlie credibility of an accompUce, as they must upon that of every other witness. His statements are to be received with great caution, and the court should always so advise ; but, after all, if his testimony carries conviction to the mind of the jury and they are fully convinced of its truth, they should give the same effect to sucli testimony as should be allowed to that of an unimpeached witness, who is in .no respect implicated in the of- fense. Such testimony will author- ize a conviction in any case. " Peo- ple V. Costello, I Dcnio (N. Y.) 83. " The legal competency of accom- plices as witnesses is clearly estab- lished. Indeed, it is said to be the policy of the law to invite such per- sons to come forward and expose undiscovered participants in their guilt. (Jordaine r. Lashbrooke, 7 T. R. 609.) Yet, tainted as they are with confessed criminality, and testi- fying, as they often do, under the strong motive of hope of favor or pardon, it is but natural to withhold from them that faith in their testi- mony which we accord to tlie up- right, disinterested, and innocent. It was reasonable that courts should regard their testimony with suspi- cion, and look carefully into the se- cret motives that might actuate 1)ad minds to draw in and victimize the innocent ; and, consequently, there has grown up in the courts a settled practice quite universal, and entitled in its observance almost to the rev- erence of law, to advise jurors, in the strongest cautionary terms, not to convict defendants on such testi- mony, unless they can find corrobo- ration in the testimony of other and Vol. I unsuspected witnesses, upon such material circumstances as tend di- rectly to establish the guilt of the accused. And quite frequently do the courts, in their discretion, direct juries to acquit and set aside ver- dicts founded on the testimony of uncorroborated accomplices. But I think it may be asserted as the law that, when the jury acting upon such testimony, he being a legal wit- ness, find a verdict of guilty, it is a lawful verdict, and cannot be dis- turbed on error." State v. Hyer, 39 N. T. Law 598. ' Character of Corroborating Evi- dence — Reg. V. Boyes, i B. & S. 311, loi Eng. C. L. 309; Com. v. Drake, 124 Mass. 21 ; Frazer v. People, 54 Barb. (N. Y.) 306; People v. Ved- der, 34 Hun (N. Y.) 280. 60. State V. Glass, 5 Or. 73 ; State V. Smith, 32 Me. 369, 54 Am. Dec 578; People V. Sessions, 58 Mich. 594, 26 N. W. 291. Hypothetical Questions to Expert. Howard 1: People, 185 111. 552. 57 N. E. 441 ; Cook v. People, 177 ill. 146, 52 N. E. 273; People V. Aiken, 66 Mich. 460, 33 N. W. 821, II Am. St. Rep. 512; People v. Ses- sions, 58 Mich. 594, 26 N. W. 291. A physician testifying as an expert that he has discovered no traces of abortion in a certain case, may prop- erly be asked whether such traces would exist under certain circum- stances, even though no proof of such circumstances has been offered, as the evidence of having discovered no traces might mislead the jury into believing that was proof of no crime's having been committed. Bathrick 7'. Detroit P. & T. Co., 50 Mich. 629, 16 N. W. 172. 45 Am. Rep- 63. . . . , . .^, But a question is inadmissible, which asks of a physician called as a witness, in reference to certain testimony of another, if on hearing such testimony he would lose faith ABORTION. (y?. manner in which it was produced.''' Jrlis opinion based upon the woman's narration at the time of the examination is inadmissible."" As to Pregnancy. — After examination of the woman the physi- cian ma\' give liis opinion as to her pregnancy."" B. Non-Experts. — Persons not expert can not testify to an opinion whether or not an abortion had been attempted or constim- mated."* 3. Medical Books. — As to the use of medical works in prosecu- tions for al)ortions, sec the article on "Books. " 4. Declarations. — A. Res Gestae. — As part of a continuing transaction, the contempcrary actions of the defendant and of the woman may be shown;"'' their correspondence;"" the condition of her person and immediate surroundings ;"" the fact that the defend- ant was her seducer ;"*' but these facts must be ancillar\' to the identical crime charged, or thev are inadmissible."" in the character of any person who had theretofore in snch respect stood high in his esteem. Beasley v. Peo- ple, 89 111. 5/1- • 61. State V. Wood, S3 N. H. ^84; State V. Glass, 5 Or. 73; Slate v. Slagle, 83 N. C. 630; Hank v. State, 148 Ind. 238, 46 N. E. 127; People v. Sessions, 58 Alich. 594, 26 N. W. 291. The opinion of a medical expert as to what snbslance had been ad- ministered the woman is admissible, though he has made no chemical analysis. State i'. Slagle, 83 N. C. 630. 62. People v. Murphy. lOi N. Y. 126, 4 N. E. 326. 54 Am. Rep. 661. 63. May State His Reasons for Such Belief — State v. Smith, 32 Me. 369, 54 Am. Dec. 578; State v. Gedicke, 43 N. J. Law 86. 64. People v. Olmstead. 30 Mich. 431 ; Navarro v. State, 24 Tex. App. 378, 6 S. W. S42; King V. State, 35 Tex. Crim. 472, 34 S. W. 282. " When a claimed result becomes so remote that conclusion and deduc- tion are necessary to connect it with a cause, then the non-expert witness may only state physical facts and symptoms experienced, leaving the conclusion from them to the jury;" hence, a woman's testimony that an abortion had been produced on her by a kick, was held inadmissible. Navarro v. State, 24 Tex. App. 378, 6 S. W. 542. 65. All Attending Circumstances May Be Shown — Whart. Crim. Ev., §24. The Actions of the Defendant. Illinois. — Cook V. People. 177 111. 146, 52 N. E. 273 ; Cochran v. Peo- ple, 175 111. 28, 51 N. E. 84s; How- ard V. People, 185 111. 552, 57 N. E. 441- luzua. — State v. Montgomery, 71 Iowa, 630, 3i N. W. 143. Massacliust'tts. — Com. v. Adams, 127 Mass. 15 ; Com. v. Thompson, 108 Mass. 461. Missouri. — State v. McLeod, 136 Mo. 109, 37 S. W. 828. Ne%i< York. — People v. Van Zile, 73 Hun 534, 26 N. Y. Supp. 390; Frazer v. People, 54 Barb. 306. Tcvas. — Hunter v. State, 38 Tex. Crim. App. 61, 41 S. W. 602. The Actions of the Woman. Com. V. Drake, 124 Mass. 21 ; How- ard V. People, 185 111. 552, 57 N. E. 441 ; Moore v. State, 37 Tex. Crim. App. 552, 40 S. W. 287; State v. Dickinson, 41 Wis. 299; Coo.c v. People, 177 111. 146, 52 N. E. 273 ; People V. Van Zile, 73 Hun 534, 26 N. Y. Supp. 390. 66. Hays v. State, 40 Md. 633; State V. Moothart, 109 Iowa 130, 80 N. W. 301. 67. People v. Olmstead, 30 Mich. 431; Com. V. Wood, II Gray (Mass.) 85. 68. State v. McLeod, 1,^6 Mo. 109, 37 S. W. 828; State v. Montgomery, 71 Iowa 630, 33 N. W. 143; Cook v. People, 177 111. 146, 52 N. E. 273; Cochran v. People, 175 111. 28, 51 N. E. 845. 69. Com. V. Hersey, 2 Allen Vol. I 64 ABORTION. B. Other Declarations. — a. Generally. — Declarations of the woman may be admissible under the rules of res gestae,'" for which reference must be made to the article on that subject. Except as admissible under the rules of res gestae, statements by the woman are hearsay, especially if made in the absence of the accused."' Her declarations as to the purpose of a visit to the defendant made at the time of her departure may be admissible where the fact of the visit is material to the issues.'^ The declarations of the woman indicative of present pain and suffering are admissible for the pur- pose of showing physical condition,'' and so may be her statements touching her pregnancy, whether made to her physician''* or to others ;"^ but as to the general method of proof of mental and phy- sical states, see the article on " Mental and Physical States." (Mass.) 173; People v. Abbott, 116 Mich. 263, 74 N. W. 529. Evidence of a conversation two years previous to the offense, in which defendant sought information on the subject of procuring an abor- tion was excluded. Com. i'. Hersey, 2 Allen (Mass.) 173. 70. Colorado. — Solander v. Peo- ple, 2 Colo. 48. Idaho. — State v. Alcorn, (Idaho). 64 Pac. 1014. Maryland. — Jones v. State. 70 Md. 326, 17 Atl. 89, 14 Am. St. Rep. 362. Massachusetts. — Com. v. Brown, 121 Mass. 69; Com. v. Fenno, 134 Mass. 217. Vermont. — State v. Howard, 32 Vt. 380. Wisconsin.—State v. Dickinson, 41 Wis. 299. 71. Illinois. — Siebert v. People, 143 111. 571, 32 N. E. 431 ; Howard V. People, 185 III. 552, 57 N. E. 44i- Indiana. — Hank v. State, 148 Ind. 238, 46 N. E. 127. Kansas. — State v. Young, 55 Kan. 349, 40 Pac. 659. Maryland. — Hays v. State, 40 Md. 633. Massachusetts. — Com. v. Leach, 156 Mass. 99, 30 N. E. 163; Com. v. Felch, 132 Mass. 22. Michigan. — People v. .A.iken, 66 Mich. 460, Zi N. W. 821, II Am. St. Rep. 512. New Hamf'shire. — Com. v. Wood, 53 N. H. 484. Neiv York. — People v. Davis, 56 N. Y. 95; Maine v. People, 9 Hun 113; People V. Murphy, loi N. Y. 126, 4 N. E. 326, 54 Am. Rep. 661. Vol. I Oregon, — State v. Clements, 15 Or. 237, 14 Pac. 410. So a statement by the deceased that she was pregnant by a person other than defendant, and that, if such person did not procure her miscarriage, she would perform the operation herself, was held inadmis- sible. Com. V. Felch, 132 Mass. 22. And statements of the woman, made in the absence of the defend- ant after her return from his office, as to the fact and manner of what took place there, together with her statement that defendant then gave her a medicine she exhibited and told her how to take it, were ex- cluded as no part of the res gestae. People V. Davis, 56 N. Y. 95'. So were statements of the woman that she had operated on herself, when made prior to the time of the alleged offense. Hank v. Stale, 148 Ind. 238, 46 N. E. 127. 72. State v. Howard, 32 Vt. 380; Solander v. People, 2 Colo. 48; State V. Dickinson, 41 Wis. 299; State v. Power, 24 Wash. 34, 63 Pac. 11 12; State V. Alcorn, (Idaho,) 64 Pac. 1014. 73. People v. .Mken. 66 Mich. 460, 33 N. W. 821, II Am. St. Rep. 512; Com. V. Leach, 156 Mass. 99, 30 N. E. 163; Rhodes v. State, 128 Ind. 189. 27 N. E. 866, 25 Am. St. Rep. 429; State v. Glass, 5 Or. 73; State V. Gedicke, 43 N. J. Law 86. 74. State v. Gedicke, 43 N. J. Law 86; People v. Josselyn, 39 Cal. 393; State 7'. Alcorn, (Idaho,) 64 Pac. 1014. 75. Stale v. Glass, 5 Or. 73. IHOkTlO.W ()5 b. Dying Declarations. — As to the admissibility of dying decla- rations in general, see the article on that subject. In prosecutions for abortion such declarations are not admissible''' unless otherwise provided by statute." 76. linglaiid. — Rex. v. Lloyd, 4 Car. & P. 233, 19 Eng. C. L. 49' ; Rex V. Hutchinson, 2 Barn. & C. 608. Georgia. — Wootcn v. Wilkins, 39 Ga. 223, 99 Am. Dec. 456. Massachusetts. — Com. v. Homer, 153 Mass. 343, 26 N. E. 872. Neiu Jersey. — State v. Meyer, 64 N. J. Law 382, 45 Atl. 779. Nezv Yorli. — People v. Davis, 56 N. Y. 95; Wilson V. Boercni, 15 Johns. 286. Ohio. — State v. Harper, 35 Ohio St. 78, 35 Am. Rep. 596. Pennsylvania. — Railing v. Com., no Pa. St. 100, I Atl. 314. See " Deci..\r.\tions. Dying Dec- larations." "The court also erred in receiv- ing proof of the declarations' of the deceased made after she had aban- doned all hopes of life. Such evi- dence is admissible, in cases of homigide, only where the death of the deceased is the subject of the charge, and the circumstances of tlie death are the subject of the dying declarations, (i Greenl. Ev., § 156, and cases cited in note; Wilson v. Boerem, 15 J. R., 286.) This is the settled rule, and it is unnecessary to discuss the reasons upon which it is founded. Applying the rule to this case, the declarations were not ad- missible. The charge against the prisoner was not homicide in any degree. The crime charged against him is that of persuading the de- ceased to submit to the use of an instrument upon her person, and to take drugs with intent to produce her miscarriage — in consequence of which the death of the child, and her own, were produced. The death of the deceased was not a necessary in- gredient of the crime; that of the child was sufficient to make the of- fense a felony. The act alleged to have been perpetrated by the pris- oner was a crime under the third section of the statute, in. the absence of the death of the mother or child. Such death only increased the degree of the crime and the punishment to be inflicted." People v. Davis, 56 N. Y. 95, 103. 77. Com. V. Homer, 153 Mass. 343, 26 N. E. 872; Maine v. People, 9 Hun (N. Y.) 113. Apparent Conflict. — But in Clark V. People, 16 Colo. 511, 27 Pac. 724, the dying declaration of the female was held to be admissible for the defendant, and the court does not put this on the ground of any stat- ute. Vol. I ABSTRACTS OF TITLE. By Edgar \\ . Camp. I. IN ABSENCE OF STATUTE, 66 1. General Rule, 66 2. As Secondary Evidence, 66 3. In Ex Parte Proceedings, 67 4. By Stipulation, 67 5. Against the One Furnishing It, 67 II. STATUTORY PROVISIONS, 67 1. Generally, 67 2. Construction, 68 3. Preliminary Proof, 68 4. Copies of Abstracts, 69 5. Explanation of Abstracts, 69 6. Waiver of Objections, 70 7. Introducing Part of Abstract, 70 CROSS-REFERENCES. Best and Secondary Evidence ; Records ; * Title. I. IN ABSENCE OF STATUTE. 1. General Rule. — An abstract of title is not competent evidence of conveyances in the absence of a statnte permittino;- its introduc- tion.' 2. As Secondary Evidence. — It has been held that in so far as an abstract can be proved to be copies of conveyances, it may be used as secondary evidence under the rules for secondary evidence of writint^s." 1- Reed v. Banks, 10 U. C. C. P. stract of his title, lie may introduce (Can.) 202; People v. VVemple, 67 such abstract in evidence. Hart r'. Hun 495, 22 N. Y. Supp. 497; Hart- McGrew, (Pa. St.), 11 .\t\. 617. See ley V. James, 50 N. Y. .;8; Kane v. also Kane v. Rippey, 22 Or. 296, 2.? Rippey, 22 Or. 296, 2.3 Pac. 180. Pac. 180. " Without some proof that the When No Objection Is Made to an laws of Indiana recognize such in- abstract when offered, it may be con- struments (abstracts of title), we sidered, or if it be objected to only are somewhat at a loss to understand as to one matter therein stated, it how tbey can sbow title." Weeks v. may be examined and considered in Downing, ,?o Mich. 4. respect to all other matters. Reed v. In Pennsylvania, it has been held Banks, 10 U. C. C. P. (Can.) 202. that if the rules of court require 2. Halsey v. Blood, 29 Pa. St. plaintiff in cjcclnient to file an ab- 319. Vol. I ABSTR.lcTS OJ- TITLE. 67 3. In Ex Parte Proceedings. — In the United States, an abstract may sometimes be used in e.v parte proceedings.-' 4. By Stipulation. — It may be used by stipulation.^ 5. Against One Furnishing It. — It may be used against the one who furnished it.'' II. STATUTORY PROVISIONS. 1. Generally. — Many of the states have statutes permitting the use of abstracts in evidence." 3. People V. Weniple, 67 Huii 495, 22 N. Y. Supp. 497. 4. Weeks v. Downing, jo Mich. 4. Stipulation That Abstract Is Cor- rect Sufficient to Admit In the case of Garrett v. Hanshue, 53 Ohio St. 482, 42 N. E. 256, 35 L. R. A. 321, an attorney endorsed upon an abstract and signed a stipulation that the abstract showed the true con- dition of the lands therein dcscribL-d, but did not stipulate that the ab- stract might be used in evidence. The court, however, held that the abstract was admissible on the ground that whatever is true may, if relevant, be received in evidence. The truth of the abstract being ad- mitted plaintiff had a right to use it as evidence, without the further agreement of the defendant that he might do so. 5. Abstract Furnished By Vendor Admissible Against Him In an ac tion to rescind a contract to pur- chase, the vendee may put in evi- dence the abstract furnished by the vendor to show what title the vendor claimed to have. Hartley ;■. James. 50 N. Y. 38. Abstract Furnished In An Action Under Statute — Where a party has been required, under statute, to file an abstract of his title, such ab- stract may be put in evidence against him, e. g. to show that he claimed under a certain deed. Wich- ita Land & Cattle Co. v. Ward, i Tex. Civ. App. 307. 21 S. W. 128; Evans V. Foster, 79 Tex. 48, iq S. W. 170. 6. Generally Admissible by Stat- ute — Indiana. — Ply order of court, Rev. Stat. '94, § 366. Michigan. — Comp. Laws, '97, §§3244, 3413. Nebraska. — .'Xftcr notice. Stats. '99, §4158. A'l'ii' .Mc.vico. — Comp. Laws. '97, § 3934- in Actions by Ejectment Ala- Ininia. — After notice, C. C. '96, § 1531. Georgia. — Code, '95, § 4963 ; see also §4927. /oii'o.— Ann. Code, '97, § 4188. Mississipt^i. — Ann. Code, § 1652. In Action for Partition — Califor- nia.— C. c. P. §§799. i^. , lozi'a. — Ann. Code, '97, § 4242. Montana. — After notice, C. C. P. §§ 1397, 1398. North Dakota. — After notice. Rev. Codes, 95, §5841. South Dakota.— Ann. Stats. '99, §§ 6639, 6640. Utah. — Rev. Stats. '98, §§3569. 3570. Wisconsin. — Rev. Stats, page 2166. Under " Quieting Title Act."— On- tario: Re Cummings 8 P. R. 473, holding that .abstract must be brought down to date of certificate of title before certificate can issue. Re Morse 8 P. R. 477, holding that abstract can be dispensed with on proper showing. Where Original Records Are Lost. Illinois. — Ann. Stats. Chap. 30, §§36-38, Chap. 116, §28. .hiississil'fi. — Ann. Code, § 2792. 0/1/0.— Bates' Ann. Stats. § 5339'-'. Te.vas.—'Rev. Stats. '95, Art. 231-3; applies to records lost prior to 1876. Wisconsin. — Rev. Stats. §66in. A^ebraska. — In the case of Gate City Abstract Co. v. Post, 55 Neb. 742, 76 N. W. 471, the court referred to the Act of 1887, Chap. 64 the second section of which provides that abstracts prepared by bonded abstracters shall be received in all courts as t>rima facie evidence of the existence of the record of deeds, mortgages and other instruments or liens aflfecting the real estate men- Vol. I 68 ABSrR.lCTS 01' TITLE. In Illinois, the statute is known as the ■' I'.urnt Records Act," and was enacted soon after the Chicai,^ fire. This act has been referred to in many cases in that state.' 2. Construction.— It is held that such acts are highlv remedial, and therefore to be liberally construed.** 3. Preliminary Proof. — Thus, it is held, that an abstract of the record may be used to prove the contents of a deed actually recorded, although not so acknowledged as to be entitled to record.'' But it must appear that the records are destroyed ;'» the convev- tioned in the abstract and that such record is as described in the abstract. The third section requires one who desires to use an abstract in evi- dence at a trial to serve a copy thereof on his adversary at least three days before the trial. The court remarks tliat such abstracts may be used as evidence in an action to enforce the specific performance of a contract, and in every other form of action in which the validity of the title or the existence or non- existence of liens or encumbrances are questions directly or collaterally involved ; that the right to use an abstract as evidence is not limited to the person to whom it is issued; anyone may use it. 7. Richley v. Farreli, 69 III, 264; Russell V. Alandell, y^ III. 136; King V. Worthington, 75 III. 161 ; Smith V. Stevens, 82 111. 554; Miller v. Shaw, 103 111. 277; Compton v. Ran- dolph, 104 III. 555 ; Heinsen v. Lamb, 117 111. 549, 7 N. E. 75; Conver.se v. Wead, 142 111. 132, 31 N. E. 314; Chicago & A. R. Co. v. Keegan, 152 111. 413, 39 N. E. 33; Walton v. Follansbee, 165 111. 480, 46 N, E. 459; Cooney v. A. Booth Packing Co., 169 III. 370, 48 N. E. 406. 8. Smith V. Stevens, 82 III. 554. In that case, it was held that such abstracts are admissible under the statute, even against one in posses- sion unless his possession is adverse and has so continued for twenty years. See also. Heinsen v. Lamb, 117 111. .■;49, 7 N. E. 75 ; Chicago & A. R. Co. V. Keegan, 152 III. 413, 39 N. E. 3.r Illustration — In the case of Sauers V. Gidclings, 90 Mich. 5:0, 51 N. W. 265, the court had under considera- tion an Act of 1865 (p. 667) being an Act to declare certain abstracts of the county of Kent to be public records, which provides that such abstracts shall be a public record and be prima facie evidence in all courts of the state, and in all suits and proceedings of the matters therein stated and have the same virtue and effect as by present pro- visions of tazi' the records of the office of the Register of Deeds possess. It was held that under this statute such an abstract could be used to prove a deed by an ad- ministrator and by proving such deed, establish prima facie the regu- larity of all proceedings required by law anterior to such deeds, al- though the Act making an adminis- trator's deed prima facie evidence of his authority was not enacted until two years after the law above referred to. The court held that the abstract under the Act of 1865 had the same effect and virtue as the records themselves would have possessed at the time of the trial in the absence of that law. 9. Heinsen v. Lamb, 117 III. 549, 7 N. E. 75', hul not so under the Texas statute for the case of Robins V. Ginocchio, (Tex. Civ. App.), 33 S. 'VV. 747, holds that the abstract can have no greater effect than a certified copy, and that since a copy of a deed showing no acknowledge- ment would not show due record, and would not be sufficient as proof of a deed under the statute allowing proof by certified copy of record, therefore an abstract showing no acknowledgement is likewise insuffi- cient. 10. 'Walton V. Follansbee. i6,s 111. 480, 46 N. E. 459; Chicago & A. R. Co. V. Keegan, i.!;2 III. 413, 30 N. E. 33; Heinsen v. Lamb, 117 111. 549, Vol. I ABSTRACTS OF TITLE. 69 ance destroyed or lost;" and, that the abstract was made in ordi- nary course of business,'- before the destruction of the records.'^ 4. Copies of Abstracts. — A letter-press copy of a lost abstract cannot be used.'"* 5. Explanation of Abstracts. — Whenever used in evidence, an abstract may be supplemented by an explanation of abbreviations and signs shown upon it,'''' but not by evidence of the abstracter's methotls and habits to which no reference is luade on the abstract itself."' 7 N. E. 75; Russell v. Mundcll, 73 111. 136; Robins v. Ginocchio, (Tex. Civ. App.), 33 S. W. 747. 11. Chicago & A. R. Co. v. Kecgan, 152 111. 413, 39 N. E. a; Russell V. iMandell, 73 111. 136. 12. Russell V. Mandell, 73 III. 136; Heinsen v. Lamb, 117 111. 549, 7 N. E. 75. Presumption as to Ordinary Course of Business It will be pre- sumed that an abstract shown to be in the handwriting of an abstracter was made in ordinary course of busi- ness. Chicago & A. R. Co. v. Keegan, 152 111. 413, 39 N. E. 33; Cooney v. A. Booth Packing Co., 169 HI. 370, 48 N. E. 406. In the last case, it was proved that the abstract was in the writing "that was in vogue in the office" of the abstracters whose work it purported to be. It also appeared that it had been for more than thirty years in possession of owners of part of the premises mentioned in the abstract. 13. Russell V. Mandell, 73 HI- 136; Heinsen v. Lamb, 117 III. 549, 7 N. E. 75- It will be presumed that an ab- stract was made at the time it bears date. Chicago & A. R. Co. v. Keegan, 152 III. 413, 39 N. E. 33. 14. In King v. Worthington, 73 111. i6r, it is held that a letterpress copy of an abstract taken from an abstract made before the destruction of the records, is not competent evi- dence under the " Burnt Records Act;" that that act only admits the abstracts themselves, and not copies thereof, no matter how made. Copy of Letterpress Copy In Conipton V. Randolph, 104 III. 555, the ruling in King v. Worthington was approved, and it was also held that a copy of the letterpress copy could not be admitted. JJ. Dickey and Sheldon dissented, being of opinion that the letterpress copy was competent secondary evi- dence, the abstract having been destroyed. 15. Converse v. Wead, 142 111. 132, 31 N. E. 314. Offered Under Stipulation — If ab- stracts are introduced in evidence under a stipulation not determining the effect to be given them, they are not sufficient to establish title if they are unintelligible without ex- planation of abbreviations and signs used in them. Weeks v. Downing, 30 Mich. 4. 16. In Robins v. Ginocchio, (Tex. Civ. App.), 33 S. W. 747, it is held that, no fact can be taken to be es- tablished which is not shown by data or memoranda expressed upon the abstract. The form of abstract used contained no space for an entry con- cerning acknowledgments and there was testimony that the practice was to make no mention of the acknowl- edgment in the abstract except where the acknowledgment was ir- regular, in which case it was noted u'-.der a space left in the abstract form for " remarks," but there was nothing upon the face of the abstract to show that where the acknowledg- ments were regular in form no men- tion was made of them. If there had been such a memorandum upon the abstract it might be claimed the regularity of the acknowledgment was shown by the abstract itself, but the testimony of the witness to sup- ply a fact not in any way shown upon the abstract was inadmissible. Vol. I 70 JBSTR.ICTS or TITLE. 6. Waiver of Objections. — ( )l)jcctions for want of preliminary proof to let in an abstract should be made when it is offered." 7. Introducing Part of Abstract. — A party may introduce part of an abstract, but his adversary may then introduce the remainder." 17. Rol)ins V. C.iiioccliio, (Tc.x. 18. Hcinsen v. Lamli. 117 111. 549, Civ. App.'), 3? S. W. 7A7; Reed z: 7 N. E. "S- lianks. 10 U. C. C. P. (Can.) 202. ABUTTING OWNERS.— See Adjoining Land Own- ers; Highways; Eminent Domain. ACCEPTANCE.— See Bills and Notes; Contracts; In- surance; Indictment; Gifts; Wills; Statute of Frauds. ACCESS.— See Husband and Wife; Bastardy; Legitimacy. ACCESSION.— See Confusion of Goods. Vol. I ACCESSORIES, AIDERS AND ABETTORS. By W. L. Campbell, I. ACCESSORIES BEFORE THE FACT, 72 1. C II ill of Principal, 72 A. Necessity of Establishing, 72 a. Generally, 72 b. Coiuniission of .-let by Principal, j;^ c. Principal's Gnilty Intent, jt, d. Tliat Act Was a Felony, 74 c. That it IVas in Terms of Adz'ice, 74 B. Modes of Proof on Onestion of Principal's Gnilt,y4. a. Evidence of Guilt Generally, 74 b. Record of Conviction, 75 c. Evidence of Non-Guilt Generally. 76 d. Acquittal of Principal, 76 2. Acts of Accessorx, jj A. Proof of the Advice, Jj a. Must Be Shozcn to Haz'c Been Given and Comnniuicated, jy b. But Not That Principal Would Not Have Acted Without It. 77 c. Advice Must Have Been Positive, jj d. Need Not Have Been by JVords. yj L). Intent in Giving Advice, yy a. Must Appear From the Ec'idence. yy b. Criminal Effect Must Be Intended. 78 c. Specific Crime A^eed Not Be Intended, 78 C. Jurisdiction. 79 D. Kepentance of Accessory, So II. ACCESSORIES AFTER THE FACT, 80 I. The State's Case, 80 A. Principal's Guilt Must Be Sho'H'u. 80 B. Accessory's KnoiAedge of Principal's Guilt Must Be Shoivn. 81 C. Positive Assistance by Accessory Must Be Sho7vn. 81 a. Generally. 81 b. Character of Assistance, 82 Vol. I 72 ACCESSORIES, AIDERS AND ABETTORS. D. Accessory's Intent, 83 2. Defense, 84 A. Princi/^ars Acquittal. 84 B. Relationship As Defense, 85 C. Duress, 85 III. AIDERS AND ABETTORS, 8(1 1. Proof of Presence, 86 A. Necessity Of, 86 B. Tl/fliv Be a Constructive Presence, 86 2. Proo/ 0/ Aiding, 87 A. Generally, 87 B. Assisting in Unlazvful Act, 89 C. Aiding in One of Several Acts Constituting One Crime, cp 3. Criminal Intent of Aider, 90 4. Proof Must Sliow Crime Committed, 91 5. Record of Principal's Conviction or Acquittal Irrele- vant, 91 CROSS-REFERENCES. Accomplices ; Corroboration : Intent. I. ACCESSORIES BEFORE THE FACT. 1. Guilt of Principal. — A. Xkckssity of Estari.i.suinc. — a. Generally. — Before conviction of the accessory it is necessary to prove the offense of tlic i>rincipal.' 1. California. — Pcciiilf v. Collins, PcHiisylviuiia. — liiick z\ Com., 107 53 Cal. 185'. Pa. St. 486; Sloops V. Com., 7 Scrg. Florida. — Boweti v. State, 25 Fla. & R. 491, 10 Am. Dec. 482. 645, 6 So. 459. Texas. — Poslon v. State, 12 Tc.x. Georgia.— Kdws.rtU i'. State, 80 .\pp. 408; .iVrmstrong v. State, 33 Ga. 127, 4 S. E. 268. Te.x. App. 417, 26 S. W. 829. Kentucky. — Tnlly Z'. Com., 11 I'irgiiiia. — Ilatchctt v. Com., 75 Bush. 154. \'a. 925. Vol. I ACCUSSORIlSS. .IIDURS AND ABETTOKS. 73 b. Coiiniiission of Act by Priiici[>a!. — The felony must also be shown to have been committed by or through the pruicipal, and not by another operating upon independent lines, so that there is no privity between him and the accessory. - c. Principal's Gidlty Intent. — To prove the offense of the prin- cipal it is necessary to establish not only his criminal acts that go to make up the felony, but also tlic criminal intention on his part.' Il'iscnnsiii. — Ogdcn v. State, 12 Wis. 5,!_>, 78 :\m. Dl-c. 754. 2. Act of Independent Criminals. Ill Ogdeii t'. State, 12 Wis. 532, 78 Am. Dec. 754, the court said : "In order to establish the guilt of Ogden, it was first incumbent on the prosecutor to prove the guil" of Wright as alleged in the indictment. This done he must prove that Og- den previously procured, hired, ad- vised or commanded Wright to com- mit the felony. . . . For how- ever clear it may have appeared that Ogden counseled and advised Wright to commit the offense, yet if Wright never did so in point of fact, and the barn was set on fire by some one else, or by other means, then Ogden was innocent of the crime with the commission of which he stood cliarged. Principal Uncertain or Unknown. In State -■. Jones. 7 Nev. 408. it is held that while there must be a principal with whom the accessory should be shown to be connected, it is not necessary that he be identi- fied, and his guilt proven. The evi- dence tended to show that the horses were stolen either by the man Jackson or Big Ben, which of the two did not satisfactorily appear. The court instructed that " the de- fendant might be found guilty re- gardless of the guilt or innocence of Big Ben." And this instruction was held to be correct. Ill Snics V. Peoole. 122 III. I. 12 N. E. 865. 3 .'Xm. St. Rep. 320. there was considerable evidence that the bomb by which Degan was killed was thrown by an unknown person, but some one in privity with, and acting in furtherance of the objects of the conspiracy. The court held, that proof of a crime committed by an unknown principal was sufficient to charge the accessory if the princi- pal is charged in one count of the indictment to be unknown. 3. Detectives. — People v. Collins, 53 Cal. 185; Com. V. Hollistcr, 157 Pa. St. 13, 27 Atl. 386; State v. Douglass, 44 Kan. 618, 26 Pac. 476; People V. Noelke, 29 Hun (N. Y.) 461. In People v. Collins, 53 Cal. 185', the court said : " If Parnell entered the building and took the money with no intention of stealing it, but only in pursuance of a previously arranged plan between him and the Slieriff, intended solely to entrap the defendant into the apparent commis- sion of a crime, it is clear that no burglary was committed, there be- ing no felonious intent in entering the building or taking the money. If the act of Parnell amounted to burglary, the Sheriff who counseled and advised it was privy to the of- fense ; but no one would seriously contend, on the foregoing facts, that the Sheriff was guilty of burglary. The evidence for the prosecution showed that no burglary was com- mitted bj' Parnell. for want of a felonious intent, and the defendant could not have been privy to a burelary unless one was committed" Innocent Actor Com. v. Hill. 11 A lass, i.to; Reg. v. Clifford, 2 Car. & K. 902, 61 Eng. C. L. 201 ; Adams v. Pconle, I Comstock CN. Y.l 173: Collins V. State, 3 Heisk. CTenn.') ij, J Blk. Com. 35: Gregory v. State. 26 Ohio St. ^TO. 20 .\m. Rep. 774. In Re?, t'. Clifford. 2 Car. & K. 002. 61 Eng. C. L. 201. A. by letter desired B.. an innocent agent, to write the name W. S. to a receipt on n postofhce order, it was held that Vk beine an innocent agent, was not a orincipal. In Gregorv z: State. 26 Ohio St. =;io, 20 Am. Rep. 774. by the fraudu- lent procurement of another, an in- Vol. I 74 ACCESSORIES. AIDERS AND ABETTORS. d. Tliat Act Jl'as a felony. — The evidence must show the com- mission of a felony.^ e. Tliat it Was in Terms of Adz'ice. — If the crime proveil is not shown to have been committed within the terms oi the advice or encouragement, it will not authorize a conviction of one as acces- sory.^ B. Modes of Proof on Oukstion of Pkincipai^'s Gl'ii.t. — a. Evidence of Guilt Generally. — The general rule for the purpose of establishing the guilt of the ]jrincipal on the trial of the accessory, is, that any evidence is admissible which would be admissible against the principal himself were he on trial." nocent agent signed the name of one who could not read to a note, he intending to have it signed to another paper. It was held that the party who fraudulently procured the signing was guihy as forger and not accessory. 4. United States — U. S. v. Sykts, S8 Fed. 1000 ; U. S. v. Gooding, I2 Wheat. 460; U. S. v. Mills, 7 Pet. 138. England. — Reg. v. Tracy, 6 Mod. 30. Arkansas. — Hubbard v. State, 10 Ark. 378. Georgia. — Kinnebrew v. State, 80 Ga. 232, 5 S. E. S6. Illinois. — Stevens v. State, 67 111. 587. Massachusetts. — Com. i'. Gannett, I Allen 17, 79 Am. Dec. 693 ; Brown V. Perkins, i Allen 8g ; Com. v. Wil- lard, 39 Mass. (22 Pick.) 476. Mississippi. — Williams v. State. 20 Miss. 58. Nezu York. — People v. Erwin, 4 Denio 129; Lowenstein v. People. 54 Barb. 299. North Carolina. — Slate v. Cheek, 13 Ired. 114; State v. Jones, 83 N. C. 60s, 35 Am. Rep. 586. South Carolina. — State v. West- field, I Bailey 132. Te.vas. — Dunman v. Stale, I Tex. App. 593- No Accessories Before the Fact in Manslaughter.— I Hale P. C. 616; Adams v. Stale, 65 Ind. 565'; People V. Newberry, 20 Cal. 439; Stipp v. State, II Ind. 62; State t>. Bogue, 52 Kan. 79, 34 Pac. 410. Nor in Treason — 4 Blk. Com. 36. 5. When Within Terms of En- couragement — Com. V. Campbell, 7 .\llen (Mass.) 541, 83 Am. Dec. 705; Butler V. People, 125 III. 641, 18 N. K. 338, 8 Am. St. Rep. 423. i L. R. A. 211; State V. Lucas, 55 Iowa 321, 7 N. W. 583 ; State v. Lucas, 57 Iowa SOI, 10 N. W. 868; Huling v. State, 17 Ohio St. 583; People v. Knapp, 26 Mich. 112; Watts v. Stale, 5 W. Va. 532; State v. Davis, 87 N. C. S14; People V. Keefer, 65 Cal. 232, 3 "Pac. 818. Independent Crime. — People v. Knapp, 26 Mich. 112. In Watts v. State, J W. Va. S32, one incited another to break open and rob a dwelling house, and while so doing the principal committed a rape. It was held that the person inciting the burglary and robbery could not be convicted as accessory to the rape, and thai evidence in re- gard to a rape so committed was inadmissible, it being a distinct sub- stantive offense, and a total and sub- stantial departure from the crime in- structed. In People v. Keefer, 65 Cal. 232, 3 Pac. 818, there was some evidence that the defendant was not person- ally present, but had advised the party who actually committed the murder, to follow and tie the China- man, and that this was not for the ])urpose of robbery or other felony. On that theory the court held the defendant not guilty a? accessory to tin- nnn-(ler. 6. Evidence Competent on Trial of Principal Competent to Prove His Guilt on Trial of Accessory. United States.— V. S. v. Hartwell, 3 Cliff. 221, 26 Fed. Cas. No. 15,318. Arkansas. — Vaughan v. Slate, 57 Ark. I, 20 S. W. 588. Vol. I ACCESSORIES, AIDERS AND ABETTORS. b. Record of Cotiviction. — Tlie rccoril of the principal's convic- tion is competent, but as to the guilt of the principal, it is only prima facie evidence.' Georgia. — Smith v. State, 46 Ga. 298 ; Groves v. State, 76 Ga. 808. Nc'M Ha)HpsIiirc. — State v. Kaiid, 33 N. H. 216. A'cw Mexico. — Territory v. Dwenger, 2 N. M. 73. Nortli Carolina. — State v. Duncan, 6 I red. 98. Pennsylvania. — Buck v. Com., 107 Pa. St. 486. rc'/Du-.s.si.'t'.— Self v. State, 65 Ttiin. (6 Ba.xt.) 244; Hensley v. State, g Humph. 243. Te.x-as. — Simnis v. State, 10 Tex. App. 131 ; Armstrong v. State, 33 Tex. Crim. App. 417, 26 S. VV. 829. In Arnold v. State, 9 Tex. App. 435, it is held that, " it is not nec- essary that the principal should he first convicted, nor that he he put on trial with the accomplice ; but to con- vict the accomplice, the guilt of the principal must be shown. It being then necessary for the State to show the guilt of the principals, all legal evidence of whatever character is ail- missible. Therefore, motives, threats and confessions of the principals, and, in fact, evidence from every legal source is competent." In Buck V. Com., 107 Pa. St. 486, it was held that on the trial of an accessory, the State could show that sandbags and revolvers were found on the principal, when arrested ; that it being necessary to prove the prin- cipal's guilt, the testimony that would have been adinissible against him was admissible against the acces;ory. Confessions of Principal Not Ad- missible. — Casey •;■. State, 37 .\rk. 67; Ogden V. State, 12 Wis. 532, 78 Am. Dec. 754 ; State v. Rand, 33 N. 11. 216: Rex V. .A.ppleby, 3 Stark. 33. In Vaughan r. State, 57 Ark. i, 20 S. W. 588, a witness was permittel to make the statement : " Hamilton showed us where he got over the fence and where he stood at the time of the shooting." Hamilton was charged as principal and the appel- lant as accessory. The Supreme Court held the evidence inadmissible, and said: "In general, any evi- dence tending to prove the guilt of the principal is admissible to prove the fact on the trial of one charged as accessory. 2 Bish. Crim. Proc. § 13. Confessions of the principal seem to be an exception to the rule, at least, where the principal can be called as a witness to the fact. 2 Bish. Crim. Proc. §13; i Russ. Crimes, 43; i Roscoe Crim. Ev., 53; Reg. V. Hansill, 3 Cox Crim. Cas. 597. Hamilton was called as a wit- ness in this case, and testified fully to his own guilt. The statement made to the witness. Berry, set out above, was an indirect confession. It was made after the event, and not at a time so near, as to be regarded as of the res gestae. It was, accord- ing to the authorities, only hearsay as against Vaughan." Confessions of Principal Admissi- ble — The following cases hold that confessions of the principal are ad- missible to prove his guilt on the trial of the accessory : U. S. v. Hart- well, 3 Cliff. 221, 26 Fed. Cas. No. 15,318; Smith V. State, 46 Ga. 298; Groves v. State, 76 Ga. 808; Martin V. State, 95 Ga. 478, 20 S. E. 271 ; Lynes v. State, 36 Miss. 617; Ter- ritory v. Dwenger, 2 N. M. 73; Crook z: State, 27 Tex. App. 198, 11 S. W. 444; Bluman v. State, 33 Tex. • Crim. 43, 21 S. W. 1027 ; Morrow i'. State, 14 Lea (Tenn.) 475; Self v. State, 65 Tenn. (6 Baxt.) 244. 7. Record of Conviction Is Evi- dence — State V. Duncan, 26 N. C. (6 Ired.) 236; West v. State, 27 Tex. App. 472, II S. W. 482. In Keithler v. State, 18 Miss. (10 Smedes & M.) 192, the record of the conviction of the principal was read to the jury on trial of the acces- sory. It was objected to, but the report does not state on what grounds, and the objection was over- ruled. The supreme court said: " That the record of the conviction . of the principal is evidence against the accessory, will surely not be doubted. It was evidence to prove the conviction of Silas and all the legal consequences, though of course Vol. I 76 ACCESSORIES, AIDERS AND ABETTORS. c. Evidence of Non-Guilt (Jeiierally. — As the record of the prin- cipal's conviction, while conclusive as to him, is only prima facie evidence of his guilt as against the accessory, such accessory may introduce any evidence tending to show that the principal was not, in fact, guilty, or ought not to have been convicted.* d. Acquittal of Principal. — When the principal has been regu- larly tried and acquitted in a court having jurisdiction, proof of such acquittal is a complete defense to the accessory, although he may have advised and encouraged the felony, and the principal may, in fact, be guilty." not evidence of the fact of the guilt of the prisoner." In Baxter v. People, 7 111. (2 Gilm.) 578, on the trial of the ac- cessory, the record of the principal's conviction was introduced without stating the object for which it was introduced. It was objected to. by the defendant, but it does not appear from the report upon what grounds. Conclusive As to Fact of Convic- tion. — In Anderson v. State, 63 Ga. 675, the record of the principal's con- viction was held on the trial of an accessory after the fact to be con- clusive evidence of his conviction, but only prima facie evidence of his guilt. In State v. Chitteni, 13 N. C. (2 Dev.) 49, it is held that the record of the conviction of a felon is con- clusive evidence of the conviction of the principal, but prima facie evi- dence of his guilt. Only Prima Facie Evidence of' Conviction — In Levy v. People, 80 N. Y. 327, the court holds that, "the record showing the conviction of the principal is proof sufficient prima facie of that fact ; and proof that he was convicted is proof prima facie that he was properlv convic- ted." Prima Facie Evidence of Princi- pal's Guilt — State v. Crank, 2 P.ai- ley (S. C.) 66, 23 Am. Dec. T17; Re.x V. Baldwin, 3 Camp. 265 ; Rex V. Smith, 1 Leach C. C. 288; Stud- still V. State, 7 Ga. 2; State v. Mos- ley, 31 Kan. 355', 2 Pac. 782; Ander- son V. State, 63 Ga. 675; Com, ?>.• Knapp. 27 Mass. (10 Pick.") 477, 20 Am. Dec. 534; State v. Glcini, 17 Mont. 17, 41 Pac. ggS, 52 .\m. St. Rep. 655, 31 L. R. A. 294; Levy v. Vol. I People, 80 N. Y. 327; State v. Chit- teni 13 N. C. (2 Dev.) 49; People V. Buckland, 13 Wend. (N. Y.) 592; State V. Sims, 2 Bailey (S. C.) 29; People V. Gray, 25 Wend. (N. Y.) 465; Lynes v. State, 36 Miss. 617; State V. Duncan, 26 N. C. (6 Ired.) 236. 8. Accessory May Show Principal Not Guilty — State v. Crank, 2 Bai- ley (S. C.) 66, 23 Am. Dec. 117; Levy V. People, 80 N. Y. 327. In State v. Sims, 2 Bailey (S. C.) 29, the court said : " It seems to have been thought formerly that the record of the conviction of the prin- cipal was conclusive evidence of his guilt on the trial of the accessory; but this opinion is most satisfactorily combated by Foster, C. L. 365, and it is now well understood that it is only prima facie evidence, and may be rebutted on the trial of acces- sory, by showing that he was not guilty, or that the ofTense was not committed." In Com. J'. Knapp, 10 Pick. (Mass.) 477, the court said: "The verdict is to be taken as prima facie evidence of the guilt of J. Francis Knapp. It may be rebutted by showing that there was no nnirder, or that Francis was not in a situation where he could take a part as prin- cipal. We can not stop the evidence offered in limine. The prisoner has the burden of proof. He must show the jury that Francis ought not to have been convicted. He is not to make the propriety of the conviction questionable merely. He must prove it to have been clearly wrong." 9. Acquittal of Principal Acquits Accessory — Johns r. State, ig Ind, 421, 81 Am. Dec. 408; Ray v. State, .tCCI'SSOk'lliS. AIDERS AND ABETTORS. 77 2. Acts of Accessory. — A. 1'koui' ui' Triii ^\dvice. — a. Must Be Slioicn To Have Been Given and Coiniiiunicated. — It must be proved that the accessory's advice or encouragement was given and actually communicated to the principal.'" b. But Not 'That Priueipal IVould Not Have Acted Without It. But it need not be proved that the crime would not have been com- mitted without it." c. Advice Must Have Been Positive. — The evidence must show some positive advice or encouragement from the accessory to pro- cure the commission of the crime by the principal. Proof of mere passive acquiescence is not sufficient. '- d. Need Not Have Been by IVords. — But it is sufficient to prove any word, sign or act, communicated to the principal for the purpose of bringing about or encouraging the commission of the crime. ^' B. Intent in Gix'ixg Anvicic. — a. Must Apl^ear Eroin the Evi- 13 Neb. 55, 13 N. W. 2: U. S. V. Crane, 4 McLean 317, 25 Fed. Cas, No. 14,888; Bowen v. State, 25 Fla. 64s, 6 So. 459. In McCarty v. State, 44 Ind. 214, IS Am. Rep. 232, the defendant was found guilty of being accessory be- fore the fact, but before the judg- ment, the principal was tried and acquitted. The statute provided that an accessory "may be indicted and convicted before or after the prin- cipal offender. The supreme court held that there is no authority, either in the principles of the common law or under the statute for proceeding to final conviction of the accessory if at any time before such final con- viction the principal has Vjccn tried and acquitted." 10. Must Be Communicated to Principal — Spies v. People. 122 111. I. 12 N. F,. 865. 3 .\m. St. Rep. 320. 11. Guilt of Accessory Not De- pendent on Whether Felony Would Have Been Committed WitJiout His Advice — State z'. Tally, 102 .\la. 23, 15 So. 722. In Spies V. People, 122 111. I. 12 N. E. 865, 3 .\m. St. Rep. 320, it was held that, " although the defendants may have spoken and also published their views, advocating force to ef- fect a social revolution, that dynamite should be used in resisting the law, etc., and although such language might cause persons to desire to carry out the advice given, yet the bomb may have been thrown by some one unfamiliar with, and un- prompted by the teacliings of de- fendants, or any of them. There- fore the jury must be satisfied be- yond all reasonable doubt, that the person throwing said bomb was act- ing as the result of the teaching or encouragement of defendants." 12. Mere Passive Acquiescence. In I Hale P. C. 616, the author says : " That which makes an ac- cessory before is command, counsel, abetment or procurement by one to another, to coinmit a felony, when the commander or counselor is ab- sent at the time of the felony com- mitted, for if he be present he is principal. And therefore words that sound in bare permission make not an accessory as if A. says he witi kill J. S. and B. says: 'You may do your pleasure, for mc.' this makes not B. accessory." 13. Advice or Encouragement May Be by Words, Acts or Signs. Br People, 15 111. 511; McKee v. State, in Ind. 378. 12 N. E. 510. In Spies V. People, 122 111. I, 12 N. E. 865, 3 .Am. St. Rep. 320, news- paper articles and public speeches were held to be good evidence against the defendants, and properly introduced, not because they gave general advice to commit murder, but because they advised and en- couraged a particular class in Chi- Vol. I 78 .ICCBSSORinS. AIDIIRS .IND ABETTORS. deuce. — The circunistaiiccs attending the advice or encouragement may satisfactorily prove the intention, but it must be proved, not merely assumed, and unless "the jury are satisfied on this point from the evidence in the case, they ought not to convict." b. Criminal Effect Must Be Intended. — Deliberately using words or signs, or doing anything which actually has the effect to encour- age another in the commission of a felony, or to procure him to commit it, is not alone sufficient to charge one as accessory. The jury must be satisfied from the evidence, that he intended his words or acts to have the effect, or be taken in the sense that would tend to bring about the commission of the crime. '^ c. The Specific Crime Need Not Be Intended. — Within reasona- ble limits the accessory is considered as having contemplated the cago, to wit ; the members of the international groups, and such other working men as could be persuaded to join tlieni, to arm themselves with guns, revolvers and dynamite, and kill another particular class in Chi- cago, to wit, the police, at a par- ticular time, about j\Iay I, 1886, there being evidence in the record tending to show that the death of Degan occurred during the prosecution of a conspiracy planned by members of the international groups, who read these articles and heard these speeches. 14. Prosecution Must Prove Criminal Intent Hicks z'. V. S., 150 U. S. 140; Spies V. People, 122 111. I, 12 N. E. 86s, 3 Am. St. Rep. 320; Com. V. Campbell, 7 Allen (Mass.) 541, 83 Am. Dec. 705; State V. Hickam, 95 Mo. 322, 8 S. W. 252, 6 Am. St. Rep. 54. 15. Person Giving Advice, etc.. Must Intend Criminal Effect. Slate V. Hickam, 95 .Mo. 322. 8 S. W. 252, 6 Am. St. Rep. 54; Spies v. People. 122 111. I, 12 N. E. 865, 3 .\m. St. Rep. 320; Com. V. Campbell, 7 Allen (Mass.) 541, 83 Am. Dec. 705. In Hicks v. U. S., 150 U. S. 140, it is said : " The acts or words of encouragement and abetting must have been used by the accused with the intention of encouraging and abetting Rowe. So far as the in- struction goes, the words may have been used for a difTcrent purpose, and yet have had the actual effect of inciting Rowe to commit the mur- derous act. Hicks indeed testified Vol. I that the expressions used by him were intended to dissuade Rowe from shooting. But the jury were left to find Hicks guilty as prin- cipal, because the effect of his words may have had the result of en- couraging Rowe to shoot, regardless of Hicks' intention. . . . Hicks, no doubt, intended to use the words he did use, but did he thereby intend that they were to be understood by Rowe as an encouragement to act?" In State v. Hickam, 95 Mo. 322, 8 S. W. 252, 6 Am. St. Rep. S4, which was a prosecution for an assault to kill, and several parties were indicted as accessories, it was held that malice and intent to kill being essen- tial elements of the offense with which the defendant was charged, it devolved upon the state to prove them the same as any other facts in the case necessary to establish guilt. And as to the accessories, it was held that neither of them could prop- erly be convicted of the offense charged in the indictment, unless the jury found either that there was a common purpose in the ininds of Samuel Hickam and such defendants to kill Davenport, and the shooting was done in the attempted accom- plishment of such common purpose, or that such shooting was done by Samuel Hickam in the attempted ac- complishment of a purpose in his mind to kill Davenport, of which said defendant had knowledge, and that they did some act in furtherance of the attempted accomplishment of such purpose. .iccnssoRJEs. .iiniiRS and .ibettoks. ,') consequences of attempts to carry out his own suggestions or of any encouragement given by him in the commission of a crime, and if the proof shows that the crime was accomphslied in a manner or under circumstances chffering from those suggested, or that there was no suggestion of time, phice or manner, it will make no differ- ence so long as the act is shown to be in furtherance of the common design.^" C. Jurisdiction. — Un the trial of the accessory it must be proved that the advice or encouragement was within the jurisdiction of the court, and the jurisdiction is not necessarily in the place where the felony was committed, for, if there is a difference, and the acces- sory is indicted where the felony is committed, evidence showing advice or encouragement in another jurisdiction will not justify his conviction." 16. When Guilty, Though Crime Committed Not Intended U. S. v. Ross, I Gall. 6j4, 2y Fed. Cas. No. 16,196; State V. Nash. 7 Iowa 347; People V. Pool, 27 Cal. 572; State v. Shelledy, 8 Iowa 477. In Vv'ynn v. State, 63 Miss. 260, the defendant, Wynn, loaned to At- kinson the pistol with which he shot and killed AlcPherson. Just before the shooting, he shouted " Shoot him," and just after the first shot was fired, he shouted, ' Shoot him again," There was evidence that Wynn intended that Johnson, and not McPherson, should be killed. It was held that he was guilty, even if this was true. In State v. Davis, 87 N. C. 514. where A. instigates B. to rob C. a!id B, murders C, in carrying out the robbery, A is held to l)e an ac- cessory before the fact to the mur- der. In People v. Vasquez, 49 Cal, 560, it is held, " no defense to a party associated with others in, and en- gaged in a robbery that he did not propose or intend to take life in its perpetration, or that he forbade his associates to kill, or that he dis- approved or regretted that any per- son was thus slain by his associates. If the homicide in question was committed by one of his associates engaged in the robbery in furtheranc ; of their common purpose to rob, he is as accountable as though his own hand had intentionally given the fatal blow." In Stephens v. State, 42 Ohio St. 150, where two persons burglarized a house and committed a robbery, and while so doing, murdered the person robbed, it was held that another person who did not enter the house was responsible for the kill- ing, and equally guilty with the others, although he had not pre- viously agreed that life should be taken in the attempt to rob, if he was associated with them in the robbery, and was engaged in further- ance of fhe common purpose, and the killing was done in the executiou of the common purpose, and was a natural and probable result of the aitenipt to rob. Not Guilty of Independent Crime. State :'. May, 142 Mo. 135; 43 S. Vv . 637 ; People v. 'Keefer, 65 Cal. 232. 3 Pac. 818; State v. Lucas, 55 Iowa 321, 7 N, W, 583, In Saunder's Case, Plow. 475, A. counseled B. to poison C, ; B, gave C, a poisoned apple, C, handed the apple to D„ who ate it in B,'s presence and died. It was held that A, was not an accessory to the mur- der of D. In Watts V. State. 5 W, Va. 532, one incited another to break open and rob a dwelling house, V,'hile so doing, the principal committed a rape. It was held that the person inciting the burglary and robbery could not be convicted as accessory to the rape, because there was a total and substantial departure from the crime intended. 17. Crime of Accessory In An- other State — State v. Chapin. 17 Vol, I 80 ACi'iissoh'iiis. .-iiDJih'S .1X1) .innrioKS. D. RijpfiNTANCE OF AcciisSORY. — Until the felony is actually committed, the offense of the accessory is incomplete, and he may prove in his defense that before the actual perpetration of the felony, he, in good faith, withdrew the advice and encouragement given, and endeavored to prevent the crime. But in such case, to make the repentance a good defense, he must prove that the principal was notified by him, and actually received the notice of such repentance.'* Innocent Intent. — The defendant may show that the advice or encouragement given by him was without the criminal intent neces- sary to constitute him an accessory before the fact.'" 11. ACCESSOKY AFTER THE FACT. 1. The State's Case. — A. Principal's Guilt Must Be Shown. Before the accessory after the fact can be convicted, it must be proved that the felony in respect of which he is charged as such accessory has been committed by the principal.-" Ark. 561, 65 Am. Dec. 452; Johns v. btate, ig Ind. 421, 81 Am. Dec. 408; People V. Adams, 3 Denio (N. Y.; 190, 45 Am. Dec. 468; State v. VVyc- koff, ii N. J. Law 65. Where Jurisdiction in Different Counties by Statute In" btate v. iMoore, 26 N. H. 448, 59 Am. Dec. 354, the court said : " There is no doubt that by the provisions 01 the revised statutes, Chapter 225, Sec- tion 2, the English law is so far altered that if the commission of a crime be procured in one county in this state., to be committed in another, and the =amc be actually committed in the other by the principal offender, the accessory may be tried in either county. 18. Repentance and Notice 3 Greenl. Ev. 45 ; Sessions v. State, ^,7 Tex. Crim. App. 58, 38 S. \V. 605. In I Hale P. C. 618, the author says : "A. commands B. to kill C. but before the execution thereof, A. repents and countermands B. and yet B. proceeds in the execution thereof. A. is not acces.sory, for his consent continues not, and he gave timely countermand to B. Co. P. C. Chap. 7, p. 51 Plow. Com. 474, Saunder's Case ; but if A. had re- pented, yet if B. had not been ac- tually countermanded before the fact committed, A. had been accessory.'' In Pinkard v. State, 30 Ga. 757, it Vol. I was held error to refuse to charge in a criminal trial that "if the jury believed that the defendant agreed with certain persons to commit a crime, yet, if they believed that he abandoned the purpose, and went oft and did not participate in the crime, they must find him not guilty." 19. Circumstances Tending to Prove Innocent Intent in Bedell V. Chase, 34 N. Y. 386, in reply to proof tending to establish a fraudu- lent design on the part of vendors, the court permitted evidence that the entire proceeds of the sale were im- mediately applied to payment ol debts of the firm. The supreme court held that this was not error, and that it was also legitimate to permit the examination of plaintiffs as to their intention in making the purchase. 20. Evidence Must Establish Principal's Guilt — Holmes v. Com., 25 Pa. St. 221 ; Poston v. State, 12 Te.x. App. 408; Simmons v. State, 4 Ga. 465 ; vVren v. Com., 26 Graft. (Va.) 952; Harrel v. Slate, 39 Miss. 702, 80 Am. Dec. 95 ; Edwards v. State, 80 Ga. 127, 4 S. E. 268; Hat- chctt V. Com., 75 V.i. 925. Degree of Proof Required In Poston V. State, 12 Tex. .\pp. 408, it was held that the guilt of the principal must be established with the same degree of certainty as if he were on trial ; and that the court ACCESSORIES, AIDERS AND ABETTORS. 81 B. Accessory's Knowlkuck of Principal's Guilt Must Be Shown. — ■ It must be proved that the defendant knew when he rendered the assistance or harbored the felon, that the felony had been committed and that the person so aided was the felon.-' C. Positive Assist.vnce by Accessory Must Be Shown. — a. Generally. — It must be proved that the defendant did some posi- tive act in receiving, relieving, comforting or assisting the princi- niust charge the law in regard to the offense against the principal on the trial of the accessory, as fully as if such principal was on trial. Proof Where There Are Several Principals.— in Stoops v. Com., 7 Serg. & R. (Pa.) 491, 10 .\m. Dec. 482, it is held that if one be charged as accessory to a felony conimittea by several, some of whom oniy arc convicted and others not proceeded against to conviction or outlawry, he may be arraigned and tried as accessory to such as have been con- victed, but, if he be tried, convicted and sentenced as accessory to all without his consent, it is error. In Edwards v. State. 80 Ga. i2y, 4 S. E. 268, it was held that one could not be convicted as accessory after the fact where the alleged prin- cipal had been acquitted, because at the time of the offense he was so young that the statute did not per- mit his conviction. In that case, Edwards was charged as accessory to two principals ; one the infant, the other had escaped. Evidence Must Show That Felony Was Completed — 4 Blk. .Com. 38; 2 Hawk 320; 3 Greenl. Ev. §47; i Hale P. C. 618. In Harrel v. State, 39 .Miss. 702, 80 Am. Dec. 95, the defendant was indicted as accessory after the fact to a murder. The evidence adduced on the trial rendered it highly probable, if not certain, that the aid and assistance were in point of fact, given after the mortal blow was dealt, but before the death of the party whose life had been assailed. But the death occurred within a short time thereafter. The supreme court held that until the death, the felony alleged in the indictment and in respect to which the plaintiff in error was charged as accessory after the fact was not consummated — that in order to fix the guilt of the party charged as accessory after the '^act, it is essential that such felony should be complete. Until such felony has been consummated, any as- sistance rendered to a party in order to enable him to escape the con- sequences of his crime, will not make the person affording such assistance guilty as accessory after the fact, 21. Guilty Knowledge Must Be Proved — Street r. State, 39 Te-x. r.rim. App. 134, 45 S. W. 577; Loyd V. State, 42 Ga. 221 ; State v. Davis, 14 R. I. 281 ; State v. Douglas, 3 Ohio Dec 340 ; Rex v. Grcenacre, 8 Car. & P. 3S. In Wren v. Com., 26 Gratt. (Va.) 952, it is held that knowledge of the commission of the felony must be brought home to the accused, and is always a question for the jury. In State v. Empey, 79 Iowa 460, 44 N. W. 707, the court instructed the jury, " if you find that after the com- mission of said act. defendant aided, abetted or assisted said VVatkins in the disposition of said property, then he will be guilty; if you fail to so find, then you will find the defendant not guilty." The supreme court said ; " The last sentence of the instruction is plainly erroneous, in holding that assistance in the disposition of stolen property will render one guilty. Surely, assistance in disposing of property without the knowledge that it was stolen, will not be the ground of charging one, either as principal or accessory : knowledge of the crime is essential to constitute an accessory after the fact." What Is Proof of Knowledge. State =" Douglass, 3 Ohio Dec. 540. In Wren v. Com., 26 Gratt. (Va.) 952, it was held that an accessory after the fact must have notice ex- press or implied. Vol. I 82 .ICCISSSOKinS, AIDliliS .1X1) ABETTORS. pal to effect liis escajte. Mere passive acquiescence is not suffi- cient. -- b. Chanictcr of .-Issi.'itaiicc. — The evidence must show that after the commission of the crime assistance was given Ijy the defendant to the felon of such a character as would tend to facilitate his per- sonal escape from arrest, trial or punishment.-" In Re.N V. Burridge, 3 x^ere Wil- liams 439, 497, the attainder of the felon is held not in itself notice to all persons in the same county, and neither in justice nor in reason does it create an absolute presumption of notice, though it may be evidence to go to a jury. In Tully V. Com.. 13 Bush (Ky.) 142, it is held " sufficient that ap- pellant had good reason to believe Osborn was guilty of the murder charged, and was fleeing from justice, to render aid or comfort given him unlawful. It was not necessary to prove he had actual knowledge of the facts." 22. Positive Acts of Assistance Must Be Proved State i'. Hann, 40 N. J. Law 228; People i'. Dunn, 7 N. Y. Crim. 173, 6 N. Y. bupp. 805; People V. Garnett, 129 Cal. 364. 61 Pac. 1 1 14; Street v. State, 39 Te.x. Crim. App. 134, 45 S. W. 577. In Reg. V. Chappie, 9 Car. & P. 355. various persons charged with the oflfense of harboring the felons had been found possessed of various sums of money derived from the dis- posal of the property stolen, but it did not appear that they had re- ceived any of the stolen property itself, or had done any act to assist the felons personally. It was held that the oflfense charged was not made out by the evidence, as there was no act shown to have been done by the defendants to assist the felons personally. Concealing Knowledge — Carroll ^'. Stale, 45 Ark. 539; Slate 7'. Hann. 40 11. J. Law 228; Noftsinger j'. State, 7 Tex. App. 301 ; Wren v. Com. 26 Gratt. (Va.") 95-' 23. What Is Assistance Generally. Chitister v. State, a Tex. Crim. App. 635. 28 S. W. 683; State V. Stanley, 48 Iowa 221 : White T'. Peo- ple. 81 111. 3i3: Wren r: Com. 25 Grair (Va.) 952. Sufficient If It Avoids Present Arrest or Punishment — Blakely v. State, 24 Tex. App. 616, 7 S. W. 233, 5 Am. St. Rep. 912; Gatlin z: State, 40 Tex. Crim. .\pp. 116, 49 S. W. 87. In Blakely v. State, 24 Tex. App. 616, 7 S. W. 233, the defendant was indicted as accessory after the fact. The evidence showed that Duffen was killed by May, in the presence of the defendant and two other wit- nesses. There was evidence that after the homicide, May and the defendant had a private conversa- tion, and then May mounted his horse and rode ofif. When he was gone, the defendant told the other two witnesses that they must swear before the coroner's jury to a state of facts which he then and there detailed. Acting upon these sug- gestions and through fear of May and defendant, the two witnesses did, at the coroner's inquest swear, as did the defendant, to the fabricated statement devised by him. The supreme court held that aid rendered to the felon in this way was sufficient. " It certainly aided him," said the court, " to the extent that he was not^irrested and punished for the crime until the perjury was dis- covered, and but for this discovery the aid which defendant attempted to give him, would have proved efifectual in afifording him complete immunity from appreliension, trial and punishment." Witness Accepting Bribe. — In Chitister 7: State, M Tex. Crim. .'\pp. 635, 28 S. W. 683, it was held that where a witness accepted property to secure his departure from the state in order to be rid of his tes- timony against a felon, it did not, of itself, constitute him an accessory after the fact, but that he must have concealed the accused or given him some aid, .so that he may have evaded Vol. I .ICCl-SSOKIISS. .lIDIiRS .IND ADBTTOKS. D. Accessory's Intent. — It must be shown that the assistance of whatever kind, piven b\- the defendant to the principal felon. ail arrest or trial, or the cxcculioii of his sentence. Averting Suspicion, Taking Care of Families, etc. — hi State v. Stan- ley, 48 Iowa 221, averting suspicion against the parties, agreeing to or taking care of their families while absent, and other similar acts, are held sufficient. Relieving a Felon With Clothes, Food, etc — From Charily. — in 4 Blk. Com. 38, the author says : " To relieve a felon in jail with clothes or other necessaries is no offense, for the crime imputable to this species of accessories is the hindrance to public justice by assisting the felon to escape the vengeance of the law." Intention Must Be to Aid in Es- caping From Arrest, Conviction or Punishment State v. Reed, 85 Mo. iy4; .Melton r. State. 43 Ark. 357; Carroll i\ State, 45 Ark. 539; I learn V. State (Fla.), 29 So. 433. In Gatlin v. State, 40 Tex. Crim. App. u6, 49 S. W. 87, it is held that it is not essential that the aid rendered the criminal shall be of a character to enable him to effect his personal escape or concealment, but it is sufficient if it enables him to evade present arrest and prosecutioi. Contrary Rule — In People v. Pe- dro, 19 .Misc. 300, 43 N. Y. Supp. 44. the court having instructed the jury that " there is only one element of doubt in the case . . . and that is this: Whether or not this de- fendant, on the day named in the indictment was at Sheepshead Bay with the intention merely to relieve his friend, honestly, who was in trouble, or whether he was there to shield a person who had committed a crime against the laws, and to aid him to escape from justice," the supreme court said of this portion of tlie charge : " It is also to be noted that the words 'to shield a person ■who had committed a crime against the laws, and to aid him to escape from justice' is not a correct defini- tion of the crime charged. It con- veys to the jury the idea that if the defendant had used any means to shield Fino, and enable him to es- cape justice, he was guilty of being an accessory. But this is far from being the law. One cannot be found guilty as an accessory to a felony, except upon proof that he. gave per- sonal assistance to the felon, with intent to enable him to physically get away ; such as to conceal nim, to furnish him with a horse, and the like. Whart. Crim. Law, §241; Peo- ple V. Dunn, 53 Hun 381, 6 N. Y. Supp. 805. That he endeavored to get the complainant to fail to iden- tify, or to forget, or not to prosecute, or suborned witnesses, or the like, does not make out the crime." Aid After Felon Has Escaped in Foreign Country. — In People;'. Dunn. 53 Hun 381. 6 N. Y. Supp. 805, it was claimed that several witnesses produced on behalf of the state were accessories, and therefore, accom- plices whose testimony required corroboration. , The supreme court said. " To constitute an accessory, it is not sufficient to assist the prisoner to elude punishment, be- cause failing to prosecute or prevent- ing the attendance of witnesses would produce that result. But to consti- tute the offense, one must help the principal to elude or evade capture. None of the witnesses referred to were cognizant of the crime until long after its commission and until the defendant was secure from cap- ture by his escape to a foreign country. None except his wife ren- dered any aid or assistance to him, except so far as they intervened or assisted in negotiating for a com- promise with the bank." Aid Must Be An Act; Not Mere Words — A mother, to shield her husliand, advised her daughter to testify falsely as to the paternity of the daughter's child. The court said that no overt act was done by the mother, nothing more tlian mere words, and that she was not an ac- cessory after the fact. Stale i'. Doty, 57 Kan. 835, 48 Pac. M.'^ Vol. I 84 ACCESSORIES, AIDERS AND ABETTORS. was so given with the criminal intent of aiding him to escape arrest, conviction or punishment.-* 2. Defense. — A. Principal's Acquittal. — Proof of the princi- pal's acquittal operates under the common law as a complete defense of the accessory, but, by statute in several of the states, the rule has been changed or modified.-'' 24. In Wren z'. Com., 26 Granl (Va.) 952, the court said: "The true test (says Bish. § 634) whether what he did was after the fact is to consider whether what he did was done by way of personal help to his principal with the view of enabHng his principal to elude punishment, the kind of help rendered appearing to be unimportant." In State v. Fry, 40 Kan. 311, 19 Pac. 742, the evidence tended to show that the defendant knew of the prin- cipal's crime, and on account of that knowledge, went to the principal's office, for the purpose of securing himself in some business transactions. It was held that if the defendant went into the principal's office for any legitimate object, and in accom- plishing that object, incidentally stated to the principal that a war- rant was about to issue lor his ar- rest, but without any intention of enabling the principal to escape, that would not render the defendant guilty, even if the principal, because of such information, accomplished his escape. To constitute this of- fense, there must always be a guilty intent. Double Intent — In State v. Reed, 85 Mo. 194, it is held that while the aid must be with intent and in order that the felon may escape, or avoid arrest, trial, conviction, or punish- ment, yet, if he has the guilty intent necessary to constitute tlie offense, and also some other intent, it will be sufficient. Anxiety for Personal Safety. — In Melton V. State, 43 Ark. 367, and in Carroll v. State, 45 Ark. 539, it is held that concealment of crime from anxiety for personal safety is not sufficient to constitute one accessory after the fact. 25. Acquittal a Complete Defense. Ray V. State. 13 Neb. 55. 73 N. \Y. 2 ; Bowen v. State, 25 Fla. 645, Vol. I 6 So. 459; McCarthy v. State, 44 Ind. 214, 15' Am. Rep. 232; State v. Ludwick, Phill. (N. C.) 401; State V. Jones, Id N. C. 719, 8 S. E. 147; Johns V. State, 19 Ind. 421, 81 Am. Dec. 408. In U. S. i: Crane, 4 McLean, 317, 25 Fed. Cas. No. 14,888, it was charged that P. stole the United States mail, and that the defendant furnished assistance to P., and felo- niously afforded and furnished com- fort and assistance by keeping and secreting the money taken from the stolen mail. P had been acquitted on a count for stealing mail contain- ing bank notes, etc., and the court held, that if the accessory is charged with stealing bank notes, the princi- pal must be convicted of stealing from the mail bank notes. It is not sufficient to show that he did, in fact, steal them, but if found, he must be convicted of stealing them, before the accessory can be punished. When Acquittal No Bar Reg. z'. Pulham. Q Car. & P. 280; Reg. v. Hughes, Bell Crim. Cas. 242; Peo- ple T. Bearss, 10 Cal. 68; People v. Newberry, 20 Cal. 439 ; State v. Bogue, 52 Kan. 79. 34 Pac. 410; State 1: Patterson, S2 Kan. 33s, 34 Pac. 784; People r. Kief, 126 N. Y. 661, 27 N. E. 536; Noland 7: State. 10 Ohio 131 ; Evans v. State. 24 Ohio St. 458; State v. Mosley. 31 Kan. 355. 2 Pac. 782 ; State v. Cas- sady, 12 Kan. 550; State v. Jones, 7 Nev. 408: Spies v. People, 122 Til. T, 12 N. E. 865. 3 Am. St. Rep. 320. Effect of Statutory Provision. State V. Bogue, 52 Kan. 79. 34 Pac. 410: State V. Patterson, 52 Kan. 335, 34 Pac. 784 ; People 7'. Bearss. 10 Cal. 68; People Z'. Newberry. 20 Cal. 430 ; Evans v. State, 2J Ohio St. 458; Noland v. State. 19 Ohio 131. ' In People v. Kief, 126 N. Y. 661, 27 N. E. 556, it is held that it was not error to reiect the record of a nrincinal's acnuittal. T!ie court said : " Willi the change effected by the ACCESSOKIBS. AIDERS AND ABETTORS. 85 B. RelationsiiH' As Defense:. — Under ihc common law, proof that the person who assisted the felon to escape was his wife at the time of snch assistance, was a complete defense, but the exemption did not extend to any other of the felon's relatives. Now, by stat- utes in many of the states, it includes various other members of the family.-" C. Duress. ■ — Proof that the defendant, in whatever assistance he may have given the principal, was acting from motives of per- sonal safety, and not from any desire to aid him in his escape, is competent evidence for the defense.-' Penal Code, the distinction between principal and accessory has disap- peared, and it is, therefore, immate- rial whether one jointly indicted has been acquitted or not, the question of one defendant's guilt can not turn upon the establishment of the other's guilt; it is an independent issue to be tried out alone. Because of the changed conditions brought about by the Penal Code provision, reasoning upon previous practice is useless. At present, defendant must go to the jury upon such competent and rele- vant evidence as tends to prove his guilt and quite irrespectively of the extrinsic and irrelevant fact that one or more defendants jointly charged as accomplices have been acquitted upon their separate trials." 26. The Common Law Rule. — 4 Blk. Com. 38; 2 Hawk. P. C. ^20; i Hale P. C. 621. Relationship As a Defense Under State Statutes — State v. Jones, 3 Wash. 175. 28 Pac. 254' Moore v. State, 40 Tex. Crim. App. 389, 51 S. W. 1108; State t'. Davis, 14 R. I. 281. In Edmonson v. State, 51 .-Vrk. 115, 10 S. W. 21, the defendant was convicted of robbing the safe in the County Treasurer's office. Landers, another of the robbers, was a witness against him, and the prosecution in- troduced his wife for the purpose of corroboration. On the objection that she was an accessory after the fact, and as such an accomplice could not corroborate another accom- plice, it was held that she was not an accessory after the fact. In Arkansas, an " accessory after the fact," as defined by the statute, is a person who, after full knowledge that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of a crime, provided that persons stand- ing to the accused, in the relation of parent, child, brother, sister, husband or wife, shall not be deemed accesso- ries after the fact, unless to resist the lawful arrest of such offenders. The wife in concealing the husband also concealed the other felon. The Su- preme Court said: "Whatever else may be the intent of the statute, it is certain it does not compel a wife to become an informer against her hus- band. He was particcps criminis with Edmonson in the case. If the evidence of his guilt was so inter- woven with that of Edmonson's criminality that she could not in- form against one without implicat- ing the other, the statute would not visit her with the criminality of the offense for failing to do so. Her concealment of the crime would not, in that event, be attributed to the in- tent to shield Edmonson, which was necessary to make her an accom- plice." 27. In Melton v. State, 43 Ark. 367, a witness was a member of an unlawful organization called the Southern Brotherhood, or Ku Klux, and as such assisted in whipping a person who was afterwards murdered by order of the organization. He was present when the death was resolved upon, but opposed it. and did noth- ing to further the execution of the plot. After the conunission of the murder, he concealed it. This was done from motives of anxiety for his own safety, and not from any design to shield the guilty parties. It was held that these facts did not make him an accessory after the fact. Vol. I 86 JCCBSSOh'lLiS, .11 DISKS .IXD ABETTORS. III. AIDERS AND ABETTORS. 1. Proof of Presence. — A. XiicESSiTv Ok. — Aiders and abettors, called accessorie.s at the fact by ancient common law writers, and now more generally known as principals in the second degree, can- not be convicted as such without proof of legal presence at the commission of the offense.-* Where Presence Not Required. — In States where the common law distinction between principals in the first and second degrees, and accessories before the fact has been abolished, it is held, that proof of presence, either actual or constructive, is unnecessary.-'' B. M.w Be a CoNSTRi-cTi\ic Presence. — But proof of such facts as make out what the law calls a constructive presence will be sufficient.-'" What Is Constructive Presence. — A constructive presence so as to make one who is aiding and abetting a principal in the crime will be established by proof showing that he acted at one and the same time, for the consummation of the crime, and was so situated as to be able to give aid with a view to insure the success of the common enter- prise.'" 28. Presence Necessary Eng- land. — Reg. V. Cuddy, i Car. & K. 210. -Arkansas. — Smith v. State, 37 Ark. 274._ Kentucky. — Able v. Com., 68 Kv. (5 Bush) 698. Tc.\-as. — Little v. State, 35 Tex. Crim. App. 96, 31 S. W. 677; Truitt V. State, 8 Te.x. App. 148. •Vermont. — State v. Valwell, 66 Vt. 558, 29 Atl. 1018. Wisconsin. — Connaughty v. State, I Wis. 143 ; Ogden v. State, 12 Wis. S32, 78 Am. Dec. 754; Miller v. State, 25 Wis. 384. In State v. Snell, 46 Wis. 524, i N. W. 225', the court said : " Persons whose will contributes to a felony committed by another as principal, while themselves too far away to aid in the felonious act, are accessories before the fact. Bish. Crim. Law § 673. Connaughty v. State, i Wis. 143. When sucli persons are not actually or constructively present, aiding or abetting in the commission of the felony, or in the conspiracy to commit it, they are not chargeable as principals, but only of the substan- tive offense of being accessories, if guilty of any offense." 29. Alabama. — Raiford v. State, 59 Ala. 106; Jolly v. State, 94 Ala. 19, 10 So. 606; Griffith V. State, 90 Ala. 583, 8 So. 812. Vol. I California. — People v. Newberry, 20 Cal. 439 ; People v. Bearss, 10 Cal. 68; People v. Rozelle, 78 Cal. 84, 20 Pac. 36 ; People v. Outeveras, 48 Cal. 19. ////)it)i.s.— Baxter v. People, 8 111. (3 Gilm.) 368. lo'a'a. — State v. Comstock, 46 Iowa 265. Missouri. — State v. Fredericks, 85' Mo. 145 ; State v. Schuchmann, 133 Mo. Ill, 33 S. W. 3S. 34 S. W. 842. Nczi' York. — People v. Winant, 24 Misc. 361, 53 N. Y. Supp. 695. Oregon. — State v. Steves, 29 Or. 85, 43 Pac. 947; State Z'. Branton, xi Or. 533, 56 Pac. 267. 30. Actual Presence Not Neces- sary — Alabama.— State r. Tally, 102 Ala. 25, 15 So. 722. Indiana.— Tate v. State 6 Blackf. III. Louisiana. — State v. Douglass, 34 La. Ann. 523 ; State v. Poynier, 36 La. Ann. 572. Missouri. — Green r. State, 13 Mo. 382. • New York. — McCarney v. People, 83 N. Y. 408, 38 Am. Rep. 456. 0/1 10.— State V. Town. Wright 75. Tc.ras.—Coker v. State, 37 Tex. App. 284. 39 vS. W. 576. I'irginia.—Du'W v. Com. 25 Graft. 965. 31. United .States.— n. S. v. Har- .Kl'liSSORIIiS. AiniiRS ASn .lIUiT'l'OKS. 2. Proof of Aiding. — A. Gknekai^uv. — V^nl nic-rc presence will not alone justify a conviction as an aider and abettor, but it must be proved that there is, either actual substantive aid, or a previous j6 Fed. Cas. No. 102 Ala. ) Blackt. ries, 2 Bond jii, 15-309- Alabama. — State v. TalK 25, IS. So. 722. Indiana. — Tate v. State, III. Louisiana. — State v. Douglass, 34 La. Ann. 523 ; State v. Poynier, 36 La. Ann. 572. Massachusetts. — Com. z'. Knapp, g Pick. 49S, 20 Am. Dec. 491. Mississippi. — Hogsett v. State, 40 Miss. 522. Missouri. — Green v. State, 13 Mo. 382. Nevada. — State v. Hamilton. 13 Nev. 386. Neiv York. — McCarney v. People, 83 N. Y. 408, 38 Am. Rep. 456. Ohio. — Breese v. State, 12 Ohio St. 146. 80 Am. Dec. 340. Vermont. — State v. Valwell, 66 Vt. 558, 29 Atl. 1018. Virginia. — Uhl v. Com., 6 Gratt. 706; Dull V. Com., 25 Gratt. 965. In Com. i>. Lucas, 2 Allen (Mass.) 170, court said that it was sufficient to hold a party as principal if it was proved that he acted with another in pursuance of a common design ; that they acted at one and the same time for the fulfillment of the same pre- concerted end, and that the former was so situated as to be able to fur- nish aid to his associate in the com- mon enterprise. When Part of Criminal Transac- tion Is at Distance In State v. Tally, 102 Ala. 2$, 15 So. y22, it appeared that defendant sent a mes- sage from one town to another to prevent delivery of another message l5y which a victim would have been warned and would have escaped, and defendant was held constructively present where his message was de- livered and the murder committed. In McCarney v. People. 83 N. Y. 408, 38 .Am. Rep. 456. defendant was not shown to have been present at the house where the property was taken nor in the immediate vicinity, but it was shown that he had a part in planning the theft, spying out the premises, learning the ways of the keeper, it was held that this was sufficient to go to the jury as evi- dence of aidmg and abetting; that constructive presence was made out when it was shown that defendant acted with another with a common purpose; that he acted at the same time with the other for the fullill- ment of the same end, and was so situated as to be able to give aid ; and that waiting and watching at a convenient distance is sufficient, as if he be placed where he may learn the whereabouts and movements of the custodian of the property and be prepared to lure him away, or retard him, or give warning of his ap- proach. In Berry v. State, 4 Te.x. App. 492, the court said that where there are several acts constituting one crime, each act done by a different person in the absence of the rest, but in the coinmon design, all are jointly principals. In State v. Hamilton, 13 Nev. 386, a party built a tire on top of a moun- tain in Eureka county which could be seen by his confederate in Nye county, thirty or forty miles distant, and was the signal agreed on to tell when the Wells Fargo & Co. treasure left Eureka. It was held that he was an aider and abettor in an at- tempt to rob the stage in Nye county and not an accessory. In U. S. V. Harries. 2 Bond 311, 26 Fed. Cas. No. I5',.?09, it was held that where parties who were owners or interested in whiskey, though not personally present when the saine was illegally removed, yet w.ith intent to evade the tax aided in or took part in the means by which the spirits were removed, as by hiring the canal boat for the purpose, giv- ing orders and directions for the removal, etc., they are so connected with the offense as to be construc- tively present. Near Enough to Render Aid. Com. V. Knapp, 9 Pick. (Mass.) 495, 20 Am. Dec. 491 ; State v. Walker, 98 Mo. 9'^, 9 S. W. 646; Dull V. Com., 25 C'.ratt. (Va.) 965; Vol. I 88 ACCESSORinS. .-UniiRS .LVD ABBTTORS. understanding w uh ihe principal, or knowledge on his part that the party is there for the purpose of aid and encouragement. ■'- Persons Present and Aiding Principal. — In the following cases it is held that all persons who are present either actually or construc- tively at the place where the crime is committed, and are either aiding, abetting, assisting or advising its commission, or are present for such purpose, are principals in the crime.''^ State V. Pearson, i ig N. C. 871, 26 S. E. 117; Anderson v. State, 147 Ind. 445, 46 N. E. 901. In Tate v. State, 6 Blackf. (Ind.) Ill, the court said: "If, with the intention of giving assistance, a per- son should be near enough to afford it should it be needed, he is, in con- struction of law, present aiding anil abetting." 32. Mere Presence Not Sufficient. In Reg. V. Young, 8 Car. & P. 644, a prosecution for dueling, it was said concerning persons present, not principals or seconds, .that the ques- tion was whether they gave aid and assistance by countenance and en- couragement ; that mere presence was not enough but advice or as- sistance or going to the place to encourage and forward the conflict even if they said or did nothing, would sustain a conviction. United States. — U. S. v. Neverson, I Mackey 152. Alabama. — State v. Tally, 102 Ala. 25, IS So. 722. California. — People v. .\h Ping, 27 Cal. 489. Iowa. — State v. Farr, T,i Iowa 55.3. Kentucky. — Ward v. Com., 77 Ky. (14 Bush) 233. North Carolina. — State v. Hild- reth, 9 Ired. 440, 51 Am. Dec. 369. rc;ra.s.— Tittle v. State, 35 Tex. Crim. App. 96, 31 S. W. 677. •Virginia. — Kemp v. Com., 80 \ a. 443; Reynolds v. Com., •?3 Graft. II' ashlngton. — State i'. Klein, 19 Wash. .368, 53 Pac. 364. Presence 'Without, Interference to Prevent Crime Ward v. Com., 77 Ky. 2,y ; People v. Ah Ping, 27 Cal. 489; People 7'. Wood- ard, 45 Cal. 29?, 13 .Vm. Rep. 176; State V. Hildrcth, 9 Ired. (N. C.) 440, 51 Am. Dec. .369; Brown t'. Perkins, i .Mien (Afass.) Sg. Vol. I Presence and Constrained Sanction of Crime — Butler v. Com., 03 Ky. (J Uuvall) 435. Mental Approval Not Sufficient. In State ;•. Wolf, (.Iowa) 84 N. W. 536, the court said ; " It has never been held so far as we are advised, that mere presence at the scene of crime constitutes aiding and abetting . . . Nor is it sufficient in ad- dition thereto that the person pres- ent mentally approves what is done." Mere Presence Where There Is Previous Conspiracy — In Leslie v. State, (Te,\. Crnn. App.), 57 S. W. 659, it is held that where defendant has previously agreed with the prin- cipal to kill deceased, and is present at the time of killing, in pursuance of the conspiracy he would be guilty although he may have done no act. That under certain circumstances mere presence at the place where the crime is committed may be a suffi- cient act of encouragement. Must Be Both Aiding and Abet- ting — People V. Ciiniptiiu, 123 Cal. 403, 56 Pac. 44; People v. Dole, 122 Cal. 486, S5 Pac. =;8i, 68 .\m. St. Rep. 50; White 1: People, 81 111. 333- Sec Connaughty i'. State, I Wis. 143. In Lawrence r. State, 68 Ga. 289, il is held error to charge that aiding or abetting is sufficient. 33. United States.— V. S. v. Wil- son, Baldw. 78, 28 Fed. Cas. No. 16,730: U. S. V. Snyder, 14 Fed. 554; U. S. V. Hughes, 34 Fed. 732: U. S. V. Boyd, 45 Fed. 851. Alabama.— Amos v. State, 83 Ala. I, 3 So. 749, 3 .^m. St. Rep. 682. Connecticut. — State v. Wilson, ,30 Conn. 500. Georgia. — Hawkins t'. State, 13 Ga. 322, 58 Am. Dec. 517. Illinois. — Bremian j'. People, l^ III. (5 Peck) S^\. Indiana. — Williams v. State, 47 Ind. ^68. .ICCliSSORlHS. .linUKS .IXD ABETTORS. 8') B. Assisting in Unlawful Act. — One may be guilty of mur- Kansas. — State v. Sheiiklc, 30 Kan. 43, 12 Pac. 309. Louisiana. — State v. Ellis, 12 La. Ann. 390; State v. Littell, 45 L,a. Ann. 655, 12 So. 750. Massachusetts. — Com. v. Steven.-;, 10 Mass. 181. Michigan. — People v. Repke, 103 Mich. 459, 61 X. \V. 861. Mississippi. — McCarty v. State, 4 Cushni. 299. Missouri. — State v. Nelson, 98 Mo. 414, II S. W. 997; State V. Miller, 100 Mo. 606, 13 S. W. 832; State v. Crab, 121 Mo. 554, 26 S. W. 548; State V. Brown, 104 Mo. 365, ib S. W. 406. Nebraska.— W\\\ z: State, 42 Neb. 503, 60 N. W. 91&. Nevada. — State v. Squaires, 2 Nev. 226. New Hampshire. — State v. Mc- Gregor, 41 N. H. 407. Neze Jersey. — State v. Hess, (N. J.) 47 Atl. 806. North Carolina. — State v. Gaston, 73 N. C. 93, 21 Am. Rep. 459. 0/iio.— Warden v. State, 24 Ohio St. 143. South Carolina. — State v. Fley, 2 Brev. 338, 4 Am. Dec. 583. Tc.vas. — Dunman i'. State, i Te.x. App. 593; Mills V. State, 13 Te.x. .^pp. 487. Mere Presence for the Purpose of Aid Without Principal's Knowledge. In State v. Tally, 102 Ala. 25, 15 So. 722, the conrt said that mere presence for the purpose of rendering aid, is not aid, in the substantive sense; nor is it aid in the original sense of abetting, nor abetting in any sense, unless at the very least, the principal knew of the presence witli intent to aid of such person ; for manifestly in such case, the only aid possible would be the incitement and encouragement of the fact that an- other was present for the purpose of assistance and with the intent to assist if necessary; and the fact of presence and purpose to aid, could not incite, encourage or embolden the principal, unless he knew of the existence of that fact. Watching to Prevent Surprise, etc. Arkansas. — Thomas v. State. 43 Ark. 149. Indiiina. — Doan v. State, 26 Ind. 495- Jjassaehusetls. — Com. v. Knapp, 9 Pick. 495, 20 Am. Dec. 491. Miclugan. — People v. Kcpke, 103 Mich. 459, 61 N. W. 861. New York. — McCarney v. People, 83 N. Y. 408, 38 Am. Rep. 456; Peo- ple V. Boujet, 2 Park. Crim. 11. Ohio. — Stephens v. State, 42 Ohio St. 150; Hess V. State, 5 Ohio (5 Ham. ) 5, 22 Am. Dec. 767 ; State v. Town, Wright 75. Te.ras. — Selvidge v. State, 30 Tex. 60; Earp V. State, (Tex.), 13 S. \V. 888 In .McCarney v. People, 83 N. Y. 408, 38 Am. Rep. 456, the court said ; "A waiting and watching at con- venient distance is enough." In Selvidge v. State, 30 Tex. 60, it was held that if defendants did not remove stolen horses from the lot of the owner but were near enough to keep watch and were actually acting with those who went for and took possession of the horses, they were guilty as principal. When Knowledge by Principal Essential — In State v. Tally, 102 .\la. 25, 15 So. 722, four men went in pursuit of a man to inurder him. A warning dispatch was sent. If this dispatch had been delivered in time it might have aided the man to get away. But another person not connected by the evidence with the original plot to murder, but who had the same motive for murder as the others, having found out . the contents of the message, and for the purpose of enabling the pursuers to succeed, sent a message to the op- erator where the first message was to be delivered, in consequence of which the first was not delivered, and the man was murdered. It was held that there was such aid as made the sender of the second message guilty as an aider and abettor, although the principals did not know of the assistance so given. In Jordan v. State, 81 Ala. 20, I So. 577, it was held that in order to convict the defendant as an aider and abettor the jury should be satisfied beyond a reasonable doubt, that there was either a previous understanding Vol. I 90 .iCCESSOklliS. .liniikS .IXD .ibhttons. ilcr, akhough he neither look pan in ihe kiiUng nor assented to any arrangement having for its object the death of the person murdered. It is sufficient to prove that he combined with those committing the deed, to do an unlawful act, as to beat or rob the person, who was killed in the attempt to carry out the common purpose.-'* C. Aiding in One of Sever.\l Acts Constituting One Crime. A crime may consist of many acts which must all be committed in order to complete the offense ; evidence that defendant was present, consenting to the commission of the offense and doing any one act which is either an ingredient in the crime or immediately connected with or leading to its commission, is sufficient for his conviction as a principal. ■'•' 3. Criminal Intent of Aider. — It is not sufficient to prove that assistance was actually given b_\- the defendant to the princijial, but it must be proved that such assistance was given with intent to aid in commission of the crime. ■"' 4. Proof Must Show Crime Committed. — The evidence must not only show that the principal did the criminal act, but that it was to kill or injure the deceased, or that he had knowledge of the intent or design of his brother or of facts from which such knowledge may be inferred. Where There Is Actual Aid No Previous Agreement Required. People v. Jamarillo, 57 Cal. iii. 34. Brennan v. People, 15 HI. 511. 35. U. S. V. Wilson, Baldw. 78, 28 Fed. Cas. No. 16,730; Com. v. Low- rey, 158 Mass. 18, 32 N. E. 940. Aid or Assistance By One In- capable of Committing the Crime. U. S. V. Snyder, 8 Fed. 805 an. Lohman, 2 Barb. 216. Ohio. — Noland v. State, 19 Ohio 131- In People v. Whipple, 9 Cow. (N. Y.) 707, the court said: "The evi- dence of accomplices has at all times been admitted, either from a princi- ple of public policy, or from judicial necessity, or from both. They are, no doubt, requisite as witnesses in particular cases ; but it has been well observed, that in a regular system of administrative justice, they are liable to great objections. 'The law,' says one of the ablest and most useful Vol. I modern writers upon criminal juris- prudence, ' confesses its weakness, by calling in the assistance of those by whom it has been broken. It offers a premium to treachery and destroys the last virtue which clings to the degraded transgressor. On the other hand, it tends to prevent any extensive agreement among atrocious criminals, makes them per- petually suspicious of each other, and prevents the hopelessnes ; of mercy from rendering them desper- ate." Has Been Favored In England. In Ray v. State, i Greene (Iowa) 316, 48 Am. Dec. 379, it is said that courts in England have in some in- stances regarded this class of ac- complices with favor. 11. Admission of Character Con- clusive In Com. V. Desmond, 5 Gray (Mass.) 80, the court says: " The bill of exceptions shows that the counsel for the Commonwealth assumed and claimed that Healy, the witness, was an accomplice. He was offered as such, and from the facts reported it would seem rightly. But whether this were so or not ihe admission of the fact in court by the district attorney for the purposes of the trial was, as against the govern- ment, conclusive evidence of such fact." 12. Forfeits Right. _ In U. S. v. Hinz, 35 Fed. 272, the accomplice, Hinz, having testified fully before the grand jury, afterwards refused to go on the stand as a witness, and by so doing compelled the prosecut- ing attorney to seek other evidence and grant immunity to another con- spirator. By this action it was held that he forfeited all right equitable ACCOMPLICES. 99 b. After Testifying. ■ — But if he testifies to his own guilt on the examination in chief, the privilege is no longer of any value, and he can not claim it on cross-examination.^^ c. As to Other Crimes — As the implied promise concerning the pardon does not extend to other crimes than that for which the defendant is on trial, the accomplice does not forfeit his right under such promise by refusing to testify as to his own guilt of other crimes.'* 6. Corroboration. — A. When Not Required. — a. Accomplice Not IVithoiit Credit. — Although the accomplice being guilty is in a measure an impeached witness, yet he is not for that reason alone wholly without credit." or otherwise, to immunity or len- iency. Statements Elsewhere Do Not Waive Privilege. — In Overend v. San Francisco Superior Court, 131 Cal. 280, 63 Pac. 372, the court said : " It appears that the tri.il court based its judgments of contempt largely upon the ground that the witness had without objection, testified at the preliminary examination of Min- nie Campbell, and for that reason had waived his right to " refuse to testify at the trial upon the ground that his evidence would tend to con- vict him of a felony. The position of the court in this regard is unten- able. The question of waiving the privilege is discussed and decided in Temple v. Com., 75 Va. 896, and Cullen's Case, 24 Gratt. 624. It is said in those cases that the witnesses' statements have nothing to do with the question." 13. Minnesota. — State v. Nichols, 29 Minn. 357, 13 N. W. 153. Mississippi, — Jones v. State, 65 Miss. 179, 3 So. 379. New Hampshire. — Amherst v. Mollis, 9 N. H. 107. Neti.' York. — People v. Lehman, 2 Barb. 216. Cannot Refnse to Answer — In Foster V. People, 18 Mich. 266, where the question was whether the accomplice, after voluntarily under- taking to explain the transactions connected with the larceny, and the disposition of the property involved in the charge on trial, and after answering fully the direct question- ing of the prosecution, and unequivo- cally criminating himself to the ex- tent of complete legal guilt of lar- ceny of that property, can then re- fuse to answer further and be pro- tected against further disclosures relating to the same transactions, the court holding that he could not be so protected, said : " It would certainly lead to most startling results if an accomplice, who has made out a clear showing of a prisoner's guilt, and has, in doing so, criminated himself to an equal degree, could refuse to have his veracity, or fairness, or bias, or corruption, tested by a cross-exam- ination, and yet be allowed to stand before court and jury on the same footing with any other witness who has been perfectly candid, but who may have been convicted of a similar felony. . . . " Accordingly, where a witness has voluntarily answered as to material criminating facts, it is held with uni- formity that he cannot then stop short and refuse further explanation, but must disclose fully what he has attempted to relate. This view is adopted by the text_ writers, and is very well explained in several of the authorities, where the principle is laid down and enforced." 14. When May Claim His Priv- ilege In Pitcher v. People, 16 Mich, 142, the court said : "No man can be made a witness to testify to his own crimes except by his own consent; and consent i" testify as to one transaction does not entitle either the government or the defense to make the examination inquisito- rial, and thereby obtain evidence which might be used against him in future prosecutions." 15. Extent of Credit. — In State Vol. I 100 ACCOMPLICES. b. In Absence of Statute. — Where there is no statute on the subject, a conviction on the uncorroborated testimon)- of an accom- plice is valid.'" c. Statutes Requiring Corroboration. — JJy statute in some states, the common law rule that a defendant can be legally convicted on the uncorroborated testimony of an accomplice has been changed. ^''^ B. Judge Advising Jury. — a. Common L,aiv. — While admitting that a verdict of guilty, based upon the uncorroborated testimony of an accomplice is valid, yet courts have always looked upon such evidence with distrust, and have from a very early time usually advised the jury, that unless the accomplice is corroborated it is safer to acquit.'* Georgia. — Parsons r'. State. 43 Ga. 197; Phillips V. State, 34 Ga. 502. ////(lou.— Collins V. State, 98 III 584, 38 Am. Rep. 105 ; Earll v. Peo- ple, 73 III. 329; Gray v. People, 26 111. 344; Cross V. People, 47 111. 152, 95 Am. Dec. 474. Indiana. — Johnson v. State, 2 Ind. 652 ; Ayers v. State, 88 Ind. 275 ; Stocking V. State, 7 Ind. 326. lo'^i'a. — State v. Schlagel, 19 Iowa 169. Louisianlt. — State v. Cook, 20 La. Ann. 145. Maine. — State v. Litchfield, 58 Me. 267. Miclngan. — Foster Mich. 266. Mississiffi. — Dick Miss. 593. Missouri. — State 1 .Mo. 361. Nebraska. — State 1'. 481, 35 N. W. 219. Nc7V York. — People v. Haynes, 55 P.arh. 450. Oliio.—hee V. Slate, 21 Ohio St. 151. South Carolina. — State r. Brown, 3 Strob. 508. Te.vas.— Lopez v. State. 34 Tex. 13.3. PVni!. III/. —State ?'. Potter. 42 Vt. 40.S- 17. People r. .\mes. 39 Cal. 403 ; People r. Melvane, 39 Cal. 614; Peo- ple 7'. Cloonan, 50 Cal. 449; People V. Farrell, 30 Cal. 316; People v. Smith, 98 Cal. 218, 33 P^c. 58; Moses V. State, 58 .-Ma. 117; Smith 7'. State, 59 Ala. 104; Lumpkin v. State, 68 Ala. 56; Marler r. State, 6; .\la. S';, 42 .^m. Rep. 05- 18.' Practice Generally Observed. V. Wolcott, 21 Conn. 272, the court said : " The testimony of an accom- plice is admissible and, of course, to some extent, is presumed to be credi- ble. The law would not admit proof which it had decided a priori should not be believed when admitted." Craft V. State, 3 Kan. 450; People v. Costello, I Denio (N. Y.) 83; Peo- ple V. Lee, 2 Utah 441. 16. Conviction Held Valid. England. — Rex. i>. Boyes, i B, ui S. 311, 1 01 Eng. C. L. 309. Illinois. — Cross r'. People, 47 111. 152, 95 Am. Dec. 474. Missouri. — State v. Crab, 121 Mo. 554, 26 S. W. 548; State v. Harkins, 100 Mo. 666, 13 S W. 830; State v. Jackson, 106 Mo. 174, 17 S. W. 301. Nezi' York. — People v. Costello, i Denio 83 ; Dunn i'. People, 29 N. Y. 523, 86 Am. Dec. 319; Haskins v. People, 16 N. Y. 344; People v. Haynes. 38 How. Pr. 369. No Positive Rule for Corrobora- tion at Common taw Canada. — Reg. V. Fellowes, 19 U. C. Q. B. 48. United States. — U. S. t'. Flenmiing, 18 Fed. 907; Steinhau v. U. S., 2 Paine 168, 22 Fed. Cas. No. 13,355; U. S. V. McKee, 3 Dill. 546, 26 Fed. Cas. No. 15,685. .'irkansas. — McKenzic Ark. 636. California. — People 7' Cal. 622. Colorado. — Solander Colo. 48. Connectieut. — State "' Conn. 272 ; State v. Conn. 463, 79 Am. Dec. 223; State 7'. Williamson, 42 Conn. 261. florida.Sumpler v. State. 11 Fla. 247. Vol. I 18 30 V. People, V. State, Watson, 31 SnefT, 22 Neb. ',: State, 24 Garnett, 29 '. People, 2 Wolcott, 21 Stebbins, 29 ACCOMPLICES. 101 b. General Practice in Absence of Statutes — The general prac- tice now, where the suljject is not regulated by statute, is to advise the jury not to convict unless the testimony is corroborated.'" c. Discretion of Court. — But the authorities are not uniform as to how far the giving of the advice is in the discretion of the court. ^° In Reg. V. Farler, 8 Car. & P. io6, 34 Eng. C. L. 314, Lord Abinger, C. B., said : " It is a practice which deserves all the reverence of law, that judges have uniformly told juries that they ought not to pay any respect to the testimony of an ac- complice unless the accomplice is corroborated in some material cir- cumstance." State 7'. Potter, 42 Vt. 495 ; Collins V. People, 98 111. 584, 38 Am. Rep. 105. 19. Omission to Advise an Omis- sion of Duty. — In Solander v. Peo- ple, 2 Colo. 48, the court said : " Courts will in their discretion ad- vise a jury not to convict of a felony upon the testimony of an accomplice alone and without corroboration, and it is now so generally the practice to give them such advice that its omis- sion would be regarded as an omis- sion of duty on the part of the judge." Com. v. Boswortb, 22 Pick. (Mass.) 397. See also State v. Coldman, (N. J.,) 47 Atl. 641; State V. Concannon, (Wash.,) 69 Pac. 534; Smith I'. State (Wyo.,) 67 Pac. 977; Reg. •;■. Beckwith, 8 U. C. C. P. (Can.) 274. 20. Kegardless of Request. Other cases hold that advising the jury is altogether in the discretion of the court whether requested or not Colorado. — Solander v. State, 2 Colo. 48; Wisdom v. People, 11 Colo. 170, 17 Pac. 519. Connecticut. — State v. Maney, 54 Conn. 178, 6 Atl. 401. F/onrfa.— Keecher v. State, 15 Fla, 591- ///i«ow.— Collins v. People, 98 111. 584, 38 Am. Rep. 105; Earll v. Peo- ple, 73 111 329- Indiana. — Stocking v. State, 7 Ind. 326. Massachusetts.— Com. v. Larrabee. 99 Mass. 413; Com. v. Clune, 162 Mass. 206, 38 N. E. 435; Com. v. Savory, 10 Cush. 535- Minnesota.— State v. McCartey, 17 Minn. 76. Mississippi. — George i>. State, 39 Miss. 570; Strawhern v. State, 37 Miss. 422; Lee v. State, 51 Miss. 566; White V. State, 52 Miss. 216; Fitz- cock V. State, 52 Miss. 923. Nebrasl!a.—C3.rTol\ v. State, 5 Neb. 31- Neii' York. — Lindsay v. People, 63 N. Y. 143 ; People v. Costello, i Denio 83. 0/iio.— Allen v. State, 10 Ohio St. 288; Brown v. State, 18 Ohio St. 497. Vermont. — State v. Potter, 42 Vt. 495- JVest Virginia. — State v. Betsall, II W. Va. 703. Request Not Necessary — Cases in which it is held that advice or instruction is necessary whether re- quested or not, and the neglect to give it, reversible error. Connecticut. — State v. Stebbins, 29 Conn. 463, 79 Am. Dec. 223. Iowa. — Ray v. State, i Greene 316, 48 Am. Dec. 379. Massachusetts. — Com. v. Boswortb, 22 Pick. 397. Missouri. — State v. Jones, 64 Mo. 391- r^'.fo.s.— .Parr v. State, 36 Tex. Crim. App. 493, 38 S. W. 180; Winn V. State, IS Tex. App. 169; Howell V. State, 16 Tex. App. 93; Stone v. State, 22 Tex. App. 185, 2 S. W. 585 ; Boren v. State, 23 Tex. App. 28, 4 S. W. 463; Boyd V. State, 24 Tex. App. 570, 6 S. W. 853. S Am. St. Rep. 908; Wicks v. State, 28 Tex. App. 448, 13 S. W. 748; Owens v. State, (Tex. Crim. App.,) 20 S. W. 558; Stewart v. State, 35 Tex. Crim. App. 174, 32 S. W. 766, 60 Am. St. Rep. 35; Martin v. State, 36 Tex. Crim. App. 632, ,?6 S. W. 587; Co- burn V. State, 36 Tex. Crim. App. 257, 36 S. W. 442; Brown v. State, (Tex. Crim. App.,) 20 S. W. 924; White V. State (Tex. Crim. App.,) 62 S. W. 749- Rule Stated. — In State v. Jack- son, 106 Mo. 174, 17 S. W. 301, the trial court instructed the jury that Vol. I 102 ACCOMPLICES. d. Verdict of Guilty Notwithstanding Advice. — Such charge is in the nature of advice, and the jury may nevertheless render a verdict of guilty.-' C. Jury Misled. — Even in jurisdictions where a jury may ren- der a verdict upon the uncorroborated testimony of an accomplice, if they have been or may have been led to believe that such testi- mony has been corroborated when the evidence is not legally suffi- cient for that purpose, a verdict of guilty will be set aside.-- D. Instructions Under Statute. — Where by statute it has become necessary to the validity of the verdict that the testimony of the accomplice should be corroborated, the charge of the court constitutes an instruction and not mere advice, and must be fol- lowed.''^ the defendant could not be convicted . on the testimony of the accomplice without corroboration, and the court stated the true rule to be tl.at " a conviction can be had upon the tes- timony of an accomplice, if the jury, after being duly cautioned by the court, is fully satisfied that his tes- timony is true." State v. Koplan, (Mo.,) 66 S. W. 967- Duty of Court to Give Caution. The court reversing judgment of conviction in Parr v. State, 36 Tex. Crim. App. 493, 38 S. W. 180, says : " Regardless of any e-xceptions taken at the time, if there was testimony tending to show that any of the witnesses upon whom the state relied for a conviction, were accomplices, it was the duty of the court to give in charge to the jury the rule gov- erning accomplices." See Winn v. State, 15 Tex. App. 169; Howell v. State, 16 Tex. App. 93; Stone v. State, 22 Tex. App. 185, 2 S. W. 585 ; Bowen v. State, 23 Tex. App. 28, 4 S. W. 463. Duty to Advise TIpon Request. In other cases it is held that if the court refuses to give the advise upon being requesed to do so, it is reversi- ble error. Hoyt v. People, 140 111. 588, 30 N. E. 31S. 16 L. R. A. 239; Sullivan v. State, 75 Wis. 659, 44 N. W. 647. 21. It Is a Question for the Jury. People V. Haynes, 38 How. Pr. (N. Y.) 369; State V. Litchfield, 58 Me. 267; People V. Costello, i Denio (N. Y.) 83; Com. V. Bosworth, 22 Pick. (Mass.) 397; People v. Hare, 57 Mich. 505, 24 N. W. 843; State v. Vol. I Harras, (Wash.,) 65 Pac. 774; Myers v. State, (Fla.,) 31 So. 275. 22. Evidence Improperly Admit- ted In Com. V. Holmes, 127 Mass. 424, 34 Am. Rep. 391, it was said : " The decision in Common- wealth V. Bosworth, 22 Pick. 397, has for forty years been treated as settling that, if evidence is admitted for the purpose of so far corroborat- ing the testimony of an accomplice as to make it safe for a jury to con- vict, which is not legally to be con- sidered as corroborative in that sense, the error may be revised by bill of exceptions. Com. v. Des- mond, S Gray 80; Com. v. Savory, 10 Cush. 5'35, 538 ; Com. v. Larrabee, 1)9 Mass. 413, 416." 23. Must Be Followed — People V. Ronney, 98 Cal. 278, a Pac. 98; Craft V. Com., 80 Ky. 349. Under What Circumstances In- structions Should Be Given Cal- ifornia.— In People V. O'Brien, 96 Cal. 171, 31 Pac. 45, it was held not proper to give the instruction where the witness is for the defense. In People v. Bonney, 98 Cal. 278. a Pac. 98, where the witness was for the people, it was held a proper occasion for the instruction when the crime can only be established by means of the testimony of an accom- plice. People V. Strybe, (Cal.,) 36 Pac. 3- Kentucky.— In Craft v. Com.. 80 Ky. 349, it is held the duly of the court to instrvict the jury to acquit when there are no corroborating cir- cumstances. The testimony of an accomplice cannot be considered ACCOMPLICES. 103 E. W iiAT Is CoRKUBOKATioN. — a. Definition. — Legal corrobo- ration, when applied to accomplices, consists of independent evi- dence, tending to support their testimony.-* b. One Accomplice Cannot Corroborate Another. — Such facts cannot be established by other accomplices"'* unless they are so as a factor in the problem of guilt or innocence, until the jury first de- termines that the other evidence heard proves the existence of corrob- orative facts. If the evidence claimed to be corroborative does not tend, when its truth is admitted, to this end, it is the duty of the court to exclude it; but by its admission the court does not pass upon its truth, and the court should instruct for, by failure to do so, the jury is permitted to consider the evidence of an accomplice as they would any other evidence. In Taylor v. Com., lo Ky. Law 169, 8 S. VV. 461, where a conviction was had principally, if not wholly, upon the testimony of an acknowl- edged accomplice, the court in- structed that a conviction cannot be had upon testimony of an accom- plice unless corroborated by other evidence tending to connect the de- fendant with the commission of the offense, but did not instruct, as re- quired by §241 of the Criminal Code that " the corroboration is not sufficient if it merely shows that the offense was committed and the cir- cumstances thereof." It was held that the defendant was entitled to an instruction given in the language of the Code. Smith V. State, 42 Tex. 394; Boren v. State, 23 Tex. App. 28, 4 S. W. 463; Roach V. State, 4 Tex. App. 46; Irvin v. State, i Tex. App. 301 ; Davis v. State, 2 Tex. App. 588; Coffelt V. State, 19 Tex. App. 436. Held, that instruction on this subject must be given where applicable whether asked or not. Brace v. State, (Tex. Crim. App.,) 62 S. W. 1067. 24. In People v. Elliott, 5 N. Y. Crim. 204, it is said that " to suffi- ciently corroborate the testimony of the accomplice there should be some fact testified to entirely independent of the accomplice's evidence which, taken by itself, leads to the inference not only that a crime has been com- mitted, but that the defendant is implicated in it." State v. McLain, 159 Mo. 340, 60 S. W. 736; Com. V. Holmes, 127 Mass. 424, 34 Am. Rep. 391. See re Monteith, 10 Ont. (Can.) 529- 25. Testimony of Accomplice Must Be Corroborated In John- son V. State, 4 Greene (Iowa) 65, the court said: " It is just as neces- sary that the corroborating witness should be strengthened and con- firmed as that the principal one should be, and however abundant their kind of testimony, the accom- plice first called in is still uncorrobo- rated, and his testiinony entitled to no credit. The law regards accom- plices in cases of felony, when called to testify, as impeached witnesses, and hence their testimony is of no effect unless confirmed by other tes- timony. As one impeached witness cannot' support the testimony of a witness previously impeached, it fol- lows that one accomplice cannot be a witness to corroborate the testi- mony of another accomplice in the same crime." State v. Williamson. 42 Conn. 261 ; Porter v. Com., 22 Ky. Law 1657, 61 S. W. 16; Howard V. Com., 22 Ky. Law 1845, 61 S. W. 756; Powers V. Com., 22 Ky. Law 1807, 61 S. W. 735, S3 L. R. A. 245. Court Should Instruct — In Whit- low V. State, (Tex. Crim. App.,) 8 S. W. 86s, the defendant asked the court to instruct that, " if the jury believed that either or all the Kyle witnesses were accomplices in the commission of the offense charged, they cannot corroborate each other; and though their testimony may agree, yet if they are accomplices, such corroboration is not sufficieiit. It was held that the court erred in refusing to give the instruction. In McConnell v. State, (Tex. App.,) 18 S. W. 645, the conviction was reversed because the trial court omitted to instruct the jury that one Vol. I 104 ACCOMPLICES. situated as to negative the idea of collusion.-" c. Not Aided by Testimony of Accomplice. — The corroborative evidence must of itself, and without the aid of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the ofiEense ; and independent evidence merely con- sistent with the main story is not sufficient corroboration if it requires any part of the accomplice's testimony to make it tend to connect the defendant with the crime.'" d. Need Not Be SufRcicnt to Convict. — It need not of itself be sufficient to establish his guilt. ^^ e. What Is Sufficient. — There must be some evidence, which of itself, and without aid from the accomplice's testimony, tends to connect the defendant with the offense committed.-" accomplice could not corroborate another. 26. Circumstances Negative Con- nivance — In Reg. v. Aylmer, i Craw. & Dix (Irish) Crim., Bush., C. J., said : " If in this case there could have been no communication between the approvers, the testimony of one of them might be brought forward to support the testimony of the other. This was done in the case of the Wild Goose Lodge, where the approvers had been confined in sepa- rate gaols so that there could have been no communication between them." 27. Facts Stated By Accomplices Will Not Help Corroboration Han- nahan i>. State, 7 Te.x. App. 664. In Chambers v. State, (Tex. Crim. 'Kpp.,) 44 S. W. 495, the court says: " It makes not the slightest differ- ence how thorough the corroboration of the accomplice may be in regard to facts related by him, yet unless there is some proof, independent of his testimony, tending to connect the defendant with the commission of the crime, there is no sufficient cor- roboration." 28. Malachi v. State, 89 Ala. 134, 8 So. 104; Vaughan v. Stale, 58 Ark. 353, 24 S. W. 885 ; Williams v. State. 69 Ga. i i ; Watson r. State, 9 Tex. Crim. App. 237; State v. Clements, 82 Minn. 434, 85 N. W. 229; Chapman 7'. State. 112 Ga. 56, 37 S. E. 102 ; State v. Stevenson (Mont.), 67 Pac. looi. In Malachi v. State, 89 Ala. T34, 8 So. 104. the court said, " that the finding of an overcoat belonging to Vol. I a murdered man in the hands of the defendant inore than three months after the homicide was not sufficient evidence to convict, but it is sufficient to meet the requirements of the statute as to corroboration. It is not required that of itself it should establish the guilt of the accused : to require that would be to render the testimony of the accoinplice unneces- sary and redundant." 29. Canada. — Reg. v Fellowes, 19 U. C. Q. B. (Can.) 48. Alabama. — Malachi v. State, 89 .\la. 134, 8 So. 104. Georgia. — Chapman v. State, 112 Ga. 56, 37 S. E. 102. Io7va. — State v. Allen, 57 Iowa 431, 10 N. W. 805; State V. Hen- nessy, 55 Iowa 299, 7 N. W. 641. Minnesota. — State z'. Clements, 82 Minn. 434, 85 N. W. 229; State v. I.awlor. 28 Minn. 216, 9 N. W. 678. Missouri. — State v. Koplan, (Mo.,) 66 S. W. 967- Montana. — State v. Stevenson, I Mont.) 67 Pac. lOOi. New York.— 'Peop\e v. Elliott, 106 N. Y. 288, 12 N. E. 602; People v. Ogle. 104 N. Y. Sii. II N. E. 53: People V. Plath, 100 N. Y. 590, 3 N. E. 790; People V. Everhardt, 104 N. Y. 591. II N. E. 62; People v. rfut- Icr. 62 .^pp. Div. 508, 71 N. Y. Supp. 129. In Malachi v. State. 89 Ala. 1.34, 8 So. 104, possession, three months after a murder, of an overcoat claimed to have belonged to a mur- dered man, was relied upon as cor- roborative evidence. The court said: " Tf the only testimony against the 1 -"1 ACCOMPLICES. 105 f. As to N oil-Essential Matters. — Evidence which merely shows that the testimony of the accomplice is consistent with the truth in regard to matters not essential, and unconnected with the body of the crime, is not corroboration.^" gf. The Corpus Delicti. — The law requires corroboration as to the circumstances of the crime tending to show that a crime was actually committed.'^ defendant was the finding of the overcoat in his possession more than ihree months after the homicide, we should think it wholly insufficient to justify his conviction of the murder. That is not, however, the form in which the question comes before us. It is offered not as sole evidence of guilt, but as corroboration of the tes- timony of Elzy, the accomplice." It was therefore held that the evidence was properly submitted to the jury as corroboration. In People v. Ogle, 104 N. Y. 511, II N. E. 53, the court was asked to charge in relation to the acts neces- sary for the corroboration of an ac- complice, " that they must be incon- sistent with the innocence of the defendant, and which exclude every hypothesis but that of guilt." The court refused and counsel excepted. In this the court was clearly right. There is not and never was any such rule as to corroboration. The whole law of evidence will be searched in vain for it. The authorities cited by prisoners' counsel maintain no such rule. The rule is stated in one of them (People v. Plath, 100 N. Y. 590, 3 N. E. 790,) and is wholly dif- ferent from the request herein made. It only requires a corroboration as to some material fact which goes to prove the prisoner was connected with the crime." People v. Ardell, ("Cal.,) 66 Pac. 970; State v. Jones. anwa.~) 88 N. W. 196. 30. Must Relate to Matters Ma- terial to the Issue — Frazer v. People, 54 Barb. (N. Y.) 306; Peo- ple V. Plath, 100 N. Y. 590, 3 N. E. 790; People V. Josselyn, 39 Cal. 393; Com. V. Holmes, 127 Mass. 424, 34 -\m. Rep. 391 ; Com. z'. Bosworth, 22 Pick. (Mass.') ,397. Must Corroborate Material Matter. The court, in Com. i'. Bosworth, 22 Pick. (Mass.) 397. said: "We think the rule is. that the corroborative evidence must relate to some portion of the testimony which is material to the issue. To prove that an ac- complice had told the truth in rela- tion to irrelevant and immaterial matters which were known to every- body, would have no tendency to confirm his testimony involving the guilt of the party on trial. If this were the case, every witness, not in- competent for the want of under- standing, could always furnish mate- rials for the corroboration of his own testimony. " The inquiry of the accomplice by the defendant's counsel, whether he had been offered a reward or promised an indemnity, were rele- vant questions, and the answers to them became material evidence. We are therefore inclined to think, that the testimony in confirmation of these answers was admissible. But this can scarcely be brought withii the line ; and we are of opinion, that the testimony of the sheriff and jailer, as to the location of the rooms in the jail and the situation of the prisoners, etc., falls on the other side of the line. We cannot perceive how the circumstance that the wit- ness told the truth about these public and common objects, concerning which he knew that proof was at hand, has any tendency to confirm the material parts of his testimony, involving the guilt of the defend- ant" But in Com. v. Holmes. 127 Mass. 424, 3 N. E. 790, the opinion in Com. V. Bosworth, 22 Pick. (Mass.) 397, is criticised, and it is said thatthe evidence confirming the accomplices' answer as to reward and indemnity was not corroboration at all, but the general rule stated as to corrobora- tive evidence is not questioned. 31. Must Tend to Prove That Crime Was Committed — Marler v. State. 68 .Ma. ,=;8o and 67 Ala. 55, 42 Vol. I 106 ACCOMPLICES. h. Corroboration As to Defendant. — (1.) As to Particular Defendant. It is not sufficient corroboration to prove that the crime was com- mitted in the manner described by the accomphce, but his testimony must be corroborated as to the particular defendant. '''- Am. Rep. 95; Crowell v. Stat.', 24 Tex. App. 404, 6 S. W. 318; Cole- man V. State, 44 Tex. log; Davis v. State, 2 Tex. App. 588; State v. Calahan, 47 La. Ann. 444, 17 So. 50. Must Corroborate as to Corpus Delicti. — In Crowell v. State, 24 Tex. App. 404, 6 S. W. 318, there was no evidence proving the corpus delicti except the testimony of an accomplice. The court said : " It is only from the testimony of this ac- complice that we are informed that the animal killed by defendant was one of Carrington's cattle, and not the defendant's own property. Can such testimony support a conviction? We think not. Our view of the statute relating to accomplice testi- mony is that, where the corpus delicti of the offense is proved alone by accomplice testimony, such testi- mony must be corroborated by other evidence tending to establish the commission of the ofTense, and the defendant's connection with the commission of the same. It will not suffice to corroborate such testimony to the extent only of connecting the defendant with the commission of an act alleged to be an offense." State :;. Koplan, (Mo.), 66 S. W. 967; State V. Stevenson, (Mont.), 67 Pac. looi ; Smith v. State, (Wyo.), 67 Pac. 977. 32. Evidence to Connect Defend- ant Arkansas. — Polk v. State, 36 Ark. 117; Scott V. State, 63 Ark. 310, 38 S. W. 339- California. — People v. Cloonan. %o Cal. 449. Oregon. — State v. Odell, 8 Or. 30. Tc.rai. — Smith v. State. 27 Tex. .\pp. 196, n S. W. 113; Gillian v. State, 3 Tex. App. 132; Davis v. State, 2 Tex. App. 588; Harper v. State, II Tex. App. i; Welden v. State. 10 Tex. App. 400. Instruction as to Connectinj; De- fendant With Offense Watson v. State, 9 Tex. App. 237; Crowell v. State, 24 Tex. App. 404. 6 S. W. 318; Conway v. State, 33 Tex. Crim App 327, 26 S. W. 401 ; Beach v. Vol. I State, (.Tex. App.), 12 S. W. 868; People V. Clough, Ji Cal. 348, 15 Pac. 5 ; People v. Eckert, 16 Cal. no; State v. Odell, 8 Or. 30; Wright V. State, 43 Tex. 170; Dill v. State, i Tex. App. 278; Davis v. State, 2 Tex. -•^pp. 588; Cohea v. State, 11 Tex. App. 622; Clapp V. State, 94 Tenn. 186. 30 S. W. 214. Must Identify the Accused With the Crime. — In State v. Miller, 100 Mo. 606, 13 S. W. 832, the court said : " Corroboration should go to the e.Ktent of identifying the person of the prisoner against whom the accomplice speaks. The object of the rule which requires that the testimony in corroboration of that of the accomplice should go to the extent mentioned is that the danger may be guarded against of an accomplice relating the circum- stances of the criminal transaction truly, except that he substitutes the name of the accomplice for his own ; thus practicing a fraud upon the triers of the issues, as well as upon the prisoner." Where There Is More Than One Defendant In Dill v. State, l Tex. App. 278, where two were in- dicted and tried together, the court said : " When an accomplice speaks as to the guilt of two or more per- sons, and his testimony is confirmed as to one or more of them, and not as to all, the jury would not be au- thorized to act on his testimony alone as to the prisoner in respect of whom he is not confirmed. At the same time we do not think it would be proper for the court to instruct the jury that, if the testimony of the accomplice was confirmed as to one or more, and not to all, they should acnuit all the defendants." Connecting Defendant With One of a Series of Acts — In Com. 7'. Hayes. 140 Mass, 366, 5 N. E. 264. where a conspiracy was formed and carried out to steal goods in neigh- boring counties and carry them to Boston to be disposed of. evidence that the defendant took part in the ACCOMPLICES. 107 (2.) Must Connect Him With Crime. — It is not sufficient for this purpose merely to connect the defendant with the accomphce, or other person participating in the crime, but evidence, independent of the testimony of the accomphce, must tend to connect him with the crime itself, and not simply with its perpetrators.^^ (3.) Association With Criminals. — But the fact of being thus asso- ciated, together with other slight circumstances, thus connecting the defendant with the transaction, may afiford sufficient corrobora- tion.'* original larcenies in another county, it was held, tended to connect him with the crime committed in Boston. The transaction of stealing the goods and disposing of them in Boston was a single connected one. 33. Connecting Defendant With Particeps Criminis Not Sufficient. Fort V. State, 52 Ark. 180, 11 S. W. 959, 20 Am. St. Rep. 163 ; Smith v. Com., 13 Ky. Law 369, 17 S. W. 182; State V. Odell, 8 Or. 30; Wright v. State, 43 Tex. 170; People v. Lar- sen, (Cal.), 34 Pac. 514; State v. Mikesell, 70 Iowa 176, 30 N. W. 474. Must Tend to Show Connection of Accused With Crime Wright v. State, 43 Tex. 170, held that " the evidence must not only connect the prisoner and the accomplice together, but must show that the prisoner was engaged in the transaction which forms the subject matter of the charge under investigation." Must Corroborate Testimony of Participation in Crime — In Gillian v. State, 3 Tex. App. 132, which was a prosecution for breaking jail and re- leasing prisoners, the court said : " There is evidence going to show that the defendant was in the town that night, and that the next morn- ing he was seen a few miles beyond the town, traveling in company with one of the released prisoners. It is further in proof that he was arrested in an adjoining county in company with this same prisoner, and that, when arrested, he was passing un- der an assumed name. Tt is admitted that these may be, and are, suspicious facts, but stiil they do not corrobo- rate the material testimony of the accomplice, to wit : that the defend- ant was present at the time and place, aiding, assisting, and partici- pating in breaking open the jail and rescuing the prisoners. Wright v. State, 43 Tex. 170; Bavara v. State, 42 Tex. 263 ; Williams & Smith v. State, 42 Tex. 392; Bruton v. State, 21 Tex. 348; Rice & Dill v. State, I Tex. Cl. App. 278; Eliza Davis v. State, 2 Tex. Ct. App. 588." Insufficient Corroboration In State V. Willis, 9 Iowa 582, the ourt said : " The corroborating evidence in this case tended merely to show that an offense had been committed, and the manner and circumstances of its commission ; but had no ten- dency to connect the defendant there- with, unless it should be held suffi- cient to convict a man of burglary that he is seen drunk and in com- pany with a burglar at or near the time and place when and where a burglary is committed. However well founded a suspicion this may justly authorize, we do not think it affords the corroborating testimony contemplated by the statute." How- ard V. Com., 22 Ky. Law 1845, 61 S. W. 756; State V. McLain, 159 Mo. 340, 60 S. W. 736. 34. Association With Accom- plice a Circumstance. — State v. Russell, 90 Iowa 493, 58 N. W. 890; People v. Mayhew, 150 N. Y. 346, 44 N. E. 971 ; Looman v. State, (Tex. Grim. App.), 39 S. W. 571. In State v. Townsend, 19 Or. 213, 23 Pac. 968, where a cow was stolen, and the defendant and accomplice were seen together at the time and place where the theft occurred (it being a place unusual for the de- fendant), and defendant was intro- duced by the accomplice under an assumed name. The court referred to the case of State v. Odell. 8 Or. 30, where it was held that proof of presence in the same town was not sufficient corroboration. Vol. I 108 ACCOMPLICES. F. AlusT Moke Tiia.\ Raisk Susimcion. — The corroboraling evidence may be sufficient although by itself slight,''"' but it is not sufficient if it merely tends to raise a suspicion of guilt.'"' G. By Proof of Intention. — Proof of intention on the part of the defendant to commit the crime would sufficiently connect him with it, to corroborate the testimony of the accomplice." II. By Circumstantial Ex'iuKnce. — It is a sufficient corrobora- tion if circumstances, established by competent evidence, independ- ent of the accomplice, tend to connect the defendant with the crime. ^' I. By Proving Possession of Stolen Property. — a. IVhen 35. Slight Evidence Sufficient. People V. Ames, 39 Cal. 403 ; State v. Schlagel, 19 Iowa 169 ; State v. Maney, 54 Conn. 178, 6 Atl. 401. In People i'. Melvane, 39 Cal. 614, it is held that " the corroborating evidence ma}' be but slight, and enti- tled to but little consideration ; never- theless the requirements of the stat- ute are fulfilled if there is any cor- roborating evidence, which of itself, tends to connect the accused with the commission of the ofifense." Any Independent Evidence Is Sufficient In People v. Clough, 7i Cal. 348, 15 Pac. 5, the court said ; " If there is any independent evi- dence tending to prove said connec- tion of the defendant with the crime, the supreme court will not be justi- fied in directing an acquittal." In People v. McLean, 84 Cal. 480, 24 Pac. 32, a case of arson, an ac- complice swore that he set the fire by direction of the defendant. The corroborating circumstances were, that there was a difficulty between the defendant and the owner of the cabin concerning the land upon which it stood. They had angry interviews, and once the defendant was roughly handled by an employee of the owner's. Defendant made contra- dictory statements concerning his whereabouts on the night of the fire. There was evidence tending to show that he took measures to get the ac- complice to leave the country, arid wrote to his mother to "keep Bill out of the way for a while till the trouble blows over," although the letters did not state what the trouble was. The court held the circum- stances evidence tending to show the defendant's guilty connection with the burning, and although more is wanted by way of corroboration Vol. I than merely to raise a suspicion, yet the corroborative evidence is suffi- cient, if, of itself it tends to connect the defendant with the commission of the ofifense, although it is slight and, when standing by itself, entitled to but little consideration. 36. Mere Suspicion Not Sufficient. People v. Koening, 99 Cal. 574, 34 Pac. 263 ; People v. Smith, 98 Cal. 218, 33 Pac. 58; People :•. Plath, 100 N. Y. 590, 3 N. E. 790. In People v. Thompson, 50 Cal. 481, the court, referring to the case of People V. Ames, 39 Cal. 403, said : " We did not intend to lay down the rule that if the corroborating evi- dence sufficed to raise merely a sus- picion of the defendant's guilt and nothing more, that it would be a suf- ficient corroboration within the meaning of section IV." 37. People v. Davis, 21 Wend. (N. Y.) 309- In People v. Josselyn, 39 Cal. 393, the court holds that corroboration is not required in respect to every ma- terial fact, but only in respect to some of the material facts which constitute an element in the crime alleged ; and that an essential ele- ment in the crime is a criminal in- tent, that any testimony in addition to that of the accomplice, tending to show such intent, would be suflficient corroboration. 38. Specific Facts S-worn to by Ac- complice Need Not be Corroborated. Bonner v. State, 107 Ala. 97, 18 So. 226; State V. Thornton, 26 Iowa 70 Fort V. State, 52 Ark. 180, 11 S. W. 059, 20 Am. St. Rep. 163; Com. v. Savory. 10 Gush. (Mass.) SM\ State V. Chauvet. in Iowa 678, 83 N. W. 717. SI L. R A. 630; Malachi v. State." 89 -Ma. 13-4. 8 So. 104. ACCOMPLICES. W) SuMciciit. — The testimony of an accomplice may be corruliorated by proof of the possession of stolen property."'' b. Explanation of Possession. — But such evidence must be suffi- cient to do more than create a mere suspicion of guilt when taken in connection with all explanatory facts.*" J. Dkfend.^nt's Conduct As Coruobok.m'ion. — A defendant may himself furnish corroborating evidence of an accomplices 39. Ford v. Slate, 70 Ga. 722 ; Pritchett v. State, 92 Ga. jj, 18 S. E. 350; Com. V. Savory, 10 Cush. (Mass.) 535; Jernigan v. State, 10 Tex. App. 546; Buchanan v. State, (Tex. Grim. App.j, 24 S. W. 895: People V. Cleveland, 49 Cal. 577. Sufficient Corroboration In Peo- ple V. Grandell, 75 Cal. 301, 17 Pac. 214, where the owner missed his steer and shortly afterwards its hide and some entrails were found buried in the defendant's back yard, it was held sufficient corroboration of an ac- complice. In Roberts v. State, 80 Ga. 772, 6 S. E. 587, on an indictment for steal- ing a hog, an accomplice testified to the killing of the hog and division of the meat. On a search warrant meat, supposed to be of the lost hog. was found at the house of each of the defendants. Held, sufficient cor- roboration. Possession of Stolen Goods Suffi- cient.— Boswell V. State, 92 Ga. 581, 17 S. E. 805, held that after proof of corpus delicti, the testimony of an ac- complice is sufficiently corroborated to authorize a conviction for burg- lary by other evidence showing that two days after the burglary was com- mitted the accused was in possession of goods which were in the house when burglarized, the possession not having been satisfactorily explained. 40. Explanation of Possession. If the evidence introduced to show such possession also satisfactorily ex- plains it .so as to leave nothing but a mere suspicion of crime, it will not amount to corroboration. People v. .\h Ki, 20 Cal. 177. Naked Possession Not Sufficient for Conviction. — In Clackner v. State, 33 Ind. 412, the court held that facta much short of giving a reason- able account of how the accused came by them, will rebut the pre- sumption arising from the possession of stolen goods, and quotes with ap- proval note 183, p. 634, Cowen and Hills' Notes to Phillips on Evidence, that " the presumption arising from the possession, or other circum- stances, may of course be explained away or repelled by opposing circum- stances. The better opinion seems to be that the presumption arising from possession alone is completely re- moved by good character alone, of the prisoner. The possession may also be accompanied with circum- stances (such as unsuspicious con- duct) repelling the presumption." In Smith v. State, 58 Ind. 340, the court holds it necessary for the pros- ecutor to add the proof of other cir- cumstances indicative of guilt, in or- der to render the naked possession of the thing available toward a con- viction. Citing Curtis v. State, 6 Cold. (Tenn.) 9; State v. Brady, 27 Iowa 126; State v. Creson, 38 Mo. 372; State V. Merrick, 19 Me. 398; State V. Floyd, 15 Mo. 349; Smath- ers V. State, 46 Ind. 447 ; Turbeville 'c'. State, 42 Ind. 400. In People v. Chambers, 18 Cal. 382, the court says : " There are many cases in which an explanation would be impossible ; and in such cases to throw the burden of expla- nation upon the accused would be to slam the door of justice in his face. We think the true rule upon the sub- ject is that laid down by Greenleaf: " It is necessary," says he, " for the prosecutor to add the proof of other circumstances indicative of guilt in order to render the naked posses- sion of the thing available toward a conviction." Vol. I 110 ACCOMPLICES. testimony as by his threats;*' his contradictory or false statements.''^ K. Confessions and Admissions As Corroboration. — a. Con- fessions. — Extra judicial confessions are sufficient for corrobora- tion of the testimony of an accomplice.*" b. Admissions.- — Admissions made by a defendant which tend strongly to connect him with the crime for which he is on trial are sufficient corroboration.** III. TESTIFYING AS ORDINARY WITNESS. 1. Character Not Assumed at Outset. — Where the accomplice testifies as an ordinary witness, his character as an accomplice is 41. Threats. — Com. v. Holmes, 127 Mass. 424, 34 Am. Rep. 391. In Com, V. Chase, 147 Mass. 597, 18 N. E. 565, the prosecution relied mainly on the testimony of an ac- comphce, but there was other evi- dence of threats made by the defend- ant. While these threats, to injure and to revenge themselves, connected Wfith evidence of taunts showing malice and ill will were numerous, they were not the same as those tes- tified to by the accomplice. They were held admissible as independent evidence, having a tendency to show that defendants were the guilty parties. Citing Com. v. Goodwin, 14 Gray (Mass.) 55. Proof of motive and intent to commit a crime which there was evidence to show had been committed, would legitimately tend to strengthen the belief in the state- ment of the accomplice that they had committed it. 42. Contradictory and False Statements. -^ In U. S. v. Randall, Deady 524, 27 Fed. Cas. No. 16,118, it is held that false and contradictory statements by the defendant about the material circumstances of the crime with which he is charged are badges of guilt. People v. Conroy, 97 N. Y. 62. In Com. V. Chase, 147 Mass. 597, 18 N. E. 565, the court instructed the jury that if they believed the evidence that the defendants, at the time of their arrest, denied that the Coats boy was witli them on .Sun- day, the day of the fire, this would be a legal corroboration of the ac- complice. This ruling was made in Vol. I connection with the fact that at the trial the defendants had both testified that the Coats boy was with them on Sunday. The court said: "The circumstance that the accomplice was with the defendants on that day was of the utmost importance. If he was not, his story was necessarily false. Their original denial, showing that they were seeking to maintain by falsehood a defense to the charge made against them, bore directly on the question of their guilt, and tended to prove it. Whether the mere fact that the boy was with them on that day, if that were all, would corroborate his testimony, we need not consider. Their denial that he was there, and the subsequent proof of its falsity were facts of im- portance." 43. Extra Judicial Confessions. Patterson v. Com,, 86 Ky, 313, S S. W, 387 ; same case on second appeal, 5 S. W. 765; Snoddy v. State, 75 .Ma. 23. 44, Admissions Sufficient Corrobo- ration People V. Cleveland, 49 Cal, 577; State v. Chauvet, 11 1 Iowa 6S7, 83 N, W, 717. SI ^ R. v. 630; People V. Davis, (Cal,), 67 Pac. 59, In State v. Hennessy, 55 Iowa 299, 7 N. W, 641, the court sustained an instruction that "admissions made by the defendant to Detective Smith, and other admissions made to Mo- ran, and to the deputy sheriff, Ratlian, arc competent evidence, and if yon find that they tend to connect the defendant with the commission of the offense, then the accomplices are corroborated." ACCOMPLICES. Ill not assumed at the outset, as in the preceding class, *^ but must be established on the trial. ^° A. When a Question for the Colkt. — The proof showing that the witness is an accomplice, may be furnished by the witness himself, or it may be established by other proof, and whether he is such an accomplice will be a question for the court or jury accord- ing to the circumstances of the case. If all the facts are admitted it is for the court. ^' B. When for the Jury. — a. When it Depends on Evidence. But if it depends at all upon the evidence, the question is for the jury under proper instructions from the court.** 45. Assumed as to Precedingr Class. — Barrara v. State, 42 Tex. 260; Com. V. Desond, J Gray (Mass.) 80. 46. U. S. V. Ncverson, i Mackey (D. C.) 152; State v. Schlagel, 19 Iowa 169; People v. Curlee, 53 Cal. 604. fi 47. People v. Sternburg, 11 1 Cal. 3, 43 Pac. 198 ; Webb v. State. (Tex. Crim. App.), 60 S. W. 961; Carroll V. State, (Tex. Crim. App.), 62 S. W. 1061. Where Court May Determine. In State v. Carr, 28 Or. 389, 42 Pac. 215, the court said: "We under- stand the rule to be that where there is any conflict in the testimony as to whether a witness is or is not an accompHce, the issue must be sub- mitted to the jury under proper in- structions of the court ; but where the facts are all admitted, and no issue thereon is raised by the evi- dence, it then becomes a question of law for the court as to the effect of the uncontradicted testimony." When Is Question of law. Armstrong v. State, 33 Tex. Crim. .A.pp. 417, 26 S. W. 829. Better Practice to Leave Ques- tion to Jury — In Bell v. State, 39 Tex. Crim. App. 677, 47 S. W. loio, the court said : " It is usual with judges, where the matter of wit- ness's being an accomplice, does not appear to be controverted, to instruct the jury that such a witness is an accomplice. In our view much the better practice in all cases is to in- struct the jury what it takes to con- stitute an accomplice, and then leave them free to find whether or not such person is an accomplice." 48. When All the Tacts Not Ad- mitted a Question for the Jury. Washington v. State, 58 Ala. 3=:i;: People V. Bolanger, 71 Cal. 17, II Pac. 799; State v. Schlagel, 19 Iowa 169; Herring v. State (Tex. Crim. App.), 42 S. W. 301; Hankins v. State (Tex. Crim. App.), 47 S. W. 992; Com. V. Ford, iii Mass. 394; State V. Carr, 28 Or. 389, 42 Pac. 215; White V. State (Tex. Crim. App.), 62 S. W. 749. Slightest Evidence Hakes Ques- tion for Jury. — When it is not ad- mitted that a witness is or is not an accomplice, and there is any evi- dence on the subject however slight, it should be weighed by the jury. In such case the court should not instruct either that the witness is or is not an accomplice. Hankins V. State (Tex. Crim. App.), 47 S. W. 992 ; Ransom v. State (Tex. Crim. App.), 49 S. W. 582; Preston V. State, 40 Tex. Crim. App. 72, 48 S. W, 581 ; Bell V. State. 39 Tex. Crim. App. 677, 47 S. W. lOio; State V. Carr. 28 Or. 389. 42 Pac. 215 ; People V. Sansome, 98 Cal. 235. 33 Pac. 202; Dill V. State, I Tex. App. 278. In Rios V. State (Tex. Crim. .\pp.), 48 S. W. 505, it is said that under no circumstances would the courts be justified in assuming in the charge that a witness was an ac- complice, unless it be placed beyond cavil or question, or he an admitted fact. Should Not Instruct That Wit- ness Is Not An Accomplice Peo- ple V. Bolanger. 71 Cal. 17, II Pac. 790; People v. Curlee. 53 Cal. 604; Preston v. State. 40 Tex. Crim. App. 72, 48 S. W. 581. Vol. I 112 ACCOMPLICES. Duty of Court to Instruct. — V\ henever that question is involved in the evidence, it is the duty of the court to give the jury proper instructions as to what constitutes an accomplice/" b. What Evidence Sufficient. — To establish that a witness is an accomplice, proof beyond a reasonable doubt is not required.^" 2. What Constitutes an Accomplice. — A. Common Law Defini- tion. — The word " accomplice " means simply a participator in crime, and at common law it included all the particcps criiiiiiiis, whether principals in the first or second degree, or accessories before or after the fact.^'' B. Other Definitions. — In some jurisdictions the term " accomplice " is held to include only principals in the crime ; and in others only those equally concerned in a felony .^- C. Who Are AccoiMPLICES. — a. Intention Necessary. — Since there can be no participation in a crime either as principal or accessory without a criminal intent, without such intent a witness is not an accom]^lice so as to require corroboration."'' 49. Alabama. — Washington v. State, 58 Ala. 355. California. — People v. Bolanger, 71 Cal. 17, II Pac. 799; People v. Curlee, 53 Cal. 604; People v. Kraker, 72 Cal. 459, 14 Pac. 196; i Am. St. Rep. 65. lotva. — State v. Sclilagel, 19 Iowa 169. Massachusetts. — Com. v. Ford, iii Mass. 394; Com. v. Elliot, no Mass. 104. Oregon. ■ — State v. Can-, 28 Or. 389, 42 Pac. 215. Texas. — Bell v. Stale, 39 Tex. Crim. App. 677, 47 S. VV. lOio ; Guyer v. State (Te.x. Crim. App.), Zd S. W. 450 ; Roach v. State, 4 Tex. App. 46; Miller v. State, 4 Tex. App. 251; Ballew V. State (Tex. Crim. App.), 34 S. W. 616; Herring v. State (Tex. Crim. App.), 42 S. W. 301; Hankins v. State (Tex. Crim. .'\pp.), 47 S. W. 992. When Want of Full Definition Not Ground for Reversal. — In Crass V. State, 31 Tex. Crim. App. 312, 20 S. W. 579, it was held that where the defendant neither re- quested a spi-'cial instruction nor excepted to the charge given in rela- tion to accoinplice's testimony and the evidence left it very doubtful whether the defendant had an ac- complice, the judgment would not be reversed because the word accom- plice was not ftdly defined in the broad sense used in the article re- Vol. I kiting to accomplice's testimony. 50. Childress v. State, 86 Ala. yj, 5 So. 775 ; State v. Stnith, 102 Iowa 656, 72 N. W. 279; Com. V. Ford, III Mass. 394. 51. Russ. Crimes (9th .Am. Ed.) 49 ; 4 Blk. Com. 27 ; Johnson v. State, 2 Ind. 652 ; Hudspeth v. State, 50 Ark. 534, 9 S. W. I ; Cross v. Peo- ple, 47 111. 152, 95 Am. Dec. 474; State V. Roberts, 15 Or. 187, 13 Pac. 896. 52. People v. Smith, j8 Hun (N. Y.) 626; Harris v. State, 7 Lea (Tenn.) 124. In People zk Bolanger, 71 Cal. 17, 1 1 Pac. 799, the court holding that a feigned accomplice docs not require corroboration approves the definition of an accomplice in Whart. Crim. Ev. 440. Purchaser of Stolen Goods One who Iniys stolen cattle from the thief, knowing they were so stolen, is an accomplice. Crawford v. State (Tex. Crim. App.). 34 S. W. 927. 53. Who Are Accomplices Within Rules of Evidence Generally. United States.— V. S. v. Henry, 4 Wash. 428, 26 Fed. Cas. No. 15,351. Illinois. — Cross v. People. 47 III. 152, 95' Am. Dec. 474. lozva. — State v. Reader, 60 Iowa 527. 15 N. W. 423 ; State v. Ean, 90 Iowa 534, 58 N. W. 898. Kentucky. — Sizemore v. Com. ID Ky. Law T, 6 S. W. 123; Thompson ACCOMPLICES. 113 b. Kno't^'lcdge and Concealment. — Even knowledge or conceal- ment or both, will not make one an accomplice in the absence of criminal intent."*^ c. Independent Crime. — Unless the witness' criminal intention relates directly to the crime for which the defendant is on trial, the witness is not an accomplice, although guilty as principal or acces- sory in an independent crime of the same character.'''^ V. Com., lO Ky. Law i68, 26 S. W. 1 100. Massachusetts. — Com. v. Ford, iii Mass. 394; Com. v. Follansbee, 155 Mass. 274, 29 N. E. 471. Minnesota. — State v. Quinlan. 40 Minn. 55, 41 N. W. 299. Neiv Mexico. — Territory v. Baker, 4 N. M. 117, 13 Pac. 30. New Jersey. — State v. Goldman, 65 N. J. Law 394, 47 Atl. 641. New York. — People v. McGuire, 13s N. Y. 639, 32 N. E. 146. Texas.— Irv'm v. State, i Te.x. App. 301 ; Nourse v. State, 2 Tex. App. 304 ; Davis v. State, 2 Tex. App. 588 ; Ortis V. State, 18 Tex. App. 282; Hornsberger v. State, 19 Tex. App. 335 ; Anderson v. State, 20 Tex. App. 312; Hines v. State, 27 Tex. App. 104, 10 S. W. 448; Riley v. State, 27 Tex. App. 606, 11 S. W. 642; Aldrich i'. State. 29 Tex. Apo. 394, 16 S. W. 251 ; Johnson v. State, (Tex. Crim. App.). 24 S. W. 285. Duress. — U. S. v. Henry, 4 Wash. 428, 26 Fed. Cas. No. 15,351; Beal i'. State, 72 Ga. 200; Smith v. State, 108 Ala. I, 19 So. 306. 54 Am. St. Rep. 140; Burnes v. State, 89 Ga. 527, 15 S. E. 748- In Mullinix v. State (Tex. Crim. App.), 26 S. W. 504, the defendant forced his daughter to have crim- inal intercourse with him. On his trial for incest it was held that she was not an accomplice so as to re- quire her testimony to be corrobora- ted. But in cases where the act is voluntary on both sides the female is held to be an accomplice. State V. Jarvis, 18 Or. 360, 23 Pac. 251 ; Blanchette v. State, 29 Tex. App. 46, T4 S. W. 392 ; Dodson v. State, 24 Tex. App. 514. 6 S. W. 548; Mer- cer V. State, 17 Tex. App. 452 ; Free- man V. State, II Tex. App. 92, 40 Am. Rep. 787 ; Caesar i>. State (Tex. Crim. App.), 29 S. W. ySe,; Ratliff V. State (Tex. Crim. App.). 60 S \V. 000; Soloniau v. State, 113 Ga. 182, 38 S. E. 332. One Acting Under Compulsion. In People v. .Miller, 66 Cal. 468, 6 Pac. 99, a thirteen year old boy, who took part in the commission of a felony under threats and coercion of another, was held not to be an accomplice and his testimony was held sufficient to sustain a conviction without corroboration. 54. Arkansas. — Melton v. State, 43 Ark. 367; Green v. State, 51 Ark. 1 8 J, 10 S. W. 266. Georgia. — Lowery v. State, 72 Ga. 649; Allen V. State, 74 Ga. 769. Nezu York. — People v. Ricker, 51 Hun 643, 4 N. Y. Supp. 70; People V. McGonegal, 62 Hun 622, 17 N. Y. Supp. 147. People ;■. Mc- Gonegal, 136 N. Y. 62, 32 N. E. 616. Oregon. — State v. Roberts, 15 Or. 187, 13 Pac. 896. Tennessee. — Harris r. State, 7 Lea 124. Texas. — Rhodes v. State. 1 1 Tex. App. 563 ; Norton v. State (Tex. App.), 12 S. W. 407; Clumney v. State, 28 Tex. App. 87, 12 S. W. 491 ; McKenzie v. State (Tex. Crim. App.), 32 S. W. 543; Noftsinger v. State, 7 Tex. App. 301 ; Rucker v. State, 7 Tex. Apn. 549; Smith v. State, 23 Tex. App. '357. 5 S. W. 219, 59 Am. Rep. 773 ; Elizando v. State, 31 Te.x. Crim. App. 237, 20 S. W. 560; .\lford V. State, 31 Tex. Crim. App. 299, 20 S. W. 553. 55. What Are Independent Crimes Generally — England. — Rex V. Hargrave, 5 Car. & P. 170, 24 Eng. C. L. 260; Alabama. — Ash v. State, 81 Ala. 76, I So. 558; Bass V. State, 37 Ala. 469; Smith V. State, 37 Ala. 472; Bird V. State, 36 Ala. 279. Georgia. — Roberts r. State, 55 Ga. 220. loxca. — State ■:■. Hayden, 45 Iowa II. Vol. I 114 ACCOMPLICES. d. Participation in Moral Offenses Only. — It is not sufficient to show that the witness has participated in the moral offense imputed to the defendant, but, to constitute him an accomplice, it is necessary to show such participation in the crime imputed to the defendant, that he might himself be charged, either as principal or accessory."^" New York. — People v. Cook, 5 Park. Crim. 351 ; People v. Dunn, 53 Hun 381, 6 N. Y. Supp. 805. Oregon. — State v. Light, 17 Or. 358, 21 Pac. 132. Texas. — Crutclifield v. State, 7 Tex. App. 65'; Peeler v. State, 3 Tex. App. 533; Stone V. State, 3 Tex. Apo. 675. Betting at Gaines — In Dandron V. State, 33 Ala. 350; Bird v. State, 36 Ala. 278 and State v. Light, 17 Or. 358, 21 Pac. 132, it is held that a participant in a game of cards is an accomplice of his adversary. In Smith v. State, 37 Ala. 472, and Bass V. State, 37 Ala. 469, it is held that spectators present and occasion- ally taking a hand to help out un- skillful players, but not interested in the bets are not accomplices. Escape of Prisoners Ash v. State, 81 Ala. 76, I So. 558; Hillian V. State, 50 Ark. 523, 8 S. W. 834; People V. Dunn, 53 Hun 381, 6 N. Y. Supp. 805. In Peeler v. State, 3 Tex. App. 533. which was an indictment for conveying tools into the jail to enable prisoners to escape, a witness, who was a prisoner in the jail at the time of the alleged offense, was held not to be an accomplice. Guilty Receipt of Stolen Property. Roberts ■;•. State, 55 Ga. 220 ; People V. Cook, =; Park. Crim. ( N. Y.) 351; Crutchficld V. State. 7 Tex. App. 65. Receiving Stolen Goods In State 7'. Haydcn, 45 Iowa U, the principal witness on the part of the state tes- tified that defendant confessed the crime to him, and that after such confession he received from the de- fendant some of the stolen property and concealed it. On the trial for burglary the court instructed that " the mere fact that Mowry received the stolen property, knowing the same to have been stolen did not make him an accomplice." This in- struction was held to be correct. In Harris v. State, 7 Lea (Tenn.) 12a, two witnesses testified that on the evening of the robbery for which the defendant was on trial, he pro- posed to them to commit the rob- bery, and they refused and supposed he was in jest, but that night he re- turned and said he had robbed the man and got $2=;o, and that sub- sequently he gave to each of the wit- nesses thirty dollars. Held that they were not accomplices. State v. Jones (Iowa), 88 N. W. 196. Perjury and Subornation of Per- jury — In U. S. V. Thompson, 31 f"ed. 331, the defendant was indicted for procuring the witness to commit perjury in taking an oath to support an application for land under the timber culture act. It was held that the person solicited to commit per- jury, and who did commit perjury under solicitation, is not an accom- plice so as to require his testimony to be corroborated in order to con- vict the defendant of subornation of perjury. In People z'. Evans, 40 N. Y. I, which was a prosecution for subor- nation of perjury, the witness who committed the perjury was held to be an accomplice and corroboration was held necessary. In Blakely v. State, 24 Tex. App. 616, 7 S. W. 233, 5 Am. St. Rep. 912, where the evidence to prove the accused an accessory was the tes- timony of two witnesses who claimed to have been induced by him to swear falsely to prevent the arrest and trial of the principal. It was held that such witnesses were accom- plices. 5G. Miscarriage, Woman Taking Means For In the following cases it is held that the woman taking means for, or submitting to an op- eration in order to procure a mis- carriage, is not an accomplice al- though partaking of the moral guilt, because she could not herself be in- Vol. I ACCOMPLICES. 115 e. Accessories After the Fact. — At common law accessories ifter the fact were accomplices. In some of the states such accesso- ries are held to be accomplices, and in others not.^' 3. Admission to Testify. — A. Not Discretionary With Court. The doctrine that the admission of an accomplice to testify on behalf of the state, is in the discretion of the court, and confined to cases where there is an express or implied promise of immunity from punishment.^* B. At Discretion of Party Calling. — The accomplice may be used as an ordinary witness either for the state, or for the defense.^' 4. Corroboration. — A. When Called by Defendant. — Where the accomplice is a witness for the defendant his testimony does not require corroboration unless the conviction of another defendant is based upon it."" dieted for the offense. Com. v. Wood, II Gray (Mass.) 8$; Com. v. Boynton, ii6 Mass. 343; Com, v. Follansbee, 155 Mass. 274, 29 N. E. 471; State V. Owens, 22 Minn. 238; Dunn V. People, 29 N. Y. 523, 86 Am. Dec. 319; People v. Vedder, 98 N. Y. 630; State v. Hyer, 39 N. J. Law 598; Watson v. State, 9 Tex. App. 237; Com. V. Brown, 121 Mass. 69. 57. Held to be Accomplices In the following cases accessories after the fact are held to be accomplices. Polk V. State, 36 Ark. 117; Hunni- cutt V. State, 18 Te.x. App. 498, 51 Am. Rep. 330. In Chumby v. State, .^8 Te.x. App. 87, 12 S. W. 491, a witness for the state testified that he was employed by the owner of an animal to look after and water it ; that he found it in defendant's possession ; that de- fendant told him he intended to ap- propriate it ; that the owner offered a reward for the return of the animal ; and that witness did not in- form him that defendant had the animal until, a year afterward, when having been arrested for another theft, he made terms with the state to turn informer. Held that the tes- timony of the witness must be treated as accomplice testimony. Held Not Accomplices The fol- lowing cases hold that accessories after the fact are not accomplices. Lowery v. State. 72 Ga. 649 : State ■'. Walker. 98 Mo. 95. 9 S. W. 646, II S. W. 1133; McKenzie v. State, 24 Ark. 636. In People v. Chadwick, 7 Utah 134, 25 Pac. 737, it is held tliat ac- cessories after the fact are not ac- complices, but this is by virtue of the statute of Utah. In State v. Umble, 115 Mo. 452, 22 S. W. 378, it is held that an acces- sory after the fact is not an accom- plice whose testimony needs corro- boration. 58. To be Treated as Any Other Witness In Territory v. Corbett, 3 Mont. 50, an accomplice in a case of incestuous cohabitation was called and examined as an ordinary witness. One of the grounds on motion for a new trial was error in allowing the accomplice to testify until the district attorney had complied with the com- mon law usage of asking permission of the court to dismiss the charge against her, and the privilege of in- troducing her. The court held that she was to be treated as any other witness save that her credibility may lie affected by the fact that she is charged with the same offense as the person against whom she testifies. 59. Territory v. Corbett, 3 Mont. .SO. 60. Josef V. State, 34 Tex. Crim. App. 446, 30 S. W. 1067; People v. O'Brien, 96 Cal. 171, 31 Pac. 45; Peo- ple V. Bonney, 98 Cal. 278. 33 Pac. In U. S. V. Sykes, 58 Fed. 1000, which was a case for removing un- stamped whiskey, a witness intro- Vol. I 116 ACCOMPLICES. duced by defendant confessed him- whiskey, and that his father did self to be a confederate in the crime. not know that the whiskey had been The witness testified that his father put in unstamped casks. The court (the defendant) had given him in- he.d that his testimony ought to be structions to purchase tax paid corroborated. Vol. I ACCORD AND SATISFACTION. . By Edgar W. Camp. I. WHERE RELIED ON AS A DEFENSE, 117 1. Under IVIiat Pleas Evidence of Is Admissible, 117 2. Burden of Proof, 118 3. Necessity of Proving Satisfaction As Well As Accord, 119 4. What Evidence Admissible , 120 A. Generally, 120 B. In Cases of Liquidated Demands, 120 C. In Cases of Unliquidated Demands . 123 D. Written Agreements, 126 E. Lapse of Time, 126 F. Discontinuance, 126 G. Receipt in Full, 127 5. Rebutting Evidence Of, 127 6. Variance, 127 7. Sufficiency and Submission to Jury, 127 II. ACTIONS TO SET ASIDE, 128 CROSS-REFERENCES. Compromise and Settlement; Receipt and Release. 1. WHERE RELIED ON AS A DEFENSE. 1. Under What Pleas Evidence of Is Admissible. — Under what pleas evidence of accord and satisfaction is admissible is rather a question of pleading. At common law such evidence was admitted under the general issue in assumpsit,^ in case,^ in debt on simple 1. Chitty PI., vol. I, p. 513; Phil- 372; Stewart v. Saybrook, Wright lips' Ev., vol. Ill, p. 131; Burge v. (Oh'o) .374- , , ^ rv t, - D. 1 £ /T J X - D . 2. Ch my P ., vo . I, p. 527; Phil- Dishman, 5 Blackf. (Ind.) 272; Bank ,jp^, ^^^ ^^j Jjj^ ^ '^^^j- £'^„^ ^ V. Kimberlands, 16 W. Va. 555; Applegate, i Stark. 97, 18 Rev. Rep. i. happell V. Phillips, Wright (Ohio) 750. Vol. I 118 ACCORD AND SATISFACTION. contract," but not in debt on a specialty,' in covenant,"' nor in tres- pass vi et armis.'^ It is not admissible under a plea of payment.' Generally under codes of procedure and practice acts, proof of accord and satisfaction is admissible only when specially pleaded." 2. Burden of Proof. — The defendant has the burden of proof .'■• But if the plaintiit admits the truth of the plea and seeks to avoid it for fraud or otherwise, the burden is on him,^" and when the 3. Chitty PI., vol. I, p. 517; Page V. Prentice, 7 Blackf. (Ind.) 322. 4. Chitty PI., vol. I, pp. 518 and 520, distinguishing however between cases where the specialty is only in- ducement, matter of fact the founda- tion, and those in whom the specialty itself is the foundation. In the former, as in debt for rent due on indenture of lease, accord and satis- faction could be proved under the general issue, in the latter not. Where in an action on a specialty the defendant pleads "nil debit" he may prove accord and satisfaction, but not where his plea is " non est factum." Bailey v. Cowles, 86 111. 333; Phillips' Ev., vol. Ill, p. 148. 5. Chitty PL, vol. I, p. 523; Saunders PI. & Ev., vol. I, p. 23. 6. Chitty PI., vol. I, p. 545 ; Phil- lips V. Kelly, 29 Ala. 628 ; Kenyon v. Sutherland, 8 111. (3 Gilm.) 99; Longstreet v. Ketcham, I N. J. Law J70; Doe V. Lee, 4 Taunt. 459; Bird V. Randall, 3 Burr. 1345'. 7. Hamilton v. Coons, 5 Dana (Ky.) 317; Wallace v. Chandler, 16 Ark. 651 ; Smith v. Elrod, 122 Ala. 269, 24 So. 994; Friermuth v. McKee, 86 Mo. App. 64. Tlie Contrary was suggested in bank V. Kimberlands, 16 W. Va. 555, and in Ligon v. Dunn, 6 Ired. Law (N. C.) 133, facts which might under a different system of pleading have sustained a plea of accord and satisfaction were admitted to prove payment. 8. Ingram v. Hilton. & D. L. Co., 108 Ga. 194, 33 S. E. 961 ; Coles V. Soulsby, 21 Cal. 47; Parker v. Lowell, II Gray (Mass.) 353; Covell V. Carpenter (R. I.), 51 Atl. 425; Randall v. Brodhead, 60 App. Div. 567, 70 N. Y. Supp. 43 ; Brown v. Jones. 17 U. C. Q. B. (Can.) 50. Waiver by Failure to Object — But Vol. I in some cases it has been held that if evidence of accord and satisfaction offered under a plea that would not admit such evidence, is let in with- out objection, this shows that the alleged accord and satisfaction is treated as an issue in the case, and the objection will be deemed to have been waived, and the case treated as though the evidence had been ad- mitted under a proper pleading. Berdell v. Bissell, 6 Colo. 162, Niggli V. Foehry, 64 N. Y. St. 658, 31 N. Y. Supp. 931. In Vermont, evidence of accord and satisfaction is admissible under the general issue, provided defend- ant gives notice of intention to prove the special matter of defense. Sca- ver V. Wilder, 68 Vt. 423, 35 Atl. 351- 9. Rosenfeld v. New, 32 N. Y. St. 301, ID N. Y. Supp. 232; Simmons V. Oullahan, 75 Cal. 508, 17 Pac. 543; McDavitt V. AIcNay, 78 111. App. 396; Board v. Durnell, (Colo. Ct. App.), 66 Pac. 1073; Noe v. Christie, 51 N. Y. 270; Johnson v. Collins, 20 Ala. 435; Oilwell Supply Co. v. Wolfe, 127 Mo. 616, 30 S. W. 145. To Prove Payment of Notes Given. If it appears that notes were to be accepted in satisfaction only when paid, the defendant has the burden of showing payment. Dolson v. Ar- nold, ID How. Pr. 528; Dickenson v. Burr, 7 Ark. (7 Eng.) ?\; American V. Rimpart, 75 111. 228; Board of Corn's of La Plata County v. Dur- nell, (Colo.), 66 Pac. 1073; Weldon V. Voughan. 5 S. C. R. (Can.) 35. On burden of proof, generally see that Title. 10. Helling v. United Order of Honor, 29 Mo. App. 309. See infra, action brought to set aside accord and satisfaction. Haist v. Grand Trunk R. R. Co.. 22 A. R. (Ont.) 504- ACCORD AND SATISFACTION. 119 plaintift' in making out his own case shows that an accord was made, he has the burden of showing that there was no satisfaction." 3. Necessity of Proving Satisfaction As Well As Accord. — It is necessary to prove the satisfaction as well as the accord. '- Evidence of readiness to perform,'^ or of tender of performance !!• A suit was brought on prom- issory notes, which had memoranda endorsed, showing a compromise set- tlement at fifty per cent., and pay- ments made on the compromise. The plaintiff offered these notes in evidence. The plaintiff' claimed that there had been a default in the per- formance of the compromise, which gave them the right to sue upon the notes, but did not explain wnat the terms were that had not been com- plied with, or what the default was, or that they had not assented to the delay. It was held that the plaintiffs were bound to go far enough to make out a prima facie case against the accord which their own evidence disclosed. Browning v. Crouse, 43 Mich. 489, 5 N. W. 664. 12. Canada. — Thomas v. Mallory, 6 U. C. Q. B. 521 ; Balsam v. Robin- son, 19 U. C. C. p. 263 ; Macfarlane V. Ryan, 24 U. C. Q. B. 474. United States.— Way v. Russell, 33 Fed. s- Alabama. — Cobb v. Malone, 86 Ala. 571, 6 So. 6; Smith v. Elrod, 122 Ala. 269, 24 So. 994. California. — Simmons v. Oullahan, 75 Cal. 508, 17 Pac. 543; Hogan v. Burns, (Cal.), 33 Pac. 631; Holton V. Noble, 83 Cal. 7, 23 Pac. 58. Connecticut. — Francis v. beming, 59 Conn. 108, 21 Atl. 1006. Florida. — Sanford v. Abrams, 24 Fla. 181, 2 So. 372- Illinois. — Jacobs v. Marks, 183 111. 533, 56 N. E. I54- Indiana. — Anderson v. Scholey 114 Ind. 553, 17 N. E. 125; Eichholtz v. Taylor, 88 Ind. 38. lotva. — Ogilvie v. Hallam, 58 Iowa 714, 12 N. W. 730: Bradley v. Palen. 78 Iowa 126, 42 N. W. 623. Maine. — Burgess v. Denison, 79 Me. 266, 9 Atl. 726. Massachusetts. — Hermann v. Or- .cutt, 152 Mass. 405, 25 N. E. 735; Dooley v. Potter, 146 Mass. 148, 15 N. E. 499. Missouri. — Goff v. Mulholland, 28 Mo. ,^97. New York. — Mitchell v. Hawley, 4 Denio 414, 47 Am. Dec. 260; Bank V. DeGrauw, 23 Wend. 342, 35 Am. Dec. 569. Pennsylvania. — Hosier v. Hursh, 151 Pa. St. 415, 25 Atl. 52. Rhode Island. — Clarke v. Haw- kins, 5' R. I. 219. Utah. — Whitney v. Richards 17 Utah 226, 53 Pac. 1122. I'ennont. — Rising v. Cummings, 47 Vt. 347. IVasliington. — Rogers v. Spokane, 9 Wash. 168, 37 Pac. 300. In Burgess v. Denison, etc. Co., 79 Me. 266, 9 Atl. 726, the plaintiff had a claim for labor. Defendants con- tended that plaintiff had agreed to take a deed in satisfaction. It ap- peared that defendants obtained the deed from the grantor, but had not delivered it, expecting plaintiff to call for it. It was held that this was insufficient to establish the de- fense of accord and satisfaction ; that nothing short of the actual de- livery of the deed would suffice. Martin Alexander Lumber Co. v. Johnson (Ark.), 66 S. W. 921; Ar- nett V. Smith, (N. D.), 88 N. \, . 1037- 13. Hearn v. Kiehl, 38 Pa. St. 147, 80 Am. Dec. 472; Blackburn v. Ormsby, 41 Pa. St. 97. Attempt to Perform. — Francis v. Deming, 59 Conn, 108, 21 Atl. 1006. The defendant showed an agreement to compromise on payment of cer- tain money and the delivery of a release, and that he went to the office of the plaintiff's attorney ready to pay the money and deliver the release, but that the attorney was sick at home, and that afterwards and after the present suit was brought the money had been actually tendered to the attorney. It was held that the answer setting up these facts stated no defense, although the proceeding was in equity. The court held the rule in equity to be the same in that instance as at law. Berdew v. Tillma. (Neb.). 88 N. W. Vol. I 120 ACCORD AND SATISFACTION. of tlie terms of the accord, will not suffice.''' 4. What Evidence Admissible. — A. Gener.\lly. — To determine generally what is admissible to sustain or defeat a plea of accord and satisfaction, recourse must be had to the general rules of rele- vancy and competency.'^ I!. In Cases uF LiguiUAXEo Demanus. — But certain facts are so often relied on as to require mention. In most jurisdictions mere pajment of part of a liquidated demand can never be shown to prove an accord and satisfaction,'" yet payment at an earlier time," 123; Ross V. Heron, u U. C. Q. B. (.Can.) 467. 14. New York. — Noe v. Christie, SI N. Y. 270; Day v. Roth, 18 N. Y. 448; Bank v. DeGrauw, 23 Wend. 342, 35 Am. Dec. 569. Pennsylvania. — Hosier v. Hursh, 151 Pa. St. 415, 25 Atl. 52. Rhode Island. — Clarke v. Haw- kins, 5 R. I. 219. South Dakota. — Carpenter v. Chi- cago Co., 7 S. D. 584, 64 N. W. 1 120. Texas. — Bank v. Curtis, (Tex.), 36 S. W. 911. Contra. — Bradshaw v. Davis, 12 Tex. 336. 15. Illustration The fact of a debtor's insolvency is not evidence of consideration for agreement to accept in full payment of part of a debt. Pearson v. Thomason, 15 Ala. 700, 50 Am. Dec. 159. And compare Bryant v. Gale, 5 Vt. 416; Coit V. Houston, 3 Johns. Cas. 243. 16. United States. — Fire Ins. .Ass's. V. Wickham, 141 U. S. 564, 12 Sup. Ct. 84. Arkansas. — Reynolds v. Reynolds, 55' Ark, 369, 18 S. W. 377- Illinois. — Hayes v. Massachusetts Co., 125 111. 626, 18 N. E. 322. Indiana. — Miller v. Eldridge, 126 Ind. 461, 27 N. E. 132. Kansas. — St. Louis & Ry. Co. v Davis, 35 Kan. 464, 11 Pac. 421. Michigan. — Leeson v. Anderson, 99 Mich. 247, q8 N. W. 72, 41 .\m. St, Rep. 597, Missouri. — Wetmore v. Crouch, 150 Mo. 671, 51 S. W. 738. Nebraska. — Mcintosh v. Johnson, 51 Neb, 33, 70 N. W. 522. Ne7v Jersey. — Murphy v. Kastner, 50 N. J, Eq, 214. 24 Atl. 564. Neit' York. — Allison t , Abendroth. 108 N. Y, 470, IS N, E, 606; Evers 7', Osthcrman, 37 Misc. 163, 74 N. Vol, I V. Supp, 874; Eames tk B. Co. v. Prosser, 157 N. Y. 289, 50 N. E. 980. Pennsylvania. — Com. v. Cummins, 15s Pa. St. 30, 2S Atl. 996. Te.ras. — Bowdon v. Robinson, 4 Tex. Civ. App. 626, 23 S. W. 816. Vermont. — Bowker v. Harris, 30 Vt, 424. / irginia. — Smith v. Chilton, 84 Va. 840, S. E. 142. The Rule Is Modified or Abrogated by Statute in Alabama (itv Hodges V. Implement Co. (Ala.) 26 So. 490) ; California isee Dobinson v. Mc- Donald, 92 Cal. 33, 27 Pac. 1098) ; Georgia, Maine, North Carolina {see Kerr v. Sanders, 122 N. C. 635, 29 S. E. 943) ; Tennessee and Virginia; Holmes v. McDonnell, 12 U. C. Q. B. (Can.) 469. 17. Hutton V. Stoddart, 83 Ind. 539; Boyd v. Moats, 75 Iowa 151, 39 N. W. 237 ; Schweider v. Lang, 29 Minn. 254, 13 N. W. 33; Miller v. Bldg. Ass'n, 50 Pa. St. 32 ; Kirchoff V. Voss, 67 Tex. 320, 3 S, W. S48. Prepayment of Loss Under Policy of Insurance — In the case of Fire Insurance Association v. Wickham, 141 U. S. 564, 12 Sup. Ct. 84, an insurance company paid a part of the amount due on a policy five days after the loss, which was fifty- five days before any money was due under the terms of the policy. The court admitted that payment might be evidence of an accord and satis- faction, but that the question was a proper one for the jury to pass upon after having submitted to them all the facts and circumstances of the payment ; that the mere fact of pre- payment would not conclusively show an accord and satisfaction. Martin Alexander Lumber Co. v. Johnson (Ark.), 66 S. W. 924. ACCORD AND SATISFACTION. 121 01" at a different place than that specified in the contract/" or by transfer of property other than money/" or by giving new security/" 18, Pope V. Tunsiall, 2 Ark. 20g; Fenwick v. Phillips, 3 Mete. (Ky.) ^7; McKenzie v. Culbrelli, 66 N. C. 534; Smith V. Brown, 12 N. C. 580. In Jaffray v. Davis, 124 N. Y. 164, 26 N. E. 351, it is said m argument that payment of less than the whole debt made at a different place from that stipulated may be shown to prove accord and satisfaction if re- ceived in full, citing Jones v. Bullitt, 2 Litt. (Ky.) 49; Ricketts v. Hall, 2 Bush. (Ky.) 249; Smith v. Brown, 3 Hawks (N. C.) 580; Jones v. Perkins, 29 Miss. 139, 64 Am. Dec. 136; Schweider v. Lang, 29 Minn. 254, 13 N. W. 33, 43 Am. Rep. 202. 19. Gavin v. Annan, 2 Cal. 494; Savage v. Everwan, 70 Pa. St. 315, ID Am. Rep. 676; VVatkinson v. Ingoldsby, 5 Johns. (N. Y.) 386; Hasted v. Dodge (Iowa), 35' N. W. 462; Ridlon V. Davis, 51 Vt. 457; Christie v. Craige, 20 Pa. St. 430. Value or Character of Considera- tion Not Material In Traphagen v. Vorhees, 44 N. J. Eq. 21, 12 Atl. 895, the court said if the testatrix gave the receipt that was offered in ac- ceptance of accord and satisfaction under a promise to the defendant that the services theretofore rendered and those which he should there- after render should be considered as an equivalent for the mortgage - debt, and on her death operate to discharge the debt, there could be no doubt that her promise had the support of a sufficient consideration to give it legal efficiency, that as to the adequacy or sufficiency of the ■consideration, the testatrix had a right to be her own judge ; that a purely technical consideration of very trifling value in comparison with the amount of the debt, would be held sufficient where there was no undue influence, imposition or fraud. In Thurber v. Sprague, 17 R. I. 634. 24 Atl. 48, a father, as trustee for his son, had invested certain moneys, and the son after coming of age, demanded the moneys, and the father said that he had made it up to his son many times over; that if the son was not satisfied and wanted the money, $500, he should take it and go, but that if he remained with the father, the father did not wish to hear of it again. The son made no reply, but continued to live with his father and received money and support until the latter's death. It was held that this established an ac- cord and satisfaction, the son hav- ing understood that by continuing to receive support, he waived his claim to the money. In Neal v. Handley, 116 111. 418, 6 N. E. 45, 56 Am. Rep. 764, evidence was given that $100 and a cow were taken in satisfaction of a judgment. It was apparent that $100 and the value of the cow amounted to less than the judgment. The court held that the doctrine that payment of a less sum cannot be pleaded in satis- faction of a larger sum was confined to the payment of money merely, and quoted Pinnel's case, 30 Coke 238, as follows : " It was resolved by the whole court that payment of a lesser sum on the debt in satisfac- tion of a greater, cannot be any sat- isfaction for the whole, because it appears to the judges that by no pos- sibility a lesser sum can be a satis- faction to the plaintifif for a greater sum, but the gift of a horse, hawk or robe, etc., in satisfaction is good, for it shall be that a horse, hawk or robe, etc., might be more beneficial to the plaintifif than the money in respect of some circumstances, or otherwise the plaintifif would not have accepted of it in satisfaction." 20, Schmidt v. Ludwig, 26 Minn. 85, I N. W. 803. Compare Kem- mercr's Appeal. 102 Pa. 558. Giving Security for Part of the Debt — Tm Jafifray v. Davis, 124 N. Y. 164, 26 N. E. 351, the court cites I-ePage v. AlcCrea, i Wend. 164; Boyd V. Hitchcock, 20 Johns. 76, 11 Am. Dec. 247, on the proposition that giving further security, though for a less sum than the debt, and accept- ance of it in full of all demands make a valid accord and satisfaction, and that if a debtor gives his cred- itor a note indorsed by a third party for a less sum than the debt, no matter how much less, but in full Vol. I 122 ACCORD AND SATISFACTION. or even in some cases new evidence of debt may be shown to estab- lish accord and satisfaction,-' and a compromise between an insolvent and his creditors may be given in evidence by him to show accord and satisfaction. -- satisfaction of the debt, and which is received as such, that is a good ac- cord and satisfaction, citing also Varney v. Conery, yy Me. 527, i Atl. 683; Stewart v. Hanson, 7 U. C. C. P. (Can.) 168; Hanscombe v. Mac- donald, 4 U. C. C. P. (Can.) 190. Agreement to Pay Delinquent Taxes on Mortgaged Premises In Day V. Gardner, 42 N. J. Eq. 199, 7 Atl. 365, it appeared that one Rollins had two mortgages against the de- fendant bearing 7 per cent, interest ; that there were some five years' back taxes unpaid on the mortgaged premises, and that Rollins made an agreement with the defendant that if the latter would pay up the ta.xes the mortgaged debt would be re- duced from $900 to $500, and the rate of interest from 7 to 6 per cent, per annum. Debtor performed her part of the agreement. It was held that the payment of the taxes remov- ing liens prior to the mortgage gave the mortgagee additional or better security, and was a substantial bene- fit, and that therefore the facts could be given in evidence of an accord and satisfaction. Agreement Made Under Mistake As to Party's Liability In Allison V. Abendroth, 108 N. Y. 470, ic N. E. 606, defendant was at the time of the compromise believed to be a special partner, and not liable to the plaintifTs ; that under that im- pression he gave, and the plaintiffs accepted his notes in satisfaction of a claim against the partnership. The notes were for 2$ per cent, of the claim, and were afterwards paid. It was held that these facts established an accord and satisfaction. The fact that the settlement was made under a misapprehension as to the liability of the defendant made no difference ; that had the defendant been a gen- eral partner, the acceptance of the notes under the same agreement would have been satisfaction. 21. Allison V. Abendroth. 10 . N. Y. 470, 15 N. E. 606; Mason v. Wickersham, 4 W. and S. (Pa.) Vol. I 100; Booth V. Smith, 3 Wend. 66. Compare Hooker v. Hyde, 61 Wis. 204, 21 N. W. 52. Thomas v. Mal- lory, 6 U. C. Q. B. (Can.) 521; Clark V. Ring, 13 U. C. Q. B. (Can.) 185. In JafTray v. Davis, 124 N. Y. 164, 26 N. E. 351, the facts were that de- fendants owed plaintiffs about $7700, and delivered their (defendants') notes amounting to about $3400, se- cured by a chattel mortgage, which notes and mortgage were received by plaintiffs under an agreement to accept them in full satisfaction of the indebtedness. The notes were paid, and these facts were submitted as establishing an accord and satis- faction. The court cited Goddard v. O'Brien, 9 Q. B., Div. 37, to the effect that A. being indebted to B. in £125, gave B. a check (presump- tively negotiable) for £100, payable on demand, which B. accepted in satisfaction, and it was held by the English court that it was a good sat- isfaction ; Huddleston B. approving the opinion in Sibree v. Tripp, 15 M. & W. 26, that a negotiable se- curity may operate, if so given and taken, in satisfaction of a debt of a greater amount. The circumstance of negotiability making it a different _ thing, more advantageous than the original debt, which was not negotia- ble. Loonier v. Marker, 11 U. C. Q. B. (Can.) 16. 22. Pontious v. Durflinger, 59 Ind. 27; Murray v. Snow, 37 Iowa 410- Steinman v. Magnus. 11 East 390. Compare Allen v . Roosevelt, 14 Wend. 100; Wheeler v. Wheeler, IT Vt. 60. In Paddleford v. Thacher, 48 Vt. 574, it was stated to be the rule, after a consideration of the English authorities, that an agreement by all of one's creditors to forbear or dis- charge, is a sufficient consideration to support the promise of each to do so, and especially after the agree- ment has been fully executed by the payment by the debtor of the stipu- lated siun as a discharge by the ACCORD AND SATISFACTION. 123 C. In Casks of UNLKjLiDATiiD Demands. — Conditional Offer. Where the sum due is unliquidated or disputed, and ihe debtor tenders a sum with notice that it is tendered in full payment and satisfaction of the demand, and the creditor takes the proffered sum; these facts establish an accord and satisfaction even though the creditor asserts and at the receipt of the payment asserted that he did not accept the same in full but only on account.'-^ But the offer must be expressly made upon condition that it be accepted in full.^* Any suggestion of further negotiation permits the creditor creditors of their debts. Brunskiil v. Metcalfe, 2 U. C. C. P. (Can.) 431. Not Necessary That Agreement Include All the Creditors — In Laird V. Campbell, 92 Pa. 470, an agree- ment was entered into reading, " We the undersigned, creditors of Wil- liam W. Laird." It was insisted that this meant all the creditors, and that the agreement not having been executed by all, was not bind- ing upon any. The court held that an agreement for composition be- tween a debtor and his creditors was good, although all the creditors were not included, and that if it was in- tended not to be binding unless all the creditors did come in, the agree- ment should so state in e.xpress terms. 23. United States. — tire Ins. v. ■ Wickham. 141 U. S. 564. 12 Sup. Ct. 84; Savage v. U. S. 92 U. S. 382. Connectieut. — Potter v. Douglass, 44 Conn. 541. Indiana. — Talbott v. English, 156 Ind. 299, 59 N. E. 857; Hutton v. Stodard, 83 Ind. 539. loica. — Keck v. Ins. Co., 89 Iowa 200, 56 N. W. 438; Brick v. County of Plymouth, 63 Iowa 462, 19 N. W. 304. Michigan. — Tanner v. Miller, 108 Mich. s8, 65 N. W. 664, 62 Am. St. Rep. 687. Minnesota. — Truax v. Miller, 48 Minn. 62, 50 N. W. 935 ; Marion v. Heimbach, 62 Minn. 214. 64 N. W. 386. Nebraska. — Treat v. Price, 47 Neb. 875', 66 N. W. 834. Neiv York. — King v. Dorman, 26 Misc. 133. .SS N. Y. SuDp. 876; Rey- nolds V. Empire L. Co., 66 N. Y. St. 712, 33 N, Y. Supp. Ill; Hills v. Sommer, 25 N. Y. St. 1003, 6 N. Y. Supp. 469; Logan V Davidson 18 App. Div. 353. 45 N. Y. Supp. 961 ; Nassoiy v. Tomlinson, 148 N. Y. 326, 42 N. E. 715. 51 Am. St. Rep. 695; Looby V. West Troy, 24 Hun 78; Davenport v. Wheeler, 7 Cow. 231; tames V. B. Co. v. Prosser, 157 N. Y. 289, 51 N. E. 986; Cleveland v. Toby, 36 Misc. 319, 73 N. Y. Supp. 544- Vermont. — Preston v. Grant, 34 Vt. 201 ; McDaniels v. Bank, 29 Vt. 230, 70 Am. Dec. 406. Contra. — Perin v. Cathcart (Iowa), 89 N. W. 12. Leaving Thing Offered With Third Person To Be Delivered In the case of McDaniels v. Lapham, 21 Vt. 222, the court approved the case of McGIynn v. Billings, 16 Vt. 329, and stated that case as follows : Plaintiff and defendant met for the purpose of making a settlement, and having examined their accounts, they disagreed as to the balance due to the plaintiff from the defendant. The defendant then drew an order in favor of the plaintiff upon a third person for the sum he admitted to be due, and offered it to the plaintiff as his balance due. The plaintiff re- fused to receive the order, and claimed a larger sum as being the amount the defendant owed him. The defendant then gave the order to one H, who was present, and directed H to deliver the order to plaintiff when he would receive it, as the balance due to him. Plaintiff subsequently took the order from H, but at the same time declared that he did not receive it in full, and brought suit to recover the balance. The court held that the acceptance of the order operated as a full dis- charge of all claims, although he ex- pressly declared he did not so re- ceive it. 24. Payment Construed in Light of Preceding Negotiations In the Vol. I 124 ACCORD AND SATISFACTION. case of Sauford v. Abrams, 24 Fla. 18, 2 So. i/i, there was considerable correspondence over a disputed ac- count. Finally planitiff submitted a proposition, that defendant should pay $2000 and receipt certain bills. Defendant offered $2000, and plaint- iff telegraphed, " Deposit $2000 with A and all right." This money was deposited and was accepted, but the plaintilf' claimed that he did not un- derstand that it was in full of all de- mands. The court said that receipt and acceptance of the money was only referable to the object and pur- pose of the negotiation, viz., a set- tlement in full. Where Claims Are Made Against Municipal Corporations, and allowed for a less sum than that demanded, the acceptance of the sum allowed is evidence of an accord and satisfac- tion; thus in Brick v. Co. of Ply- mouth, 63 Iowa 462, 19 N. W. 304, a claim was made against a county for $907. The supervisors allowed the sum of $318, rejecting the balance. The amount was paid to the plaintiff who received it and knew that the balance had been rejected. It was held that he could not maintain suit for the balance. The payment of a part allowed was to be considered satisfaction for the entire sum, the court referring to and approving Wapello Co. v. Sinnaman, i Greene 413. See also Advertiser and Tribune Co, v. Detroit, 43 Mich. 116, 5 N. W. 72; Perry v. Cheboy- gan, 55 Mich. 25D, 21 N. W. 333 ; People V. Supervisors, 43 N. Y. St. 77, 17 N. Y. Supp. 314. Plaintiff Must Be Informed That Allowance Made Is in Full. — If he does not know this when he accepts payment of smaller amount he may still sue the municipalit- for the bal- ance. Board v. Durnell, (Colo. .\pp.), 66 Pac. 1073. Agreement With County Proved by Oral Testimony. — Where no rec- ord of it appears on the minutes of the County Board, and plaintiff ac- cepted the sum agreed upon. Green V. Lancaster Co., 61 Neb. 473, 8s N. W. 430. Estoppel to Deny Kegularity of Action of County — One who ac- cepts a sum paid by a county in compromise of a claim cannot be permitted to prove that the meeting Vol. I al which the compromise was made was not regularly held. Green v. Lancaster Co., 61 Neb. 473, 85 N. W. 439. This Rule As to Claims Against Municipalities Not Applicable to liquidated demands. Pease v. Com. Council, 126 Mich. 436, 85 N. W. 10S2. In Fuller v. Kemp, 138 N. Y. 231, 33 N. E. 1034, plaintiff sent an item- ized bill for $675. Defendant wrote acknowledging receipt, saying that there must be some mistake, asking lor a corrected bill. Plaintiff sent an itemized bill for the same amount. Defendant wrote inclosing check for $400, stating that the same was in full satisfaction ; that he trusted that plaintiff would view the matter as he did. Plaintiff cashed the check, and again sent his bill, showing a credit of $400. Defendant wrote calling attention to the condition on which he had forwarded the check ; that he did not recognize plaintiff's right to retain the amount, and repudiate the condition; asking for receipt in full, or return of the money. To this the plaintiff made no reply. The court said that had the defendant remained silent, it might have been presumed that he assented to the use which plaintiff had made of the check, and would have become bound to pay the balance. It would seem, however, that such demand is only necessary where it' appears that the creditor did not un- derstand that the offer was condi- tioned on its acceptance in full. Towslee V. Healey, 39 Vt. 522; Pot- ter V. Douglass, 44 Conn. 541 ; Nas- soiy V. Tomlinson, 48 N. Y. St. 182, 20 N. Y. Supp. 384; Miller v. Holden, 18 Vt, 337; Talbott v. En- glish, 156 Ind. 299, 59 N. E. 857; Curraii v. Rummel, 118 Mass. 482; Talbott V. English, 156 Ind. 299, 59 N. E. 857; Graham v. Howell, SO Ga. 203 ; Gassett v. Andover, 21 Vt. 342; Brigham v. Dana, 29 Vt. i; Fulton V. Monona Co., 47 Iowa 622; Tanner v. Merrill. 108 Mich. s8, 65 N. W. 664. Knowledge of the Condition of the Offer To Be Shown It must appear that the creditor knows or ought to have known that the offer was so conditioned. Board v. Our- ACCORD AND SATISFACTION. 125 to credit the amount offered on account and sue for the balance claimed bv him.-^ nell (.Colo. App.;, 66 Pac. 1073; Talbott V. English, 156 Ind. 299, 59 N. E. 857; Preston v. Grant, 34 Vt. 201 ; Springfield, etc., Ry. Co. v. Al- len, 46 Ark. 217; Bull v. Bull, 43 Conn. 455; Hilliard v. Noyes, 58 N. H. 312." In Donohue v. Woodbury, 6 Cush. (Mass.) 148, 52 Am. Dec. 777, the evidence for defendant was that the attorney for the defendant made a tender to the attorney for the plaint- iflf of a certain sum " as and for the claim of plaintiff against defendant," and that plaintiff's attorney took the money and made no reply. The at- torney for the plaintiff said he had not heard the words quoted, nor any equivalent words. Chief Justice Shaw said : " It was the duty of the agent before receiving the money to know what was said and what was the purpose expressed, and if the words were so spoken that with ordinary care he might have heard them, and through carelessness or inattention he failed to do so, the acceptance was binding as an assent to its terms." In the case of Gassett v. Andover, 21 Vt. 342, after the suit had been begun, the defendant tendered $14 in full. Plaintiff received it, protesting that it was not enough, but that he would take it and give credit. It did not appear that the defendant expressed any dissent to this, and it was suggested that it might there- fore be inferred that defendant as- sented to its acceptance in part pay- ment, and not in full. 25. Fuller v. Kemp, 16 N. Y. Supp. 158; this principle was not controverted, but a diffei . nt in- terpretation of the correspondence was taken on the appeal of this case. See 138 N. Y. 231, 33 N. E. 1034; Bratt V. Scott, 44 N. Y. St. 727, 18 N. Y. Supp. 507. Illustrations. — In Pottlitzer v. Wesson, Ind. App., 35 N. E. 1030, the defendant sent a check by letter saying that it was in settlement for a certain car of goods, enclosing also an invoice showing account of sales and saynig : " We trust the same will prove satisfactory, and to hear from you again." The plaintiffs at once wrote that they had placed the amount of the check to defendant's credit, and had placed in the hands of a collecting agency, their claim for the balance. The defendant never replied to this letter. The court held that the letter and invoice sent with the check did not amount to an unconditional offer to be ac- cepted in full, or not at all, and referred to the case of Curran v. Rummell, 118 Mass. 482, where a check sent " in settlement of your account," was regarded as not amounting to an unconditional offer, so that the creditor was not bound to treat it other than as a part pay- ment by the debtor to be applied in reduction of the debt only, and dis- tinguished the case of Hutton v. Stoddart, 83 Ind. 539, where the let- ter containing the check expressly required that it be returned, if not accepted in full. In Van Dyke v. Wilder, 66 Vt. 579, 29 Atl, 1016, there was a dis- puted account between the parties, and the defendants wrote enclosing a check and saying : " We claim this to be in full settlement of ac- count, but admit that you do not allow the claim." The plaintiff re- tained the check, but it was held the facts were not evidence of an accord and satisfaction. There was no declaration in the defendant's letter that if the plaintiff retained the check it must be in full satisfaction. In Boston Rubber Co. v. Peerless Wringer Co., 58 Vt. 551, 5 Atl. 407, there was a disputed account between the parties, and the defendant sent a statement with a note for the ad- mitted balance, the statement closing with the following: "Trusting you will find this correct and satisfac- tory, we remain, etc." It was held that this did not indicate an un- equivocal requirement that the note be accepted in full or not at all. There was no condition that if ac- cepted it should be in satisfaction. Vol. I 126 ACCORD AND SATISFACTION. When one having a single cause of action for unhquidated dam- ages demands and receives a certain sum, there is a presumption that the demand and payment were made in accord and satisfaction of the entire cause of action."" D. Written Agreements. — If the agreement of accord and satisfaction was in writing, the writing must be produced or its absence explained.'' But when the agreement itself was not in writ- ing, but was consummated by the execution and delivery of a writ- ten obligation, such writing need not be produced or accounted for in proving the plea.°* E. Lapse of Time. — Lapse of time before commencement of action is a circumstance corroborating other evidence of accord and satisfaction.^" F. Discontinuance. — A discontinuance or dismissal of a for- mer action for the same- cause of action on payment of costs by defendant, is prima facie evidence in the second action of an accord and satisfaction.'"' Piishcck V. Francis E. Willard U. T. H. Ass'n., 94 111. App. 192; Dougherty v. Herndon (Tex.), 65 S. W. 891 ; Green v. Lancaster Co., 61 Neb. 473, 85 N. W. 439- 26. H inkle v. Minneapolis, etc. Ry. Co., 31 Minn. 434, 18 N. W. 275. Hinkle liad been injured by defend- ant's negligence and made a demand for $91.25, covering doctor's bill and loss of time, and this amount was paid. The court said that it was to lie presumed that plaintiflf knew when he received this money, that he had received the injury now com- plained of, and that although there was no e.xpress agreement that the money should he paid in full satis- faction, yet that was the inference to he drawn from the facts ; that the cause of action being one and en- tire, no other construction could be put upon the acts of the parties. Lane v. Kingsmill, 6 U. C. Q. B. (Can.) 579. 27. American 7'. Rimpert, 75 111. 228. 28. In A. P. Brantley Co. v. Lee, 106 Ga. 313, 32 S. E. loi, Lee testi- fied that defendants had executed their notes and delivered them to the plaintiff in satisfaction of the demands sued upon. It was held upon the authority of Fisher v. George S. Jones Co., 93 Ga. 717, 21 S. E. 152, that this parol evidence Vol. I was competent without producing or accounting for the notes. But in the same case it was held error to per- mit a witness to say that notes for a certain amount — naming it — were given in satisfaction because this tes- timony went into the contents of the notes, but it was suggested that probably the error was harmless. Compare American v. Rimpert, 75 111. 228. 29. Ketchem v. Gulick (N. J. Eq.), 20 Atl. 487; Abbott v. Wilmot, 22 Vt. 437. Lapse of Time Alone does not sus- tain the plea of accord and satisfac- tion. Austin V. Moore, 7 Mete. (Mass.) 116; but sec, Jenkins v. Hopkins, 9 Pick. 543. 30. Dana v. Taylor, 150 Mass. 25, 22 N. E. 65. Williams was ap- pointed assignee of Taylor, and as such brought an action on the same cause of action set out in the present case. In the former action on peti- tion of the plaintiff, leave had been granted by the court to compromise, the defendant paying costs, and it appeared that he had paid the costs. It was held that if he paid the costs under the agreement that in con- sideration of such payment the as- signee would give up the right to claim, and not again sue upon it ; that would be sufficient proof of ac- cord and satisfaction. But see Car- ACCORD AND SATISFACTION. 127 G. RiiCEU'X ii\ Full. — A receipt in full supports the plea.^' 5. Rebutting Evidence Of. — Plaintiff may rebut defendant's evi- dence of an accord and satisfaction with evidence that the compro- mise was obtained by mistake or fraud. '*- 6. Variance. • — Defendant will not be permitted to prove an accord and satisfaction other than that pleaded.^-' 7. Sufficiency and Submission to Jury. — Only a preponderance of evidence is required to sustain the plea.^* If the evidence is not conflicting and only one inference can reasonably be drawn from it, the question is of law and not for the jury.'° Otherwise the inference of fact is to be drawn by the ter V. Wilson, 2 Dev. & B, (.N- C.) 276, and Bond v. McNider, 3 Ired. Law (N. C.) 440- 31. Grumley z/. Webb, 48 Mo. 562 ; Serat v. Smith, 40 N. Y. St. 45, 15 N. Y. S. 330; Treat v. Price, 47 Neb. 87s, 66 N. W. 834; Robinson v. Ry. Co., 84 iMich. 658, 48 N. W. 205 ; Vedder v. Vedder, i Denio 257 ; Springfield, etc. Ry. Co. v. Allen, 46 Ark. 217; U. S. V. Adams, 7 Wall. 463. "The Receipt Must Be Interpreted and Construed From Existing Facts, and in the light of surrounding cir- cumstances." Crumley v. Webb, 44 Mo. 444, 100 Am. Dec. 304. And Is Open to Explanation Maze V. Miller, i Wash. 328, 16 Fed. Gas. No. 9362; Fire Ins. Ass'n. V. Wickham, 141 U. S. 564, 12 Sup. Ct. 84; see Tanner v. Merrill, 108 Mich. 58, 62 Am. St. Rep. 687, 65 N. W. 664; Bull V. Bull, 43 Conn. 455. Refusal to Give Receipt may be evidence that there was no accord and satisfaction. Rosenfeld v. New, 32 N. Y. St. 301, 10 N. Y. Supp. 232; Sicotte V. Barber, 83 Wis. 431, 53 N. W. 697. But compare Keck v. Ins. Co., 89 Iowa 200, 56 N. W. 438; Nassoiy v. Tomlinson, 148 N. Y. 326, 42 N. E. 715, 51 Am. St. Rep. 695 ; Potter v. Douglass, 44 Conn. 541. 32. Bliss V. Ry. Co., 160 Mass. 447, 36 N. E. 65, 39 Am, St. Rep. 504; O'Donnell v. Town of Clinton, 145 Mass. 461, 14 N. E. 747; Pierce V. Drake, 15 Johns. 475; Oliwill v. Verdenhalven, 39 N. Y. St. 200, 15 N. Y. Supp. 94; Leslie v. Keepers, 68 Wis. 123, 31 N. W. 486, 4 Pac. 221 ; Mannakee v. McCloshey, 23 Ky. Law 515, 63 S. W. 482; Haar v. Henley, 18 U. C. Q. B. (.Can.) 494; Rowe V. Grand Trunk R. R. Co., 16 U. C. C. P. (Can.) 500. Contra. — Roach v. Gilmer, 3 Utah 389, 4 Pac. 221. 33. In Smith v. Elrod, 122 Ala. 269, 24 So. 994, the defendant pleaded an accord and satisfaction made by a transfer of a sawmill and equip- ment, but the proof showed that the defendant also promised to deliver certain shingles and perform certain other acts. It was held that although the proof was sufficient to show an accord and satisfaction had the same been properly pleaded, yet the vari- ance was fatal. 34. Bruce v. Bruce, 4 Dana 53°; Cheeves v. Danielly, 74 Qd.. 712. 35. Truax v. Miller, 48 Minn. 62, 50 N. W. 935 ; Hinkle v. Minneapo- lis & St. L. Ry. Co., 31 Minn. 434, 18 N. W. 275; Hills V. Sommer, 53 Hun 392, 6 N. Y. Supp. 469. In Pennsylvania, however, the rule is broadly stated thus : " Whether a note or bond was ac- cepted in satisfaction of the original claim is matter for the jury, and it is error for the court to decide it as matter of law." Jones v. Johnston, 3 Watts & S. 276, 38 f\m. Dec. 760; Lees V. James, 10 Serg. & R. 307; Wallace v. Fairman, 4 Watts 379; Hart V. Boiler, 15 Serg. & R. 162, 16 Am. Dec. 536; Stone v. Miller, 16 Pa. St. 450. Where Evidence Is AH Documen- tary — In the case of Sanford v. Abrams, 24 Fla. 181, 2 So. 373, the negotiations were all in writing, and it was held that upon the evidence, Vol. I 128 ACCORD AND SATISFACTION. jury.' 11. ACTIONS TO SET ASIDE. In an action to set aside an accord and satisfaction, the burden is heavily on the plaintiff to establish the fraud or mistake alleged f and generally he must prove repayment or tender of anything received by him under the compromise.^* the court should have determined whether what passed between the parties was an accord and satisfac- tion, and not have submitted the matter to the jury. Blackley v. McCabe, i6 Ont. App. (.Can.) 295'. 36. Brenner v. Herr, 8 Pa. St. lo6; Frick v. Algeier, 87 Ind. 255. It is not necessary, in order to make a question for the jury, that there be a conflict of evidence ; if the facts are undisputed, but yet reason- able, men might diflfcr in the infer- ences to be drawn from them, the question is for the jury. Rosenfeld V. New, 32 N. Y. St. 301, 10 N. Y. Supp. 232 ; Hills V. Sommer, 25 N. Y. St. 1003, 6 N. Y. Supp. 469; Mortlock V. Williams, 76 Mich. 568, 43 N. W. 592; Perin v. Cathcart, (Iowa), 89 N. W. 12; Port Darling- ton Harbor Co. v. Squair, 18 U. C. Q. B. (Can.) 533; Greenwood v. Foley. 22 U. C. C. P. (Can.) 352; Vol. I Weldon v. Vaughan, 5 S. C. R. (Can.) 35. Contra. — Haist v. Grand Trunk R. R. Co., 22 A. R. (Ont.) 504- 37. Currey v. Lawler, 29 W. Va. Ill, II S. E. 897; Helling v. United Order, 29 Mo. App. 309; Ball v. McGeoch, 81 Wis. 160, 51 N. W. 443- 38. Bensen v. Perry, 17 Hun 16; Alexander v. R. R. Co., 54 Mo. App. 66; Potter v. Ins. Co., 63 Me. 440; Bisbee v. Ham, 47 Me. 543 ; Strod- der V. Southern G. Co., 94 Ga. 626, 19 S. E. 1022. Except Where Right to Sum Re- ceived Is Undisputed Leslie v. Keepers, 68 Wis. 123, 31 N. W. 486; Leeson v. Anderson, 99 Mich. 247, 58 N. W. 72, 41 Am. St. Rep. 597. Or Recipient Supposed it Paid on Another Account Butler v. Rich- mond T. D. R. Co., 88 Ga. S94. 15' S. E. 668. ACCOUNTANTS.— See Expert Testimony. ACCOUNTS, ACCOUNTING AND ACCOUNTS STATED. By Edgar W. Camp. I. ACTIONS FOR ACCOUNTING UNDER CODES OF PRO- CEDURE, 132 I. Generally, 132 II. ACTIONS IN EQUITY FOR ACCOUNTING, 132 1. Before Interlocutory Decree for Accounting, 132 A. Generally, 132 a. Evidence Coniined to Right to Such Decree, 132 b. Evidence Must Folloiv the Bill, 134 B. Where Bill Alleges That no Accounting Has Been Had, 135 a. Burden of Proof, 135 b. Evidence on Plea of an Accounting, 136 C. Where Bill Is to Open a Settled Account, and for an Accounting, 137 a. Evidence Must Prove SpeciHc Allegations of Bill, 137 b. Burden of Proof, 137 c. Sufficiency of Evidence, 137 (i.) Generally, 137 (2.) When Decree Will Be Refused Although Error Is Shown, 138 d. Leave to Surcharge and Falsify, 138 2. After Interlocutory Decree, 139 A. Reference to Master, 139 a. Necessity of Reference, 139 b. Regulation of Proceedings Before Master, 140 (i.) Generally, 140 (2.) By Order of Reference, 141 (3.) By Rules of Court, 141 9 Vol. I 130 ACCOUNTS, ACCOUNTING B. Subniittiiii^ Stafcinciits of Account. 142 a. Generally, 142 b. Form of Statements, 142 C. Examination of Party Accounting, 143 D. Anszver As Evidence, 144 E. Burden of Proof, 144 F. Production of J'ouchers in Discharge, 145 a. Generally. 145 b. When Not Required, 145 (i.) Charge and Credit Simultaneous, 145 (2.) Credit Appearing in Book Offered by Oppo- site Party, 146 (2-) When Vouchers Are Lost, 146 (4.) For Small Items, 146 G. Where Evidence Not Sufficient to Enable Master to State Account. 146 H. On Leave to Surcharge and Falsify, 147 a. Scope of Inquiry, 147 b. Burden of Proof, 147 1. Objections to Evidence, 147 J. Recommitting to Master, 148 K. Restatement Without Recojinnitincnt, 148 L. Matters Arising After Master's Report and Before Final. Hearing. 148 III. COMMON LAW ACTION FOR AN ACCOUNTING, 149 1. Before Verdict Quod Computet, 149 2. After J'crdicf in Proceedings Before Auditors. 150 IV. ACTIONS ON ACCOUNT, 151 1. Generally, 151 2. Book Debt, 151 A. Testimony of Parties. 151 B. Burden of Proof, 152 C. Use of Account Books, 152 D. Other Means of Proof, 152 3. Actions on Verified Account, 153 A. Verified Statement Must Folloi<.' the Statute, 153 B. Effect As Evidence of Verified Statement, 153 C. Defendant's Counter- Affidavit, 154 D. Otlicr Means of Proof. 155 Vol. I . AND ACCOUNTS STATED. 131 4. Other Actions on Open Aceount. 153 A. Filing or Serzing Statement of Account. 155 B. Testimony of Parties, 156 C. Method of Proiing Plaintiff's C(wc, 157 a. By Aceount Books, 157 b; By Shozving an Account Stated, 157 c. By Prozing Admissions, 157 d. Otherzvise, 158 D. Rccoz'ery for Amount Proz'cd, 158 E. Variance, 158 V. ACCOUNTS STATED, 158 I. Full or Regular Proof, 158 A. Of Previous Dealings, 158 B. Rendering or Subniissioji of Account, 160 a. Necessary to Be Shozvn, 160 b. U'hat Is a Sufficient, 160 c. Does Not Make an Account Stated. 162 C. Assent of Parties to the Account, 162 a. Necessary to Be Shozvn. 162 b. By Agents, 163 c. Express Assent, 164 (i.) Hozv Shozvn, 164 (2.) When Must Have Been Given, 165 (3.) Unqualified and of Precise Sum, 166 d. Implied Assent, 167 ( I.) Bank Books and Pass Books, 167 (2.) Accounts Rendered and Not Objected To. 168 (A.) To What Accounts Applicable, 170 (B.) No Implication in Absence of Previous Dealings, 171 (C.) Extent of Implied Assent, 172 (D.) Rebutting Implied Assent, 172 (E.) Burden of Proof, 173 (F.) Reasonable Time to Object, 173 (G.) Failure to Object Prima Facie Evi- dence Only, 174 (H.) Explanation or Excuse of Failure, 175 (a.) Payment and Demand As Evidence of Assent, 177 e. Promise to Pay. 178 Vol. I 132 ACCOUNTS, ACCOUNTING ■ 2. Special Modes of Proof, 178 A. Promissory Notes, 178 B. Bills of Bxchange, 1 79 C. Due Bills, 179 D. Sealed Instruments, 180 E. Awards and ludgmcnts, 180 ' . F. Admissions of Indebtedness, 180 G. Verified Statements, 181 3. Rebutting Evidence of Account Stated, 181 4. Burden of Proof to Establish, 181 5. Effect of Account Stated As Evidence, 182 6. Showing fraud. Mistake or Illegality in Account Stated, 182 7. Variance, 184 8. Presumption As to What Included in Account Stated, 184 CROSS-REFEKENCES. Books of Account ; Contribution ; Equity ; Executors and Administrators ; Factors ; Guardian and Ward ; Partnership ; Principal and Agent ; Principal and Surety ; Receivers ; Reference ; Trusts and Trustees ; Waste. I. ACTIONS FOR ACCOUNTING UNDER CODES OF PROCEDURE. 1. Generally. — The law of evidence in actions for accounting brought under codes of procedure is the same that governs in actions for accounting in equity. Cases from states having codes or practice acts will be cited under the head of " Actions in Equity for Accounting." II. ACTIONS IN EQUITY FOR ACCOUNTING. 1. Before Interlocutory Decree for Accounting. — A. Generally. a. Evidence Confined to Right to Such Decree. — On the hearing the evidence is confined to proving or disproving plaintiff's right to an accounting.^ 1. Hudson V. Trenton, 16 N. J. Pr. (6th Am. Ed.) pp. 856, 857; Eq. 475; Walker v. Woodward, I Law v. Hunter, i Riiss. lOO; Hornby Russ. 107 ; Graham v. Golding, 7 i'. Hunter, i Russ. 89. How. Pr. (N. Y.) 260; Morrison v. Whole Subject Shown to Court. Horrocks, 40 Hun 428; 2 Dan. Ch. "Each party has a right to bring Vol. I AND ACCOUNTS STATED. 133 The plaintiff's right to an accounting must be established before the court can refer the case for the purpose of taking the account. - Thus it may be shown that there are mutual demands,^ or long or before the court, as fully as his in- terests may require, the whole sub- ject upon which the decree for an account is to be founded. The cir- cumstance that the court, in practice, acts through the master, cannot alter the case, and the mere fact that the evidence might be lost, is a strong reason for admitting it." Tomlin v. Tomlin, I Hare 236. In Standish v. Babcock, 48 N. J. Eq. 386, 22 Atl. 734, 30 L. R. A. 604, the account consisted of but few iten\s, and they had all been fully and satisfactorily proved apparently without objection on the hearing; with the exception of a single item. The court held that a reference was therefore unnecessary ; that on the original hearing the only evidence generally material or competent is such as goes to prove or disprove the right to an account; that evidence respecting all items of the account is in strictness inadmissible at that stage, but that under the circum- stances of that case, the court could decide by the same decree that com- plainant was entitled to an account and also the amount that he was entitled to recover. 2. Beale v. Hall, 97 Va. 383, 34 S. E. 53 ; Lee Co. Justices '■. Fulkerson, 21 Gratt. (Va.) 182. But see Ridenbaugh v. Burnes, 14 Fed. 93. Evidence Must Show Probable Right.— "To lay the foundation for the interlocutory decree the facts as to the account must be put in issue and there must be some evidence to show the facts probable and the equity proper. A reference will not be made on mere speculation that tes- timony may be adduced before the master. It is an established rule that testiinony in chief be taken be- fore reference is made." Planters Bank v. Stockman. I Freem. Ch. (Miss.) 502; McLoskey v. Gordon, 26 ^liss. 260. In Baltimore etc. Co. v. Williams, 94 Va. 422, 26 S. E. 841, the answer fully denied the allegations of the bill relating to the right to an ac- counting, and apparently there was no evidence adduced on the hearing establishing the right to an account- ing. The court said that the prayer for an account should not have been granted ; that a reference should not be awarded to enable a plaintiff to make out his case nor until it has been ascertained that he has a right to demand it, and quoted as follows froin Barton's Ch. Pr., Vol. 2, p. 630 ; " The settled rule in respect to orders of reference is that before an ap- plication for one shall be granted it must appear with reasonable certainty that an order will be necessary, and it will not be made upon the sug- gestion that in some contingency one will be required; for it will not do to put the defendant to the trouble and expense of rendering an account until it is ascertained that the plaint- iff has a right to demand it, nor will a reference be inade for the purpose of furnishing evidence in support of the allegations of the bill." Error to Order Without Proof. In Sadler v. Whitehurst, 83 Va. 46, I S. E. 410, the bill was de- murred to. The demurrer was over- ruled and without giving an oppor- tunity to the defendant to answer the court ordered an accounting as prayed for in the bill. The court of appeals held that the making of this order was error; that a court of equity cannot decree an accounting for the purpose of furnishing evi- dence in support of a bill ; that the court had repeatedly decided that an account should not be allowed in any case, unless shown to be proper and necessary by the proceedings and proofs in the cause. 3. Padwick v. Hurst, 18 Beav. 575 ; Phillips v. Phillips, 9 Hare 471 ; Avery v. Ware, 58 Ala. 475; Carter V. Bailey, 64 Me. 458, 18 Am. Rep. 273; Garner v. Reis, 25 Minn. 475; Walker v. Cheever, 35 N. H. 339; Porter v. Spencer, 2 Johns. Ch. 169. Vol. I 134 ACCOUNTS, ACCOUNTING complicated accounts/ or a tiduciary relation between the parties.' b. Ei'idcncc Must Folloz^< the Bill. — The evidence must not only make out a case for an accounting, but the case stated in the bill." If the bill is for an account as to particular matters, and plaintiff fails to make a case for accounting as to them, or some of them, he cannot proceed under a general allegation of voluminous and intricate accounts existing between the parties where such allegation has been inserted as a mere prete.xt to make a case of equity juris- diction.' 4. Crown Coal & Tow Co. v. Thomas, 177 111. 534, 52 N. E. 1042; Padwick v. Hurst, 18 Beav. 575; 3 Pom. Eq. § 1421. Whether Mere Fact of Com- plicated Accounts Enough. — But see note in Pomeroy as to present English practice, and see Mar- vin V. Brooks, 94 N. Y. 71, and Uhhnann v. Ins. Co., log N. Y. 660, 17 N. E. 363, holding that the mere fact of complicated accounts is not sufficient to make a case for accounting in equity. At the utmost it is discretionary with a court of equity to decree an accounting in such a case. Railway Co. v. Martin. 2 Phill. 758; Phillips V. Phillips, 9 Hare 471 ; Bliss v. Smith. 34 Beav. S08. It is sufficient if it appear that the trial of any one of the issues will involve the examination of a long account. Whitaker v. Desfosse, 7 Bosw. (N. Y.) 678, although the determination of some other issue may render it unnecessary to trj' the first named issue at all. Batchelor v. Albany Ins. Co., 6 Abb. Pr. (N. S.) (N. Y.) 240. 5. Garr v. Redman, 6 Cal. 574, 578; Davis V. Davis, i Del. Ch. 256; Coquillard v. Suydam, 8 Blackf. (Ind.) 24; Rippe v. Stogdell, 61 Wis. 38, 20 N. W. 645. 6. Crothers v. Lee, 29 Ala. 337 ; McAndrew v. Walsh, 31 N. J. Eq. 331; Adams v. Gaubert, 69 111. 585; Weeks v. Hoyt, 5 Hun 347 ; Salter v. Ham, 31 N. Y. 321. Accounting Limited by Pleadings. In Welch r. .\rncU (N. J.), 20 .\tl. 48, the hill asked for an account- ing for certain lumber sawed at the plaintiff's mills. The chancellor or- dered an accounting for certain other lumber as well. The court of errors Vol. I and appeals said that this demand was so distinct from an account of transactions mentioned in the bill, und was to be supported on grounds so dissimilar, that the complainants ought to have presented it in clear and distinct form ; that the order on that point was not fairly within the issue raised in the pleadings, and to that e.xtent the order should be mod- ified. In .Manning v. .Manning, 69 N. Y. St. 744, 35 N. Y. Supp. 3^^, the only cause of action alleged was that the plaintiff had deposited with the defendant money for investment and speculation on her account, and the defendant had made large profits therefrom, for which he refused to account. The evidence showed that the plaintiff had made no such depos- its, but that defendant, the plaintiff's husband, a stock-broker, had opened an account in her name, intending to make a gift of the income and profits to the plaintiff. It was held that even if this made it a cause of ac- tion, it was not the cause of action set up in the complaint, and was no ground for a decree for an account- ing. In Arnold v. Angell, 62 N. Y. 5'o8, a bill for a partnership ac- counting, the court found that th.' partnership was not established: but that plaintiffs had a joint interest with the defendant in certain profits and were entitled to an accounting therefor. The court of appeals held that the order for an accounting was error because made upon a matter not within the pleadings. 7. Darthez v. Clemens, 6 Beav. 165 ; Consequa v. Fanning, 3 Johns. Ch. 587 ; Moore v. Swanton Co., 60 Vt. 459, 15 .^tl. 114; .\rnold t'. .•Xn- gell, 38 N' Y. Super. 27; Mitchell v. AND ACCOUNTS STATED. 135 B. Where Bill Alleges That No AccountiiNC Has Been Hah. a. Burden of Proof. ■ — The burden is on the complainant to estab- lish his right to an accounting,* and of explaining delay in bringing his suit." But if defendant pleads an accounting, or other affirma- tive plea, he assumes the burden of proof.'" 0"Neale, 4 Nev. 504 ; Ridenbaugh v. Biirnes, 14 Fed. 93. But Objection Must Be Made. But if the evidence disclcses a case for relief not inconsistent with the object and scope of the bill, and is allowed to go in without objection, although not within the specific al- legations of the bill, such evidence may be given effect in entering the decree. Moore v. Swanton Co., 60 Vt. 459, 15 Atl. 114. Expanding Scope of Accounting. If the bill make a case for account it is not proper to refuse to con- sider evidence which discloses other facts in addition to those charged, when the facts disclosed strengthen claim made and merely expand the measure of accounting. Penn v. Fogler, 182 111. 76, 55 N. E. 192; Solomons v. Ruppert, 34 App. Div. 230, 54 N. Y. Supp. 729. General Allegation Not Proved. And if the plaintiff prove the specific facts alleged in his bill, he is entitled to an accounting although the bill may contain a general allegation such as the existence of a partnership not sustained by the evidence. Coward v. Clanton, 122 Cal. 451, 55 Pac. 147. On Bill Against Administrator. If on a bill against an administra- tor or executor for an accounting, settlement and examination of the accounts of another estate ought to be made, an examination may be called for as a part of the general case. Dillard v. Ellington. 57 Ga. 567, 582. 8. Graham Paper Co. v. Pem- broke, 124 Cal. 117, 5'6 Pac. 627, 71 Am. St. Rep. 26. 44 L. R. A. 632; Farrington v. Harrison (N. J.), 15 Atl. 8; Fidelity Title & Trust Co. V. Weitzel, 152 Pa. St. 498, 25 Atl. 569; Beale v. Hall, 97 Va. 383, 34 S. E. 53, which holds further that a reference should not be ordered for an account for the purpose of estab- lishing plaintiff's right to an ac- counting ; citing Lee Co. Justices v. Fulkerson, 21 Gratt. (Va.) 182, and Packet Co. r. Williams, 94 Va. 422, 26 S. E. 841. 9. Sheldon v. Sheldon, 133 N. Y. I. 30 N. E. 730, was an action brought about 1890 for an account- ing in a transaction that took place in 1864. The court said that the claim was no doubt what is known to the courts as a stale demand ; that such demands were looked upon with some suspicion ; that a claim sur- rounded by circumstances such as appeared ought to be sustained by adequate and satisfactory proof, but that the presumption against the stale claim was generally one of fact and not of law. The circumstances are evidence upon the question of the existence of the claim to be con- sidered by the jury, or the court upon a trial of the facts, citing Macauley v. Palmer, 125 N. Y. 742, 2C)N.E. 912. It appeared in that case that the transaction was between a husband and wife. The claim was that the husband had received certain property from the wife for invest- ment for her benefit, that the hus- band died 16 years after the tran- saction took place without having accounted, and without any demand having been made upon him for an account, and that six years later a claim was filed against his estate for the amount demanded and was rejected. 10. Standish v. Babcock, 48 N. J. Eq. 386, 22 Atl. 734; Pratt v. Grimes, 48 111. 376. In the case of Stevens v. Ross (N. J.), 13 Atl. 225, (see also same case II Atl. 114, and 19 Atl. 622), the defendant in his pleadings ad- mitted the making of the contract under which the plaintiff asked for an accounting, but claimed that the contract had been abandoned. The court held that the burden of proof was on the defendant to prove by a clear preponderance of testimony the fact of abandonment. Vol. I 136 ACCOUNTS, ACCOUNTING b. Evidence on Pica of An Accounting. — Defendant may intro- duce evidence to show that the parties have in writing stated their account and struck a balance." Although a statement of account contain the expression " errors excepted," it may still be introduced to prove a settled account/- Where one of two who have mutual accounts gives the other a note and receives nothing at the time, it is prima facie evidence of accounting and settlement.''' A receipt for the amount ascertained on an accounting to be due, !!• Dawson v. Dawson, i Atk. I; Burk V. Brown, 2 Atk. 399; Sumner V. Thorpe, 2 Atk. i. And so, a fortiori may show a settled account. Story's Eq. Jur. §527; Pratt V. Grimes, 48 III. 376; VermilHon v. Bailey, 27 111. 229. A settlement of accounts is pre- sumed to embrace all prior tran- sactions between the parties. Bull v. Harris, 31 111. 487; Boiirke v. James, 4 Mich. 336; Kennedy v. Williamson, 50 N. C. 284 (s Jones L.) ; Barkley V. Tarrant Co., 53 Te.x. 251. Not Contingent Liabilities Dow- ling V. Blackman, 70 Ala. 303. Presumably Claim Nol Provided For in Settlement Invalid Straub- her V. Mohler, 80 111. 21. In Freeman v. Bolzell, 63 Vvis. 378, 23 N. W. 708, the action was to recover a balance of an alleged indebtedness and said nothing about an accounting. The answer alleged a full and complete settlement be- tween the parties. The court said that failure to mention all the items of work or dealings between the parties at the time of a settlement did not prevent it from being con- clusive ; that such omissions might have induced omissions ; that the items omitted might have been paid for or disputed or gratuitous, or omitted for some other special reason, and that the court below properly refused to instruct that the settlement was only conclusive as to such items only as were included therein, because a settlement of mutual accounts presumptively covers everything whether mentioned or not. 12. Cooper Eq. PI. 278; Johnson V. Curtis, 3 Bro. Ch. 226; Branger V. Chevalier, 9 Cal. 353; Story's Eq. Jur. §526. Vol. I In the case of Standish v. Bab- cock, 48 N. J. Eq. 386, 22 Atl. 734, 30 L. R. A. 604, one of the defend- ants by answer set up the facts of a former action and judgment in bar of the present suit. The court said that the evident purpose was to in- terpose the defense of res judicata, and that treating the answer as a plea the burden of proving the truth of the plea devolved upon the party pleading because it was evidently an affirmative plea, citing i Dan. Ch. Pr. 718, and Swayze v. Swayze, 37 N. J. Eq. 180, and that treating it as a defense set up by answer it must be sustained by proof for although put in under oath, it would not be evidence of new matter. 13. Wright V. Wright, 56 N. Y. St. 305, 25 N. Y. Supp. 238; Sher- man V. Mclntyre, 7 Hun 592; Lake V. Tysen, 6 N. Y. 461. And see Randolph v. Randolph, 2 Call (Va.) 537- Notes Given as Collateral — But not where one party was in the habit of giving the other notes, not to represent money due, but as collateral. Hill v. Durand, 58 Wis. 160, IS N. W. 390. Consideration Expressed in Note. In the case of Sheldon v. Sheldon, 133 N. Y. I, 30 N. E. 730, it was claimed that certain moneys had been delivered to a trfistee for investment in 1864, and it appeared that the trustee had given a note in 1879 " for value received in cash bor- rowed." The court said that the usual presumption to the effect that the giving of a promissory note is prima fade evidence of an account- ing and settlement of all demands might not apply because the con- sideration was expressed in the note to be money borrowed. AND ACCOUNTS STATED. 13/ is a bar to subsequent action for accounting involving the same matter." C. Where; Bill Is to Open a Settled Account and for an Accounting. — a. Evidence Must Prove Specific Allegations of Bill. — A settled account will not be opened except on proof of errors or fraud specifically alleged in the bill.''* b. Burden of Proof. — The burden of proof is heavily on the party seeking to open a settled account.'" c. Sufficiency of Evidence. — (!•) Generally ij-, order that a set- tled account may be opened, the evidence must show the transaction to be so iniquitous that it ought not to be brought forward at all to 14. Grant v. Bell, 87 N. C. 34; Costin V. Baxter, 6 Ired. Eq. 197; Harrison v. Bradley, 5 Ired. Eq. 136. 15. Mebane v. Mebane, i Ired. Eq. 403 ; Story Eq. PI., § 800. Accounts, regularly submitted for examination, but by complainant's fault not e.xamined, will not be opened up except for error or fraud specifically charged and proved. Phil- ips V. Belden, 2 Edw. Ch. (N. Y.) I. Where a settled account has been signed or security given thereon, it will not be opened except for fraud or errors proved as charged. Boti- feur I'. Weyman, i McCord Eq. (S. C.) 156. Discretion of the Court But in Ridenbaugh "'. Burnes, 14 Fed. 83, the bill prayed for account- ing as to interests and rents that ought to have been and were not included in a certain settlement, and the proofs failed to establish that de- fendant had not accounted. Never- theless. Justice McCrary said that the court might either dismiss the bill, or refer the case, and adopted the latter course, saying : " The proof as it now stands leaves the essential facts relied upon by plaintiff un- proved, but enoligh appears to make it desirable that the real facts be made to appear, if that is prac- ticable. I am the more inclined to adopt this course, because the de- fendant has not seen fit to testify in the case. It is true that he was not bound to do so until complainant had made at least a prima facie showing, but it is impossible to over- look the fact that it would have been easy for him to have made 'his defense perfectly satisfactory if there is no truth in the complanant's allegations, by going upon the stand and testifying to facts which must be within his knowledge." 16. Marsh v. Case, 30 Wis. 531; Philips V. Belden, 2 Edw. Ch. I ; Hoyt V. McLaughlin, 52 Wis. 280, 8 N. W. 889; Redman v. Green, 38 N. C. 54. He must show wherein the mistake consisted, point it out distinctly and furnish data for its correction. Chub- buck V. Vernam, 42 N. Y. 432 ; Tay- lor V. Haylin, 2 Bro. Ch. 310. An agreement for correction of errors in a settlement does not shift the burden. Langdon v. Roane, 6 Ala; 518, 41 Am. Dec. 60. In Evans v. Evans, 2 Cold. (Tenn.) 143, a case involving transactions be- tween father and son extending over 28 years, tlie court said that in the absence of proof to the contrary, the parties " must be held to have squared their accounts as they went." Statements Not Objected To. In Lockwood v. Thorne 11 N. Y. 170, it appeared that an account had been rendered, received and no ob- jection made for some time. The court said that the transaction being thus an account stated, it was con- clusive upon the parties, unless the plaintiff affirmatively showed fraud or mistake, and quoted from Chief Justice Marshall, in Chappedelaine v. Dechenaux, 4 Cr. 306, as follows : " No practice could be more danger- ous than that of opening accounts, which the parties themselves have adjusted, on suggestions supported by doubtful or only probable tes- timony." Vol. I 138 ACCOUNTS. ACCOUNTING affect the party sought to be bound.'' If a fiduciary relation exists between the parties, the account will be opened on less proof than is required when no such relation exists.'* (2.) When Decree Will Be Refused Although Error Is Shown Eijuita- ble considerations may move a court to decline to open an account in spite of errors shown.'" d. Leave to Surcharge and Falsify. — The proof of mere errors will not require the opening of an account after the lapse of several years : in such a case the plaintiff will only be allowed to surcharg'e and falsify."" 17. White V. Walker, 5 Fla. 478; Paulling V. Creagh, 54 Ala. 646; Taylor v. Blackmail (Miss.), 12 So. 4S8; Coulin v. Carter, 93 111. 536; Philips z: Belden, 2 Edw. Ch. I ; Love r. White, 5 Tenn. (4 Hayw.) 210; Chambers v. Goldwin, 9 Ves. Jr. 254 ; Drew v. Power, 1 Sch. & L. 182; Brands v. Depue (N. J.), 20 Atl. 206. An account twice adjudicated will not be again opened e.xcept for fraud or for mistake that could not have been guarded against. Bruen v. Hone, 2 Barb. 586. The fact that certain items of an account otherwise settled have been left for further negotiations, does not affect the residue. Botifeur v. Wey- man, i McCord Eq. (S. C.) 156. 18. Love V. White. S Tenn. (4 Hayw.) 210; Moses v. Noble, 86 Ala. 407, 5 So. 181. ■' But in such case the entire account must be so infected with fraud or undue in- fluence that it would be inequitable to permit it to stand even in part." 19. Love V. White, 5 Tenn. (4 Hayw.) 210. As where defendant's books have been burned since the former ac- counting and complainant fails to produce his own books and papers. Bruen v. Hone. 2 Barb. 586. Or the plaintiff is guilty of laches. Bruen v. Hone, 2 Barb. 586; Paull- ing V. Creagh, 54 Ala. 646. Or where complainant was aware at the time of settlement of the facts on which he bases his complaint. Quinlan v. Keiser, 66 Mo. 603. Or where a long time has elapsed since the settlement. Randolph v. Randolph, 2 Call. (Va.) 537 (in that case more than fifty years); or where the error proved can be cor- rected without another accounting. Vol. I Murrell f. Greenland, i Desaus. Eq. 332: or where the errors are imma- terial. Hamilton Woolen Co. v Goodrich. 88 Mass. (6 Alien) igi. Effect of Long Acquiescence. Philips V. Belden, 2 Edw. Ch. t : " It is a wise and salutary provision of the law. which permits time to draw a veil over the transactions of men. and equity acting upon this benign principle, gives great effect to lapse of time, and discourages claims not promptly made, especially where there has been no personal disability, or other impediment in the way of ascertaining them. Here has been none, but yet from the time of Mrs. Oglivie's death, (when all her rights devolved upon her son), a period of 20 years or thereabouts has been suffered to elapse without any objection to any part of the ac- counts, and without the least in- timation or assertion of claim arising upon them. If this long acquiescence is not an absolute bar, it is at least a circumstance to require at this day much clearer proof for opening and reinvestigating the accounts than is at present furnished." citing Hamp- son on Trustees 99, Ellison v. Moffat, I Johns. Ch. 46, and Ravner v. Pear- sail, 3 Johns. Ch. 578. 20. Brown v. Vandyke. 8 N. J. Exi- 795. 55 Am. Dec. 250; Cooper Eq. PI. 278; Bruen v. Hone. 2 Barb. 586; Brownell v. Brownell. 2 Bro. Ch. 62 ; Twogood v. Swanston. 6 Ves. 485 ; Cowan v. Jones. 27 Ala. 317; Cover v. Hall. 3 Har. & J. (Md.) 43; Panning v. Creagh, 54 Ala. 646. To obtain leave to surcharge and falsify, complainant must show the accounts to be erroneous. Bullock v. Boyd. 2 Edw. Ch. 293. AND ACCOUNTS STATED. 139 2. After Interlocutory Decree. — A. REFiCKiixcic to Mastku. a. Necessity of Reference. — Complicated accounts should be referred to a master for examination.-^ But a court may state the account without such reference. This is not often done except where the account consists of few items and they are fully estab- lished by the evidence submitted on the hearing. -- Error of $4000.00 in account of $64,000 is ground for leave to sur- charge and falsify. Farnam v. Brooks, 9 Pick. (Mass.) 212. In Moses v. Noble, 86 .Ala. 407, 5 So. 181, it appeared that a settle- ment had been had, a note and mort- gage given and judgment had been obtained upon the note. For specific errors mentioned in the bill and proved, the court annulled the judg- ment and opened up the settlement, but it not appearing that fraud had vitiated the entire settlement, but merely that there were mistakes made in including certain items, the plaint- iff was not allowed a restatement of the entire account, but only had permission to surcharge and falsify as to the matters alleged and proved. 21. Story's Eq. Jur. §524; En- nesser v. Hudek, 169 111. 494, 48 N. E. 673; Patten v. Patten, 75 111. 446; Moss V. McCall, 75 111. 190; French V. Gibbs, 105 111. 523; Dubourg v. U. S., 7 Pet. 625 ; Ransom v. Winn, 18 How. (U. S.) 295; Quayle v. Guild, 83 111. 553 ; Power v. Reeder, 39 Ky. (9 Dana) 6; Walker v. Joy- ner, 52 Miss. 789; Moffett v. Hanner, 154 111. 649, 39 N. E. 474; Riner v. Touslee, 62 111. 266; Beale v. Beale, 1 16 111. 292, 5 N. E. 540. As to evidence generally in pro- ceedings before masters, auditors, commissioners or referees see title " References." 22. Standish v. Babcock, 48 N. J. Eq. 386, 22 Atl. 734; Darby v. Gil- ligan, 43 W. Va. 755, 28 S. E. 73"- See also Jewett v. Cunard, 13 Fed. Cas. No. 7310; Wheeler v. Billings, 72 Fed. 301 ; Hidden v. Jordan, 28 Cal. 301 ; Emery v. Mason, 75 Cal. 222. ]6 Pac. 894; Montanye v. Hatch, 34 111. 394; Shipp V. Jameson, 16 Ky. (6 Litt. ) 190; Field v. Holland, 6 Cranch 8. Procedure in Stating an Account Without a Reference In Stevens V. Ross, (N. J.), 13 Atl. 225, where the accounting was asked only of profits arising out of the sale of a certain piece of land, the court said that although the defend- ant must account yet a reference would not be ordered in the first instance, but that the defendant would be directed to deliver an itemized account within a time lim- ited and within a certain number of days after receiving the account the plaintiff would be required to notify the defendant whether or not i' was satisfactory, and if not satisfactory, to state the particulars in which it was claimed erroneous, after which either party might apply to the court for directions as to how the ex- ceptions to the account were to be tried. " We do not mean that the circuit judge may not at his option, with entire propriety, state the accounts himself, instead of ordering a refer- ence to a commissioner, but when he does so, he will proceed as a com- missioner would upon charge and discharge accounts; and when he states the account, the parties, by ex- ceptions, should bring to his atten- tion such of his conclusions as they object to, not only that he may have the opportunity to make corrections, but also that in case of appeal it may be understood by this court exactly what remains to be contested. Bar- nebee v. Beckley, 43 Mich. 613, 5 N. W. 976. In Illinois it is reversible error for the court to state an account instead of referring it to the master. In Moffett V. Hanner, 154 111. 649, 39 N. E. 474, the court said : " Where the rights of parties in a chancery proceeding are involved, and an accounting is to be had, the court should first find and declare the rights of the parties, and the rule to be adopted in stating the account by an interlocutory decree, and then refer the cause to the master 10 take Vol. I 140 ACCOUNTS, ACCOUNTING b. Regulation of Proceedings Before Master. — (i-) Generally. The accounting is limited in its scope by the order of reference and by the pleadings.-^ and state the account. Stating the account is the appropriate work of the master, and the usual and proper practice in chancery. When such statement is made concisely, excep- tions thereto may bring to the trial court and to an appellate tribunal the issue between the parties, that the same may be comprehended and determined. The exceptions are the pleadings to the items of an account, and must be specific and not gen- eral, as they can then be reviewed by the appellate court or supreme court. Mosier v. Norton, 83 111. 519; Quayle v. Guild, 83 111. 553; Moss v. McCall, 75 111. 190; Patten v. Patten, 75 111. 446; Steere v. Hoagland, 39 111. 246; Bressler v. McCune, 56 111. 475; Riner v. Touslee, 62 III. 266; Groch V. Stenger, 65 III. 481." In the case of Beale v. Beale, 116 111. 292. 5 N. E. 540, it was held that after the court had sustained ex- ceptions to the master's report, the matters involved in the exceptions being complicated it was error for the court to proceed to investigate the matters without another refer- ence. But in the case of Whittemore v. 'Fisher, 132 111. 243, 24 N. E. 636, the court held that after sustaining ex- ceptions to the master's report in- volving only a few items, it was not error for the court to state the ac- count without further reference. The court saying: "We know of no rule of law which made it im- proper for the court to take upon itself the determination of such ques- tions of value, and said values being found the restatement of the account, upon the basis of such findings was a very simple matter, which the court might well make without the further intervention of the master, we find nothing in the action of the court in this respect which can be held to be in any material degree violative of the general rule of chan- cery practice, which requires a refer- ence to the master to take and state the accounts in all cases involving intricate and complex accounts." Vol. I Why Reference More Proper. In Barnebee v. Beckley, 43 Alich. 613, 5 N. W. 976, it appeared that the matter had been referred to a master to state an account. Exceptions had been taken to the master's report. The trial court had ruled upon the exceptions, and had then proceeded itself to an examination of the case and a statement of the account. The supreme court said that inasmuch as such cases were open to an ap- peal, and cases of accounting were likely to involve personal feeling and therefore persistency in litigation, it was a mistake for the trial court to yield to the wishes of the parties and undertake to settle a case of account- ing otherwise than in the usual way; that the customary and regular method gives a regular accounting upon charge and discharge accounts, and a commissioner's report show- ing allowance and disallowance and exceptions to the report showing the items wherein the commissioner is supposed to have erred and the ruling of the court on the exceptions. An appeal on such a report is simple and can be disposed of without ex- amining the entire mass of evidence; that an accounting on complicated transactions may require the con- stant presence of parties, clerks and servants for many days and that it is only in the commissioner's office that this sort of investigation can be gone through with. 23. Calvert v. Carter. t8 Md. 73; Wisner v. Wilhelm, 48 'Md. I ; Day- ton V. District, 18 Ct. CI. 13; Boyle V. Hardy. 28 Mo. 390; Izard v. Bodine. 9 N. J. Eq. .309; Petrick v. Ashcroft, 20 N. J. Eq. 198; Conse- qua V. Fanning, 3 Johns. Ch. (N. Y.) 587; Philips V. Belden, 2 Edw. Ch. I. " A court of chancery may, with perfect propriety, refer an account generally, and, on the return of the report, determine such questions as may be contested by the parties ; or it may. in the first instance, decide any principle which the evidence in the cause may suggest, or all the AND ACCOUNTS STATED. 141 (2.) By the Order of Reference.- — In the order of reference the court may regulate the procedure before the master.-* (3.) By Rules of Court In the Federal Court parties accounting must bring in their accounts in the form of debtor and creditor; any of the other parties not satisfied with such accounts may exam- ine the accounting party vi-ra voce or on interrogatories, or by depo- sition, as the master may direct.-^ This rule is a modification of the English rule No. 6i, New Orders of 1828.-" The practice in the state courts is similar.^^ principles on which the account is to be taken. The propriety of the one course or of the other depends on the nature of the case. Where items are numerous, the testimony questionable, the accounts compli- cated, the superior advantage of a general reference, with a direction to state specifically such matters as either party may require, or the auditors may deem necessary, will readily by perceived." Field v. Hol- land, 6 Cranch (U. S.) 8. " Orders of reference should specify the principles on which the accounts are to be taken or the in- quiry proceed, as far as the court shall have decided thereon ; and the examinations before the master should be limited to such matters within the limits of the order as the principles of the decree or order may render necessary." Remsen v. Rem- sen, 2 Johns. Ch. (N. Y.) 495. Where the issues raised by the pleadings necessarily involve a gen- eral accounting, the evidence need not be confined to the claims or accounts set up by either party in the pleadings. Northern Grain Co. V. Pierce, 13 S. D. 265, 83 N. W. 256. And see Williamson v. Downs, 34 Miss. 402. 24. Calvert v. Carter, 18 Md. 73; Power V. Reeder, 9 Dana (Ky.) 6; Boyle V. Hardy, 28 l\Io. 390; Union S. R. V. Mathiesson, 24 Fed. Cas. No. 14,398; Jenkins v. Bank, 97 111. 568, 581. In certain cases the court, decree- ing an account, directs it to be taken with the admission of certain docu- ments or testimony not having the character of legal evidence. Dan. Ch. Pr. 1231 ; Lupton v. White, 15 Ves. 432, 10 Rev. Rep. 94. Merchants having agreed on rules for adjusting their mutual accounts and providing for a variance froin the rules if justice required it, a court likewise may depart from the rules in settling their accounts. Brax- ton V. Willing, 4 Call (Va.) 288. But it is error to admit an ac- count stated and an annexed afii- davit made in a foreign country, without knowledge of the party sought to be charged thereby, long before commencement of suit, and without proof that that party ever acknowledged the justice of the ac- count, or promised payment, or that it was ever seen by him ; and where the two principal items therein are balances of other accounts. Lewis V. Bacon, 3 Hen. & M. (Va.) 89. 25. Rules of Practice in Equity, No, 79. Foote V. Silsby, 3 Blatchf. 567, 9 Fed. Cas. No. 4920. The master may examine witnesses viva voce, the parties being present and not objecting. Story v. Living- ston, 13 Pet. (U. S.) 359- 26. For the practice under this rule see Dan. Ch. ist Ed., pp. 877 et seq. ; Smith's Ch. Pr.. 2nd Ed., Vol. 2, Ch. 13, pp. Ill et seq. 27. Patterson v. Johnson. 113 111. 559; Kirkman v. Vaulier, 7 Ala. 217; Callender v. Colegrove, 17 Conn. I. Settling the Interrogatories. In Remsen 7'. Remsen, 2 Johns. Ch. (N. Y.) 495, the court said that the books assumed the practice to be settled that the parties and witnesses are to be examined before the mas- ter upon written interrogatories, but that in the case of the examination of a principal, interrogatories are set- tled by the master, in the case of witness by counsel, citing Parkinson V. Ingram, 3 Ves, 603 ; Stanyford v. Tudor, Dickens 548; Huglies r. Wil- liams. 6 Ves, 459, and Purcell v. Vol. I 14- ACCOUNTS, ACCOUNTING B. Submitting Statements of Account. — a. Generally. — la order to reduce the inquiry to order the master sliould require statements of account.-'* After the accounts and statements are filed, evidence will be received only as to points in dispute as shown by them.-" b. Form of Statements. — Such a statement should exhibit the account as the party claims it to be in connected and concise form.'''" Macnamara, 17 Ves. 434, that some- times the master was directed to settle the interrogatories in the case of witness, citing Browning v. Bar- ton, Dickens 508, but that while that was the usual method of examination, it was not indispensable ; that the practice in New York had been more rela.xed and oral examinations had frequently, if not generally prevailed; that it was a question merely of con- venience. 28. Remsen v. Remsen, 2 Johns. Ch. (N. Y.) 495; Story v. Brown, 4 Paige (N. Y.) 112; Hicks v. Chad- well, I Tenn. Ch. 251. A party refusing to produce books and vouchers before the master is bound by the master's report. Peers V. Barnett, 12 Gratt. (Va.) 410. In Story v. Brown, 4 Paige (N. Y.) 112, the court said that the mas- ter might require the parties withui such time as he thought reason- able to bring in in writmg the items of charge claimed agamst the adverse party, so that it might be known to what points testimony was to be directed, and so as to preclude the making of claims afterwards for any other or different items, unless some excuse should be shown. That one object of the rule was to prevent the delay and expense of a separate sum- mons and attendance upon further proceedings in the master's othce. That the master tiught to regulate at the first hearing the manner of ex- ecuting the reference and the steps to be taken so far as then practicable. 29. Myers v. Bennett, 71 Tenn. (3 Lea) 184. ■ Under the practice in England and in New York, as long as a separate chancery system was kept up in that stale, upon a decretal order for a regular partnership ac- couiit, it seems to have been the duty of each litigant to present to the clerk and master a statement of the account as he claimed it ought to be. With these statements before him, the clerk and master readily ascertained the points of difference, and settled with the parties the items upon which proof should be taken." Hicks V. Chadwell, i Tenn. Ch. 251. " After such evidence is taken and a draft of report inade parties can- not dispute other items." Patterson V. Johnson, 113 III. 559. One may not prove credits beyond those claimed in his pleadings. Purdy V. Rutter, 3 W. Va. 262. 30. Hicks V. Chadwell, i Tenn. Ch. 251. " Parties cannot in lii-u of their respective statements put in their general books of account ; Reed v. Jones, 8 Wis. 421. These books usually consist of immense folios which neither the clerk (Turner v. Hughes, I Bush. Eq. 116) nor the court can be required to grope through. Norwood v. Norwood, 2 Bland, 481 in note ; Budeke v. Rat- terman, 2 Tenn. Ch. 459; Poor v. Robinson, 13 Bush 290. It is the duty of the parties to have them examined by experts, to ascertain exactly what they do show, and to extract from them, in the form of balance sheets, exhibits and schedules, such general statements and such specific items and facts as may be in dispute, or tend to elucidate con- tested matters of charge or dis- charge." .Myers v. Bennett, 3 Lea (Tenn.) 184. But it is not ground of objection that the account submitted is in a book containing also other items. Henshaw v. Freer, Bailey Eq. (S. C.) 311- The books also should be pro- duced. Turner v. Hughes, i Busb. Eq. (N. C.) 116. The statement must specify items, one cannot claim credits under head of "general expense." Methodist Vol. I AND ACCOUNTS STATED. 143 C. Examination of Party Accounting. — After the party accounting has filed his account, the adverse party has the right to examine him fully touching it.'' This examination may be on interrogatories or viva voce, as the master directs.'- Formerly a partv could not be examined in his own behalf under the form of cross-examination after his examination by the adverse party.^''' Church V. Jacques, 3 Johns. Ch. (N. V.) 77- The master may require parties to e.xhibit accounts within time fixed, and decline to hear evidence of other items, unless delay is excused. Story V. Brown, 4 Paige (N. Y.) 112. If one ordered to account offers to prove that he cannot produce such statement because the books are in complainant's possession, the master must inquire before making absolute order to produce the account. Mc- Cartau v. Van Syckel, 23 N. Y. Super. (10 Bosw.) 694. 31. Jackson v. Jackson, 3 N. J. Eq. 96; Remsen v. Remsen. 2 Johns. Ch. (N. Y.) 495; Henshaw v. Freer, Bailey Eq. (S. C.) 311- 32. Jackson v. Jackson, 3 N. J. Eq. 96. ■' The master ought, in the first instance, to ascertain from the par- ties or their counsel, by suitable acknowledgments, what matters or items are agreed to or admitted; and then, as a general rule, and for the sake of precision, the disputed items claimed by either party ought to be reduced to writing by the par- ties respectively, by way of charges and discharges, and the requisite proofs ought then to be taken on written interrogatories, prepared by the parties and approved by the mas- ter, or by viva voce examination, as the parties shall deem most ex- pedient, or the master shall think proper to direct in the given case. Tnat the testimony may be taken in the presence of the parties or their counsel (e.xcept when by a special order of the court it is to be taken secretly) ; and it ought to be reduced to writing in cases where the master sliall deem it advisable, by him or under his direction, as well where a party as where a witness is ex- amined." Remsen v. Remsen, 2 Johns. Ch. (N. Y.) 495- 33. Foote v. Silsby, 3 Blatchf 507, 9 Fed. Cas. No. 4920; Remsen v. Remsen, 2 Johns. Ch. (N. Y.) 495. Examination of Accountant — " In all matters of account in this court, it is the peculiar right of the party who seeks the account, to ex- amine the accountant under oath and thereby test his conscience as to facts and circumstances material to the investigation of truth and the ends of justice. The mode of examin- ation differs, in different places. . . . In the English chancery it is by written interrogatories, generally pre- pared and exhibited by the party seeking the examination, but settled by the master and considered as his act. These interrogatories, thus set- tled, are served on the examinant, and he puts in his answer in writing, on advisement of counsel. Full op- portunity is given to consider of the interrogatories and the answers, and to give all proper explanation coming within the scope of the ques- tions propounded. Under this mode of proceeding, there can be no cross- examination. Nor is it necessary or proper for the ascertainment of truth that there should be. The party charged has no right to be a witness in his own behalf. When examined by the adverse party, he is entitled to have the interrogatories before him, and time to answer advisedly and understandingly. Whatever is in answer to the question, or fairly explanatory of the answer, he has a right to state, but nothing more. If the answers, or any of them, are evasive or improper, exceptions may be taken, and the party be ordered to put in a sufficient answer. In this way the whole truth is elicited. Such is the English practice ; Colton v. Harvey, 12 Ves. 391 ; I Newl. Prac. 161 : Hoffman's Mast, in Chan. 14-21 ; I Hoffman's Prac. 529, 533. Vol. I 144 ACCOUNTS, ACCOUNTING D. Answer As Evidence. — When an account is called for by the bill (oath not being waived), and given in the answer, it must be regarded as responsive matter, and prima facie evidence of the state of accounts between the parties.^* E. Burden of Proof. — When one is ordered to account, the burden is on him to prove anj' credits that he claims.-'^ If there is " The practice of oral examination is universal in the state of New Jersey, as well in relation to parties as witnesses, and I believe the prac- tice of cross-examination by counsel is also universal. " These examinations, according to our mode, are conducted, not by the master, but by the counsel of the party obtaining the reference. He examines, to certain points, at his own discretion and in his own way, having previously prepared his course of interrogation. The answers are given immediately, and without op- portunity for advisement ; and if the counsel of the examinant had not the privilege of cross-examination, the result would be more likely to mislead than properly instruct the mind of the master. " When a party is before a master, he cannot be cross-examined gen- erally. He cannot make evidence for himself by the introduction of facts or matters not the subject of inquiry on the original examination. He can only be called on to explain, or to make such statements as may prevent misunderstanding, or rebut any unfair inference that may arise from the answer." Jackson v. Jack- son, 3 N. J. Eq. 96. 34. May v. Barnard, 20 Ala. 200; De Mott V. Benson, 4 Edw. Ch. 297; Powell V. Powell, 7 Ala. 582. See Dozier v. Edwards, 13 Ivy. (3 Litt.) 67, and Barksdale v. Hall, 13 Rich. Eq. (S. C. ) 180, where complainants demanded an accounting from one as administrator of one and executor of another estate, from which latter office he had been discharged and his accounts settled, and he answered claiming credit for over-payments as executor, the complainant cannot, by amending, deprive him of the benefit of the discovery made ; nor is he estopped from claiming such credits. Dillard Z'. Ellington, 57 Ga. 567. Vol. I Statement of payment, and an ac- count set up by way of set oflf in the answer, is matter in avoidance and therefore not evidence. Bank v. Stockman, i Freem. Ch. (Miss.) 502. As to the propriety of calling an answer under oath evidence, see opinion of Justice Woodbury in Jewett V. Cunard, 13 Fed. Cas. No. 7310. As to the use and effect of answers and other pleadings as evidence for and against the pleader see the ar- ticles, "Admissions and "An- swers IN Equity." 35. Thatcher v. Hayes, 54 Mich. 184, 19 N. W. 946. And to Show the Disposition of Funds Proved to Have Come Into His Hands — Silverthorn v. Brands, 42 N, J. Eq. 703, II Atl. 328. Where an Accounting is Ordered on a Bill and Cross Bill, ccmipkunant has the burden of establishing credits claimed by him and defend- ant of establishing credits claimed by him. Crawford v. Norris (Ark.), 12 S. W. 707. Where an Allowance, Clearly Ex- cessive, Is Asked, the party claiming it must establish the amount he is entitled to, and the referee is not to guess at it. Spalding v. Mason, 161 Sup. Ct. 592. The burden was on complainant to show first, that the particular sums of money were in fact paid, and this burden was sustained by the produc- tion of either the books or cancelled checks, or in their absence by proper entries on the books of the company, or other secondary evidence. This being done, the burden still remained upon complainant to show that the payments were applicable to the par- ticular purposes mentioned in the order, for complainant was only en- titled to credit for such disliursements as were applicable to those purposes. This burden might be sustained in AND ACCOUNTS STATED. 145 a preponderance of evidence in favor of the credit, it should be allowed ; a higher degree of proof is not required."'' The accounting party has the burden of discharging himself from any charge that appears against him on his own statement of account, or that may be allowed against him on examination of himself or on other evidence.'" F. Production of Vouchers in Discharce. — a. Generally. A party accounting must produce in his discharge vouchers for payments claimed to have been made by him."* \'ouchers are prima facie evidence of disbursements.-'" b. If'/ien Not Required. (!•) Charge and Credit Simultaneous. But where moneys were paid over the same day they were received, so that the admission of receipt is immediately followed by the claim of credit, the accounting party's affidavit niav support his dis- charge.*" some instances by mere inspection of the voucners. The greater part of the expenses were for payments to laborers. As to those the burden was sustained by showing generally that the work was done for the specific purpose mentioned in the order. There are other items of payment which should not be allowed without proof that they were within the scope of the inquiry. The general oath of an officer of the company that they were made for the purpose named, would not generally be sufficient, because it would be a mere expression of opinion by the witness. It must ap- pear by consideration of the nature and character of the payment itself, that it was made for the purpose in question. N. Y. Bay Cemetery Co. !■. Buckmaster ( N. J.), 33 Atl. 819. 36. Clapp z\ Emery, 98 III. 523. But the mere fact that a suit is pending, which, if successful, would entitle defendant to a certain credit in his account, is not sufficient evi- dence to justify the allowance of such credit. Crown Coal & Tow Co. V. Thomas, 177 111. 534, 52 N. E. 1042. 37. Smith's Ch. Pr.. vol. 2, p. T17: Dan. Ch. Pr. vol. 2. p. R80. His Own Admission in His Ac- count is Sufficient Proof to establish them, unless it otherwise appears that they were not chargeable against him. VVilliamson v. Downs. 34 Miss. 402. 38. Davenport i'. Davenport, I Sim. 512. As An Executor's Oath 'Will Not 10 Discharge Him, Neither -Will That of His Coexecutor " The examina- tion of one personal representative cannot discharge another personal representative when by that exam- ination the party examined would discharge himself also.'" Dines i'. Scott, I T. R. Eng. Ch. 358. The 'Vouchers Must Be Produced by the Accounting Party at His Peril and must be admitted in evi- dence subject to be impeached. Hal- stead z'. Tyng, 29 N. J. Eq. 86. 39. Dan. Ch. Pr., vol. 2, p. 881. " Vouchers are prima facie evi- dence of disbursements. The rule in respect to the receipt of them on an accounting has been laid down to be, that in all matters of account the party who produces the vouchers in support of the account produces them at his peril, and the master is bound to admit them in evidence, except the other side can lay a rea- sonable ground to show that the voucher in question can be impeached, of which the master is to judge and then to require evidence in regard to it if he thinks proper. Hoffman's Office of Masters in Chancery 81 ; Bennet's Pract. in the Master's Of- fice 85. Of course, if the master doubts the payment, he may require proof besides the voucher. The voucher however, cannot of itself be sufficient proof of payment if it does not show for what or on what ic- count the money was paid." Hal- stead v. Tyng, 29 N. J. Eq., 86. 40. Smith's Ch. Pr.. vol. 2, p. 117; Daniell's Ch. Pr.. vol. 2. p. Vol. I 146 ACCOUNTS, ACCOUNTING (2.) Credit Appearing in Book Offered by Opposite Party Where there is no fiduciary relation between the parties and the evidence to charge one of them consists of entries in his own books, he may use entries in the same book in his discharge.''^ Otherwise as to those holding a relation of trust or confidence.*^ (3.) When Vouchers Are Lost. _ And where an account is of long standing the court will sometimes permit the accounting party to discharge himself upon oath, of all such matters as he cannot prove by vouchers by reason of their loss.''^ (4.) For Small Items. _ And as to small sums the party's oath will support his discharge.''* G. Where Evidence Is Not Sufficient to En.\ble Master to State Account. — If the master from lack of evidence cannot state an account, the court will leave the parties in statu quo.*^ 884; Ridgeway v. Darwin, 7 Ves. 404; Thompson v. Lamb, 7 Ves. 587 ; Robinson v. Scotney, 19 Ves. 582. 41. Robertson v. Archer, 5 Rand. (Va.) 319; Dan. Ch. Pr. 1228; Dars- ten V. Orford (Earl), i Eq. Cas. Abr. 10; Jones v. Jones, 4 Hen. & M. (Va.) 447; Wagoner v. Gray, 2 Hen. & M. (Va.) 603; Freeland v. Cocke, 3 Munf. 352. A plaintiff putting in evidence an account kept by defendant showing an item charged against plaintiff concedes the correctness of that item. Dolan V. Mitchell, 39 App. Div. 361, 57 N. Y. Supp. 157. But see contra. Robertson v. Archer, 5 Rand. (Va.) 319- Complainant does not admit the correctness of an account by merely pleading or stating that defendant submitted such account. Wilson v. Dowse, 140 III. 18, 29 N. E. 726. 42. Reeve v. Whitmore, 11 Jur. N. S. 722; Carter v. Lord Colrain, Rarn. 126; Bnardman v. Jackson, 2 Ball. & B. 382. " .\s to executors, they are under a moral and equitable and indeed a legal obligation, from the very nature nf their undertakings, to furnish those to whom they are accountable the means of charging them to the full extent of their liabilities. White 7'. Lady Lincoln, 8 Ves. ,363. For those having the right to claim the account have no other perfect means of getting this imformation." Robert- son V. Archer, 5 Rand. (Va.") 319. 43. Dan. Ch. Pr. 12.30; Peyton v. Green, i Ch. Rep. 146; Holstcomb v. Vol. I Rivers, 1 Ch. Cas. 127. See also Turner v. Corney, 5 Beav. 515. 44. " It is understood to be the settled course of the court (Anon. I Vern. 283 ; Witcherly v. Witcherly, Id. 470; Everard v. Warren, 2 Ch. Cas. 249 ; Morely v. Bonge, Mos. 252 ; Robinson v. Cumming, 2 Atk. 409, and 2 Fonb. 452, 460, 462.) that, upon the defendant's accounting be- fore the master, he is to be allowed, on his own oath, being credible and uncontradicted, sums not exceeding forty shillings each; but then he must mention to whom paid, for what, and when, and he must swear posi- tively to the fact, and not as to belief only, and the whole of the items so established must not exceed £100, and the defendant cannot, by way of cliarge, charge another person in this way. The forty shillings sterling was the sum established in the early history of the court, and perhaps $20 would not now be deemed an un- reasonable substitute." Remsen v. Remsen, 2 Johns. Ch. (N. Y.) 40=;; Halsted v. Tyng, 29 N. J. Eq. 86. _ In this country generally the limit of a single item is twenty dollars, and in Tennessee the aggregate of such items must not exceed five hun- dred dollars. Goodner v. Browning, 28 Tenn. 783. 45. Slater Myers & Co. v. Arnett, 81 Va. 432 ; Lewis v. Bacon, 3 Hen. & M. (Va.) 89. Where one partner so keeps the books that it is impossible to tell the true state of the partnership ac- counts, every presumption against AND ACCOUNTS STATED. 147 H. On Leave tu Surcharge and Fai^sii' v. — a. Scope of Inquiry. On leave to surcharge and falsify, evidence is admissible only as to items specified in the pleadings.*" b. Burden of Proof. — On leave to surcharge and falsify, the onus probandi is on him to whom leave is granted.*" I. Objections to En'idence. — All objections to admission of evidence and sufficiency of evidence should be taken before the master.'" him is proper. Dimond v. Hender- son, 47 Wis. 172, 2 N. W. 73. But the presumption against a wrong doer does not apply to one who failed through incompetency (known to his partner) to keep cor- rect books, there being no evidence of dishonesty. Knapp v. Edwards, 57 Wis. 191, IS N. W. 140. 46. WilHams v. Savage Mfg. Co., 3 Md. Ch. 418. In England it was held that if account was surcharged or falsified in one item, the complainant might go to the master with liberty to sur- charge and falsify it at large. U.v parte Townsend, 2 Moll. 242; Davis V. Spurling, Tam. 199. If the items specified and proved cast suspicion on entire account, the liberty to surcharge and falsify is unrestricted. Bullock v. BoyJ, i Hoflf. Ch. (N. Y.) 294. Under permission to surcharge only omissions can be shown ; under leave to falsify only false items. Philips V. Belden, 2 Edw. Ch. (N. Y.) I. 47. Cowan v. Jones, 27 Ala. 317; Philips V. Belden, 2 Edw. Ch. (N. Y.) I. Accounts settled witliout opportu- nity for full scrutiny will be invali- dated on slighter evidence than where such opportunity existed and full investigation was made. Lee v. Reed, 34 Ky. 109. In surcharging and falsifying ac- counts after considerable lapse of time, clear evidence will be required especially .where there has been ac- quiescence. Gover V. Hall, 3 Har. & J. (Md.1 43. Account Presumed Correct. " Where liberty is given to sur- charge and falsify, the court takes the account to be a stated and set- tled account and establishes it as such. If either party can show an omission for which an entry of debit or credit ought to be made, such party surcharges, that is, adds to the account, and if anything should be inserted which is wrong, he is at liberty to show it, and this is falsifi- cation. The onus probandi is always on the party making the surcharge or falsification, and if he fails to prove it, the account must stand as correct. It is presumed to be cor- rect, however, having been once settled until the contrary appears. Here lies the difference between this and a general account, for in the latter the party producing the account must show the items to be correct." Philips V. Belden, 2 Edw. Ch. (N. Y.) I. 48. Reed v. Winston, 4 Hen. & M. (Va.) 450; Kirkman v. Vaulier, 7 Ala. 217; Remsen v. Remsen, 3 Johns. Ch. (N. Y.) 495- Objection that evidence is not rele- vant should be made before the master, and if not so made the evi- dence may be considered. Callender V. Colegrove, 17 Conn. i. In Methodist Church v. Jacques, 3 Johns. Ch. TJ, it was held that the rule of practice is founded on much good sense that no exceptions are to be taken to a report which were not made before the master signed the report, because the master might have allowed the objections, saving unnecessary expense and trouble, citing 2 Harr. Pr. 146; Wyatt Pr. Reg. 380-381. and adding that the rule was not departed from, except in special cases, citing Pennington v. Muncaster, i Madd. Ch. 555- In Retnsen v. Remsen, 2 Johns. Ch. (N. Y.) 495. the court said that after an examination is concluded, the parties being provided with a copy of the master's report ought to have a day assigned for settling the report and making objections, Vol. I 148 ACCOUNTS, ACCOUNTING J. Recommitting to Master. — An accounting once made by the master may, for cause shown, be recommitted to him to be restated.*" Recommitment may be denied on account of laches.'" The master may be directed to hear further testimony, or to restate the account without further testimony.'"' K. Restatement Without Recommitment. — The court may restate the account without sencHng it back to the master. "- L. Matters Arising Aeter Master's Report and Deeore Final Hearing. — Evidence as to matters occurring after master's report and before final hearing is admissible on such hearing.'''' and when tlie report is settled and signed, the parties ought to be con- fined m their exceptions to be taken ill court, to such objections as were overruled or disallowed by the mas- ter. 49. Dignan v. Dignan (N. J. Eq.), 1/ Atl. 546; Barnum v. Barnum, 42 Md. 251. Unless shown to be erroneous the master's report establishes the facts. Dillard v. Ellington, 57 Ga. 567. When exceptions to a master's report are sustained and the accounts are complicated, the matter must be again referred. Beale v. Bcale, 116 111. 2Q2, 5 N. E. 540. 50. In the case of Fischer v. Hayes, 16 Fed. 469, an account was ordered to determine dam- ages from infringement of patent. The defendant refused to pro- duce his books upon the ground that they would throw no light upon the question at issue. That refusal took place in August, 1881. The examination was not fin- ished until February, 1882. Plaintiff made no efTort to compel the pro- duction of the books. The court refused to refer the case back in order that the books might be in- troduced in evidence. Discretion to Reopen Case But in Dignan v. Dignan (N. J.), 17 .Alt. 546. in an accounting between father and son for partnership tran- sactions, the master made his report and was about to file it when the father applied to open the case for further testimony on the ground that he had discovered numerous vouchers, which would largely re ducc the amount found against him, and excused their non-production before the master by saying that he had relied upon his bookkeeper and clerk to collect the necessary papers and had supposed that all had been collected and presented. The court held that although the petitioner had been guilty of laches in failing to produce the papers earlier, yet the court would not be justified in. al- lowing even the most extreme care- lessness to stand in the way of sup- plying necessary proof, especially when that proof is documentary, un- less it appeared that by admitting such testimony, injustice would be done, and cited Mulock r. Mulock, 28 N. J. Eq. is; Hewes v. Hewes, 4 Sim. I, and Gregoy v. Marychurch. Bev. 275, 19 L. J. Ch. (N. S.) 77- 51. Barnum i'. Barnum, 42 Md. 251; III re Donnelly, 3 Phila. 18. In the case of Camac v. Francis. 4 Fed. Cas. No. 2329, an account was referred back to report such further credits as either party might show himself entitled to, but the court refused to refer the accounts generally, on the suggestion that plaintiff had since the previous hear- ing obtained documents and evi- dence in support of his exceptions and that he expected it would be in his power to discover new credits not yet known to him. 52. This may be done where the items are few in number and the matter will not involve examination of complicated accounts. Whittcninre V. Fisher, 132 111. 243, 24 N. E. 636; Smith V. McKernan. 41 111. .\pp. 132. Compare Beale v. Beale, 116 lil. 292, 5 N. E. S40. 53. Kendall v. N. E. C. Co., 13 Conn. 3S3. Vol. I AND ACCOUNTS STATED. 149 III. COMMON LAW ACTION FOR AN ACCOUNTING. 1. Before Verdict Guod Computet. — The action at law for an accounting long ago fell into disuse in England and in most of the states of the Union. It was necessary for the plaintiff to show a privity between himself and the defendant by express or implied contract, or by law.°^ Before verdict quod computet the only question for determina- tion is, shall there be an accounting ; evitlence to show that profits have or have not accrued, or that one joint tenant or tenant in common, has received more than his share, is inadmissible. The adjusting of balances is left entirely with the auditor. ^^ The defendant must be shown to have acted in the character alleged in the declaration, i. e., as bailifT, receiver or otherwise.''''" The evidence must strictly support the declaration as to the plaintilif's interest in the money or goods. ^' 54. Co. Litt. gob; id. 172a; Bac. Abr. Account. A: 3 Blk. Com. 164. In tbe case of Griffith v. Willing, 3 Binn. ( Pa.) 317, the conrt held that if the parties were partners, the action of account render lay at common law. but if they were only tenants in common the action was given by a statute. 55. Hawley v. Burd, 6 111. App. 454. But in England under Stat. 4 .■\nne Ch. 16 § 27. one sued as tenant in common could prove thai he had received no more than his just share of the profits. Chitty PI. p. 1299. See however McPherson v. McPher- son, II Ired. Law (N. C.) 391, 53 Am. Dec. 416. 56. Wheller r. Home. Willes 208; Spalding v. Dunlap, i Root (Conn.) 319; Co. Lit. 172a. i Selw. N. P. 1-3. In the case of Irvine v. Hanlin, 10 Serg. & R. (Pa.) 219, it was said that the action of account render under the statute of Anne is dif- ferent from the action at common law, for under the latter the bailiff was answerable not only for receipts, but for what he might have made, whereas under the statute the tenant in common answering as bailiff, was liable only for what he had actually received above his just share, and because also the auditors under the statute could examine the parties on oath, that therefore the declaration ought to state that the parties were tenants in common and that defend- ant Iiad received more than his share, but that if he is charged as bailiff generally the plaintifT must prove that the defendant was actually a common law bailiff. Defendants Must Be Shown to Be Jointly Liable.— In Whelen v. Wat- mough, 15 Serg. & R. (Pa.) 153. it was held that while a partner might have this action against his co-part- ner, yet he could not have it against two co-partners of himself, because each co-partner was bound to ac- count to him severally for the moneys received by such co-partner, and not jointly for moneys received by the various co-partners so that where one sued two defendants jointly, and the evidence showed that plaintifT and defendants were co-partners the case must be dismissed. 57. Spalding v. Dunlap, i Root (Conn.) 319; McPherson v. Mc- Pherson, 11 Ired. Law (N. C.) 391, 53 .A.m. Dec. 416. "Plaintiff Must Show Receipt by Defendant of Moneys From the Per- sons Named in Declaration. — hi Jor- dan V. Wilkins, 13 Fed. Cas. No. 7526, the defendant was charged as receiver of certain sums for the plaintiff from certain persons named in the declaration. The evidence showed sums received, but not from any of the persons named in the declaration, and showed that the sums so received were the money of a partnership, of which plaintiff and defendant were members. Mr. Jus- Vol. I 150 ACCOUNTS, ACCOUNTING It is not necessary to prove a demand for an accounting.''" If defendant pleads pte)ic coinputavit, the burden is upon him to show an actual accounting and balance struck.^" To sustain the plea of nothing in arrear defendant must show by an exhibition of accounts that nothing is due the plaintitt.''" 2. After Verdict in Proceedings Before Auditors. — By such judg- ment nothing is determined except that the defendant ought to account."' Before the statute 4 Anne Ch. 16, auditors could not compel the parties to be examined under oath."^ Auditors are not bound by any previous accounting between the parties. '^^ Defendant cannot introduce evidence to show that he has accounted, or that he is not indebted, or any other fact whereby he would be excused from rendering an account. ''"' tice Washington held that if the plaintiff meant to proceed upon the statute of Anne he ought to have stated his case according to the facts, citing James v. Brown, i Dall. 339, where it was held that if the proof showed the receipt from one of the persons named in the declaration, it would be sufficient, and the court said that in that case the most liberal construction had been given to the statute in consequence of the want of chancery jurisdiction in Pennsyl- vania. 58. Sturges v. Bush, s Day (Conn.) 452. 59. Ba.xter v. Hozier, 5 Bing. 288; McPherson v. McPherson. II Ired. Law (N. C.) 391. 53 Am. Dec. 416; Lee V. Adams, 12 111. in. If the Agreement Was For Saic of Goods, and Return of Those Not Sold, he must prove not only an ac- counting for money received but the return of goods unsold. Read v. Bertrand, 4 Wash. 556, 20 Fed. Cas. No. 11,602. And he must show an accounting for charges attending sales and for losses if any on sales. Baxter v. Hozier. s Bing. 288. Proof of Accounting Before One Person Supports Plea of Account- ing Before Two Bull. N. P. 127; Eac. .\br, .'Vcc. E. If the Business Was Such as to Call For Daily Accounts, of which it is not the custom to take vouchers, it is presumed that the defendant ac- counted and the burden is on the Vol. I plaintiff. Evans v. Birch, 3 Camp. 10. 60. Lee V. Abrams, 12 HI. in. " The defense ... of nothing in arrear goes upon the ground that there is nothing now in the defend- ant's hands, which he is liable to account for. This may be shown in various modes, — as, for e-xample, that it has been handed over to the plaint- iff, or to a third person by his direction, or that it has been destroyed, or has perished without the fault of the defendant." Pickett V. Pearsons, 17 Vt. 470. 61. Lee V. Abrams, 12 111. in. 62. Co. Litt. 199 (Harg. note 83). 63. But if the parties had agreed on any particular items, or if rests had been made in a running account and balances struck, but no final ac- counting made, the auditors would be concluded as to such items and by such balances and as to any un- paid balances carried into the ac- count. Lee V. Abrams, 12 111. in. 64. Lee v. Abrams 12 111. in; Bac. Abr. Accompt. F; Leon. 219; Taylor v. Page, Cro. Car. 116. But he may prove payments made on account (Lee v. Abrams, 12 III. in), or that goods were jettisoned: or that he was robbed of them ; or that they were taken by the public enemy. Bac. Abr. Accompt. G. If in truth and in fact plaintiff ought to account for a sum received, evidence as to the amount is admis- AND ACCOUNTS STATED. 151 The proofs before tlie auditors must be consistant with the plead- ings and verdict."'' Evidence is admissible of sums received by defendant after the commencement of the action."^ Auditors could examine onh' parties and had no power to try issues."' IV. ACTIONS ON ACCOUNT. 1. Generally. — This term has come to be applied to certain cases in assumpsit. It includes actions to recover for goods sold and delivered from time to time ; or for services rendered on several occasions, or for moneys from time to time advanced. The rules of evidence in other actions in assumpsit apply here, and only such special rules as have been adopted for this class of cases will here be noticed. 2. Book Debt. — A. Testimony of Parties. — Book debt lay on claims, usually for small sums, evidenced by entries in account sible, although when received both parties supposed that defendant was entitled to it in his own right and for his own benefit. Smith v. Brush, II Conn. 359, 65. Spear v. Newell, 22 Fed. Cas. No. 13,224; Lee v. Abrams, 12 111. Ill; Bac. Abr. Ace. F; Godfrey v. Saunders, 3 Wils. 73. In An Action Between Partners, the parties were entitled to an in- vestigation of every particular tran- saction and to have its results em- braced in the account, although there were no allegations respecting it in the pleadings. Boyd v. Foot, 5 Bosw. (N. Y.) no. Defendants Not Concluded by Amounts or Dates Set Forth in Declaration — In the case of New- bold V. Sims, 2 Serg. & R. (Pa.) 317, it appeared that defendant was called on to render an account of his actions as supercargo of a brig, and he al- leged that the brig had been seized with its cargo for breach of the laws of the United States. It ap- peared that there was a remission of the forfeiture under the law, and a sale of the cargo, and that defend- ant had made some payments to the plaintiflfs. The question whether he had fully accounted was submit- ted to the jury, and they found for the plaintiff. The court held that verdict did not preclude the defend- ant from showing before the auditors how the cargo was taken out of his hands, and that he could claim al- lowances so far as the cargo had been appropriated by the govern- ment ; that the accounting should be taken according to the truth of the matter, and that it was not to be inferred from the judgment entered on the verdict that the defendant had received all the sums, and at the times mentioned in the declaration ; that he would have to account for all that he had received and would be allowed every item in discharge that he could make out fairly chargeable against the plaintiffs. 66. Smith v. Brush, 11 Conn. 359; Robinson v. Bland, 2 Burr. 1077. In Newbold v. Sims, 2 Serg. & R. (Pa.) 317, it was held that auditors are not restricted to the days laid in the declaration; that after judg- ment on the verdict all articles of account are included and the whole account brought down to the time when the auditors make an end of the account ; that the auditors would make the proper charges and allow the proper credits without regard to the verdict. If a declaration avers receipt of moneys by defendant between cer- tain days plaintiff cannot show such receipt at an earlier date. Sweigart V. Lowmarter. 14 Serg. & R. (Pa.) 200. 67. Wisner v. Wilhelm, 48 Md. I. Vol. I 152 .-ICCO UNTS, ACCO UNTING books. Parties were competent to testify in their own behalf.''" A party might testify on all the issues.'"' His testimony was usually given before auditors only, and viva voce.'" B. Burden of Proof. — The plaintiff has the burden of estab- lishing any items denied.'' C. Use of Account Books. — For a full statement of the law as to the use of such books as evidence, see the title " Books of Ac- count." D. Other .Me.\ns of Proof. — Plaintiff may prove his claim without producing the book.'- . Beecher, g Conn. Bond, Tapp. (Ohio) 68. Terrill 344; Marshall 99- Parties were permitted to testify on the ground that they had no other means of proof. Irwin f. Jordan, 26 Tenn. (7 Humph.) 167. 69. Stevens v. Richards, 2 .\iken (Vt.) 81; Fay V. Green, 2 Aiken (Vt.) 386; May V. Corlew, 4 Vt, 12; Mattocks V. Owen, 5 Vt. 42; Burton v. Ferris. Brayt. (Vt.) 78: Delaware v. Staunton, 8 Vt. 48; Hilli- ker V. Loop, 5 Vt. 116, 26 Am. Dec. 286; Bradley v. Bassett, 13 Conn. 560; Keeler v. Mathews, 17 Vt. 125; Stanford v. Bates, 22 Vt. 546; Clark T. Marsh, 20 Vt. 338. A wife joined as plaintiff with her husband might testify. Gay v. Rogers, 18 Vt. 342. Quoad the book debt, they are admissible, like other witnesses, to testify fully in support or confutatioii of the account. Peck v. Abbe, 1 1 Conn. 207; Bryan v. Jackson, 4 Conn. 288; e. g. to prove admissions. Stanford 1: Bates, 22 Vt. 546: Clark v. Marsh, 20 Vt. 338; Reed v. Talford, 10 Vt. 568 ; Bryan v. Jackson. 4 Conn. 288. But not to a new promise to avoid statute of limitations. White v. Dow. 23 Vt. 300. The party testifying to sustain the charges on his book cannot testify as to the value of the articles charged, or of the labor performed ; much less as to a specific contract. Cram v. Spear, 8 Ohio (8 Ham.) 494- As to interest there must be other proof than the oath of plaintiff of defendant's promise to pay it. Pheni.v v. Prindle, Kirby (Conn.) 207. As to the weight to be given to Vol. I testnuuny of a party to the action, see, Whiting v. Corwin, 5 V't. 451. ■^O. Read v. Barlow, i Aiken (Vt.) 145; Delaware v. Staunton, 8 Vt. 48; Fay V. Green, 2 Aiken (Vt.) 386; May V. Corlew, 4 Vt. 12. But his deposition could not be used. Pike i: Blake, 8 Vt. 400; Gil- bert V. Toby, 21 Vt. 306. But a deposition may of course be used as an admission against the maker. Gilbert v. Toby, 21 Vt. 306. Party must answer all material questions or his charges will be dis- allowed. Alattocks V. Owen, 5 Vt. 42. In Vermont the court heard no tes- timony : " The court will not go into a preliminary inquiry into the facts, either by court or jury, as in the action of account, but only decide the law of the case upon such facts as may be found and reported by the auditor." Matthews v. Tower. 39 Vt. 433. 71. Read v. Barlow, i Aiken 145, and I Vt. 97. Bundy v. Kyer. 18 Vt. 497, holding that plaintiff must show a sale completed by delivery. Hunter v. Kittredge, 41 Vt. 359. Items charged as " goods " and " medicine " being partly for intoxi- cating liquors sold in violation of kiw. the burden was on plaintiff to establish the validity of each charge. Graves v. Ranger. 52 Vt. 424. But defendant assumes the burden of establishing the truth of any plea in confession and avoidance. Smith V. Woodworth, 43 Vt. .W- ( Where payment was pleaded.) See the authorities cited on this point in the article on " AnMlssiONS." 72. Cross V. Haskins, 13 Vt. 536; Read v. Barlow, I Aiken (Vt.) 145. It is discretionary with the court AND ACCOUNTS STATED. 153 3. Actions on Verified Account. — A. X'ekified Statement Must Follow the Statute. — In several states the introduction in evi- dence in actions on account, of a verified statement of the account is provided for and regulated by statute. In order that one may use such statement as evidence he must bring himself strictly within the terms of the act.''' If the verified account be mislaid, or lost, a new account ma\' be supplied.''' The statute allowing a verified account to be used as evidence in an action thereon, extends to a set ofif or counterclaim set up bv defendant consisting of an account.'"' B. Effect As Evidence of Verified Statement. — The veri- fied account put in evidence is sufficient to make out plaintiff's case except so far as its correctness is denied under oath.'" to require the books to be produced. Ward V. Baker, i6 Vt. 287. Failure to produce the books is said to be presumptive evidence against the claim. Leavenworth t. Phelps, Kirby (Conn.) 71; Palmer V. Green, 6 Conn. 14. In Ohio unless the book was pro- duced, plaintiff could not be a wit- ness in his own behalf. Crane v. Spear, 8 Ohio (8 Ham.) 494. 73. Rogers z'. Fenwick, 20 Fed. Cas. No. 12,011; Gainer z>. Pollock, 96 .Ma. 554, II So. 539; Cook r. P.yrnham, 44 Pac. < ••' • Dewey v. Burton (Kan.'), 46 Pac. 321. Compare Ale.xander f. iMoore, ill Ala. 410, 20 So. 339; McGowan v. Lamb. 66 Mich. 615, 33 N. W. 881 ; Lunsford r. Butler, 102 Ala. 403, 15 So. 239; Gordon 7'. Sibley, 59 Mich. 2W. 26 X. W. 48, ; Duer z'. Endres, I White & W. Civ. Cas. Ct. App. (Te.x.) §323; Shaudy v. Conrales, I White & W. Civ. Cas. Ct. .\pp. (Tex.) §235; Brin v. Wachusetts Shirt Co. (Tex.), 43 S. W. 295. Where the statute requires that the affidavit be made by a party, his agent or attorney, one made by the plaintiff's assignor is not suffi- cient in absence of showing of agency. Carpenter f. Historical Pub. Co. (Tex.) 24 S. W. 685. Code § 3780 provides that an ac- count on which an action is brought, coming ifom another state or county, with plaintiff's affidavit to the cor- rectness of the account, is conclusive evidence unless the party charged denies the account on oath. Held that such action must be brought on the proved account and the declar- ation allege that the account is from another state or county and is veri- fied under the statute and must make profert of such account, or plaintiff will not be allowed to introduce it in evidence. Hunter z'. .\nderson, 48 Tenn. (i Heisk.) i; Wilkhorn v. Gillespie, 53 Tenn. (6 Heisk.) 329. But if an account not verified as required by statute is received in evidence without objection, it is suffi- cient to sustain a judgment. Locke I'. Farley, i N. W. 955. The time for objection to tlie veri- fied account for insufficiency is when it is offered in evidence. Elyton L. Co. V. Morgan. 7 So. 249; Gordon z\ bibley, 59 Mich. 250, 26 N. W. 485. 74. Alexander z'. Moore, iii Ala. 410. 20 So. 339. 75. Heer Dry Goods Co. v. Shaffer, 5! Ark. 368, 11 S. \y. 517; Cahn z'. Salinas, 2 Willson Civ. Cas. Ct. App. § 104 ; Bonner z>. White. 87 Miss. 653, 29 So. 402. 76. Rockmore v. Cullen, 94 Ga. 648, 21 S. E. 845; Cahn V. Salinas, 2 Willson Civ. Cas. Ct. App. §104; Moore v. Powers, 16 Tex. (Ziv. App. 436, 41 S. W. 707 ; Bonner v. White, 78 Miss. 6=;3, 29 So. 402. Plaintiff Need Prove Only Items Controverted. — Shuford r. Chinski, (Tex.). 26 S. W. 141. " The act (of 1874) was intended to give to sworn accounts the same (>rimo facie standing in courts as had been given to instruments charged to have been executed by Vol. I 154 ACCOUNTS, ACCOUNTING But without filing counter-affidavit defendant may show that the account was not due when the action was begun,' ' or that the claim is outlawed/" or has been paid,"'^ or a recoupment or counter- claim.'"' If no sworn denial is made, or the verification is insufticient, the plaintift' may object at the trial to the introduction of any evidence against the correctness of his account.*" C. Defendant's Counter-Affidavit. — The sworn denial is likewise statutory and must follow the act.*- the other partj-j to the e.Ktent of dispensing with further proof of their correctness unless the same or some items thereof were denied also under oath, in the nature of a plea of non est factum. The parties to join in a sworn issue when the account is intended to be contested in whole or in part. The rule would not apply to a separate and independent de- fense not going to the justice of the account sued on." English v. Mil- tenberger, 51 Te.x. 296. Rives v. Habermacher, i White & W. Civ. Cas. Ct. App. § 747, apparently the defense permitted in this case, with- out filing sworn denial of account, was payment and the same defense was likewise permitted in Galves- ton etc. V. McTiegue, id. ib. 461. Affidavit to Account Under Rev. St. Sec. 2266, in suit against part- nership, proves the partnership unless same is denied under oath. Carder V. Wilder, i White & W. Civ. Cas. Ct. App. § 14. See also Bjorkquest V. Wagar, 83 Mich. 226, 47 N. W. 235, where affidavit showed plaintiff was doing business under name of Bjorkquest & Son. Nor in absence of counter affi- davit can defendant impeach plaint- iff's affidavit by showing that plaint- iflf was not a member of firm at date of delivery of the goods. Moore v. Powers, 16 Tex. Civ. App. 436, 41 S. W. 707. But see Trundle v. Ed- wards, 4 Sneed CTenn.) 572, where it was said that the verified account establishes the existence of the debt but not the character in which de- fendant is sued, nor the ground of his liability and other material al- legations. 77. Johnston v. Johnson, 44 Kan. 666, 24 Pac. 1098. 78. Wagener v. Boyce (Ariz.), 52 Pac. 1 122. Vol. I 79. Moore v. Powers, 16 Tex. Civ. App. 436, 41 S. W. 707; Galveston etc. V. McTiegue, i White & W. Civ. Cas. Ct. App. (Te.x.) §461. The intimation in Loeb v. Nunn, 4 Heisk. (Tenn.) 449, is to the con- trary. 80. Briggs V. Montgomery, 3 Heisk. (Tenn.) 673; Galveston etc. V. Schwartz, 2 Tex. App. Civ. Cas. § 758. 81. Rockmore v Cullen, 94 Ga. 648, 21 S. E. 845 ; Moore v. Powers, 16 Tex. Civ. App. 436, 41 S. W. 708; English V. Miltenberger, 51 Tex. 296. But in Loeb v. Nunn, 4 Heisk. (Tenn.) 449, it is said: "'The pleas were not sworn to nor was the jus- tice of the account otherwise denied on oath. The plaintiffs, however, took issue upon the pleas of defend- ants and went to trial without taking any exception to the failure of de- fendants to deny on oath the justice of the account sued on. . . . The plaintiffs, by taking issue upon the pleas tendered, without affidavit by the defendants denying the justice of the account, and by submitting the cause to the jury upon those issues without objection, waived the bene- fit of the provisions of the code." Although a rule of court provides that items in plaintiff's sworn and filed account are admitted unless denied in the affidavit of defense, parties may by stipulation waive the rule and permit defendant to con- trovert items without such affidavit of defense. O'Connor v. .^.m. I. U. Co.. 56 Pa. St. 234. 82. Eberstadt v. Jones. 19 Tex. Civ. App. 480, 48 S. W. SS8. An answer denying the justness of the account verified and filed is a sufficient denial under oath. Molino V. Blake (Ariz.), 52 Pac. ,366. AND ACCOUNTS STATED. 155 In so far as the account is denied under oath, it is deprived of all force as evidence;''^ but it may still be used to establish items not so denied."'' D. Other Means of Proof. — Although the case be brought under the statute, the plaintiff is not required to prove his case by a verified account, but may introduce such evidence as would be com- petent in other actions in assumpsit.*^ 4. Other Actions on Open Account. — A. Filing or Serving Statement of Account. — By statute or by rule of court the plaintiff is or may be required to file or serve, as part of his com- plaint, or otherwise, a statement of the account sued on, under penalty of exclusion of evidence as to items not scheduled.*" Failure of plaintiff in this respect is. however, waived, unless properly objected to. The mode of objection will depend on the particular statute or rule; it has often been held that evidence will not be excluded unless the objection is made and heard before trial." In Bonner v. White (Miss.), 29 So. 402, an affidavit showing a set off was said not to amount to a denial of plaintiff's account. 83. Jones v. McLuskey, 10 Ala. 27: Brien v. Peterman 40 Tenn. (3 Head) 498 Cthe affidavit of one of two defendants being held suffi- cient) ; Olive v. Hester, 63 Tex. 190 holding also that the effect of such denial is not destroyed by plaintiff's sworn supplemental peti- tion afterwards filed reiterating his former affidavit. Burden of Proof is then on the party claiming on the account. Keating Implement & Machine Co. V. Erie Citv Iron Works (Tex. Civ, App.). 6.3 S. W. 546. 84. Reinhardt v. Carter, 49 Miss. .31.=;. 85. Sullivan Timber Co. v. Brus- hagel, III Ala. 114, 20 So. 498. 86. Dunker v. Schlotfeldt, 49 III. App. 652; Sullivan v. Blythe, 14 S. C. 621 ; Goodrich v. James, i Wend. (N. Y.) 289; Barnes v. Henshaw, 21 Wend. (N. Y.) 426; Lovelock v. Cheveley. i Holt 552 ; Pierce v. Craft. 12 Johns. (N. Y.) 90 ; Kellogg V. Paine, 8 How. Pr. (N. Y.) 329; Dowdney v. Volkening. 37 N. Y. Super. 313 : Goings v. Patten, i Daly (N. Y.) 168; Hart v. Spect, 62 Cal. 187. The first item was. " 1870, April, account rendered, $3970." This item was held too general and too in- definite to admit of proof. Moore v. Gordon, 26 La. Ann. 167. Under one item of charge, as fol- lows : " To goods sold, materials found, and work done," — only one particular subject matter of charge can be proved. Jones v. Isley, 83 Mass. (i Allen) 273. Explanations of the Items " It was not error to permit the plaint- iff to explain the items in the bill of particulars, or the copy of the account he furnished to defend- ants prior to the trial, pursuant to section 454 C. C. P. The book or books from which it was taken were brought into court, and it is not disputed that the copy furnished was a correct one. That is all the plaint- iff was required to do. The truth of the items of the account was the very point in issue, and his testi- mony in explanation of the items which he carried into his account by mistake was properly received as tending to show the true state of the account. The penalty of being pre- cluded from giving evidence of the account provided for in said sec- tion only applies where the party of whom a copy of the account in con- troversy is demanded, in writing, refuses to furnish the same." Graham v. Harmon, 84 Cal. 181. 23 Pac. 1097. 87. Semmes t: Lee. 3 Cranch 439. 21 Fed. Cas. No. 12,652 ; Dunker v. Schlotfeldt, 49 111. App. 652; Snl- Vol. I 156 .-iCCO UNTS. ACCOUNTING Under some statutes requiring a schedule of items to be furnished on demand, if defendant makes the demand and plaintiff wholly fails to comply, defendant may object to introduction of evidence at the trial.*" B. Testimony of Parties. — Before parties were permitted generally to testify in their own behalf, it had been provided that in actions on account (usually in actions involving small sums,) the plaintiff might prove his demand by his own oath,"" and might abandon part of his claim so as to bring himself within the amount that could be so proved."" And in analogy with equity practice there were provisions for examining parties in behalf of the adverse party."' Tlie ])laintiff's oath was deprived of all evidentiary force if met b\- the defendant's oath."- livan V. Blythe, 14 S. C. 622 ; Good- rich V. James, i Weiid. (N. V.) 289; Barnes v. Hensliaw, 21 Wend. (N. Y.) 426: Pierce v. Craft, 12 John. 90 ; Lovelock v. Chevcley, i Holt 552 ; Kellogg I'. Paine, 8 How. Pr. (N. Y.) 329; Gehbard i'. Parker, 120 N. Y. 33, 23 N. E. 982 ; Flanders v. Ish. 2 Or. 320. Contra. — Pipes v. Norton. 47 Miss. 61. 88. Lonsdale z'. Oltnian. 50 Minn. 52, 52 N. W. 131. And a stipnlalion to fnrnish the schedule within a certain period obviates the necessity for a demand. Tuttle V. Wilson, 42 Minn. 231. 44 N. W. 10. Code Civ. Proc, §531. requiring a copy of the account to be served on the adverse party within 10 days after demand, failing which plaintiff to be precluded from proving the account, is apnlicable only in case of total failure to serve any copy of the account, and not where the copy is merely defective. SchulhofF ?•. Coop. D. A.. 3 N. Y. Civ. Proc. 412. 89. Havden v. Boyd, 8 Ala. 323: McWilliams v. Cosby, 4 Ired. CN. C.) no; Colbert v. Piercy, 3 Ired. (N. C.) 77: Grant v. Cole, g Ala. 366; Cram v. Spear. 8 Ohio (8 Ham.) 494; Blake 7'. Freeman, 13 Ga. 215; Murfs V. Tlarding. 6 Port. (Ala.) 121. This form of proof was permitted if the claim though originally for more than the statutory limit had lieen reduced below it liy credits. McWilliams v. Cosby, 4 Ired. (N. C.) no. Vol. I PlaintifT's deposition might be taken in his own behalf. Moore v. Hatfield, 3 Ala. 442. The statute was strictly construed. Hayden r. Boyd, 8 Ala. 323. And extended only to a plaintiflf, not to a defendant seeking to prove an ofTset. Bennett v. .A.rmstead. 3 Ala. 507. Defendant could merely deny on oath the plaintilT's testimony, he could not be sworn to testify gen- erally. Hayden v. Boyd, 8 Ala. 323; Yarborough v. Hood, 13 Ala. 176. And could deny only what plaintiff testified to on examination in chief. West r. Brunn, 35 Ala. 263. 90. Grant v. Cole, g Ala. 366: Mnrfs V. Harding, 6 Port. (.Ma.) 121. 91. Stevens v. Hall, 6 N. H. 508; Stetson V. Godfrey, 20 N. H. 227; Harrison v. Dodson. n Rich. (S. C.) 48. 92. Jones v. McLuskey, 10 Ala. 27; Hudgins v. Nix, 10 Ala. 575; Anderson v. Collins, 6 Ala. 783; West V. Brunn, 35' Ala. 263 ; Hayden r. Boyd, 8 Ala. 323. But the denial cannot be " upon information and belief." Fitzpatrick r. Hays, 36 .Ala. 684: " The statute evidently contem- plates that the denial of the defend- ant as well as tlie statement of the plaintiff shall be positive— as of one who speaks from actual knowledge and not merely from information and belief." AND ACCOUNTS STATED. 157 C. Method of Proving Plaintiff's Case. — a. By .hcoiiiit Books. — As to the use of account books in evidence, see the title " Books of Account." But the plaintitt need not resort to his account books."'' b. B\ Sho-cving an Account Stated. — He may prove his case by showing- an account stated."'' c. B\ Fvoving Admissions. — ( )r b\' jjrovinf^ a(hnissions by defendant."'"' But the admission must be shown to refer to the account sued on,"" and must extend not only to the admission of an indebted- ness, but also of the amount thereof."' 93. Moore v. Joyce, 23 Miss. 584; Godbold V. Blair, 27 Ala. S92 ; Plum- mer i'. Struby-Estalirooke Co., 23 Colo. 190, 47 Pac. 294. 94. Leiser v. McDowell, 74 N. Y. Supp. 1021 ; Hirschfelder ;■. Levy. 69 Ala. 351 ; Stowe v. Sevvall. 3 Stew. & P. (Ala.) 67; Theiis v. Jipson, 3 Tex. App. C. C. § 189. " To prove an account sued on as an open account, it is not indis- pensably necessary to produce be- fore the jury a written statement of the account, or to establish the items of the account. It is quite sufficient if it be shown, in a case like this, that the defendant bought goods from the plaintiff, whether one or many items, and admitted the correctness of the charge made by the plaintiff against him for them, with knowledge of the facts ; or, in other words, a count as upon an open account, or upon an account simply, may be well supported by proof of an account stated. Johnson V. Kelly. 2 Stew. (Ala.) 490; Holmes v. Gayle, i Ala. 517: Pryor V. Johnson. 32 Ala. 27." Sullivan Timber Co. v. Rrushagel, iii Ala. IIJ. 20 So. 498. Where parties meet and go over mutual accounts, and strike a bal- ance, that fact may be shown in evi- dence as an admission in an action on account. Duffy v. Hickey, 63 Wis. 312, 23 N. W. 707. As to method of proving an ac- count stated see in this article tlie section on " Account Stated." 95. Sullivan Timber Co. v. Brush- agel, III Ala. 114, 20 So. 498; Gill 'c'. Staylor (Md.) 39 Atl. 650; Rice V. Schloss. 90 Ala. 416, 7 So. 802; Hirschfelder v. Levy. 69 Ala. 351; Holmes v. Gayle, I. Ala. 517: Mitch- ell I'. Joyce, 69 [owa, 121. 28 N. W. 473; Savage v. Aiken, 21 Xeb. 605, 33 N. W. 241 ; Hurley v. Roche. 6 Fla. 746; Stetson v. Godfrey. 20 N. H. 227; Craighead ;'. Bank, Meigs (Tenn.) 199; Chandler v. Meckling. 22 Tex. 36; Bonnell v. Mawha, 37 N. J. Law. 198; Theus V. Jipson, 3 Wilson Civ. Cas. Ct. App. §190; Duffy 7'. Hickey, 63 Wis. 312, 23 N. W. 707. Proof of defendant's adinission is sufficient without proof of the orig- inal entries or production of the ac- count. Johnson v. Kelly. 2 Stew. (Ala.) 490; Muse r. Burns. 3 Wil- son Civ. Cas. Ct. App. § yi, Bonnell V. Mawha, 27 N. J. Law. 198. But in a case in Pennsylvania, it was held that the failure of the book entries to contain sufficient to charge defendant is not cured by admission in affidavit of defense. Farrell i'. Baxter, 11 Wkly. Notes Cas. 400. L^pon the subject of express and implied admissions to prove ac- counts see infra "Accounts St.\tfd." 96. Chandler v. Neckling, 22 Tex. 36. " Suppose, upon a failure by the plaintiff to prove any of his items, he should be permitted to prove the general admission of deceased that he owed him 100 dollars, and re- cover that sum when in fact he owed him nothing, upon the items upon which the claim was founded, but did owe that sum for a horse ; would the recovery be a bar to a pro- ceeding for the value of the horse? We think it would not." Coats t'. Gregory, ib Ind. 345. 97. Coats V. Gregory, 10 Ind. 345. Vol. I 158 ACCOUNTS, ACCOUNTING d. Othcncisc. — The proof need not be of each item in detail; the proof may be general, going to the correctness of the account as a whole/* as, by testimony that the account was properly kept and is correct.®' D. Recovery for Amount Proved. — The plaintiff will recover the amount proved, though he may not establish the entire claim. ^'"' E. \'ari.\nce. — Variance between pleadings and proof as to the character of the goods sold or services rendered,' or that the price was a fixed instead of the reasonable one," will not be held fatal, especially if the objection is not seasonably made.^ But an action on account cannot be sustained by proof of a claim for damages arising out of tort.^ V. ACCOUNTS STATED. 1. Full or Kegular Proof Of. — A. OF Previous Dealings. — To 98. Pryor v. Johnson, 32 Ala. 27. Certainty is not usually attainable in actions on open accounts. If the jury are reasonably satisfied, from the evidence, of the facts which con- stitute tlie alleged indebtedness, it is sufficient. Godbold t'. Blair, 27 Ala. 592- It is error to charge a jury that the account must be proved " to their satisfaction." Smith z: Ma- ther, Tex. 49 S. W. 257. It is error to charge a jury that they have a right to presume that all the items of an account are correct if the most of them have been posi- tively iDroved. Moore v. Joyce, 23 Miss. 584. 99. Ward r. Wheeler, 18 Tex. 249; INIoore i'. Joyce, 23 Miss. 584; Baer v. Pfaff, 44 Mo. App. 35. But where one witness swore the account correct, but admitted he knew nothing of the items except two, amounting to $10.00, and an- other witness testified to an item of $1.00, and a third that he had seen .defendant's family buy goods at plaintiff's store, a verdict for $75.00 is not justified. Jesse v. Davis, 34 Mo. App. 351. See So. H. B. & L. Ass'n. i'. Butler, in Ga. 826, 35 S. E. 679. 100. Belcher v. Grey, 16 Ga. 208; Planters Bank f. Farmers Bank, 8 Gill & J. (Md.) 449; Memphis Mach. W. -■. Aberdeen, 77 Miss. 420, 27 So. 608; Lovell 7'. .Earle, 127 Mass. 546. 1. Ralston v. Kohl, .p Ohio St. 92; Gen. Elec. Co. v. Blacksburg L. & I. Co., 46 S. C. 75. 24 S- E. 43- 2. Bailey v. Casey, 60 Tex. 573. " .According to the plaintiffs' peti- tion the defendant ' bound, obligated himself and promised to pay' the plaintiffs on demand what the goods were reasonably worth. The evi- dence of what that value was is shown by agreement between the contracting parties at the times of the respective sales and delivery of the goods, which the defendant testified was the several sums of money charged in the itemized ac- count sued on. . . . Such a transaction is it is true a contract for the sale of goods at a stipulated fixed price, yet it is not incompatible witn the cause of action as set forth in the petition. . . . The cause of action set forth being for the value of the goods, that value may be shown by evidence which estab- lishes the agreement of the parties ascertaining at the time of the sale what that value was." 3. Gen. Elec. Co. v. Blacksburg L. & I. Co., 46 S. C. 75. 24 S. E. 43- But where plaintiff alleged that the indebtedness arose for supplies, and the first item in his account was : " Account rendered $3970," as this item did not purport to be for sup- plies, testimony as to it should have been rejected. Moore v. Gordon, 26 La. Ann. 167. 4. Sandeen v. Ry. Co., 79 Mo. 278. Vol. I AND ACCOUNTS STATED. 159 prove an account stated it must appear that there were deahngs between the parties before the alleged statement of account ;^ but the specific items constituting the account need not be shown." The plaintiff may, however, in proving a settlement, show the items included.' A Single Transaction may be the basis of a stated account.* 5. Powers v. Ins. Co., 68 Vt. 390, 35 Atl. 331 ; Quincey v. White, 63 N. Y. 370; Field V. Knapp, 108 N. Y. 87, 14 N. E. 829; Callahan v. O'Rourke, 17 App. Div. 277, 45 N. Y. Supp. 764; Stevens v. TiiUer, 4 Mich. 387; Toms v. Sills, 29 U. C. Q. B. (Can.) 497. "Authorities on this subject might be cited to any extent." Zacarino v. Pallotti, 49 Conn. 36. Account for Goods Not Ordered. Plaintiff sent goods to defendant erroneously, supposing they had been ordered by him, and rendered sev- eral accounts which were retained and no objection made. When de- fendant discovered the goods upon his premises he notified plaintiff that they had not been ordered and were at plaintiff's disposal. None of the material was used by the defendant, and he finally sent it back to the plaintiff. No dealings had ever been had between the parties and they were strangers. It was held that the rendering of the accounts was not sufficient to establish an account stated. An account stated only de- ;ermines the amount of the debt where liability does exist. It cannot be made the instrument to create a liability where none existed before. Austin V. Wilson, a N. Y. St. 303, II N. Y. Supp. 565. Sale and Account Simultaneous. An implement was sold and delivered to defendant, and at the same time a statement of account showing the price of it. No objection was made to the bill as rendered. The court said that an account stated must relate to some previous transactions ; that the relation of debtor and cred- itor must already exist between them. It is said to be in the nature of a new promise. That the ad- mitted facts showed no accounting; no agreement upon some previous transaction but what was done was part of and in fulfillment of the original contract, a part of the or- iginal transaction itself. Truman v. Owens, 17 Or. 523, 21 Pac. 665. See also. Gross v. Bricker, 18 U. C. Q. B. (Can.) 410. The Dealings Must Have Been Such As Imposed a Legal Obliga- tion. — Melchoir v. McCarty, 31 Wis. 252, II Am. Rep. 605. 6. Alabama. — Ware v. Dudley, 16 Ala. (N. S.) 742. Delazvare. — Gregory v. Bailey, 4 Harr. 256. Florida. — Jacksonville U. & P. Ry. & N. Co. V. Warriner, 35 Fla. 197, 16 So. 898. Illinois. — American B. Co. v. Ber- ner-Mayer Co., 83 111. App. 446. Louisiana. — Oakey v. Weil, 7 La. Ann. 169. Massachusetts. — Union Bank v. Knapp, 3 Pick. 96, 15 Am. Dec. 182. Micliigan. — Albrecht v. Gies, i3 Mich. 389. Mississippi. — McCall v. Nave, 52 Miss. 494. Neiv Jersey. — Bonnell v. Mawha, S7 N. J. Law 198. Te.ras. — Pridgen v. Hill, 12 Tex. 374. Sufficient to Prove Some Ante- cedent Debt respecting which an account was stated. Knowles v. Michel, 13 East 249. 7. Koegel v. Givens, 79 Mo. 77 ; compare Walker v. Driver, 7 Ala. (N. S.) 679. Proving the Transactions to Ex- plain the Settlement Cape G. & S. L. R. Co. V. Kimmel, 58 Mo. 83. Where Statement of Account Is Denied — In Mead v. White (Pa.), 8 Atl. 913, it is held that where a defendant disputes the allegation that an account has been stated, the plaintiff to prove the settlement may show the several items which pre- cede the settlement, and were claimed to have been included in it. 8. Rutledge v. Moore, 9 Mo. 537 ; Knowles v. Michel, 13 East 249; Vol. I ir.o ACCOUNTS, ACCOUNTING B. RiiNDURiNG OK Submission of Account. — a. Necessary To Be Sliown. — A submission or rendering of account must be shown." The statement rendered must show the whole account.^" b. What Is a Sufficient. — The statement is usually but not neces- sarily in writing." And it seems may consist of nothing more than a demand for a certain sum as a balance due, without showing aiiv items. '- Highinore v. Primrose, 5 M. & S. 65; State V. Hartman Steel Co., 51 N. J. Law 446, 20 Atl. 67; Neyland V. Neyland, 19 Tex. 423 ; Cobb v. .'\riiiidell, 26 Wis. SS3- Calculating Sum Due on Single Liquidated Claim Does Not Make an Account Stated — McKay v. Grinley, 30 U. C. Q. B. (Can.) 54. 9. Lockwood I'. Thorne, 18 N. Y. 285; Clark V. Marbourg, 33 Kan. 471, 6 Pac. 548. Uncommunicated Book Jintries. The balancing of an account on one's books without e-xaniination or assent by the other party to the account, is no evidence of an account stated. Nostrand v. Ditmis, 127 N. Y. 355, 28 N. E. 27 ; Loeb v. Keyes, 67 N. Y. St. 205, 33 N. Y. Supp. 4QI. Parties Not Bound by Their Un- communicated Book Entries. — Simpson v. Ingham, 2 Barn. & C. 65, 26 Rev. Rep. 273 ; Hume v. Hol- land, 21 ETig. C. L. 460. Circumstantial Evidence of Ren- dition Sufficient Hatch v. Von Taubc, 31 .Misc. 468, 64 N. Y. Supp. 393- But proof merely that it was tlie rule of the house to render bills weekly is not sufficient to establish the fact that bills were rendered to defendant. Davis v. Fromme, 28 .•\pp. Div. 498, 48 N. Y. Supp. 474. Proof of Mailing of a Statement of Account is prima facie evidence of rendition of account. New York Cab Co. V. Crow, 22 Misc. 340, 51 N. Y. Supp. 252. Accounting by Public Officers. hi Chatham v. Niles, 36 Conn. 403, an account presented by selectmen at a regular town meeting of matters out of the ordinary routine of busi- ness, not filed with the town records, not properly itemized, was held not .so rendered as to become the basis of an account stated. 10. Statement Showing Only One Side of the Account Not Sufficient. McCarthy i'. Wood, 12 Ky. Law 84, 13 S.' W. 792. Defendant was president and finan- cial manager of a corporation. .Af- ter his retirement from office, a com- mittee was appointed to examine the affairs of the company and settle with him. Defendant gave the com- mittee the items he had paid out for the company. They were footed up, but the other side of the account, showing what he had received from the company was not gone into. No balance was struck, or settlement agreed upon. This was held not sufficient evidence of an account stated to be submitted to the jury. Pickard v. Simson, 24 N. Y. St. 841. 6 N. Y. Supp. 93. 11. No Writing Required. — When parties mutually reckon their ac- count and agree on the balance, and the books are balanced, it is an ac- count stated, and to sustain an action thereon no writing is necessary. Gibson z: Sumner. 6 Vt. 163 ; Lal- lande i'. Brown, 121 ."Ma. 513. 25 So. 997 ; Pinchon i'. Chilcott. 3 Car. & P. 236, 14 Eng. C. L. 545 ; Knowles J". Michel, 13 East 249; Watkins v. Ford, 69 Mich. 357, 37 N. W. 300: Quinn v. While (Nev.), 62 Pac. 995. 12. Knowles v. Michel, 13 East -'49- See Clark v. Marbourg, 33 Kan. 471, 6 Pac. 548. An account was presented as fol- lows : To .Mdse $99 25 By Credit 9 25 Balance Due $90 00 Defendant, at time it was pre- sented, admitted it was correct. Held, that this was evidence to sup- port a judgment for an account stated. May r. Kloss, 44 Mo. 300. Vol. I AND ACCOUNTS STATED. Kil If Rendered by a Debtor it should be shown to have been rendered to the person legaUy as distinguished from the one equitabh' entitled to receive the balance/^ Parol Evidence Is Admissible to Identify the transactions covered by an account stated, where tlie statement itself does not show them." The Examination of the Books of Account may be proved as evi- dence of submission of accounts ;''' or that a statement of the account was delivered,"' or mailed to the party to be charged.'" If Itemized, Should Show Amounts of the Several Items One sent an account with a ktter asking for pay- ment of a balance, the latter part of August, 1895. The account con- tained one item the amount of which was left blank. About the same time noticing this omission, a letter was sent giving the amount of the omitted item. The debtor admitted having received the statement of ac- count, but denied having received the supplementary letter. It was held that the facts did not make out an account stated. Ault v. Interstate S. & L. A., 15 Wash. 627, 47 Pac. 13- The omission alone might not in that case have been held conclusive against the account ; there were other facts involved. 13. If an Account Sales is Ren- dered to the Legal Owner of the Goods, the consignee i.s not bound to notice an equitable or contingent owner. Bevan r. Cullen, 7 Pa. St. 281. 14. In the case of Ferguson v. Davidson, 147 Mo. 664, 49 S. W. 859, a statement of account was of- fered in evidence, but it did not appear from the face of the paper what transactions it really covered. It was undisputed that it covered other transactions than those in- volved in the suit. Whether it covered the latter did not appear and it was held that this could be proved by oral testimony, and was a ques- tion for the jury. 15. Gibson v. Sumner, 6 Vt. 163 ; Rice V. Schloss, 90 Ala. 416, 7 So. 802 ; Swain v. Knapp, 34 Minn. 232, 25 N. W. 397; Kock V. Bonitz, 4 Daly (N. Y.) 117; Llovd v. Carrier, 2 Lans. (N. V.) 364. Partnership Accounts. — It appeared that it was one of the stipulations 11 of the agreement of co-partnership that Smith should state the partner- ship accounts annually so that even if Smith made up the accounts in the absence of Heartt it was the lattcr's duty to look into them within a reasonable time and point out the errors, or be considered as having acquiesced in the correctness of the accounts as stated on the books to which both parties had access. Heartt v. Corning, 5 Paige (N. Y.) 566. Presumption of Examination In the case of Brewer v. Wright, 25 Neb. 305, 41 N. W. 159, It ap- peared that a book was kept at tlie mill where the plaintiff worked, in which book he entered up every Saturday night his time of service. It appeared that the defendants were at the mill occasionally and some- times examined the book. The ac- counts ran for four years. It was presumed that the defendants must have known what the book showed, the entries being charges against them in their own book. It appeare 1 that a settlement had been made, but the defense was that the book entries had not been examined and under- stood by the defendants at the time of the settlement. Balance Need Not Be Struck Ware v. Manning, 86 Ala. 238, 5 ^o. 682. But Must Be Ascertainable by Calculation from the accounts ren- dered or examined. Treadway v Ryan, 3 Kan. 437. 16. -May z>. Kloss, 44 Mo. 300; McCarthy v. "Wood, 12 Ky. Law 8.|, 13 S. W. 792; Truman v. Owens. 17 Or. 523, 21 Pac. 665. 17. Ault V. Interstate S. & L. A.. 15 Wash. 627, 47 Pac. 13; Bee v. Tierney. 58 111. App. 552 ; Darby v. I.astrapes, 28 I,a. .\mi. 605. Vol. I 162 ACCOUNTS, ACCOUNTING c. Docs Not Make an Account Stated. — But mere proof of ren- dering of an account is not sufficient to establish an account stated.^* C. Assent of Parties tu the Account. — a. Necessary To Be Shown. — It is necessary to prove the assent of both parties to the correctness of the account.^" Presumption of Receipt of Ac- count Mailed — If a creditor mails an account to his debtor, the law presumes that it has been received and examined by the debtor. The creditor, however, must show that the particular account was the one which he transmitted, and that it was duly forwarded to the debtor. New York Cab Co. v. Crow, 23 Misc. 340, 51 N. Y. Supp. 252 But mere proof of mailing does not prove an account stated. Row- land V. Donovan, 16 Mo. .\pp. 554. 18. Toland v. Sprague, 12 Pet. (U. S.) 300; Guernsey v. Rexford, 63 N. Y. 631 ; Atkinson v. Burt, 65 Ark. 316, S3 S. W. 404; White v. Campbell, 25 Mich. 463 ; Robertson V. Wright, 17 Gratt. (Va.) 534; Ir- vine V. Young. I Sim. & S. 333. 19. ^/(iba»ia.— Christian & Craft Co. V. Hill, 122 Ala. 490, 26 So. 149. California. — Terry v. Sickles, 13 Cal. 427. Connecticut. — Chatham v. Niles. 36 Conn. 403. Kentucky. — Louisville B. Co. v. Asher CKy.), 65 S. W. I33- Micliigan. — Albretch v. dies, 33 Mich. 389. Afissowi. — Cape G. & S. L. R. Co. V. Kimmel. 58 Mo. 83. Nc'd' York. — Lockwood v. Thornc, 18 N. Y. 285. Oregon. — Holmes Z'. Page, IQ Or. 232, 23 Pac. 961. Pennsylvania. — Pierce v. Pierce, 199 Pa." St. 4, 48 .Ml 689. Rhode Island. — Allen v. Woon- socket Co., II R. I. 288. Tennessee. — Bussey v. Gant. 10 Humph. 237. Accounts Assented to by Debtor Only — Tlioush an account be as- sented to by the debtor, it does not become an account stated, unless also assented to by the creditor. Spcll- man 7: Muehlfeld. 48 .^pp. Div. 265, f)2 N. Y. Supp. 74^1. Vol. I Contra. — But, on the other hand, it is said that what must be proved is the admission of correctness by the party to be charged. Shea v. Kerr, i Del. 198, 4.0 Atl. 241 ; Mc- Call V. Nave, 52 Miss. 494; Volken- ing V. Dc Graaf, 81 N. Y. 268. Partnership Accounts — In Rehill V. M'Tague, 114 Pa. St. 82, 7 Atl. 224, it appeared that partners decided to adjust their affairs, and employed three clerks to make up a statement of the partnership accounts. The clerks proceeded and made a state- ment, partly from the partnership books and partly from oral state- ments furnished by the separate part- ners. It did not appear that the partners had all or any of them ac- cepted the statements made by the clerks, and it was held that the statement was not a stated account. Promise to Pay Not Always an Assent to Correctness of Account. .•\n account was handed to the party to be charged, who looked at it, said it was larger than he thought it was, and that a certain third party ought to have paid it. After some further conversation he said that he would see the creditor and pay it ; that he would have no trouble about it. It was held that this fell short of establishing an ac- count stated : that it was essential to an account stated that there should be either an express or implied ad- mission to the correctness of the account as a claim against the party to be charged. Stevens v. Aycrs, 32 N. Y. St. 15, 10 N. Y. Supp. 502. Admission of Items; Denial of Indebtedness — Mere admission of the correctness of the items of an account does not suffice if the party to be charged denies liability ; the assent to be proved is an admission of indebtedness. Ryan v. Gross, 48 Ala. 370. Assent Under Compulsion .\ lilcdgcc made an invalid sale of part AND ACCOUNTS STATED. 163 All Facts and Circumstances May Be Shown that will aid in deciding what occurred, or explain what occurred at the settlement of the account.-" b. By Agent. — Assent by a partner or other authorized agent mav be shown."' of the pledge and rendered an ac- count that was objected to; another account was rendered under threat of sale of the rest of the pledge; pledgor paid balance as shown by the account ; the court held in an action by the pledgor to recover damages (defendant pleading an ac- count stated and seUled) that it appeared the plaintiff did not assent; that the payment was made under duress of goods. Stenton v. Jerome, 54 N. Y. 480. 20. jMead z: White (Pa.), 8 .A.tl. 913; Goodrich v. Coffin, 83 Me. 324, 22 Atl, 217. In Coffee v. Williams, 103 Cal. 505, 37 Pac. 504, it appeared that the parties met to see how they stood ; that they disputed over cer- tain matters ; defendant testified as to this meeting that certain matters were discussed, but as to others there was no agreement. The court said that it was not confined to con- sidering the mere naked yes or no of the witnesses, but that the de- fendant had the right to show, if he could, the inherent improbability of his agreement to such an account, and to that end evidence was admis- sible of the general nature of the circumstances of the business be- tween tlie parties; the character of the objections made by the defendant to the items; that the plaintiff who had conducted the business had kept no accounts, and had nothing to present as a basis for settlement ; that there was over $30,000 of stock sold by the plaintiff, which formed no part of the statement of account, and that the defendant had objected to all these things. All these mat- ters were properly to be considered in determining whether the defend- ant acquiesced in an account which was radically different from the truth and from his own contentions. 21. Heidenheimer v. Ellis, 67 Tex. 436. 3S. W. 666; Southwestern T& T. Co. V. Benson, 63 Ark. 283, 38 S. W. 341 ; Fergusson v. Fyffe, 8 CI. & F. 121 ; Luckie v. Forsyth, 3 Jo. & Lat. 388. Settlement by a Partner With a Third Party is Itrima facie evidence of the balance due from the company to the plaintiff, but not conclusive. The other partners may show that the plaintiff included a separate ac- count held by him against the part- ner settling. Kirkpatrick v. Turn- bull, Add. (Pa.) 259. An Admission by One Partner of correctness of account is evidence of account stated in suit against other members of firm, even after dismissal for want of service as to the partner making the admission. Cady V. Kyle, 47 Mo. 346; Martyn v. Arnold, 36 Fla. 446, 18 So, 791. But Not by Partner After Disso- lution of Partnership. — Ross v. Veatman, 2 Swan (Tenn.) 144. May be Made by Surviving Part- ner. _ Langley V. O.xford, Ambl. (Eng.) 798. Assent by Agent — A person em- ployed an attorney at law to ex- amine bank books and straighten out the account with the bank. The agent, having examined the account, stated that it was correct. This was held to be a sufficient admission on behalf of the principal of the cor- rectness of the account. Burraston V. Bank, 22 Utah 328, 62 Pac. 425. By Bookkeepers — Rice v. Schloss, 90 Ala. 416, 7 So. 802. Especially, if the principal knew that his bookkeeper was in the habit of rendering accounts to his workmen from time to time as they called for them. Wiley v. Brigham, 16 Hun (N. Y.) 106. Roadmaster of Railroad Au- thorized to audit accounts of laborers. St. Louis I. M. & S. Ry. Co. V. Bank, 47 Ark. 541, i S. W. 70-1 ■ Directors of Corporatioi. - J.Tck- Vol. I 164 J ceo UN rS, A ceo UN TING c. Express Assent. — (1.) How Shown. — This assent may be by an express admission ;" as where one renders an account showing- a balance against himself,-^ or a written achnission,--' as by signing the accoimt."^ sonville etc. Co. v. Warriiier, 35 Fla. 197, 16 So. 898. President and Secretary of Cor- poration — Pick V. Slimmer, 70 111. App. 3s8; Concord A. H. Co. v. Alaska etc. Co., 78 111. App. 682. Trustees of Religious Corpora- tion Trustees v. Caoa:cr, 6 Barb. (N. Y.) 5/6. Assent by Husband for Wife. Although under the statute both husband and wife are liable for cer- tain supplies furnished to the family, yet the wife is not liable upon an account stated where the account was rendered to the husband, and as- sented to by him only. Holmes v. Page, 19 Or. 232, 23 Pac. g6i. Husband As Agent for Wife. Moody I'. Thwing, 46 Minn. 511, 49 N. W. 229. 22. Sergeant v. Ewing, 36 Pa. St. 156; Anderson v. Best, 176 Pa. St. 498, 35 Atl. 194; Langdon v. Roane, 6 Ala. (N. S.) 518, 41 Am. Dee. 60; Nooc V. Garner. 70 .-Ma. 443. Admission Not Expressing Amount Due — It may be shown that in con- versations the defendant said he owed " the bill " or " that bill ;" it may be shown aliunde what was the bill referred to, and this evidence with his admission may establish an account stated. Goodrich v. Coffin, 83 Me. 324, 22 Atl. 217. 23. Toland v. Sprague. 12 Pet. (U. S.) 300; St. Louis I. M. & S. Ry. Co. V. Bank, 47 Ark. 541, i S. W. 704; Foste V. Standard etc. Co., 34 Or. 125, 54 Pac. 811; Spellman V. Muehlfeld, 48 App. Div. 265, 62 N. Y. Supp. 746. In Absence of Mistake a Party Is Bound by a statement of account rendered by himself. Marline v. Huyler. 29 N. Y. St. 533, 8 N. Y. Supp. 734. Provided it Was Intended as a Final Adjustment and settlement of the transactions to which it relates. Glasscock v. Roscngrant, 55 .'Xrk. 376, 18 S. w. 379. Clark V. .Marbnurg, ^^^^ Kan. 471, Vol. I 6 Pac. 548; Bussey v. Gant, 10 Humph. (Tenn.) 237; Peterson v. W'achuwski, 86 HI. App. 661. But He May Show the Account Was Rendered Under a Mistake as to the facts. Polhemus ^'. Hei- man, 50 Cal. 438. Clark V. Marbourg, ^^ Kan. 471, 6 Pac. 548, holding that an accomit rendered is only ftriina facie evidence against the Tenderer. Account Rendered Showing Credit for Previous Counter Account may amount to a stated account as to such previous account. Bewick v. Butterfield, 60 Mich. 203, 26 N. W. 881. But see contra, Hughes v. Smither, 23 App. Div. 590, 49 N. Y. Supp. 115, afifirmed 163 N. Y. 553, 57 N. E. 1112. 24. Spellman v. Muehlfeld, 48 App. Div. 265, 62 N. Y. Supp. 746; Moody V. Thwing, 46 Minn. 511, 49 N. W. 229; Heidenheimer v. Ellis, 67 Tex. 426, 3 S. W. 666; Powell v. Noye. 23 Barb. (N. Y. ) 184. Admissions Under Seal or in a Contract — Ci7.;i,t; Hoyt v. Wilkin- son, 10 Pick. 31 ; Tassey v. Church. 4 Watts & S. (Pa.) 141, .39 Am. Dec. 65. Resolution Entered on Books of Corporation — Goodwin v. Ins. Co., 24 Conn. 591 ; Trustees v. Cagger, 6 Barb. (N. Y.) 576. Receipt "on account and being th.- balance per account rendered up t'> this date." Dudley v. Iron Cn., 13 Ohio St. l68. 25. Brauger v. Chevalier, 9 i^al, .353; Tuggle v. Minor, 76 Cal. 96. 18 Pac. 131 ; Tennessee Brewing Co. v. Hendricks, 77 Miss. 491, 27 So. 526; Nichols 1'. .\lsnp, 6 Conn. 477. Signing Not Necessary. — in the case of lleartt :'. Corning, 3 Paige tN. Y.) 566, the court said that in the case of Attorney General Z'. Brooksbank, 2 Young & J. 42, the opinion was expressed that an ac- count stated nnist be actually signed liy the parties to enable a defendant AND ACCOUNTS STATED. 165 Such Written Admission Then Becomes the Best Evidence of the ac- count stated ;'-'■ but proof of an admission by word of mouth is suffi- cient.-^ (2.) When Must Have Been Given. — Assent, express or implied, may be shown whether given before or after the assignment of the account to the plaintiff.-" to plead it in bar to a suit for an account, but that apparently an ac- count not signed might be a good defense if set up in the answer and proved at the hearing, but that that opinion is clearly not law, and is directly opposed to that of Lord Hardwick in Willis v. Jernegan, 2 Atk. 252, where he says expressly that it is not necessary the account should be signed by the parties, citing also Jessup z'. Cook, i Halst. 436, and Lanialine v. Caze, 2 P. .•\. Brown, 128. Stebbins v. Niles, j Cushm. (Miss.) 267. Rendering Account Giving Credit for a Balance shown uu previous counter account. Bewick v. Butter- field, 60 Mich. 203, 26 N. \V. 881. 26. Walker -.'. Driver, 7 .\la. (N. S.) 679. If the memorandum of settlement cannot be introduced because not stamped, the account stated may be established by other evidence. Sin- gleton V. Barrett, 2 Cromp. & J. 368, 2 Tyr. 409. 27. Co/orarfo.— Walker v. Steele, 9 Colo. 388, 12 Pac. 423. Illinois. — Tompkins z\ Gerry. 52 111. App. 592; Concord .\. H. Co. v. Alaska etc. Co., 78 111. App. 082; McCord V. Curlee, 59 111. 221. Maine. — Goodrich v. Coffin, 83 Me. 324, 22 Atl. 217. Massachusetts. — Chace z\ Traf- ford, 116 Mass. 529, 17 .-Xm. Rep, 171. Minnesota. — Beals z: Wagener, 47 Minn. 489, 50 N. W. 535. Missouri. — Carroll v. Paul, 16 Mo. 226. Nrzi.' Jersey. — Bonnell z'. Mawha, 37 N. J. Law 198. North Carolina. — Webb v. Cham- bers. 3 Ired. 374. (/?a/i. — Burrastnn Z'. Bank, 22 Utah 328, 62 Pac. 425. Promise to Pay Equivalent to Assent — Plaintiff sent to defendant two accounts, one for money and one for services, with a letter de- manding payment. Defendant did not object nor reply. Afterwards, meeting plaintiff, he acknowledged receipt of the letter, said he had no money, but would pay it as soon as he could. This proof was held suffi- cient to sustain an action upon an " account stated. Vernon v. Simmons, 28 N. Y. St. 173, 7 N. Y. Supp. 649; Hatch V. Von Taube, 31 Misc. 468, 64 N. Y. Supp. 393- Both Oral and Written Admis- sion — The oral admission may lie proved, though made at the same time with a written signed memor- andum of the settlement, such memo- randum being inadmissible for lack of a stamp. Singleton z'. Barrett. 2 Cromp. & J. 368, 2 Tyr. 409. Admission Made as Witness in Another Action — Plaintitf proved that a copy of the account showing the balance sued for was mailed to defendant ; in another action defend- ant being a party, testified that he had duly received the account, that it was correct ; and proved that in conversations defendant had said that if he was able to pay, he would. This was held sufficient to sustain judgment for the plaintiff. McCor- mack V. Sawyer, 104 Mo. 36, 15 S. W. 998. Presentation of Bills and Promise to Pay — In a suit to recover a pav- ing ta.x proof of presentation of the bills and of a promise to pay made by the defendant, will support a ver- dict for the plaintiff on an account stated. Clemens v. Mayor, 16 Md. 208. 28. Powell -.■. R. R. Co., 65 Mo. 658; Bonnell v. Mawha, 37 N- J- Law 198. Vol. I 166 ACCOUNTS, ACCOUNTING It seems it may be shown though made- ix-forc the account became due.-'' It has been said that it ma}' be shown tiiough made after the comme!icement of the action."" (3.) Unqualified and of Precise Sum. — The assent must be unquah- fied,'" and of a precise sum.-'- A Claim of an Offset usualh' amounts to a quahtication of assent.^'' But Evidence of a Reservation of Items to be further investigated does not show that the account was not stated as to the remainder."'' 29. Jugla f. Trouttet, uo N. V. 21, 23 N. E. 1066. 30. Lowenthal v. Morris, 103 Ala. 332, 15 So. 672 {Arguendo in opinion of Head.) Contra and the Better Rule Allen V. Cook, 2 D. P. C. 546; Spen- ■ cer V. Parry, 4 N. & i\l. 770, 3 Ad. & E. 331. An account was rendered July 301I1. August first a summons was issued and the complaint was dated August lOth. But summons was not served until September nth, up to which time the defendant retained the statement of account without ob- jection. It was held that the action could be sustained as upon an ac- count stated. Donald v. Gardner, 44 App. Div. 235, 60 N. Y. Supp. 668. In Stowe z'. Sewall, 3 Stew. & P. (Ala.) 67, which was not an action on an account stated, a stated ac- count was admitted in evidence to establish an indebtedness, although stated after the action was brought. 31. Evans v. Verity, R. & M. 239 ; State V. Hartman Steel Co., 51 N. J. Law 446, 20 Atl. 67 ; Calvert v. Baker, 4 M. & W. 417; Stevens v. Tulier, 4 Mich. 387. Promise Must Not Be Contingent or in the Alternative, as if one promised to replace a certain boat or pay $150.00. Rutledgc v. Moore. 9 Mo. 537- Assent to One Side of Account. An admission of the correctness of the debit items of an account ac- companied by a demand for allow- ance of additional credits, is not evidence of an account stated. Coombs V. Block, 130 Mo. 668, 32 S. W. II39- Compare Reinhardl v. Ilincs, 51 Miss. 344. Vol. I Reservation of Right to Object to Goods — Where an account is ren- dered and the goods mentioned in it delivered and remain in possession of the party to be charged, and pay- ments are made on the account and no objection is made as to the ac- count, these facts establish an ac- count slated, although in making the last payment the party to be charge.l wrote; "There are still a few pounds due you, provided the goods .still on hand, (.and 1 have quite a lot there still from your shipments,) are up to the contract. I shall wilh- ilraw very shortly and determine all about it." The defendant assented that the account was correct and the only right he reserved was to impeach it, if the goods were not up to the contract. That right he would have had without expressly reserving it. Samson v. Freedman, 102 N. V. 699, 7 N. E. 419. 32. Teall z: Auty, 4 Moore 542. 2 B. & B. 99, 22 Rev. Rep. 656. 33. Ujiited 5/a^cj. — Harden z: Gordon, 11 Fed. Cas. No. 6047. Alabama. — Ware v. Manning, 86 Ala. 238, 5 So. 682. Mississippi. — Reinhardt v. Hines, 51 Miss. 344. Nezi' Hampshire. — Filer v. Peebles, 8 N. H. 226. New Jersey. — State z'. Harlman Steel Co., 51 N. J. Law 446, 20 Atl. 67. OrcgoM.— Crawford v. Hutchnison. 38 Or. 578, 65 Pac. 84. In Pierce v. Delamater. 3 How. Pr. (N. Y.) 162, it is held that if one admitted the correctness of an ac- count, but claimed some offset, with- out specifying its amount or nature, the admission supports an action on account stated. 34. Tuggle V. Minor, 76 Cal. 96, AND ACCOUNTS STATED. lf.7 Nor Does a Provision for Correction of after discovered errors.''^ Proof of Objection to Only One or More Items of an account is not a qualification, but tends to estal)lish an account stated as to the others/''' A Qualified Assent Followed by Acceptance of the quaHficatiou or pro- posed mocHfication, is sul^cient proof of assent.''' A Reservation of Time for Payment does not amount to a quahfica- tion of assent to the account/"* d. Implied Assent. — Acceptance of an account as correct may be impHed from circumstances/''''' (1.) Bank Books and Pass Books. — Balances shown in depositors' bank books or other pass books and not objected, to are evidence of accounts stated on the ground of implied assent.^" Out not if the l8 Pac. 131; Wiggins v. Biirkham, 10 Wall. (.U. S.) 129. 35. Although a signed statement contained a memorandum that " this settlement is correct according to our understanding at this time, but should anything occur we are ami- cably to settle it,'' it became never- theless a stated account. Marmon V. Waller, 53 Mo. App. 610. 36. England. — Chisman v. Court, 2 Man. & G. 317, 2 ScoU (U. R.) 569- Alabama. — Joseph v. Sonthwark & Co. (.^.la.), 10 So. 327; Ware v. Manning, 86 .A.la. 238, 5 So. 682; Burnes v. Campbell, 71 Ala. 271. Georgia. — Field v. Reed, 21 Ga. 314- Illinois. — Bee {'. Tierney, 58 111. App. 552 ; Congress C. Co. v. In- terior B. Co., 86 111. App. 199. But sec King V. Machesney, 88 111. App. .341- Missouri. — Mulford v. Caesar, 53 Mo. App. 263. Af<7w York. — Power v. Root, 3 E. D. Smith 70. 37. Neagle v. Herbert, 73 111. App. An account being rendered, the debtor wrote saying that if the cred- itor would take back certain of the goods and credit him with their cost, he would pay the balance ; the creditor wrote accepting this offer and rendered an account on that basis. This was held sufficient evi- dence of an account stated. Ayls- worth V. Gallagher, 22 N. Y. St. 26, 4 N. Y. Supp. 853. 38. Baird v. Crank, 98 Cal. 293, 2,i Pac. 63 ; Tuggle v. Minor, 76 Cal. 96, 18 Pac. 131 ; Neagle v. Her- bert, 73 III. .\pp. 17. Account Rendered by a Garni- shee — An account was rendered showing a balance due from the party rendering it. A memorandum was added tliat the account was sub- ject to an attachment in a certain action by a third party against the creditor. It was held that this memorandum did not alter the legal character of the account stated, nor qualify the implied promise that nothing was left open between the parties. No right to retain the balance was claimed. The acknowl- edgement of indebtedness was ab- solute. The memoranduin was merely a notification that present payment of the creditor was pre- vented by the attachinent. It ap- peared in the case that the attach- ment had been dissolved before the commencement of the action. Halli- burton V. Clapp, 72 N. Y. St. 26, 36 N. Y. Supp. 1041. 39. Swain v. Knapp, 34 Minn. 2^2, 25 N. W. 397 ; Quimi v. White, (Nev.), 62 Pac. 995; Stebbins v. Niles, 3 Cushm. (Miss.) 267; Mc- Call V. Nave, 52 Miss. 494; Ruffner V. Hewitt, 7 W. Va. 585; Freeman V. Howell, 4 La. Ann. 196, 50 .-^m. Dec. 561. An Offer to Settle by Giving Note for Balance amounts to an assent. El wood Mfg. Co. V. Betcher, 72 Minn. 103, 75 N. W. 113. 40. England.— \V\\\\^ v. Jernegan, 2 Atk. 252. Vol. I 1()S ACCO UNTS. ACCO UNTING entries show oiil}' one side of the account/' (2.) Accounts Rendered and Not Objected To. — To show assent it may be proved that the account having been rendered, the party receiving it chd not, within a reasonable time, object thereto.''- United Slates. — Marye v. Strouse, 5 Fed. 483. California. — Terry v. Sickles, 13 Cal. 437. Illinois. — Gottfried B. Co. v. Szar Kowski, 79 111. App. 583. Iowa. — Schoonover v. Osborne, loS Iowa 453, 79 N. W. 263. Massachusetts. — Union Bank v. Knapp. 3 Pick. 96, 15 Am. Dec. 182. Mississi/tpi. — Coopwood v. Bolton, 26 ^liss. 212. Nczi.' York. — Wiesser v. Denison, 10 N. Y. 81, 61 Am. Dec. 731 ; Hut- chinson V. Bank, 48 Barb. 302; Clark z: Bank, 11 Daly ^39- L'(a/i.— Burraston v. Bank, 22 Utah 328, 62 Pac. 425. West I'irginia. — Rutifner v. Hcwitl, 7 W. Va. 585. Even if the Depositor Could Not Read the Entries.— Ruch v. Fricke, 28 Pa. St. 241, but it appeared that he understood the figures. Such Books Are Evidence Ag.iinst the Bank Also of a stated account. Harley v. Bank. 7 Daly (N. V.) 476. Forged Checks Included in Ac- count That checks returned with the pass book caiue into the hands of the same clerk wdio had forged them and he concealed them from the customer, his employer, does not alter the rule. August v. Bank, 15 N. Y. St. 956, I N. Y. Supp. 139- But Compare, Hardy v. Bank, 51 Md. 562, 34 Am. Rep. 325. Prima Facie Evidence. — In the case of McKinster v. Hitchcock, 19 Neb. 100, 26 N. W. 705, the court said as to whether the mere ac- ceptance of a customer's bank book, written up and returned to him by the bank, together with checks with- out objection, is to be held binding upon the customer as an account stated is a question upon which the authorities dififer, citing, Morse on Banking 358. The belter rule is that if siich an account lie retained for a reasonable time without ob- jection, it will be treated as an ac- Vol. I count slated, and prima facie correct. See also Hardy v. Bank, 51 Md. 562, 34 .\ni. Reii. 325. Agreement by Depositor to Make His Objection Within Ten Days. Where depositor in receipting for cancelled checks signs an agreement "all claims for reclamation to be made within 10 days," his failure to make objection renders the pass book an account stated. McKeen t'. Bank. 74 Mo. App. 281. Checks Not Returned In the casj of Shepard :■. Bank, 15 Mo. 143, a depositor in a bank had been in the habit of drawing in various ways for several years ; had a bank book showing debits and credits. The book was balanced in 1842 and in 1846, and had the following memo- randum made by a bank clerk ; " All checks from April '42 to Aug- ust '46 are taken from the ledgers of the bank, the original checks mis- placed, amounts, dates, etc., are cor- rect." This memorandum was made in August, 1846. The depositor kept the book without making objections until he brought suit three years afterwards. It was held that these facts made out a stated account. 41. Randlcson [',.v parte. 2 Dec. & Ch. 534. 42. Z,"»g/n»rf.— Willis v. Jerncgan. 2 Atk. 251 ; Sherman v. Sherman, 2 Vern. 276. United ,S"/a/c.y.— Standard Oil Co. V. Van Etlicr, 107 U. S. 325. I Sup. Ct. 178. .-I/(i/)(7j)U7.— Christian & Craft Co. V. Hill, 122 Ala. 490. 26 So. 149. Arkansas. — Lawrence i'. Ells- worth, 41 Ark. 502. Ca/i/orHid. — Mayberry v. Cook, 121 Cal. 588, 54 Pac. 95- Co/orado.— Freas v. Truitt, 2 Colo. 489. F/on'rfa.— Jacksonville etc. Co. ■<: Warriner, 35 Fla. T97, 16 S. W. 898. Illinois.— Hou^e v. Beak, 43 111. /\pp. 615. AND ACCOUNTS STATED. U>') In support of this rule a usage between the parties of oJijecting to disputed items may be shown."'-' The account rendered must have been clear and unambiguous ;''■' and must show not only the quantities or amounts of goods deliv- ered or sold, but also the amount of money balance. ■*'' Partnership Accounts are not within the scope of this rule.-"' And if the accoiuit is sent to and retained by an agent, his author- ity must be shown. ""^ The rule of implied assent is not so readil\- applied when invoked by the person to whom the account is rendered.^" Louisiana. — Brodna.\ v. Steinhanlt, 48 La. Ann. 682, 19 So. 572. Michigan. — Raub v. NLsbett, 118 Mich. 248, 76 N. W. ,;93- Minnesota. — Elwood .\lfg. Co. !■. Betcher, 72 Minn. 103, 75 N. W. iij. Mississippi. — Coopwood v. Bolton, 4 Cnslnn. (26 Miss.) 212. Missouri. — Powell %■. R. R. Co., 65 Mo. 658. Nc7i' Hamfshirc. — Rich v. Eld- redge, 42 N. H. 153. Nezv Jersey. — State v. Hartman Steel Co., 51 N. J. Law 446, 20 Atl. 67. :V«i.' York. — Knickerbocker v. Gould, 115 N. Y. 533, 22 N. E. 573; Spelhnan v. Mnehlfeld, 48 App. Div. 26s, 62 N. Y. Supp. 746 ; Eamcs V. B. Co. V. Prosser, 157 N, Y. 289, 51 N. E. 986. North Carolina. — Webb r. Cham- bers, 3 I red. 374. Oregon. — Crawford v. Hutchinson, 38 Or. 578, 65 Pac. 84; Howell v. Johnson, 38 Or. 571, 64 Pac. 639. Pennsylvania. — Verrier v. Guillon, 97 Pa. St. 63 ; Pierce j'. Pierce, 199 Pa. St. 4, 48 Atl. 689. Utah. — Burraston v. Bank, 22 Utah 328, 62 Pac. 425. ]'cymont. — Tharp v. Tharp, 15 Vt. Virginia. — Goldsmith v. Latz, 96 Va. 680, 32 S. E. 483. West Virginia. — Shrewsbury v. Tufts, 4T W. Va. 212, 23 S. E. 692. leading Case.— Lockwood v. Thorne, 18 N. Y. 285, is a leading case in New York on the subject of accounts stated. It is there said that in proving an account stated, it is not necessary to show an express examination or an express agree- ment. All may be implied from circumstances. If one render an ac- count and the other examining it makes no objection, an inference might be drawn that he was satisfied with it, so if the account be made out by one and transmitted to the other by mail, and the latter fail to object within a reasonable time, it might be inferred that he was satis- fied. Such failure to object would be legitimate evidence in proving an account stated. See same case in 12 Barb. 487. In Admiralty — In a personal ac- tion in admiralty the same principle that acquiescence is evidence of a stated account exists. Martin v. Acker. i6 Fed. Cas. No. 9155. Sale and Statement Simultaneous. Implication of assent is not raised where the sale and delivery of goods and rendering of statement of ac- count are simultaneous. Truman v. Owen, 17 Or. 523, 21 Pac. 665. Mere Failure to Object Held In- sufficient In Allen :■. Woonsocket, II R. I. 288, it is said that acquies- cence, even for a considerable time, does not establish the fact of an ac- count's being settled, unless there are other things in evidence to justify the conclusion. And see Pratt i'. Boody, 55 N. J. Eq. 17.S. .iS Atl. 1113. 43. Union Bank v. Bank, 9 Gill. & J. (Md.) 439, 31 Am. Dec. 113. 44. Manion B. & W. Co. v. Car- reras, 26 Mo. App. 229. 45. Robson v. Bohm, 22 jNIinn. 410. 46. Hughes V. Smither, 23 App. Div. 590, 49 N. Y. Supp. ns. 163 N. Y. 553, 57 N. E. 1 1 12. 47. Knapp v. Smith. 97 Wis. in. 72 N. W. 349- 48. Rule of Implied Assent In- voked by Debtor. — In White z'. Campbell, 23 Mich. 463, the party to Vol. I 170 A ceo UN rs, AC CO UN TING This rule of implied assent was lluis formerly enforced only between merchants /'' and is still most strictly enforced between them.=" But it has been extended to all classes of business men,''' and to others. ^- C A.) To What Accounts Applicable- — An account rendered may thus become evidence of an account slated, although the first item purports to be a balance of a former account rendered. ''■■ It is said that the rule of implied assent from failure to object has no application where the claim was the subject of a special contract fixing the amount f* nor where the prices to be paid were not agreed upon and have no market value f" nor where the claim is for mere unliquidated damages for breach of contract.^'' whom an account was rendered, be- ing afterwards sued, in order to es- tablish that the claim was outlawed, insisted that the account had become stated against him by his not object- ing thereto ; but the court held that the rule of implied assent had been made for the benefit of the party rendering the account, and that the other party cannot rest upon the fact that he remained passive, but must sliow some word or act marking or implying that he assented to the ac- count. See also to same cfTect Payne V. Walker, 26 Mich. 60. 49. Sherman v. Sherman, 2 Vern. 276; Shepard v. Bank, 15 Mo. 143; Townes v. Birchctt, 12 Leigh (Va.), 173- 50. As Between Merchants. — Failure to object makes an account rendered conclusive in absence of fraud or mistake. Green v. Smith, .S2 111. 158; Mackin v. O'Brien, 33 III. App. 474; McCord V. Manson, 17 111. App. 118; Miller v. Bruns, 41 111. 293; Rich V. Eldredge, 42 N. H. 153. 51. Rich V. Eldredge, 42 N. H. 153; Peona G. S. Co. v. Turney, 58 111. App. 563; King V. Rhoades & Co., 68 III. App. 441 ; McKecn v. Bank, 74 Mo. App. 281. 52. McCord v. Manion, 17 111. App. 118; Sherman v. Sherman. 2 Vern. 276; Shepard v. Bank, 15 Mo. 143 ; Brown v. Kimmel, 67 Mo. 430 ; Fleischner v. Kubli, 20 Or. 328, 25 Pac. 1086; Bradley v. Richardson, 3 Fed. Cas. No. 1786; Crawford v. Hutchinson, 38 Or. 578, 65 Pac. 84; McKeen v. Bank, 74 Mo. App. 281 ; Vol. I Townes V. Birchett, 12 Leigh (Va.), As Between Principal and Agent, such rendition is prima facie evi- dence of assent. McCord v. Man- son, 17 III. App. 118; Tharp v. Tharp, 15 Vt. 105; Mansell v. Payne, 18 La. Ann. 124; RulTner v. Hewitt, 7 W. Va. 585 ; Mertens v. Notte- liohms, 4 Gratt. (Va.), 163. Mississippi refuses to extend tlie rule to other than merchants, but says that the rendering of an account and its retention between others than nicrcliants is admissible to show an implied admission and acquiescence in its correctness. What weight should be proven to it is for tlie consideration of the jury under all the circumstances of the case. Aud- ing V. Levy, 57 Miss. 51, 34 Am. Rep. 435- 53. Fleischner v. Kubli, 20 Or. 328, 25 Pac. 1086; Dows V. Dm-fee, '10 Barb. (N. Y.) 213. 54. Valley Lumber Co. v. Smith. 71 Wis. 304, Z7 N. W. 4T2, S Am. St. Rep. 216; Kusterer B. Co. v. Friar. 99 Mich. 190, 58 N. W. 52; Howell V. Johnson, 38 Or. 571. 64 Pac. 659. Compare Robson v. Bohn, 22 Minn. 410. 55. Burlinganie v. Shelmire, 35 N. Y. St. 161, 12 N. Y. Supp. 655; Williams v. Glenny, 16 N. Y. 389; Harrison v. Avers, 18 Hun (N. Y.) 336. 56. Cliarnley v. Sibley, 73 Fed. 980; Pynchon v. Day. 118 III. 9, 7 N. K. 65; Fraley i\ Bisphani, to Pa. St. 320, 51 .\m. Dec. 486. AND ACCOUNTS STATED. 171 (,D.J No iMi'LiCATioN IN AusKNcic t)i' Pkevious Deauincs. — l^ailurc 1(J object does not raise an implication of assent nnless the party ren- dering and the party receiving the account had had deahngs on which the account is based. ^' An Account Against a Deceased Person rendered to his legal repre- sentative and not objected to is not evidence of a stated account.'^" LUit the account may be stated between the party to be charged and the creditor's assignee.'*" 57. California.— li3.X.\. Cycle M. Co. V. San Diego C. Co., 135 Cal. 335, 67 Pac. 280. Florida. — Martyn v. .\riiold, 36 Fla. 446, 18 So. 791. Missouri. — Powell v. R. R. Co., 65 Mo. 658. Ne'M York. — Austin v. Wilson, si N. Y. St. 503, II N. Y. Supp. 565; Kellogg V. Rowland, 40 App. Div. 416; 57 N. Y. Supp. 1064; Callahan V. O'Rourke, 17 App. Div. 277, 45' N. Y. Supp. 764; Porter v. Labach, 2 Bosw. (N. Y.) 188. See also Burst V. Jackson, 10 Barb. (N. Y.) 219. Pennsylvania. — Spangler v. Spring- er, 22 Pa. St. 454- Retention of Account and Partial Payment — M, as attorney .for a judgment creditor, collected rents on real estate of the debtor in e.\cess of the amount due upon the judgment. He rendered a statement to C, the debtor, of the excess, deducting cer- tain commissions. C did not object and received a payment of a part of the balance admitted to be due. But on tender of the residue, declined it, insisting that the charge for com- missions was not lawful. The ren- dering and retention of the account was held no evidence of an account stated, because there had been no contract relation between the parties. Mellon V. Campbell, 11 Pa. St. 415. Contrary Ruling — In Avery v. Leach, 9 Hun (N. Y.) 106, it is held that mere proof of the rendition and retention without objection of an account, makes it a stated ac- count, although defendant insists that goods were sold to his son and for his son's benefit and without au- thority from defendant. 58. In Lambert -.■. Craft, 98 N. \. 342, it was held that an account against a deceased person which had been presented to his executor and retained without objection, might be afterwards made the basis of a peti- tion to the surrogate for allowance as a valid, undisputed claim. The presentation to and acquiescence of the executor established prima facie the accuracy of the account. Ogden V. Aster, 4 Rob. 311. But in Schultz v. Morette, 146 N. Y. 137, 40 N. E. 780, the court said : " The doctrine of implied assent has a much more restricted application when the plaintiff relies upon the si- lence of an executor to whom the claim has been presented. The ex- ecutor is not presumed to be person- ally cognizant of the transaction. It would subject estates to great danger if the mere silence of the executor should be an admission of a claim presented, so as to relieve the clami- ant from establishing it in the ordi- nary way, and put upon the estate the burden of establishing error. The office of executor or administrator is exceedingly necessary and useful, and must often be assumed by persons unskilled in law, and to infer from mere silence on the part of such an officer an agreement that the claim is just, would often contradict the real intention and tend to subject es- tates to payment of unfounded claims. In Ogden v. Aster, 4 Rob. 311 (332) it was held that an account rendered by a surviving partner to the administrators of the deceased partner's estate would become an ac- count stated by mere failure to ob- ject- and this, although, of the ad- ministrators, one was a female not familiar with accounts and the other a relative of the surviving partner. 59. Powell V. R. R. Co.. 65 Mo. 658: Ronnell v. Mawha, 37 N. J. Law iq8. ^ ,, The account had been sent to M, Vol. I 172 ACCOUNTS. ACCOUNTING An Account Not Due Presented and not objected to ina}' be evidence to snstain an action on an account stated after the account becomes payable."" The fact that the account rendered is expHcitly stated to be sub- ject to correction does not aher the effect of failure to object within a reasonable time."' (,C.) Extent of Implied Assent. — The assent implied is merely as- sent to the correctness of the account, not to the character or capac- ity in which the party is charged. "- (U.; Rebutting Implied Assent. — It may be that an objection not communicated to the party rendering the account may be proved to negative the implied assent.''^ A declaration to the creditor of intention to keep him out of the hill as long as possible is inconsistent with the idea of assent to the bill."-' The rule of implied assent does not apply, unless the party to be charged is upon the face of the account rendered, a party thereto, or is otherwise clearly informed that the balance is claimed and demanded as against him."'' assignee, and not to the person who haiJ made the shipment of goods, he liaving failed and made an assign- ment to M. It was held that the acconnt was properly rendered to M, the assignee, he being the only party having a right to demand it, and the only person having anthority to set- tle the account and receive the bal- ance, if any dne. There is no rule that the account can be stated only between the original parties. Thomp- son i: Fisher, 13 Pa. St. 310. 60. Jugla V. Trouttet, 120 N. Y. 21, 2i N. E. 1066. 61. Branger z\ Chevalier, g Cal. 353; Story's Eq. Jur. §526; Young V. Hill, 67 N. Y. 162, 23 Am. Rep. 99- E. and 0. E — An account rendered having at the bottom the usual ini- tials, E. and O. E., nevertheless be- cotnes a stated account unless ob- jected to within a reasonable time. Fleischncr v. Kubli, 20 Or. 328, 25 Pac. 1086. But see Ingrahain v. Lukens, 30 S. C. 616, Q S. E. 348; Harden v. Gor- don, Ti P'ed. Cas. No. 6047; Kent i'. Highleyman. 28 Mo. App. 614. 62. The suit was against the de- fendant survivor of a co-partner. It was held that an account rendered could not be used for the double purpose of proving the partnership Vol. I as well as the amount of the claim. If an account is presented to one charging him as liable with some other person as his partner, he may deny that relationship, when sued upon the account, and the retention of the account without objection is not an acquiescence in the joint lia- bility alleged in the account. There must therefore be proof outside of the mere statement of the account to show the defendant liable as partner. Kemp v. Peck. 35 N. Y. St. 780, 13 N. Y, Supp. 112. 63. Robertson z'. Wright, 17 Gratt. (Va.) 534. In that case the party receiving the account retained it and merely indorsed thereon memoranda of objections. 64. Blanc v. Forgay, 5 La. .\nn. 695- An acceptor of a bill on demand for payment saw the acceptance had been altered by changing place of payment, and stated that he should take such steps as the law would authorize; that he had been prepared to pay, and the holder could have had the money by calling at his house; .this was held not the acknowledg- ment of a subsisting debt. Calvert v. Baker, 4 M. & W. 41/. i H. & H. 404. 65. Davis v. Bank. 19 Wash. 65, 52 Pac. 526. .IND ACCOUNTS STATED. 173 (E.) Bleden 01- Pkooi--. • — After it is shown that a statement of account was rendered, the burden is on the one denying the exist- ence of a stated account to prove that objection was "made within a reasonable time."" (F.) Reasonable Time to Object. — What is a reasonable time within which to object depends on the circumstances of the case,"' Illustration.— B and M were co- partners. They took into the part- nership H. Afterwards, plaintiff, who had had an account against B & M, remitted to H a statement pur- porting to be against B & iM. The account was sent without any state- ment expressing why it was sent, and without demand for payment. The name of H appeared only once, and that in an item as follows : " To balance due on settlement charged to B, M & H." There was nothing in the account to show wliat was in- volved in that settlement, nor why it was charged to B, JM & H. The court said that where the account stated is not the result of an ex- pressed assent or agreement to its correctness, the party to be charged must in terms be a party to the ac- count, or the grounds upon which it is sought to hold him as a debtor should be clearly made known to him, and a demand for payment should be made. Benites v. Bicknell, (Utah), ^ Pac. 20(), An Account Rendered by a Trus- tee to the Trustor, though examined by the beneficiary, does not become by acquiescence an account stated as to the latter. Andrews v. Hobson, 23 .\\a. 2ig. Item in Account Not on Its Face a Proper Charge — hi Porter v. Lo- bach, 2 Bosw. (N. Y.) 188, an ac- count had been rendered to a part- nership showing as one item a loan to T (not a member of the firm but connected with it.) It was hell tliat the account did not become slated as to that 'item by mere failure to object. 66. Ruffncr v. Hewitt, 7 W. Va. 585; Towiies V. Birchett, 12 Leigh (Va.) 173. Contra. — Robertson v. Wright, 17 Gratt. (Va.) 534, which holds that it cannot be presumed that no objection was made, nierelv because none is proved. Even if such presumption could be made, it would not be com- petent to found on it the further presumption that Robertson admitted the correctness of the account, for that would be to base a presumption on a presumption, contrary to the rules of evidence. 67. United States.— Ta.Xcoit v. Chew, 27 Fed. 273 ; Allen West Com. Co. V. Patillo, 90 Fed. 628. Louisiana. — Freeman v. Howell, 4 La. Ann. ig6, 50 Am. Dec. 561 ; Darby v. Lastrapes, 28 La. Ann. 605. Missouri. — Brown v. Kimmel, 67 Mo. 430. Oregon. — Howell v. Johnson, 38 Or. 571, 64 Pac. 659. Pennsylvania. — Porter v. Patter- son, IS Pa. St. 229; Bevan t'. Cullen, 7 Pa.' St. 281. Matters to Be Considered. — What is a reasonable time within which one must object or be bound depends on the relation of the parties and the usual course of business be- tween them. The presumption of ac- quiescence from silence depends in large measure on the circumstances — whether the party is a man of busi- ness and education, the nature of his business, the local situation of the parties, customary dealings with each other and other circumstances. Mar- tyn f. Arnold, 36 Fla. 446. 18 So. 791 ; White c'. Hampton, 10 Iowa 2,.8. Whether or Not the Parties Hid Equal Means of Knowledge as to prices charged. Stern v. Ladew. 47 App. Div. 331, 62 N. Y. Supp. 207. Between Merchants at Home. An account which has been prescnteil and no objection made thereto after lapse of sufficient posts, is treated under ordinary circumstances as be- ing by acquiescence an account stated. Powell v. Ry. Co., 65 Mo. Instances Delay of four months unreasonable. Standard Oil Co. -'. Vol. I 174 ACCOUNTS, ACCOUNTING and so the evidence should show when the account was rendered."'* What is a reasonable time for objection, is held to be a question for the court, and not for the jury."" (G.) Failure to Object Prima Facie Evidence Onlv. — 1'he failure to object is only prima facie evidence.'" Van Etten, 107 U. S. 325, i Sup. Ct. 178. Delay of si.x months unreasonable. Fleischner v. Kubli, 20 Or. 328, 25 Pac. 1086. Delay of two years unreasonable. Longbell L. Co. v. Stump, 86 Fed. 574. Delay of ten years unreasonable. Baker v. Biddle. 2 Fed. Cas. No. 764. Objection within twelve days is made within reasonable time. Wig- gin V. Burkham. 10 Wall. (U. S. ) 129. Two months. Dows r. Durfee, 10 Barb. (N. Y.) 213. Delay of two weeks, where parties live in same city, tends to show as- sent. Mulford V. Caesar, 53 Mo. App. 263. Delay of three months unreasona- ble. Hendy v. March, 75 Cal. 566, 17 Pac. 702. Tax Collector's Account of transac- tions running through nine years and involving between six and seven hundred thousand dollars does not become stated by retention for thirty- five days. Lott v. County, yq .-Ma. 63. The rule of acquiescence by failure to object applies with more force be- tween merchants in the same county, and yet more between merchants re- siding in the .same town and in the daily habit of intercomnuuiication. Between such a shorter period woull give rise to the presumption. Townes I'. Birchett, 12 Leigh (Va.) I73- 68. Hall V. Morrison, 3 Bosw. (N. Y.) 520. 69. United States. — Toland v. Sprague, 12 Pet. 300; Talcott v. Chew, 27 Fed. 273; Long-Bell L. Co. V. Stump, 86 Fed. 574 ; Standard Oil Co. V. Van Ettier, 107 U. S. 3^5; Edwards x: Hoffinghoff, 38 Fed. 635: Charlotte Oil & Fertilizer Co. v. Hartog, 85 Fed. 150. floritla. — Martyn i'. .Xrnold, ,36 Fla. 446, 18 So, 7gi. Missouri.— VowvU v. K. K. Co.. 65 Mo. 658; Brown v. Kinnncl, 67 Mo. Vol. I 4.?0; McKeen v. Bank, 74 Mo. .\pp. 281. New York. — Knickerbocker v. Could, 115 N. Y. 533, 22 N. E. 573; Lockwood V. Thorne, 11 N. Y. 170; Hutchinson v. Bank, 48 Barb. 302. Oregon. — Crawford v. Hutchinson, 38 Or. 578. 65 Pac. 84 ; Fleischner v. Kubli. 20 Or. 328, 25 Pac. 1086. Mixed Question of Law and Fact. In the case of Wiggins v. Burk- ham, ID Wall. (U. S.) 129, it is said that the proposition that what is rea- sonable time in such cases is a ques- tion for the jury cannot be sustained. That where the facts are clear it is always a question for the court ; that where the proofs are conflicting the question is a mixed one of law and fact, and the court should in- struct as to the law on the several hypotheses insisted on by the parties. To the same effect, Howell v. John- son, 38 Or. 571, 64 Pac. 659. Contrary Doctrine — What was a reasonable time was a fact for the jury. The rule that the consignor iias a reasonable time of which the jury must judge within which to ob- ject, has been so repeatedly ruled that it is no longer an open question (citing 3 Wash. 151; 12 Johns. 300; 3 Cow. 381; I Johns. Cas. lib; 15 Wend. 431; 17 Mass. 109; I Baldwin 536; 13 Pa. 310; 7 Pa- 281 ; 4 Mason 296; 8 Eel. S4-) Porter v. Patterson, 15 Pa. St. 229. See also Hollenbeck V. Ristine, loj Iowa 448, 75 N. W. ^■;5, 67 Am. St. Rep. .^06; Peter v. Thickstun, 51 Mich. 589. I7 N. W. 68; Moran v. Gordon. ?,?, 111. .•\pp. 46; Austin V. Rickcr, 61 N. H. 07. 70. H;ig/(7iirf.— Chisman v. Court, 2 Man. & G. 307. United .SVii/cs.— Freeland v. Heron, 7 Cranch 147 ; Toland v. Sprague. 12 Pet. ,300; llopkirk v. Page, 12 Fed. Cas. No. 6607; Edwards v. Hoffing- hoff, ,v8 Fed. 635. Alabama.— VI.Ke v. Schloss, 90 Ala, 416, 7 So. 802. AND ACCOUNTS STATED. 175 (.H.) Exi'LANATioN OR ExcusE OF FAILURE. — Aiul iiiav be explained so as to reliut the implied assent,'' as by absence of the one to whom Illinois. — Moral! v. Gordon, 3J 111. App. 46. loiiv. — White V. Hampton, 10 Iowa 238; Hollen1)eck v. Ristine, 105 Iowa 448, 75 N. W. 355. 67 Am. St. Rep. 306. Missouri. — Sliepard i'. Bank, 15 Mo. 143. New i'tir/^.— Lambert v. Craft, 98 N. Y. 342; Gucrnsev v. Rexford, 63 N. Y. 631; Yonng ii. Hill, 67 N. Y. 162, 23 Am. Rep. 99; Sharkey v. Mansfield, 90 N. Y. 227, 43 Am. Rep. 161 ; Champion 1: Joslyn, 44 N. Y. Pi-iiiisvlvauia. — Vantnes v. Richey, 8 Watts & S. 87 : Verrier v. Guillen. 97 Pa. St. 63 ; Sergeant v. Ewing, 30 Pa. St. 75, and 36 Pa. St. 156; Coe V. Hutton, I' Serg. & R. 398; Pierce V. Pierce. 199 Pa. St. 4, 48 All. 689. Question for Jury Althongh many cases hold that by the mere failure to object, an account ren- dered becomes unimpeachable, a sound rule is that such fact is admis- sible as an acknowledgment. The weight of such proof being a question of fact for the iurv. Hendrix r. Kirkpatrick, (Nel).), 67 N. W. 759. Divergent Rulings — In Brown v. Kimmel, 67 Mo. 430, it is said that there are cases in which the pre- sumed acquiescence has been consid- ered very slight evidence of the cor- rectness of the account, citiug Kil- 1am V. Preston, 4 Watts & S. (Pa.) 14; Spangler v. Springer, 22 Pa. St. 454. , . , In others the courts have consid- ered it conclusive, except where fraud or mistake is clearly shown, citing Lockwood ?•. Thorne, 11 N. Y. 170. The cases have been decided on the peculiar circumstances of each, and in no case has the implied admission been declared an estoppel, but only a prima facie case, throwing the burden on the adverse party ; citing Philips •:•. Bcklen. 2 Edw. Ch. i; Hutchinson r. Bank, 48 Barb. (N. Y.) 302. Only Slight Evidence — In the case of Killam v. Preston. 4 Watts & S. (Pa.) 14, it was held that the ren- dering of an account stated, and its retention without objection is some evidence of the admission of its cor- rectness by the party to whom it is sent, but at most very slight. And it was said in that case that an ac- count rendered by one partner to his co-partner of their partnership tran- sactions, and the retention without objection by the co-partner, would not of itself have furnished sufficient legal presumption that the accounts had been settled between the parties. (citing Lord Clancarty v. Latouche, 1 Ball & Beatt. 428, and Irvine v. Young, I Simons & Stu. 333.) And see Pratt v. Boody, ?5 N. J. Eq. i/S', 45 .\tl. 1 1 13. Mere Acquiescence Not Sufficient. Acquiescence eveti for a considera- ble time does not establish the fact of an account's being settled, unless there are other things in evidence to justify that conclusion. Allen v. Woonsocket Co.. 11 R. 1. 288. Strength of Inference of Correct- ness depends on circumstances of the particular case. Hirschfelder v. Lew. 69 Ala. 3SI. 71. Ault V. Interstate S. & L. A. 15 Wash. 627, 47 Pac. 13; Guernsey V. Rexford, 6^ N. Y. 631. Circumstances To Be Considered. The respondent was on the Pa- cific Coast, the parties with whom he dealt in Europe. He shipped them salmon, agreeing to be chargeable with all blown tins resulting from improper packing. The respondent saw nothing of the goods after shin- ping, and relied entirely upon the statements of his consignees, reposed confidence in them, and when they advised him that the salmon had proved bad in consequence of bad packing, he naturally acquiesced. He knew nothing of the extent to which the cargo had suflfered from rough weather. It was held that he was not bound, it appearing that the damage to the goods did not result from improper packing; Kinney v. Heatlcy, 13 Or. 35, 7 P^c. 359. Where Account Does Not Purport To Be Exact. — A cnnlr.ict c.illcd for Vol. I 176 ACCOUXrS, ACCOUNTING it was sent ;'- or where the one receiving the account asked for further information, to which he was entitled, and it was not fur- nished ;"'' or where the person receiving the account expected shortly to meet the other, but was delayed by some mischance ;'* or by proof of a course of dealings between the ]jarties, or an understanding that no such default should be insisted upon."^ But mere press of business is said not to be an excuse.'" If the relation between the parties is such that the one receiving the account could not safely object, no inference of assent arises from his failure to do so.'^ It may be shown that subse<|uently a different statement of tlie account was made and assented to." Failure to object raises no implication of assent where the party to be charged had already denied all liability ;'" or where the parties a division of profits over freightage. Statements were rendered showing halances based on estimated freight charge. By letter, the party account- ing said he claimed only the actual cost. The estimate e.xceeded the cost. Failure to object by one not knowing this, did not render the ac- count a stated one. Champion v. Recknagel, 6 App. Div. 151, 39 N. Y. Supp. 814. 72. Lockwood V. Thorne, 18 N. Y. 285 ; Ault V. Interstate S. & L. A., 15 Wash. 627, 47 Pac. iji. Absence of Partner in Special Charge of Matter Involved A bill was presented to A against A & B. A having no knowledge of the mat- ter, asked to have it stand over until he could consult his partner, but re- tained the account without objection. Held, that no account was stated. Miller v. Bank, 6 Cushm. (Miss.) 81. 73. Ault V. Interstate S. & L. A., IS Wash. 627, 47 Pac. 13; Carpenter V. Nickerson, 7 Daly (N. Y.) 424. 74. Lockwood v. Thorne, 18 N. Y. 28.V Or Called Repeatedly Without Finding Him — Carpenter :■, Nicker- son, 7 Daly (N. Y.) 424. 75. Lockwood v. Thorne, 18 N. Y. 285. 76. An account was rendered on September 20th, 1881 ; the receipt was acknowledged and defendants promised to look over the statements and give their views on the matter. On October .jrd. plaintiff drew for (lie bal.-incc. and wrote that he had received nn further word. On the 14th of October he again complained that he had received no statement of errors in the account. October 20th plaintiff telegraphed defendants tcf send statements of any objections they had. Communication by mail could have been had in two days. The court said that it would not do for a commission merchant to say that his business prevents him from looking over an account contracted in the course of that business. Tal- cott V. Chew, 27 Fed. 273. 77. In Wittkowski v. Harris, 6^ Fed. 712, it appeared that the pre- vious dealings between a merchant and his factor had not been harmo- nious or satisfactory; that the factor rendered an account which was not objected to. It was held that the ordinary rule requiring the principal to dissent within a reasonable time did not apply where the relations be- tween the parties had been such as staled, and where it appeared that the factor had control of the prop- erty of the principal and the latter had no menus of adequate relief as to wrongful acts of his unfaithful and dishonest agent in a foreign market; that the question of implied acquiescence is to be considered liy the jury under all the circumstances attending the previous dealings be- tween the parties tending to show their feelings and relations with each other. 78. Dingley v. McDonald, 124 Cal. 90, 56 Pac. 790. 79. Hngfer v. Roemcr. 71 Wis. 11, Vol. I AND ACCOUNTS STATED. 177 had before the rendering of the aeeount (hsagreed as to the balance due."" Where an account is rendered and approved, faihire to object to a second and a different accoimt, purporting to cover the same matters, will not make the latter a stated account.'*' (a.) Payment and Demand As Evidence of Assent. ■ — Payments made on an account rendered indicate assent. "- That a sum tendered as the balance due on an account rendered was accepted, is evidence to show such account to have been stated. ■'*■' 36 N. W. 618. See also Ryan v. Gross, 48 Ala. 370. In such a case the accovmt will not become stated against him even if it turns out that he was mistaken in supposing that he was not liable. The court said, when for some in- dependent reason a person disclaims all liability, he is not bound to exam- ine the items of an account rendered. or be taken to have assented to them if he does not object. In such a case he puts himself upon higher ground. He says in effect I have nothing to do with this account, and I deny all liability for anything. If he fails in maintaining the position he has assumed, it cannot be said that he admitted the correctness of all the items for the simple reason that his silence as to them is not in- consistent with his subsequent denial. Quincey v. White, 63 N. Y. 307. Refusal to Pay When Account Is Presented — Peoria G. S. Co.- :■. Tur- ney, 58 111. App. 563 ; Cobb v. Arun- dell, 26 Wis. 553 ; Harris v. Wood- ward. 40 Mich. 408. 80. Pierce v. Pierce, 199 Pa. St. 4, 48 Atl. 689; Hall V. Morrison, 3 Bosw. (N. Y.) 520; Howell v. John- son, 38 Or. 371. 64 Pac. 659. The court charged that the rule of acquiescence did not apply if when the account was sent, the parties had already come to a disagreement, be- cause then assent from silence could not reasonably be inferred ; that if the account was furnished after it was perfectly understood by both that defendant did not intend to pay the money, the mere sending of the account would amount to nothing. Edwards v. Hoffinghoff, 38 Fed. 635. 81. Cartwright 7'. Greene, 47 Barb. (N. Y.) g. 82. Samson t'. Freedman. 102 N. Y. 669, 7 N. E. 419; Hatch %•. Von Taube, 31 Misc. 468, 64 N. Y, Supp. 393 ; Charlotte O. & F. Co. v. Hartog, 85 Fed. 150; Woodward v. Suydam, I r Ohio 361. Statement Must Be Unambigu- ous Althougli one makes a pay- ment on a bill, the balance is not an account stated unless the bill clearly indicates the nature and amount of the demand. Manion B. & W^ Co. V. Carreras, 26 Mo. App. 229. 83. Am. Nat. Bank v. Bushey, 45 Mich. 135, 7 N. W. 725; McCormack V. City (Mo.), 65 S. W. 1038. Receiving Remittance Without Objection — If one acknowledges the receipt of the account, communicates with regard to the mode of remitting the balance and receives the remit- tance without any objection, it is an assent to the account. Bevan i\ Cullen. 7 Pa. St. 281. Cashing Check Sent With Ac- count — An account was rendered accompanied with a check for the balance shown. The account was received without objection and the check cashed. It was held that this sufficiently established an account stated, and in fact estopped the plaintiff from claiming a larger balance. Schuyler v. Ross, 37 N. Y. St. 805, 13 N. Y. Supp. 944. Receipting " on Account." — .Ac- counts were submitted semi-annually and no objection was made prior to 1867. but to the accounts rendered in 1867 and 1868, objection was made. Before that, a receipt in full had always been given. Thereafter, the receipt was given on account. The court said the form of a receipt may be vital upon the question of a stated account. The essence of the principle is that one party has ren- voi. I 178 A ceo UN TS. J ceo UN TING Paxmcnt demanded Ijy a eredilnr in accordance wilh an account rendered by the debtor estalilishes tlie account as a stated one.** e. Promise to Pay. — It is not necessary to show an express promise to pay the balance agreed u])on or assented to as correct."'' Indeed, unless a new consideration is shown, there is a conclusive presumption of a promise of immediate payment.*"' Hut if in the very act of stating an account the debtor signs and the creditor accepts a memorandum that the balance is payable from a certain fund, the creilitor must slmw that he can not satisfv his claim therefrom."' 2. Special Modes of Proof. — .\. Pkomissouv Xotks. — There are dered another an account, whicli he considers full and final as to all transactions, included in it to date, and the other party acquiesces. Thi; use of tlie words " on account " in it- self in receipting under such circum- stances shows that the party signing the receipt does not consider the ac- count to wliich it refers a finality. 'Fickett z\ Cohu, 16 N. Y. St. 709, i N. Y. Supp. 436. 84. Lockwood v. Thorne, 24 Barh. (N. Y.) 391. Saine case i Kern. 170, 18 N. Y. 28s; Toland v. Sprague, 12 Pet. (N. Y.) 300. 85. .McKinster v. Hitchcock 19 Neh. TOO, 26 N. W. 705; Claire v. Claire, 10 Neh. 54, 4 N. W. 411; Knowles i'. Michel. 13 East 249; Hutchinson v. Bank, 48 Barh. ( N. Y.) 302; Cohh V. Arundell, 26 Wis. 553: Weed V. Dyer, 53 .A.rk, 155, 13 S. W. 592 ; Watkins v. Ford, 69 Mich. 357, ,37 N. W. 300; State v. Hart- man Steel Co., 51 N. J. I,a\v 44(1. 20 Atl. 67. Conflict in Early Pennsylvania Cases — In Killam v. Preston, 4 Watts & S. 14, it is said that to main- tain an action on an account stated, an express promise to pay must he shown. Sec also Foster v. Allanson, 2 T, R. 479 ; Fremont v. Coupland, 2 Bing. 170, 9 Eng. C. I,. 367 and to the contrary, Rackstraw t. Iniher, Holt 368. But a contrary doctrine, to the effect that tlie acknowledgment that a certain sum is due raises an implied promise to pay and the anin\nit is recovera))le under the count for account slated, is expressly announced in Tasscy z'. Church, 4 Walts &• S. 141, 39 .\m. Dec. 65, Vol. I citing I Chittv ri. lyi ; 2 Mod. 44; 2 T. R. 480. 86. Koebel t: Civens, 79 Mo. 77. Express Promise to Pay Later Disregarded. — The plaintitT sent goods to defendant, rendering state- ments with items and furnished statements at the end of each month. After the last delivery and the last payment made on account plaintiff rendered a statement of balance due to which balance the defendant made no objection, but repeatedly promised to pay it, and defendant did not question the correctness of the item- ized bill, or of the monthly accounts. The defendant urged that his pro:iiis> to pay was when he got money from the railway, but it was held that the promise to pay is implied and that a consideration past and e.xecnted sup- ports no other promise than such as would be implied. Roscorla z'. Thomas, 3 Q. B. 234. So that any promise diflfering from the implied promise, as to pay on a particular day, would be of no effect unless made upon a new consideration. Hopkins z: Logan, 5 M. & W. 241 ; Broom Com. 326 ; Robbins z'. Dow- ney, 45 N. Y. St. 279, 18 \. Y. Supp. 100. Account May Be Stated Although Debtor Refuse to Pay Where the correctness of an account is agreed to, but debtor refuses to pay unless creditor will release certain claims growing out of wholly independent transactions, the account neverthe- less, is a stated one. White v. Whit- ing. 8 Daly (N. Y.) 23. 87. Montgomerie v. Ivors, 17 Johns. (N. Y.) 38. .■/A7) ACCOUNTS sr.irnD. 179 certain special nietliods for proving an account stated. Thus a promissory note in an action between maker and payee."" B. L)iLi.s OF Excii.vNc-,1*.. — A Ijill of exchange."" C. Di'H llii.i.s — < )r a due bill is e\'idence to estalilish an account stated."" 88. England. — Story v. Atkins, 2 Strange 719; Higlimore ;■. Primrose, 5 .M. & Scrg. 6s; Frver v. Roc, 12 C. B. 437. Canada. — McQueen j'. ^IcQneon, g U. C. Q. B. 536. Alabama. — Oden f. Bonner, 93 Ala. 393. 9 So. 409. Iowa. — Rcnisey i'. Duke, i Morris 385.. Mississi/^l^i. — McCorniick v. .\h- neave, 73 Miss, 86, 19 So. igS. New Jersey. — Seabury v. Bolles, 51 N. J. Law 103, 16 Atl. 54. Nezc Me.vico. — Orr f. Hopkins, 3 N. M. 45, I Pac. 181. Neic York. — Treadwell v. .\brams. 15 How. Pr. 219; Wright z'. Wright, 56 N. Y. St. 305, 26 N. Y. Supp. 238. Pennsyhania. — FairchiKl z'. Denni- son, 4 Watts 258. Note Payable to " Self " and En- dorsed by Maker supports action. Wood V. Young, 14 U. C. C. P. (Can.) 250. A Note Made to an Agent, known to he such by the maker, is evidence of an account stated in an action by the principal. Rliodes z\ Crawford, i V. C. Q. B. (Can.) 257. Non-negotiable Note Reed v. Reed, II U. C. Q. B. (Can,) 26; Rhodes z'. Crawford, I L'. C. v^;- B. (Can.) 257. Note Must be Over Due at com- mencement of action. Hill i'. l.ott. 13 U. C. Q. B. (Can.) 465. Interest Recoverable According to Note-— Young z: Fluke, 15 L'. C. C. P. (Can.) 360. Must Be a Note Payable in Money and unconditionally: a note given to be paid off by giving other security will not support a count on an ac- count stated. Newborn v. Lawrence. ■; U. C. Q. B. (Can.) 3^9: Tvke r. Cosford. 14 U. C. C. P. (Can.) 64. In Suit by Legal Representative of Payee against payor, such note is evidence of an account stated. May- bury z'. Berkery, 102 Mich. 126, 60 N. W. 699. Notes (jiven As Collateral Secur- ity — Where the evidence shows that the course of business between the parties was for one to give the other notes not representing sums due, but intended to show as collateral security for any indebtedness tliat might be due, such notes are not evi- dence of a settlement or an account stated. Hill z: Durand, 58 Wis. 160, 15 N. W. 390. Note for Interest Due on Another Note, the amount of which is stated, is evidence to support an action on account stated for the amount of the principal note. Perry i'. Slade, 8 Q. B. 115, 15 L. J. Q. B. 10, 10 Jur. 31. But Not if the Action Is Between Indorsee and Indorser Bird v. Legge, 7 D. P. C. 814; 5 M. & VV. 418; Jardine v. Payne, i Barn. & A. 663, 9 L. J. (O. S.) K. B. 129. Note Not Properly Stamped Will Not Support Account Stated Mc- Kay z\ Grinley, 30 U. C. Q. B. (Can.) 54. 89. Orr v. Hopkins, 3 N. M. 45, I Pac. 181 ; Anthony z'. Savage, 3 Utah 277, 3 Pac. 546. Orders on a Merchant, drawn by an employer in favor of laborers and to be paid out of the laborers' wages. Bull v. Brockway, 48 Mich. S23, 12 N. W. 685. Only Between Parties to Bill. Stephens z: Berry, 15 U. C. C. P. (Can.) 543. 90. England. — Graves Z'. Cook, 2 Jur. (U. S.) 475; Lemere Z'. Elliott. 6 H. & N. 656, 30 L. J. Ex. 350; Payne Z'. Jenkins, 4 Car. & P. .^24, U Rev. Rep. 8og ; Douglas z: Holme, 4 P. & D. 68s. 12 Ad. & E. 641 ; Buck z: Hurst, L. R. I C. P. 297, 12 Jur. (U. S.) 704; Highmore z: Prim- rose. 5 M. & S. 65. .'tlahawa. — Carlisle v. Davis, 9 Vol. I 180 A ceo UN rs. J ( 'CO UN TING D. SiiALiiu Ixs'iKUMENTS. — liiit ail iiislriiiiR'iit uiidcr seal can- not be used as evidence for plaintiff suing upon an account stated.'" E. Awards and Judgments. — An award made under a parol submission may be evidence to sustain a count upon an account stated."- An award void as such, is sometimes evidence of an account stated. '■'■■ But not a judgment.''* F. Admissions oi' Inukuticdness. — If a fixed sum is admitted to be due, for which an action would lie, that will be evidence of an account stated.''^ It has been held thai one's mere oral statement that he owes a Ala. (N. T.) 85S; .Mills 7: Geron, 22 Ala. 669. Iowa. — Frost v. Clark, 82 Iowa 298, 48 U. W. 82. PeiDisyk'ania. — Barry v. White, 59 Pa. 172. Tyke V. Cosford, 14 U. C. C. P. (Can.) 64. " Good to Mr. Palmer for $850 on demand." Palmer v. McLennan, 22 U. C. C. P. (Can.) 258. 91. iMiddleditch v. Ellis, 2 Ex. 523; Yonng V. Hill, 67 N. Y. 162, 23 Am. Rep. 99; Baker r. Heard, S Ex. 959, 2 L. J. Ex. 444. Compare State ?■. Jennings, 10 Ark. 428. But see Chapman v. Lee, 47 Ala. 143, where a contract for the sale of land sealed by one of the parties, apparently not by the other, and a deed of conveyance executed in pur- suance thereof, were admitted in evidence of the amount of the ac- count stated ; but the point mentioned in the text was not considered. And see also contrary to the text Hoyt v. Wilkinson, 10 Pick. (.Mass.) 31. 92. Gooding v. Hingston, 20 Mich. 439; Bates V. Curtis, 21 Pick, (Ma^s. ) 247. An Award Followed by the Ad- mission of the Balance Due is evi- dence of an account stated. Busch- nian v. Morling, 30 Md. 384. 93. Montgomcrie v. Ivcrs, 17 Johns. 38. But see Ruthven v. Ruthven, 18 U. C. Q. B. (Can.) 12. 94. Gooding 7'. Hingston, 20 Mich. 439. (In that case the plaintiff sought to introduce the record of a foreign judgment to sustain his ac- tion on account stated.) Vol. I In Hall V. Odber, 11 East 118, 10 Rev. Rep. 443. it is held that a foreign judgment in favor of the plaintiff confirms his evidence of an account stated for an admitted balance; the judgment being for the same amount. 95. England. — Porter v. Cooper, 1 C. M. & R. 387 ; Finney v. Tootel, 5 C. B. 504, 17 L. J. C. P. 158. Alabama. — Ware v. Dudley, 16 Ala. (U. S.) 742; Ryan v. Gross, 48 Ala. 370. C(»i»C(-(i<-i(/.— Mitchell V. .\llen, 38 Conn. 188. Delaware. — Parkin v. Bennington, I Harr. 209; Gregory v. Bailey, 4 Harr. 256. Illinois. — American B. Co. v. Ber- rier-Mayer Co., 83 111. .^pp. 446. A'ciC Jersey. — Bonnell f. Mowha, 37 N. J. Law 198. New l^or/^— Montgomerie v. Ives, 17 Johns. 38. An Indorsement on a Contract, as follows : " Reckoned and settled up to this date and found due B on this contract $92.71 " is evidence of an account stated being signed by the debtor. Martin r. Beckwith, 4 Wis. 219. An Admission Made in a Pleading in Another Action — .\mcrican B. Co. V. P.erncr-Maycr Co., 83 111. App. 446, Where No Antecedent Debt Ex- isted If the paper on its face shows that the promise to pay was not based 011 an indebtedness existing from promisor to promisee, the paper is not evidence of an account stated. Toms V. Sills. 29 U. C. Q. B. (Can.) 497- AND ACCOUNTS STATED. 181 certain sum to another is evidence to sustain an action on an account stated."" G. VEKiFiiii) StATiiMiiNTS. — Itemized, verified statement admis- sible by statute to prove the account in actions thereon, is not admis- sible in actions on account stated."' 3. Rebutting Evidence of Account Stated. — If the defendant denies the existence of a stated account, he may show any facts indicating that no account was stated f or may show that it ceased to exist as a stated account, as by merger in a judgment f" or that the debt is evidenced by an instrument under seal ;^ or that it orgini- nated in illegal transactions. - Whether or not an account has been stated, is a question for the jury, unless the evidence is not in conflict and will support but one inference.'' 4. Burden of Proof to Establish. — The burden of proving an 96. Ware z: Manning, 80 Ala. 238, 5 So. 682. Admission by Partner S, J & S were partners. C while in their employ died. Two years after, S said the firm owed C at the tiine of his death $1100.00. This was held to be evidence of an acconnt stated hetwecn C. himself and the firm. Cnnningham v. Snhlett. 4 AIo. 224. Admission to Third Party A statement by the party to be charged made in conversation w'ith B that he was indebted in a certain sum to " A " is not evidence of an account stated in an action by " A." unless " B" was " A's " agent. Thurmond V. Sanders. 21 Ark. 255 : i Chitty's PI. 359; Hoffar V. Dement, 5 Gill. (MdV) 132, 46 Am. Dec. 628; Rreckon v. Smith, I Ad. & E. 489: Curtis V. Falindall. 3 U. C. O. B. fCan.) 323; Green v. Burtch, i U. C. C. P. (Can.) 313. Admission Must Be to Party or Agent — McMurtey v. Munro, 14 U. C. Q. B. (Can.) 166: Breckton v. Smith, I Ad. & E. 488; Bates v. Townley. 2 Ex. 152. Accounting Proved by Admission to Third Party — An admission to a third party that an accounting has been made and that a certain sum is due thereon may support an action oil account. Rloomlev t'. Gruiton. i r. C. C. P. fCan.") 30q; Green z: Bnrtch. I U. C. C. P. (Can.) 113. 97. Comer f. Way, T07 Ala. 300. TO So. 066, 54 .\m. St. Rep. 93. Examine McCamant v. Batsell, 59 Tex. 363. 98. Hawley v. Harran. 79 Wis. 379, 48 N. W. 676; McCall V. Nave, S2 Miss. 494. Payments Prior to Alleged State- ment — Defendant may show pay- ments previous to the date of the stating of the account. The existence of the account stated having been put in issue, because such nayments go to disprove the allegations that there was an account stated. Kamin- sky V. Mendelson. 25 Misc. 500, 54 N. Y. Supp. loio. May Show That the Attempted Settlement Was Made on Sunday. Melchon v. McCarty, 31 Wis. 252, II Am. Rep. 605. May Show That it Was Induced by Fraud Upton v. Ecdluw, 4 Daly (N. Y.) 216. 99. Trailed v. Dwyer, 61 N. Y. Supp. iioo. 1. Middleditch v. Ellis, 2 Ex. 523: Baker v. Ellis. 5 Ex. 939. 20 I,. J. Ex. 444. 2. Wakefield v. Farnum, 170 Mass. J22. 49 N. E. 640; Melchoir v. Mc- Carty. 31 Wis. 252, II AiTi. Ren. fo;; Rose V. Savory, 2 Bing. (N. C^ ij^'. t Hodges 269. Debtor may prove that items of usurious interest are included. Keane 7' P>rand('n. 12 T.n. .\nn. 20. 3. P.nrritt ?• Villenei've. 02 Mich. .->S2. ^2 N. W. 614; Rosenfield v. Fortier. 9J Mich. 20. =;^ N. W. ow: Dobbs V. Campbell TK-'- V 6^ Pac. Vol, I 182 A ceo UN '1 'S, A ceo UN TING account stated is on him who i)leads it, whether as cause of action or as defense.'' 5. Effect of Account Stated As Evidence. — Except where the law of estoppel applies, an accmnit stated is [>nnia facie and not conclu- sive evidence uf the enrrectness of the halance shown.'' 6, Showing Fraud, Mistake or Illegality in Account Stated. — The burden of proof is upon one who attacks an account stated on the ground that any items contained therein are tainted by illegality." The burden is heavily on one who would attack an account stated, on the ground of frauil or mistake." .289; Davis V. Ticriian, 2 How. (Miss.) 786. 4. Clark v. Marbourg, 33 Kan. 471, 6 Pac. 548; McClellan v. Crof- ton, 6 Me. 307. If the defendant set up an account staled as a defense of an action upon the original account, he assumes the burden of proving an account stated. Allen V. VVoonsocket Co., 11 R. I. 288. 5. .\n account stated is prima facie evidence of the correctness of the balance and not conclusive, un- less in arriving at the balance there has been some concession as to dis- puted items, so that the balance is a compromise ; or something has been done in reliance on the accounting which would put the party claiming the benefit of it in a worse position — so as to bring the case within the principles of an estoppel in pais. A stated account not affected by such considerations may be impeached for mistaUe or error in law or in fact. United States. — Burrill v. Cross- man, 91 Fed. 543. Cinineetieut. — Goodwin v. Ins. Co., 24 Conn. 591. Illinois. — Murray v. Carlin, 67 111. 286; Pick v. Slimmer, 70 111. App. 358: Eddie V. Eddie, 61 111. 134; Follansbee v. Parker, 70 111. 11. Kentueky. — Louisville B. Co. v. .■\sher, 65 S. W. i.U- Michigan. — White i: Campbell, 25 Mich. 463. Minnesota. — Wharton v. .A.nderson, 28 Minn. 301, g N. W. 860. New Jersey. — Vandervecr i'. Stale- sir, 39 N. J. Law 593- Nc. llitchings, 22 .'Xpp. Div. 395, 48 N. Y, Supp. 96; Young v. Vol, I Hill, 67 N. Y. 172, 23 .\m. Rep. 99; Hutchinson v. Bank, 48 Barb. 302; Sharkey v. Mansfield, 90 N. Y. 2j/, 43 Am. Rep. 161. Pennsylvania. — /;( re Hovey (.Pa), 48 Atl. '311. West I irginia. — Ruffner v. Hewill, 7 W. Va. 585. Especially When Stated Between Attorney and Client Cruby v. Smith, 13 ill. App. 43. It May Be Shown Certain Items Were Not Considered. — Burrill v. Cro^^nlaIl, yi Fed. 543. Statement of Accounts by Board of Public Works — Kinney v. Peo- ple, 3 Scam. ( 111.) 357. Conclusive IJntil Leave Given to Surcharge, Falsify or Open It. Union Bank v. Knapp, 3 Pick. (Mass.) 96, 15 Am. Dec. 182. Account Stated Is Something More Than Prima Facie Evidence. McKay i: Overton, 65 Tex. 82. 6. Goodrich v. Coffin, 83 Me. 324, 22 .'Vtl. 217. 7. f.nsland. — Chambers v. Gold- win, 9 Ves. Jr. 254. United States. — Freeland v. Heron. 7 Cranch 147 ; Chappedelaine Z'. Dechenaux, 4 Cranch 3CK) ; Charlotte O, & F. Co. r. Harlog, 85 ted. 150. .■Itaba]}ia. — Ware v. Manning, 86 Ala. 238, S So. 682; Walker v. Driver, 7 Ala. (U. S.) 679; Langdon V. Roane, 6 Ala. (U. S.) 518, 41 Am. Dec. 60. Arkansas. — Moscowitz !■. Lcnip (Ark.). 12 S. W. 781. California. — Polhenius 50 Cal. 438: B ranger j 9 Cal. 353. Florida. — Marlyn Fla. 446, 18 So, 701. Illinois. — I'uH 7'. Harris 487. '. Hciman, :'. Chevalier, Ani..l.I. 3f) 31 111. .IND ACCOUNTS STATED. 183 Admissions by the assignor of the account made after the assign- ment are not competent to show errors in the account,* and unless one can show fraud or mistake, he cannot go into tlie justness of the items of a stated account.'' Kansas. — Dobbs v. Campbell (Kan.) 63 Pac. 289. Missouri. — Shepard v. Bank, 15 Mo. 143 ; McCorniick v. Interstate etc. Co., 154 Mo. 191, 5S S. W. 252. Nebraska. — Keimedv v. Goodman, 14 Neb. 58s, 16 N. W. 834- Nczc Jersey. — Brown v. Van Dyke, 8 N. J. Eq. 795, 5S Am. Dec. 250. A^cic York. — Lockwood v. Thorne, II N. Y. 170; Stenton v. Jerome, 54 N. Y. 480 ; Valentine v. Valentine, 2 Barb. Cb. 430. Nortli Dakota. — Montgomery v. Fritz, 7 N. D. 348, 75 N. W. 266. Oregon. — Hoyt v. Clarkson, 23 Or. 51, 31 Pac. 198; Fisk v. Basche, 31 Or. 178. 49 Pac. 981. Peiinsyk'aiiia. — Sbillingford i'. Good, 95 Pa. 25. I'irginia. — Camp i'. Wilson, 97 Va. 265. 33 S. E. 591. U'asliiiigtoii. — Baxter v. Locket (Wash.) 6 Pac. 429. West I'irginia. — Shrewsbury v. Tufts, 41 W. Va. 212, 23 S. E. 692. IViseoiisin. — Marsh i'. Case, 30 Wis. 531. Whether Established by Implied or Express Assent the liurden of showing incorrectness is thrown upon the party charged. ^IcKinster V. Hitchcock, ig Neb. 100, 26 N. W. 705. Clearest and Most Positive Proof of fraud or mistake required. Case V. Fish, 58 Wis. 56, 15 N. W. 808; Hovt r. McLaughlin, 52 Wis. 280, 8 N. W. 88g; Klauber v. Wright, S2 Wis. 303, 8 N. W. 893. Clearest Evidence of Mistake required to open an account stated in absence of a showing of fraud. Stern v. Ladew, 47 App. Div. 331, 62 N. Y. Supp. 267; Allen-West Com. Co. V. Patilo, 90 Fed. 628. Where the Balance Has Been Paid stronger evidence is required to overcome the settlement than where the balance has sini])ly been agreed upon. Nolte 7'. Leary, 14 Mo. App. 598 ; Branger ?'. Chevalier, 9 Cal. 3n3 ; Chambers v. Goldwin, 9 Ves. Jr. 254. Person Receiving Account Aware of Fraud — Fraud or mistake may be proved, although the person to whom the account was rendered was aware of such fraud or mistake when the account was rendered and did not object thereto. Baxter i'. Lockett (Wash.), 6 Pac. 429. But not where there was an express assent to the account. Marmon v. Waller, 53 Mo. App. 610; Quinlan v. Keiser, 66 Mo. (X)3 ; Can- non z'. Sanford. 20 Mo. App. 590. Guardian's Accounts In Moore v. Felkel, 7 Fla. 44, it is held (p. 69) that the accounts of an executor who is also guardian cannot be deemed stated as to the minor, but that the onus must remain upon the e.vecutor where the attempt is made to falsify, but on the complainant as to items of surcharge. LIpon the issue whether or not a mistake occurred in stating an ac- count, the accounts of the parties used in stating the account are rele- vant as part of the res gestae. Madi- gan V. DeGrafif, 17 Minn. 52. 8. State V. Jennings. 10 Ark. 428. 9. United States. — Perkins v. Hart II Wheat. 237. .Alabama. — Rembert v. Brown, 17 .Ma. 667; Hunt v. Stockton L. Co., 113 Ala. 387, 21 So. 454. .-irkansas. — Roberts i: Totten, 13 .\rk. 609 ; Moscowitz v. Lemp (Ark.), 12 S. W. 781: Weed -.-. Dyer, 53 Ark. 155, 13 S. W. 592: I^anier v. Union etc. Co., 64 Ark. 39. 40 S. W. 466. Conneetieut. — Chatham r. Niles, 36 Conn. 403 ; Nichols i'. Alsop, 6 Conn. 477- Florida.— La. Trobe v. Hay ward, 13 Fla. 190. Illinois. — Gottfried B. Co. v. Szar- kowski. 79 111. App. 583. ^^assaellnsetts. — Farnam v. Brooks, Pick. 212. Minnesota. — Warner v. Myrick. 16 Minn. 91. Vol. I 184 ACCOUNTS, ACCOUNTING liut, an account, tliuuyh stated, may remain open to correction in accordance with some express agreement of the parties.'" 7. Variance. — Plaintiff must show a fixed and certain sum to he chie, though he need not prove the precise sum laid in the com- plaint." A plaintiff may give in evidence a stated account for a sum larger than that for which judgment is demanded, and show or adiuit paxnients. reducing the balance to the sum demanded. '- 8. Presumption As to What Included in Account Stated. — An account stated will be presumed in absence of evidence to the contrarv to include all items then due from one to the other.'' Missouri. — Kroneiibcrgcr v. Biaz, 56 Mo. 121. Ncbnislca. — McKinstcr v. Hitch- cock, 19 Neb. 100, 20 N. VV. 705. Nrw York. — Morton v. Rogers, 14 Wend. 576; Hutcliinson v. Bank, 48 Barb. 302. Pennsylvania. — Miller v. Probst. Add. 344; Kirkpalrick v. Turnbull, .\dd. 259. Soxttli Carolina. — Gem Chemical Co. V. Youngblood, 58 S. C. 56. 36 S. E. 437- Soutli Dakota.— W-dXc v. Hale, 14 S. D. 644. 86 N. W. 650. Tennessee. — Bankhead v. .-Mloway, 6 Cold. s6. Utah. — Lawler v. Jennings. 18 Utah 35, 55 Pac. 60. I'irginia. — Neff v. Woodnig. 83 Va. 4.3^, 2 S. E. 731- Wisconsin. — Martins v. Beckwitb. 4 Wis. 219: Hawley v. Harran, -g Wis. 379. 48 N. W. 676. Going Into the Account. — The defendant cannot show the char- acter of work or labor done for the pnrpose of proving that it was valneless; that would be to go be- hind the settlement and open up the whole merits of the antecedent tran- saction. Koegel V. Givens, 79 Mo. ^10. Tronp I'. Haight, Hopk. Ch. { N. Y.) 239; Camp v. Wilson, 97 Va. 265, 33 S. E. 591; \,aldron v. Evans. I Dak. 11, 46 X. W. 607. But the Burden Is Still on Him Who Seeks to Correct It. — .McKay v. Overton. 65 Tex. 82. 11. Ware v. Manning, 86 .Ma. 238, 5 So. 682. 12. Thompson v. Smith. 82 Iowa 598. 48 N. W. 988. See I.oventbnl I'. Morris, 103 Ala. 332, 15 So. 672. 13. Taylor v. Thwing, 21 Misc. 76, 46 N. Y. Supp. 892: Johnson v. Johnson, 4 Call (Va.) 38. But it may be shown that certain matters were by agreement omitted. Waldron v. Evans, i Dak. II. 46 N. W. 607; ]\Iills V. Geron, 22 .Ala. 669; Rvan V. Rand, 26 N. H. 12. The Burden of Proof is on the defendant to show that his account then due was not taken into con- sideration in the settlement. Keller V. Keller. 18 Neb. .?66, 23 N. W. 364: Ryan v. Rand, 26 N. H. 12. . Items Not Due not presmncd to be included. Beebe v. Smith (111.), 62 N. E. 856. Vol. I ACCRETION.— See Boundaries. ACCUSED.— See Competency; Credibility; Character. ACKNOWLEDGMENTS. Bv Lewis R. Works. I. DEFINITION, iS6 II. HOW EVIDENCED, 186 III. THE CERTIFICATE, 187 1. .Is Evidence, 187 A. Gcncrallv, 187 B. Of Authority of Officer, 188 C. Of Sipiatuie of Officer, 188 D. Of Execution, 188 E. Of Capacitv to Execute, i8ij F. Of Delivery, 189 2. Aider Of. 190 A. By Presumption, 190 a. Authority of Officer, 190 b. Venue. 191 c. Seal, 191 d. Date, 192 e. Defective Statements and Omissions, 192 r>. By Evidence. 193 a. Authority of Officer. 193 b. Venue, 194 c. Seaf. 194 d. Da/f, 195 e. Defective Statements and Omissions. 196 3. hnfeachment Of. 197 A. Burden of Proof. 197 15. /='or /^ro;»/. Dnre.<;s. Etc., 198 C. Competency and Sufficiency of Evidence, 200 a. Nezalivim: Recitals of Certificate. 200 b. Of 0/f/rn- Makiui; Certitlcate. 202 c. 0/ il/ffAvr o/" il/a/;; In.ttrumenf, 203 d. Disputin^i; Authority of Officer. 203 Vol. I 186 ACKNOIVLEDGMBNTS. c. Uisputiiii^ Statement of /'I'/d/c. 203 f. Disputing Statcinciils of I'uct in Ccvtili- catc, 204 IV. BY MAKRIED WOMEN, 204 1. Aider of Certitieate. 204 A. By Presumption, 204 B. By Evidence, 205 2. Impeaehment of Certificate. 2of) A. Testimony of Husband and Wife Alone, 20G CROSS-REFERENCES. See tlie titles of the various instruments of which acltions. — The doctrine has become established in some juris- dictions that a certificate of acknowl- edgment by a married woman may be impeached by parol without a Vol. I 202 A CKNO WLEDGMEN TS. Exception Where No Actual Appearance Before Officer. — Where there is no actual appearance before the certifying officer he has no jurisdiction to make the certificate, and its recitals may be negatived without proof of fraud. ^' b. Of Oificcr Making Certificate. — The testimony of the officer who makes a certificate of acknovvdedgment is not admissible to impeach it/- although the contrary has been maintained in some showing of fraud. Hughes z'. Cole- man, 10 Bush (Ky.) 246; Woodhead z: Foulds, 7 Busli (.Ky.) 222; Dodge zj. Hollinshead, 6 .Minn. 25, 80 .\m. Dec. 433 ; .\nnan v. Folsoni, 6 Minn. 500; Steffen v. Bauer, 70 Alo. 399. Impeachment By Parol "So far as Mrs. Kem is concerned, her tes- timony was clear that her husband was present during her examination by the notary, and that the notary gave no explanation or information to her of the contents of the deed she signed. The notary, however, testified precisely to the contrary, that she was examined separate and apart from her husband, and that he explained to her the purport of the deed. There is no possibility of reconciling these conflicting state- ments, and it was a simple question of credibility with the jury, and the verdict of the jury cannot be dis- turbed here on this point." Wannell z'. Kem, 57 Mo. 478. " While the great weight of au- thority is to the contrary, except in cases of forgery, it has been held in this state, through a long line of decisions, that a married woman may by parol evidence contradict the cer- tificate of an officer to an acknowl- edgment to a deed conveying her real estate. Wannell r. Kem, 57 Mo. 480; Sharpe v. McPike, 62 Mo. 300 ; Steffen Z'. Bauer, 70 Mo. 399 ; Clark z: Edwards' Adin'r, 75 Mo. 87; Webb V. Webb, 87 Mo. 541; Mays V. Pryce. 95 Mo. 604, 8 S. W. 731 ; Pierce v. Goerger, 103 Mo. 540, 15 S. W. 848; Comings zi. Leedy, TI4 Mo. 454, 2T S. W. 804." Spring- field Engine & Thresher Co. v. Donovan, 147 Mo. 622. 49 S. W. SCO ; Belo i'. Mayes, 79 Mo. 67 ; Drew V. Arnold, 85 Mo. 128. 41. Johnston z: Wallace, 53 Miss. 331, 24 .'\m. Rep. 699; C.rider z\ Free- hold Land Mortgage Co., 99 Ala. 281, 12 So. 775, 42 Am. St. Rep. 58; Vol. I Kennedy v. Security Building iic Sav. .\ss'n. (Tenn.), 57 S. W. 388; Wil- liamson Z'. Carskadden, 36 Ohij St. 064; Smith V. Ward, 2 Root (Conn.; 302; Donahue Z'. Mills, 41 Ark. 421. Notary Acting Without Jurisdic- tion •■ The paper was not signed in the presence of the notary. It was never in the presence of the grantor and the notary after it was signed, nor in the possession of the notary after it was signed. When the no- tary had it and executed his cer- tificate of acknowledgment, there was nothing to acknowledge, — there was no signature ; nor was there any signature at any time while it was in his possession. Treating his powers and acts as judicial, they were lacking in one essential of jurisdiction, — there was no signature of any kind, genuine or otherwise, before him. He had to do officially only with signatures. His powers were not called into exercise until there was a subscription to be acted upon. There being no signature, t.iere was nothing for him to certify an acknowledgment of. The grantor was not before him. Nathan, re- fusing to sign, was not a grantor. He had a paper writing in the form of a deed before him, but he had neither a signature to be acknowl- edged, nor a signatory to acknowl- edge his execution of the paper. He was without jurisdiction to act m the premises, and his action, like that of other judicial officers and of courts proceeding without having acquired jurisdiction, is void, may be shown to be so by parol, and has been shown to be so in this case." Cheney z: Nathan, 1 10 Ala. 254, 20 So. 99. SS Am. St. Rep 26. 42. Shapleigh v. Hill, 21 Colo. 419, 41 Pac. 1 108; Central Bank z: Copeland, 18 Md. 305. 81 Am. Dec. 597; Hockman z: McClanahan. 87 Va. 3.S. 1-' S. E. 230. ACKNO WLEDGMENTS. 203 jurisdictions.^" c. Of Maker of Main Iiistnaiicnt. — The testimony of the grantor or mortgagor alone is not suiiflcient to overcome the recitals of the certificate.'*'' d. Disf'iitiiig Authority of UfHccr. — \\ here one takes an acknowl- edgment as justice of the peace, a certificate of the county clerk that such party was not a justice of the peace at the date of the certificate of acknowledgment is competent evidence for the purpose of impeaching.*'' e. Disfyuting Statciiicnt of rciiiic. — If a certificate shows that the acknowledgment was taken in a certain count)-, parol evidence is admissible to show that it was taken elsewhere, in impeachment Officer's Testimony Incompetent. " His official acts are done and cer- tified under oath, and it would be mischievous in the extreme, to per- mit such a person to appear as a witness and falsify his own solemn act. Such a course would expose weak or dishonest men to the most dangerous temptations, and render the tenure of property unsafe and precarious, by subjecting the evi- dences of titles under which it is held to the frail and uncertain mem- ory or to the corruption, of officers who have in due form certified the regularity of their acts. Upon the same principle which renders a sheriff incompetent as a witness to impeach his return, the deposition of the commissioner who took and cer- tified the acknowledgment in this case, was inadmissible to contradict and falsify his certificate. Planters' Bank v. Walker, t, S. & M. 409; 3 Phill. Evid. (Cow. & Hill), 1090 2d Edit." Stone v. iVIontgomery, 3s Miss. 83. 43. Garth v. Fort, 15 Lea (Tenn.) 683. Officer's Testimony Competent. " The officer who certified to her acknowledgment testified that she did not in fact appear before him or acknowledge the execution of it ; and the controlling question in the case is whether he was competent as a witness to impeach his official cer- tificate. We think the rule declared by the authorities generally, as ap- plicable to the situation here, makes iiim competent, leaving the question of the weight of his testimony to the judgment of the trier. The cer- tificate is the act of a ministerial officer and not conclusive like a judicial record, and does not estop him as between tliese parties. The Illinois cases examined are Lowell V. Wren, 80 III. 238; McDowell v. Stewart. 63 Id. 538; Sisters of Loretto V. Catholic Bishop, 86 Id. 174; Berdel i'. Egan. 125 Id. 302." McCurley v. Pitner. 65 111. App. 17. 44. O'Donnell z: Kelliher, 62 111. App. 641 : Lickmon v. Harding, 65 111. 505; Kerr v. Russell, 69 111. 666, 18 Am. Rep, 634 ; Post i: First Nat. Bank, 138 111. 559. 28 N. E. 978; Fisher z: Stiefel. 62 111. App. 580; Smith 7'. Allis, 52 Wis. 337, 9 N. W. 155; Gray v. Law (Idaho), $7 Pac. 435 ; Kennedy ''. Security Building & Sav. Ass'n. (Tenn.), 57 S. W. 388. Testimony of Grantor. — "The officer acts under the weight of his official oath, and is disinterested, and his certificate is entitled to great and controlling weight until over- come by clear and satisfactory proof. The evidence of the grantor will not overcome it." Blackman v. Hawks. 89 111. 512; McCardia r. Bil- Hngs (N. D.), 87 N. W. 1008. 45. That He 'Was Not Officer. •■ We think it was competent to show by the certificate of the county clerk, the state of the county records, for the purpose of proving that Fisk, before whom the acknowledgment of the deed was taken, was not, at the time of the acknowledgment pvir- ported to have been taken, a justice of the peace. It seeins to us as com- petent to make it appear by the cer- tificate of the county clerk that his records show^ that there was no such Vol. I 2(14 ACKNOWLEDGMENTS. of the certificate ;^'' but this has been said not to be so except in case of fraud. ''^ f. Disputing Sfatciiicnts of Fact in Certificate. — Where the cer- tificate sets forth what was done at the taking of the acknowledg- ment, it cannot be impeached by parol evidence showing that some- thing different transpired. "'■^ IV, BY MAREIED WOMEN.^' 1. Aider of Certificate, — A. By Presumption. — That Officer Did His Duty. — It has been held, under certain peculiar statutes, that where a certificate of acknowdedgment of a married woman does not show all the facts, it will be presumed that the officer did his (hit\- and the certificate will stand. °" justice in the county at the time, as that a particular person was at a particular time a justice of the peace. Such certificate would not establish, conclusively, that Fisk was not a justice, but it was competent evidence, as tending to show that fact." Ross 7'. Hole. 27 111. 104. 4G. Acknowledgment Out of Offi- cer's Jurisdiction. — "If a iustico of the peace for one county goes out of his own into another county and takes the acknowledgment of a mar- ried woman to a deed purporting to convey her homestead, the convey- ance would be void as to the home- stead. It is competent to show this fact liy parol, though it may appear to the contrary on the face of the acknowledgment." New England Mortgage Securitv Co. v. Payne, 107 Ala. 578. 18 So.' 164. 47. Fraud Must Be Shown. — 'it is not alleged that any fraud was practiced bj' the parties. The land conveyed is in Barren county. The acknowledgment of the deed is proper by both husband and wife, and before the clerk of Barren county, and this fact admitted by both the grantors. They say, how- ever, that they were in Metcalfe county when the deed was acknowd- cdged, and that the writing was not explained to the wife, and she never consented that the deed might be recorded, and, therefore, the indorse- ment was a mistake. . . . " When the parties admit the ex- ecution of the deed and the ac- knowledgment before the clerk of the county where the land lies, or Vol. I before the clerk where they reside, and the clerk's certificate is in ac- cordance with law, they will not be permitted to show, under the alle- gation of a mistake, that the certifi- cate was not in the form of or as required by law, or that the clerk was out of the county when he took the acknowledgment." Cox v. Gill. 8,^ Ky. 669. 48. Disputing Facts Recited. ■' Where it appears by the certificate on the deed made in the usual form, that the party on a particular day came before two justices of the peace of the county, and acknowledged the instrument of writing to be his act and deed, parol evidence is not admissible to prove that the said justices separately took the said ac- knowledgment at different times or places within the said county." Ridgeley r. Howard, 3 Har. & McH. (Md.) 321. 49. Most of the rules of evidence bearing upon acknowledgments of married women are the same as those bearing upon ordinary acknowledg- ments and they have been treated in the general part of the article above. The cases treated under this head are those only which are peculiar to certificates of acknowledgment by married women. 50. Ruffncr z: Mcl.cnan, 16 Ohio ' Presumption That Officer Did His Duty. — " The deed was executed by three men and their wives, and the justice who took the acknowledg- ment certifies that they all appeared ACKNOWLEDGMENTS. 205 B. Bv E\luiiNClC. — Defective Statements and Omissions. — Where a certificate of acknowledgment by a married woman omits to state all the facts required by the statute, parol evidence is not admissible to show what actually occtirred when the acknowledgment was taken."' Knowledge of Contents of Instrument. — Where a married winnan did not acknowledge that she was " made acquainted with the con- tents " of an instrument, it cannot be shown in aid of the certificate that she did, in fact, know the contents of the instrument at the time of its execution. ^- before him and acknowledged the execution of the deed, etc. and that the femes covert, naming them, ' being separate and apart from, ac- knowledged that they executed the same freely, and without fear or compulsion from their husbands.' The certificate does not state that they were separate and apart from their husbands, nor that the contents of the deed were first made known to them. But all this was unnecessary. The deed was executed under the statute of 1838, which is the same as that of 1824. In Stevens v. Doe, 6 Blackf. 465, it was held, under the latter statute that it would be pre- sumed, the contrary not appearing, that the officer did his duty as to the separate examination of the wife, and making her acquainted with the contents of the deed, and that those facts need not be certified. The ac- knowledgment in question is un- doubtedly good under the decision above mentioned." Fleming v. Pot- ter, 14 Ind. 486. 51. United States. — Elliott t: Piersol, I Pet. 328. Alabama. — Cox i'. Holcomb, 87 Ala. 589, 6 So. 309, 13 Am. St. Rep. 79- Iowa. — O'Ferrall i'. Simplot, 4 Iowa 381 ; O'Ferrall i'. Simplot, 4 Greene 162. Kentucky. — Blackburn v. Penning- ton, 8 B. Mon. 217 ; Barnett v. Shackleford, 6 J. J. Marsh, 532, 22 .\m. Dec. 100. .Mississil't^i. — Willis v. Gattman, 53 Miss. 721. Nexi.' York. — Elwood f. Klock, 13 Barb. 50. Peiiiisylvaitia. — Barnet z'. Barnet, 15 Serg. & R. 72. 16 Am. Dec. 516; Watson ;'. Bailey, i Binn. 470, 2 Am. Dec. 462 : Jourdan v. Jourdan, g Serg. & R. 258, 11 Am. Dec. 724. Te.vas. — Looney ;■. Adam'ion. 48 Tex. 619. Amending Certificate by Parol. " The statute has required that all that is essential to an acknowledg- ment shall appear in the certificate, to bar the wife's dower, and such is the construction given to the home- stead act. This acknowledgment cannot rest partly in writing and partly in parol ; it must all be in writing. It is so required to protect the wife in her rights. The statute has declared that in this mode, and this alone, can the wife bar her rights. Our statute has adopted this as a more convenient mode than that provided by the common law, which required that the acknowledgment should be made in open court by fine or recovery, and it always became a matter of record. And the certifi- cate of acknowledgment has taken its place, and like it. is required to be reduced to writing, and certified under the hand of the officer. We know of no case, in practice or reported, which has held that a de- fective certificate of acknowledgment may be aided by parol." Ennor v. Thompson. 46 111. 214. 52. Parol Evidence to Show Knowledge of Contents. — The re- maining question is, whether a court of equity will aid the defective ex- ecution so as to bar her claim, upon its being shown dehors the deed that she was acquainted with its contents, anil acknowledged the instrument with intent to pass her dower. " A married woman has no legal existence or power to transfer her interest in real estate, except through the statutory channel. The mode of Vol. I 206 ACKNOWLEDGMENTS. 2. Impeachment of Certificate. — A. Testimony of Husband AND Wife Alone. — A certificate of acknowledgment cannot be impeached by the testimony of husband and wife alone, '^■^ although the contrary has been held.''^ execiUing tlic conveyance confers upon her the power to convey. Where the power e.xists independent of its mode of execution, and has been defectively executed, it is not a case of want of power, but of defective execution, which a court of equity will aid. But where the power and mode of e.xecution are inseparable, the power resulting from the mode, and that mode has not been pursued, it is not a case of defective execution, but a want of power, which a court of equity can not aid. Hence, when a married woman attempts to con- vey, and lacks power from not pur- suing the prescribed mode, courts of equity will not relieve, because to amend the mode is to create the power." Silliman v. Cummins, 13 Ohio 116. 53. Shell V. Holston Nat. Build- ing & Loan Ass'n. (Tenn.), 52 S. W. gog; Thompson v. Southern Build- ing and Loan Ass'n. (Tenn.), 37 S. W. 704. Vol. I Insufficiency of Testimony. " When the testimony proving the fraud or deceit, in the case before us, proceeds from husband and wife only, their credibility is affected by their interest. ... In the absence of a fact in corroboration of the evidence of husband and wife, the official certificate ought not to be overturned. Miller 7'. Mar.x, 55 Ala. 322. The evidence which renders it nugatory and void, converting the conveyance into mere waste paper, should not be beclouded with circum- stances of suspicion, or if it is, ough' to be corroborated. Especially i^ this true when the evidence in im- peachment proceeds only from the husband and wife, refers only to occurrences between them in the privacy of domestic life, is easily fabricated and almost impossible of contradiction." Smith i>. McGuire. 67 Ala. 34. 54. Wannell v. Kem, e7 Mo. 478. ACQUIESCENCE.— See Admissions. ACQUITTAL.— See Records; Judgment. ACT OF GOD.— See Carriers. ACT OF INSOLVENCY.— See Bankruptcy; Insolvency. ACT OF LEGISLATURE.— See Judicial Notice; Laws. ACT OF STATE.— See Judicial Notice ; Public Policy. ACTUARY. — See Expert Testimony ; Insurance. ADDRESS.— See Domicile. ADEMPTION.— See Wills. Vol. I ADJOINING LAND OWNERS. By K. K. Wood. I. DEFINITIONS, 209 1. Lateral and Siibjacc-nt Support, 209 2. Party Wall, 209 II. EVIDENCE IN ACTION BETWEEN, 209 1. Competency in General, 209 A. Of Negligence, 209 a. Damages As Res Ipsa Loquitur, 209 b. In Lateral Support, 210 (i.) Character of Soil, 210 (2.) Notice, 210 (A.) Exemfiting from Extraor- dinary Care, 210 (B.) Failure to Give, 211 [T,.)Protecting Improvements, 212 (4.) License to Enter, 212 (5.) Of Intent, 212 c. In Party Wall, 212 B. Of Notice, 212 a. In Excavating, 2\2 (i.) Actual Kno-cclcdge, 212 (2.) Judicial Notice, 213 C. Custom and Usage, 213 a. /;/ Excavating, 213 1). /)) Party Wall, 213 \). Expert Opinion, 214 E. Inspection of Premises. 214 a. Actual, 214 b. By PhotograpJi, 215 2. Defenses. 215 .A.. Contributory Negligence, 215 a. /;; Lateral Support. 215 Ix //( Parfv /Fo//, P!ain)iff's Knoicledge of Damage, 216 n. Altering Burden of Easements. 216 a. Weight of Improvement. 216 b. Defect in Improirments, 216 (i.) In Lateral Support. 216 (2.) Condemned Building, 217 Vol. I ADJOINING LAND OWNERS. 209 C. Estoppel. 21 J a. /)/ Lateral Support, 217 (I.) Consent, 217 (2.) Agreement to Protect, 217 b. /)) Party IValt, 217 1,. Presumptions, 218 A. 0/ Notice, 218 B. of Contribution to Party Wall, 218 I. DEFINITIONS. W hen applied to land, the word " adjoining " means lying next to, contiguons, in actual contact with, touching, as distinguished from lying near, or " adjacent."' 1. Lateral and Subjacent Support. — The right of lateral support of land is the right to have the corpus of the soil itself, either in its natural condition or as burdened with improvements, supported by the adjoining land ; and the right of subjacent support is a like right in respect of the land lying beneath. - 2. Party Wall. — By a party wall, we must understand a wall between the estates of adjoining owners, which is used for the com- mon benefit of both, chiefly in supporting the timbers used in con- struction of contiguous houses on such estates.-^ II. EVIDENCE IN ACTIONS BETWEEN. 1. Competency of Evidence in General. — A. Of Negligence. a. Damages As Res Ipsa Loquitur. — Where the gravamen of the action is negligence, or want of skill in a lawful use of the premises, evidence of ensuing damages to the adjoining land does not ipso facto establish such negligence.* 1. Walton z'. St. Louis Ry. Co. Am. St. Rep. 60, 5 L. R. A. 298, see 67 Mo. 56; Holmes v. Carley, 31 Weston v. Arnold, L. R. 8 Ch. App. N. Y. 289; in re Ward, 52 N. Y. 1084; Glover v. Mersman, 4 Mo. 395; Akers v. United R. R. Co., 48 App. 90; Brown r. Werner, 40 Md. N. J. Law no; McCulIough z: .Ab- 15. secon Co., 48 N. J. Eq. 170, 21 Atl. "Partition Wall" Distinguished. 481. In construing an act regulating the Primary Meaning Defined — '■ The height of division fences and parti- primary meaning of the word ' ad- tion walls, as applying to fences or joining ' is to lie next to. to be in walls built upon the line and resting contact with, excluding the idea of partly on land of the adjoining pro- any intervening space." Yard z: prietor, the court say : " ' Partition Ocean Beach Ass'n., 49 N. J. Eq. 306, wall ' is not a phrase which in legal 24 Atl. 729. technology is used to designate a 2. Doctrine Not Applicable to wall used by adjoining owners as a Hydraulic Mining Claims. — Hen- party wall." Western Co. v. Knick- dricks v. Spring Valley Co., 58 Cal. erbocker, 103 Cal. in. 37 Pac. 192. 190, 41 Am. Rep. 257. 4. Rationale of Rule — Spohn v. 3. Per Curiam in Graves v. Dives. 174 Pa. St. 474, 34 Atl. 192. Smith, 87 Ala. 450, 6 So. 308, 13 In Schultz v. Byers, 53 N. J. Law 14 Vol. I 210 ADJOINING LAND OWNERS. b. Latcval Support. — (1.) Character of Soil. — In an action involv- ing the question of liability for removal of lateral support, evidence of the character of the soil is admissible,'' as where it tends to show whether the adjoining soil was of such a character as to sus- tain its own weight by natural character," or that landslides had occurred at or near the spot,^ (2.) Notice. — (A.) Exempting From Extraordinary Care. — Evidence of notice to the owner of adjoining premises by one making an exca- vation on his own soil, is admissible to exonerate such excavator from liability for injury to improvements on the former's land which might have been avoided by the exercise of extraordinary precau- tion,* but is not competent to absolve the excavator from the use 442, 22 All. 514, 26 Am. St. Rep. 435, the court says : " There was no proof or offer lo prove at the trial, that the defendant was negligent in digging his cellar whereby the plaintiff's house was caused to settle, and the wails lo crack, beyond the mere fact that this was the result. This result alone was not sufficient, for it may have been caused by de- fects in the plaintiff's house." In Ward v. Anderson, 3 Mo. App. 275, the court say : " The giving way of the building and the cracks under it may have been caused by its own weakness, or by the condition of the land under it, and not by ex- cavation. It does not appear from the evidence that the building sunk or became cracked immediately upon the excavation's being made; and if il did, mere sychronism, or concur- rence in respect to time, does not es- tablish or tend lo establish the rela- tion of cause and effect." Res Ipsa loquitur A contrary rule has been maintained, luider the maxim res ifs^ loquitur. Percolating Filthy Water Ball V. Nye. 99 Mass. 582, 97 .'\m. Dec. .s6. Excavating — Bernhcimer v. Kil- patrick. ^3 Hun 316, 6 N. Y. Supp. 858. 5. City of Covington r'. Gevlor. 93 Ky. 275. 19 S. W. 741 : Delaney V. Bowman. 82 Mo. App. 252; Shrieve '■. Stokes, 8 B. Mon. (Ky.1 453. 48 .'\m. Dec. 401. ■Upon Question of Defective Wall. In Spohn V. Dives. 174 Pa. St. 474. .34 Atl. 192, the following instruction in the court of common pleas, upon the question of negligence in exca- vating resulting in injury to 1)uild- Vol. I ings on the adjoining premises, was approved on appeal : " There has been considerable testimony as to the materials this wall was con- structed of, and the nature of the soil upon which it was placed, as to Its being new earth, wet, soft, or dry, or sufficient to sustain an or- dinary wall. All these matters you will take into consideration, and you will determine from them whether the fall or sagging of the plaintiff's wall, whereby the injuries to their property were caused, was the fault of an original defect in the construction of the plaintiff's wall. If so, of course, they cannot re- cover." 6. Walters v. Hamilton, 75 Mo. App. 237. 7. Louisville & N. R. Co. v. Bon- h^yo. 94 Ky. 67, 21 S. W. 526. 8. Notice Absolves from Extra- ordinary Precaution. — California. Sullivan z'. Zeiner, 98 Cal. 346, 33 Pac. 209, 20 L. R. A. 730; Aston 7'. Nolan, 63 Cal. 269 ; Nippert v. Warneke, 128 Cal. coi, 61 Pac. 96. Indiana. — Bohrer v. Dienhart Co., 19 Ind. .^pp. 489. 49 N. E. 296: Block V. Haseltine, 3 Ind. App. 491, 29 N. E. 937. Kansas. — Winn v. Abeles, 35 Kan. 85, 10 Pac. 443, 57 Am. Rep. 138. Kentucky. — Shrieve v. Stokes, 8 B. Mon. 453 48, Am. Dec. 401 ; O'Neil II. Harkins, 8 Bush 650; Lapp v. Guttenkunst (Ky.), 44 S. W. 964; City of Covington v. Geylor, 03 Ky. 275, 19 S. W. 741 ; Clemens v. Speed. 93 Ky. 284, 19 S. W. 660. 19 L. R. .^ 240. Maryland. — Shafer t. Wilson, 44 Md. 268: Bonaparte v. Wiseman. 80 ADJOINING LAND OWNERS. 211 of ordinary care and prudence in prosecuting- such work,'' (B.) Failure to Give. — F.vidence of failure to give notice of exca- vation may be competent to establish negligence on the part of the excavator,'" it being a question of fact to be determined bv all the circumstances of the case." Md. 12, 42 Atl. 918, 44 L. R. A. 482. Missouri. — Obert v. Dunn, 140 Mo. 476, 41 S. W. 901. A'ric York. — Lasala v. Holbrook, 4 Paige 169, 25 Am. Dec. 524. Pciinsyh'ania. — Spohn v. Dives, 174 Pa. St. 474, 34 Atl. 192. Soutli Dakota. — Novotny v. Dan- forth. 9 S. D. 301. 68 N. W. 749. I'cnnont. — Beard v. Murphy 37 Vt. 99, 86 Am. Dec. 693. Rule Stated. — In Clemens v. Speed. 93 Ky. 284, 19 S. VV. 660, 19 L. R. A. 240, the chief justice says: " A man improves his property know- ing there must be changes in the improvement adjoining it, and it would be a harsh and unjust rule if he could improve as he chooses, and tie his neighbor down from do- ing so. however careful he may act. If the latter proposes to remove his building, and injury is likely to result therefrom to the building of his neighbor, he must notify him of his intention, that he may look to his own protection ; and in making the removal or erecting a new building he must use reasonable care and precaution to protect that neighbor ; but if all this is done and yet injury results, it is damuum absque injuria." 9. Notice Does Not Exonerate From Ordinary Care England. — Massey v. Goyder, 4 Car. & P. 161, 19 Eng. C. L. 456. California. — Aston v. Nolan, 63 Cal. 269. Georgia. — Bass v. West, no Ga. 698. 36 S. E. 244. Indiana. — Block v. Haseltine. 3 Ind. .\pp. 491, 29 N. E. 937. .Missouri. — Eads v. Gains, 58 Mo. App. 586 ; Obert r. Dunn, 140 Mo. 476, 41 S. W. 901 ; Delaney v. Bow- man, 82 Mo. App. 252. South Dakota. — Ulrick v. Dakota Co., 2 S. D. 285, 49 N. W. 1054, and 3 S. D. 44, 51 N. W. 1023. J'irginia. — Tunstall v. Christian, 80 Va. I, 56 Am. Rep. 581. Statutory Notice Does Not Exempt From Common Law Duty lu Aston V. Nolan, 63 Cal. 269, the court say : " It is apparent that by giving the notice a person excavating cannot relieve himself of any portion of his prudent care with which he must have conducted the work in the ab- sence of the statutory provisions re- quiring notice. His excavation must be such as would not have caused the soil of the adjacent lot to tumble in had it remained in its natural state — not built upon, but if he gives the notice, and so conducts the work as that the soil, without the weight of the edifice, would not have fallen, his whole duty is performed." 10. Want of Notice Evidence of Negligence.— Beard v. Murphy, 37 Vt. 99, 86 Am. Dec. 693 ; Bonaparte V. Wiseman, 89 Md. 12, 42 Atl. 918, 44 L. R. A. 482; Krish v. Ford, (Ky.), 43 S. W. 237. Statement of Rule In Schultz v. Byers, 53 N. J. Law 442, 22 Atl. 514, 13 L. R. A. 569, the court say: " There was error in rejecting the evidence which was offered to show that the defendant gave no notice to the plaintiff of his intention to ex- cavate the land adjoining the house of the plaintiff's." 11. Bonaparte v. Wiseman, 89 Md. T2, 42 Atl. 91S, 44 L. R. .\. 482. Knowledge May Have Been Other- wise Acquired — In }, lamer v. Lus- sem, 65 111. 484. it was held erroneous to instruct the jury that an excavator's liability depended on his having given reasonable notice, " because," as the court say : " It excludes the idea that plaintiff might have had full knowledge of the intended ex- cavation from other sources." A Circumstance of the Case In Montgomery t. Trustees, 70 Ga. 38, the chief justice approved the follow- ing charge, given after declining to charge that failure to give notice en- titled plaintiff to recover without Vol. I 212 ADJOINING LAND OWNERS. (3.) Protecting Improvements. — Where clue notice has been given of a proposed excavation, evidence is not admissible to charge the excavator with negligence, which shows his neglect or refusal to protect the building or other improvement on the adjoining prem- ises by shoring, underpinning, or in similar manner. '- (4.) License to Enter. — Statutory provision may make evidence of neglect to furnish support competent as estabhshing negligence in case it is shown that license was given the excavator to enter on the adjoining premises sufficiently to provide for such support,''' and evidence of the authorization of acts necessary for the excava- tor to ]5erform his duty is sufficient to establish such license.'* (5.) Of Intent. — Where malicious motive is alleged on the jjart of one making an excavation, evidence of the purpose for w Inch he prosecuted the work is admissible. ''^ c. /;) Party Wall. — In an action touching the use of a party wall owned by both adjoining proprietors, it is held that evidence is incompetent as establishing negligence which shows that the act complained of was a mere omission, as neglect to remove wall damaged by fire."' B. Of Notice. — a. In Excavating. — (1.) Actual Knowledge. In actions involving the question of due notice in respect of exca- vations on adjoining premises, evidence is competent to exonerate more : " If they failed to give notice, that is one circumstance from vvhicli you must determine whether neg- ligence is imputable to them or not." 12. No Duty to Protect Improve- ments After Notice — Block v. Hasel- tinc, 3 Ind. .App. 491, 29 N. E. 937; Larson v. Metropolitan Ry. Co., no Mo. 234, 19 S. W. 416, 33 Am. Rep. 439, 16 L. R. A. i3i ; Obert v. Dunn, 140 Mo. 476, 41 S. W. 901 ; Walters V. Hamilton, 75 Mo, .App. 237 ; Pey- ton V. Mayor, 9 Barn. & C. 725, 17 Eng. C. L. 324 ; Massey v. Goyder, 4 Car. & P. 161, 19 Eng. C. L. 456; Lapp V. Guttenkunst (Ky. ), 44 S. \V. 964; City of Covington v. Gey- lor, 93 Ky. 275, 19 S. W. 741 ; Bona- parte ZK Wiseman, 89 Md. 12, 42 Atl 918. 44 L. R. A. 482. Evidence of Due Notice Will Sup- port a Recovery for the Cost of Such Protection — Fads v. Gains. 58 Mo. App. 586; Walters v. Hamilton. 75 Mo. App. 237. 13. Sherwood f. Seaman, 2 Bosw. (N. Y.) 127. 14. Sun Ass'n. v. Tribune Ass'n. 44 N. Y. Super. 136; Walters v. Hamilton, 75 Mo. App. 237. In the case of Kctchum v. New- man, 116 N. Y. 422 22 N. E. 1052, defendants excavated, shoring up the adjacent building, the license to enter for such purpose being revoked, be- fore a wall had been erected, and it was held that suffering such shoring up was evidence competent to imply a license for further entry for pur- poses of building a new wall. Tender of License — It has been held that evidence need not be given of a tender of such license, until request for the license is shown. Cohen 7'. Simmons, 16 Hun 634, 21 N. Y. Supp. ,385 ; Dorrity v. Rapp. 72 N. Y. 307. 15. Winn v. .^beles, 35 Kan. 85. ID Pac. 443- 57 Am. Rep. 138. See City of Quincey j'. Jones, 76 111. 231, 20 Am. Rep. 243. Other TTse Immaterial — In show- ing that an excavation was made for a useful purpose, evidence of a use to which the land coidd have been adapted before excavating was held immaterial. Conboy v. Dickinson, gj Cal. 600, 28 Pac. 809. 16. Mickel v. York, 66 111. App. 464; Ainsworth v. Lakin (Mass.), 62 N. E. 746. Vol. I ADJOINING LAND OWNERS. 213 the excavator from negligence in failing to give formal written or verbal notice, which tends to show that the adjoining owner had actual knowledge of such proposed excavation,'" and such evidence has been received as equivalent to the notice required by statute.^* (2.) Judicial Notice. — Judicial notice will be taken of the fact that digging beneath a foundation wall will cause it to crack unless properly underpinned. ''■" C. Custom and Us.\ge. — a. /;; U.vcaz'atiiig. — In determining the question of negligence in excavating, evidence is admissible to show the methods usually employed by builders in such cases.-" 1). /)( Partv Wall. — In an action for negligent construction of a party wall, evidence of experts was held admissible to show if the insertion of flues was customary in erection of such walls, as tending to establish the fact that the wall was not negligently weakened therebv,-' and like evidence is admissible in respect of the 17. Knowledge Obviates Formal Notice — Schultz v. Byers, 53 N. J. Law 442, 22 Atl. 514, 13 L. K. A. 569- Removal of Adjoining House. In iV-yton v. The Mayor, 9 Barn tk C. 725, 17 Eng. C. L. 324, in a suit by the reversioner against the owner of an adjoining house for removing the huter without shoring up the plaintiff's, Lord Tentcrden, chief jus- lice of the King's Bench, said ; " It did not appear that the defendants gave any previous notice of the in- tention of pulhng down tlieir house, or of the time of doing so, but the defective state of both houses was known to the parties. . . The op- eration of taking down the defend- ant's house was carried on by day, and the operation must have been seen and known by the tenant and occupier of the plaintiff's house." ■What Amounts to Knowledge. \\ hero preliminary work was done, and discontinued for two montlis before the excavating was extended to wliere it iniured the adjacent house, this was held Insufficient to warrant the presumntion that sucli adjacent owner had knowledge of the character and extent of the work. Bonaparte z<. Wiseman, 89 ^Id. 12. 42 Atl. gi8, 44 L. R. A. 482. Object of Notice — The object of the notice is, that the party may have the knowledge of what is going on. of the fact that the wall is being pulled down. Tlie plaintiff had that knowledge, and that is notice. Mont- gomery V. Trustees, 70 Ga. 38. 18. Actual Knowledge Equivalent to Statutory Notice. — Ulrick v. Dakota Co., 3 S. D. 44, 51 N. W. 1023 ; Novotny v. Danforth, 9 S. D. 301, 68 N. W. 749. 19. Obert v. Dunn, 140 Mo. 476, 41 S. W. 901. 20. Identity of Conditions. Block V. Haseltine, 3 Ind. App. 491, 29 N. E. 937- In Shrieve v. Stokes, 8 B. Men. ( Ky.) 453, 48 Am. Dec. 401, the chief justice, in holding that it was ad- missible to prove what was usually done by builders, said: "The evi- dence should have been confined to what was usual in cases exactly similar to the one on trial, and to the manner in which cellars are usually dug out in such cases." Negligence in Omitting to Em- ploy Method Must Be Alleged. In Obert -■. Dunn, 140 Mo. 476, 41 S. W. got. it was held that evidence was properly refused which sought to show that it was usual to e.x- cavate and wall up in sections, where no such charge of negligence was in the pleadings. 21. Gorham v. Gross, 125' Mass. 2:^,2, 28 Am. Rep. 234. In this case the contract for con- struction provided that details not specified should be " decided by the custom in regard to party walls in the said city of W," and an exception to the testimony of an expert was Vol. I 214 ADJOINING LAND OITNERS. use of such wall by the insertion of joists. -- D. ExPEKT Opinion. — la determining the question of reasona- ble care and skill in respect of the protection of property from injury by work on adjoining premises, evidence is competent to show whether the work was executed in accordance with the advice of one experienced in such matters,-" though such opinion is not in itself conclusive evidence of due care and skill. -^ E. Inspection of Premises. — a. Actual. — In general, inspec- tion of the premises is not competent of itself as evidence, but as a means of enabling the jury to understand and apply the evidence adduced in court,-' but such inspection is competent as direct evi- overruled, un the ground that " not a technical custom, but the usual practice " was intended. 22. McMinn i'. Karter, ii6 Ala. 390, 22 So. 517. The court say; "We do not know judicially that the let- ting in of sleepers, joists, and rafters in the way proposed by the respond- ent would at all weaken or injure this wall." 23. Expert Opinion in Exca- vating. — Hammond f. Schiff, 100 N. C. 161, 6 S. E. 753; Larson v. Met- ropolitan Ry. Co., no Mo. 234, 19 S. W. 416, 33 Am. St. Rep. 439, 16 L. R. A. 330; Shrieve v. Stokes, 8 B. Mon. (Ky.) 453. 48 Am. Dec. 401 ; Block V. Haseltine, 3 Ind. App. 491, 29 N. E. 937- Expert Opinion in Alteration of Wall — Levy v. Fenner, 48 La. .\nn. 1389, 20 So. 895. Application of Rule In Winn v. Abeles, 35 Kan. 85, 10 Pac. 443, 57 Am. Rep. 138, an action by a lessee against his lessor for mjury to tene- ment by excavation on adjoining land by third person, lessor testified that he had acted under advice of a skilled architect in protecting the building, and the court say : " In determining what action he should take to protect the building it was proper for Abeles to consult a prac- tical and skillful man who had had e.xpcricnce in such matters, and to re.ijard his advice in the means em- ployed to accomplish his purpose. The testimony complained of was therefore competent to prove that he acted with reasonable caution, and with good faith in the steps taken by him." 24. Expert Opinion Not Con- clusive — Charlcss v. Rankin, 22 Mo. Vol. I 5j6, 6b Am. Dec. O42 the court say : " 1 he question is, as to the fact of negHgence, whether the work was done in a careless and improvident manner, so as to occasion greater risk to the plaintiff than in the rea- sonable course of doing the work he would have incurred, and not whether, in the opinion of the super- nuendent, no matter how skillful he may have been, everything was done that he deemed necessary. His opinion may be proper evidence to be considered by the jury, but it does not conclude the matter, con- stituting of itself a bar to the plaint- iff's recovery." Setting a Fire — Evidence of one skilled in clearing land by fire has been held incompetait nn the question of negligence. Higgins v. Dewey, 107 ;Mass. 494, 9 Am. Rep. 63 ; Fer- guson v. Hubbell, 97 N. Y. 507, 49 Am. Rep. 544 ; Eraser ■:■. Tupper. 29 Vt. 409. 25. See Horan v. Byrnes, 70 \. H. 531, 49 Atl. 569. In Lateral Support, Damage Done By Removal Of. — In Schultz r. Bower, 57 Minn. 493, 59 N. W. 631, 47 Am. St. Rep. 630. in an action for damages for wrongful removal of lateral support, the jury, having been sent to view the premises, the court say: "In the charge the jury were told that they had been permitted to look the premises over, so that they might have another standard by which to gauge the evidence they had heard in court ; that it mi.ght perhaps help them in determining whether the witnesses for the plain- tiff or the witnesses for the defend- ant had more nearly told the truth in regard to the damages to the ADJOINING LAND OWNERS. 215 dence of whether premises are diminished in vahie for rental pur- poses by the erection of a fence malevolently on adjoining land.-'' b. By ['lioto graph. — In an action for damages caused by the use of a part}' wall, photographs of the premises are admissible, their accuracy to be estimated from the testimony of the witnesses.-' 2. Defenses. — A. Contiubutory Negligence. — a. /;; Lateral Support. — In an action for injury to improvements caused by removing the lateral support of the adjoining premises, evidence of the omission by the plaintiff to use reasonable care and prudence may establish contributory negligence, considered with reference to the circumstances of the case,-" and evidence of the excavator's promise to take such precautions has been held competent to dis- prove such contributory negligence.'-" premises; . . . Our opinion is that, taking the charge as a whole, its fair import is that the jury might use what they saw or supposed they had learned on the view as evidence in the case, at least for some pur- poses. . . . This was error." 26. Smith v. Morse, 148 Mass. 407, 19 N. E. 393- 27. Dorsey v. Habersack, 84 Md. 117. ,?5 Atl. 96. In this case, the court say: " There is sufficient evidence of the experience, etc., of the photographer to justify the court in admitting them ; and, as both sides had photo- graphs in evidence, the jury could judge of their accuracy from the testimony of the witnesses." 28. Wahers v. Piiel, i U. & M. 362, 22 Eng. C. L. 544- See May- hew V. Burns, 103 Ind. 328, 2 N. E. 793; Shrieve v. Stokes, 8 B. Mon. (Ky.) 453, 48 Am. Dec. 401. Contributory Negligence Held Not Admissible. — Gildersleeve v. Hammond, log Mich. 431, 67 N. W. 519, 33 L. R. A. 46, the court say: " The defendants knowingly, inten- tionally and wilfully removed the natural support of the plaintiff's building by the removal of her own soil. The building fell while the work was going on. They knew the consequences that must inevitably follow their wrongful acts. One may not deliberately undermine my build- ing, and then avoid the consequences by saying to me, ' You might have protected it.' " Stevenson v. Wallace, 27 Gratt. (Va.) 77. 29. Promise to Protect Louis- ville & N. k. Co. V. Bonhayo. 94 Ky. 67, Ji S. W. 526. No 'Variance, as Showing Liability Tlpon Contract In Gildersleeve v. Hammond, 109 Mich. 431, 67 N. W. 519. 33 L. R. A. 46, the court say: " It is, however, insisted by the de- fendants that the plaintiff was guilty of contriljutory negligence, in not shoring up and protecting her own property when she saw the imminent danger. Under the evidence, the de- fendants informed her that they would protect her building, and this would relieve her from any further responsibility. This evidence was ob- jected to upon the ground that it tended to prove a different cause of action froin that set up in the dec- laration; namely, a liability arising from contract. This clearly cannot be so. It was not introduced or used for that purpose. It was competent evidence to relieve the plaintiff' from the charge of contributory negli- gence." Notice of Change in Mode of Proceeding Must Be Shown In Lar- son V. Metropolitan Ry. Co., no Mo. 234, 19 S. 'W. 416, 33' Am. St. Rep. 439, 16 L. R. A. 330, the court say : " If defendant notified plaintiff that a certain mode of proceeding was to be pursued, and this led him to act upon that hypothesis, and refrain from taking steps which would other- wise have been necessary and prudent to insure the safety of his property, the risk of injury to the plaintiff in the premises imposed on defendant the duty towards him of conform- ing to the plan of work of which it Vol. I 216 ADJOINING LAND O If NEKS. b. In Party Wall, Flaintilf's Knowledge of Damage. — In an action for injuries caused by the negligent use of a party wall, evidence that plaintiff was aware of the damage being caused, and could have prevented, but omitted to do so, is admissible in bar of recovery for such damages.'"' B. Altekinc. Bukuicn op EaskmExt. — a. W'eiglit of Diiprovc- nieiit. — The right of lateral and subjacent support being incident to the soil alone, evidence is competent in bar of an action for the removal of the same where no negligence is shown, which shows that the lateral or direct pressure of the soil was increased bv the presence of a building or other improvement thereon.^' b. Defect i)i Improvements. — (1.) In Lateral Support. — Evidence has been held admissible to exonerate from injury to improvements through the removal of lateral support which reveals that such improvement fell because of its inherent insufficiency of construc- tion,''- but other decisions have held such evidence competent only had advised him, or to reasonably notify him of a change in that plan in season to admit of his adopting protective measures of his own. 30. Hartford Co. v. Calkins. i8(i 111. 104. 57 N. E. 86.^ 31. Increasing Pressure in Lat- eral Support. _ England. —Partridge V. Scott. 3 M. & W. 220, 4g Rev. Rep. 5/8 : Wyatt v. Harrison, 3 Barn. & .'\. 871, 37 Rev. Rep. 566. niinois. — Mamer i'. I^ussem, 6s III 484. Kentucky. — Lapp v. Gnttenkunst CKy.), 44 S. W. 964: Krish v. Ford (Ky.). 43 S. W. 237. Michigan. — Gildersleeve v. Ham- mond. 109 Mich. 431, 67 N. W. .519, i^ L. R. A. 46 ; Hemsworth v. Gush- ing, 115 jMich. 92, 72 N. W. 1 108. Missouri. — Obert v. Dunn, 140 Mo. 476. 41 vS. W. 901 ; Bushy v. Holthaus, 46 Mo. 161. Vermont. — Beard v. Murphy. 37 Vt. 99, 86 Am. Dec. 693. Wisconsin. — Laycock v. Parker, 103 Wis. 161, 79 N. W. 327. Intervening Land — Evidence that an excavation injuring plaintiff's house was made on land of defend- ant not immediately adjoining was held incompetent to relieve the latter from liability, it being shown that he owned the intervening ground, the distance of the house from the line of excavation being a fad for the jury's Vol, I consideration. See also, VVitherow v. Tannerhill, 194 Pa. St. 21, 44 Atl. 1088 ; Austin v. Hudson River R. Co.. 25 N. Y. 334. And the fact that an alley of two or three feet in width lies between will not preclude a showing that the intervening earth was such as to render it highly probable it would give away. Shrieve v. Stokes, 8 B. Mon. (Ky.) 453, 48 Am. Dec. 401. Increasing Pressure in Subjacent Support.— Wilms v. Jess, 94 III. 464, 34 Am. Rep. 242 ; Marvin v. Brewster Co., 55 N. Y. 538, 14 Am. Rep. 322; Pringle v. Vesta Co., 172 Pa. St. 438, 3:^ Atl. 690. But see Jones v. Wagner. 66 Pa. St. 429, =; Am. Rep. 385. Erections Which Have Been Held Insufficient as Evidence of Such Result.— O'Ncil V. Harkins, 8 Bush (Ky.) 650; Farrand v. Alarshall, ig Barb. (N. Y.) 380; Gilmore v. Dris- coll, 122 Mass. 199, 23 Am. Rep. 312; White 1'. Teho. 43 .\pp. Div. 418. 60 N. Y. Supp. 231. Improvement Made by Third Per- son — In Foley v. Wyeth, 2 Allen (Mass.) 131, 79 Am. Dec. 771, it was held that evidence of the erection of the improvement by a third person was inadmissible as a defense. 32. Defect in Improvement Ex- cuses Injury — Spohn v. Dives. 174 Pa. St. 474. ,M .\{\. 192; Shafer v. Wilson. 44 Md, 268. ADJOINING LAND OirNERS. 217 in determining' the degree of negligence and in mitigation of dam- ages.^'' (2.) Condemned Building. — In an action for injury to an adjoining building through the negligent use of a party wall, evidence is not admissible to show that the building had been condemned by jxib- lic authority, where no notice thereof had been given the owner. •'"' C. Estoppel. — a. In Lateral Support. — (1.) Consent. — Evidence of the consent of an adjoining land owner to the removal of lateral support, will bar a recovery for injury occasioned thereby. ^^ (2.) Agreement to Protect. — An excavator is estopped to deny lia- bility for damages caused by his failure in the performance of an express agreement to protect the improvements on adjoining prem- ises.-*° b. In Party Wall. — Permissive use of a wall as a parly wall will estop the adjoining owner from objecting thereto.'*' 33. Stevenson v. Wallace, 27 Gralt. (,Va.) 77. In Uodd V. Holme, i Ad. & E. 493, 28 Eng. C. L. 240, the court say : " The bad condition of the house would only affect the amount of dam- ages. If it was true that the premises could have stood only si.x months, the plaintiff still had a cause of action against those who accelerated its fall ; the state of the house might render more care necessary on the part of the defendant not to hasten its dissolution." 34. Bouquois v. Monteleone, -47 La. .^nn. 814, 17 So. 305'. 35. City of Covington v. Geyler. 93 Ky. 275, 19 S. W. 741. Attempt to Guard Against Injury. In Dowling v. Henning.^, 20 Md. 179, 83 Am. Dec. 545, it was held that an attempt to guard against the injury threatened by such removal is in- competent as evidence of such as- sent. 36. Walters z'. Hamilton, 75 Mo. App. 237. Application of Rule In Delaney z'. Bowman, 82 Mo. .\pp. 252, the court say: "In making the proposed improvement the defendant volun- tarily promised to protect the rear portion of the east wall of plaintiff's building. The plaintiff had the right to rely on this promise, although voluntarily luade. . . . It is sug- gested that, as the plaintiff knew the width of the alley, and as he wa? as capable of judging of its suffi- ciency to protect his wall as the de- fendant, he could not complain that the means adopted by the defendant for his protection were ineffectual. It is true that the agent of the plain- tiff had knowledge of the width of the wall, but it was not established that he knew the character of the soil as disclosed by the excavation, nor was he advised of the means adopted by defendant to prevent tlie accident. I-'nder the promise of defendant he had the right to assume that defend- ant would adopt all reasonable means to prevent the sides of the exca- vation from caving." 37. Use of Wall Encroaching on Adjoining Land. — Zeininger v. Schnitzler, 48 Kan. 63, 28 Pac. 1007 ; Bank z: Thomas fCal). 41 Pac. 462. Use of Wall Erected Wholly on One Side of Line Wilford v. Gerard (Ky.), 56 S. W. 416. In this case, it was held that per- missive use of a wall, with an under- standing that the resnective rights of the parties should be adjusted in the future, estopped the builder from demanding that the house be removed which was erected pursuant to such use. Opening Windows in Wall In Dunscnmli z'. Randolph (Tenn.). 64 S. W. 21, the only objection made to the opening of windows in a wall was a notice that the adjoining owner would hold the co-tenant liable for any damages caused by falling bricks, and this was held evidence to estop the adjoining owner from objecting Vol. I 218 ADJOINING LAND OITNERS. 3. Presumption. — A. ( iF Notick. — In absence of allegation and evidence of a want of notice, in an action tor the removal of lateral support, it will be presumed that such notice was properly given.-"* B. Of Contribution to Party W'.xlu. — In the absence of statu- tory provision or agreement to the contrary, evidence of the use by an adjoining owner of a wall erected partly upon his land is not in general held admissible to establish an implied promise to contribute to the cost of such wall ;■''" but the facts and circumstances of the case may be such as to estal)lish the presumption.'"' to such windows lunil she desired to use the wall. 38. Block V. Haseltiue, 3 Ind. .\pp 491, 29 N. E. 937- In this case, the chief justice says; " As the complaint is silent upon the subject of notice, it must be presumed that notice was properly given." 39. No Implied Promise of Con- tribution Alabama. — Bisquay ?'. Jeunelot, 10 Wa. 245, 44 .•\m. Dec. 483 ; Autoniarchi v. Russell, 63 Ala. 356. 35 Am. Rep. 40; Preiss v. Par- ker, 67 Ala. SCO. Florida. — Orman v. Day, s i'la. 38.V ///;»(iiV.— ^NlcCord -.■. Tlt-rrick. 18 111. App. 423. Vol. I Massachusetts. — Wilkins v. Jewett. 139 Mass. 29, 29 N. E. 214. Missouri. — Abrahams v. Krautler, 24 Mo. 69, 66 Am. Dec. 698. West Virginia. — List v. Hornbrook. 2 W. Va. 340. 40. When Promise of Contribu- tion Is Implied Day v. Caton, 119 Mass. 513, 20 Am. Rep. 34"; Huck v. Flentye, 80 111. 258; Campbell v. Messier, 4 Johns. Ch. t,xx. 8 Am. Dec. 570; Keith v. Ridge, 146 Mo. 90, 47 S. W. 904; Sanders v. ;\Iartin, 2 Lea (Tenn.) 213, 31 Am. Rep. 598; Wilford V. Gerard (Ky.), 56 S. W. 416; Rindge v. Baker, 57 N. Y. 20g^ 15 Am. Rep. 475. ADJUDICATION— See Judgment. ADJUSTMENT OF LOSS.-See Insurance. ADMINISTRATORS.— See Executors and Adminis- trators. ADMIRALTY. By H. L. (4ear. I. GENERAL PRINCIPLES AND RULES, 22-; I. In Cases Generally, 227 A. Admiralty Proceedings Distinguished, 227 a. Trial by Jury Not a Test, 227 b. Court Judge of Law and Fact, 22/ c. Proceedings Modeled Upon Civil Laiv, 227 (i.) Process Acts of Congress, 228 d. Causes Governed by Maritime Law, 228 (i.) Effect of Local Lazv, 228 (2.) Latv of Nations, 228 ( 3. ) Usages of the Sea, 229 (4.) Judicial Question, 229 B. General Rules of Evidence, 229 a. State Rules Inapplicable, 229 b. Common Law Rules, 229 c. Laxity of Rules in Admiralty. 230 (1. Rules of Equity, 230 e. Inspection of Books and Papers. 231 f. Proof of I'oreigu La7^'s. 23: Vol. I 221) ADMIRALTY. 2. In Prize Causes, 231 A. General Rules, 231 a. Rules of Lazv, 231 b. Oral Testimony Not Allowed, 232 B. Proofs Upon Hearing, 232 a. Papers of Captured Vessel, 232 (i.) Custody and Sealing of Papers, 232 (2.) Abscnee of Papers, 233 (3.) Conecalment and Spoliation of Papers, 233 (4.) Other Frauds Concerning Papers, 234 (5.) Enemy's Flag, Passport and License, 234 (6.) Invocation of Papers From Other Causes, 235 b. Captured Property As Bi'idencc, 235 c. Examination in Preparatorio, 236 (i.) Deviation From Rule, 236 (2.) Examination Upon Standing Interrogato- ries, 236 (3.) Duty of Commissioners on Examination. 237 (4.) Objections to Examination, 237 (5.) Sealing and Custody of Examinalion. 2^J C. Test Affida-Ats of Claimants. 237 a. Test Affidavits by Agent. 238 b. Papers Anne.ved to Affidavits. 238 c. Limits of Claims and Affidavits. 238 D. Further Proof. 239 a. Mode of Further Proof. 239 b. Caution As to Further Proof. 240 c. Further Proof of Claimants. 240 (i.) JVhen Not Allowed. 241 d. Further Proof of Captors. 242 (i.) IVhcn Not Allozved, 243 e. Failure of Further Proof. 243 II. RELATION OF PROOF TO PLEADING, 244 1. In General. 244 A. Evidence Under General Pleading. 244 P.. Material I'ariance. 245 2. Amendments to Support Evidence. 245 A. Of Lib el. 243 ;i. When Not Allowed. 246 Vol. I ADMIRALTY. 221 B. Of Ansi^'cr, 246 a. When Not Alloi^'cd, 247 3. Pleadings As Bi'idcncc, 247 A. In General, 247 B. Admissions in Pleading. 247 a. Failure to Take Issue, 248 b. Absence of Replication, 248 C. Limitation of Pleadings As Ei'idencc. 249 D. Interrogatories and Ansii'crs. 249 III. PRESUMPTION AND BURDEN OF PROOF, 250 1. General Presumption. 250 A. Vessel and Cargo, 250 B. Master of l^cssel, 250 C. Ei'idencc, 250 2. Burden of Proof in General. 250 A. Performance of Conditions, 250 B. Non-Performance, 251 C. Interpretation of Conditions, 251 D. Title Under Master's Sale, 251 E. Wrongs, 251 F. Pilotage, 251 G. fFa^fj of Seaman, 252 H. Change of Voyage, 252 3. /;; Cases of Prize. 252 A. Presumptions. 252 « a. r»7/^, 252 b. Hostility of Ship and Cargo, 252 (I.) Trade With Enemy. 252 c. Blockade, 253 (I.) Notice of Blockade. 253 B. Burden of Proof. 253 a. Captors, 253 b. Claimants. 253 c. Blockade, 254 d. Violation of Neutrality. 234 (i.) Augmentation of Force. 254 4. r(/.?rjr 0/ Forfeiture, 254 A. Registry of J'essels, 254 B. Embargo and Non-Intercourse Laws. 254 C. .S"/(77'r Trade. 255 Vol. I 222 ADMIRALTY. D. Customs, 255 5. Bottomry and Rcfiairs, 256 A. Presumptions. 256 B. Burden of Proof. 256 6. Cases of Collision. 257 A. Presumptions, 257 a. Lazvs Applicable, 2^j b. Fact of Collision, 257 c. Fault in Management, 258 d. Sailing Vessels Colliding, 258 e. Steamers Colliding, 259 f. Collision of Steamers With Other l-'essels. 259 g. One Vessel Oirrtaking Another, 260 h. Collision JVitli Moored Vessel, 261 B. Burden of Proof, 261 a. /;) General, 261 b. Neglect of Statutory Rules, 262 c. Vessel Bound to Keep Out of li^ay, 262 d. Vessel Bound to Keep Course, 263 e. Moored Vessels, 263 (i.) Burden Upon Moring J'essels. 263 (2.) Burden Upon Moored Vessel. 264 (3.) Burden Upon Ship Tozved, 264 f. Collision in Narrow Place, 264 g. Collision JVith Pier. 263 7. Tozi'age, 265 A. Presumptions, 265 B. Burden of Proof, 265 a. [//"o;; Owners of Tote, 265 b. [//joj/ O-ii'uers of Tug, 266 8. Salvage. 266 9. Scazvo rth iness . 266 A. Presumptions. 266 a. Implied Contract. 266 b. .Staunchness of Vessel, 267 c. Improper Manning. 267 d. Leakage and Sinking of J'essel. 26/ e. Insecure Port-hole. 267 B. Burden of Proof, 268 10. Injury to Cargo, 268 A. Presumptions, 268 a. NeiiHinence of J'essel, 268 b. Cffi-r 0/ Shipper. 268 c. .Stoz^'agc. 2(^)8 I>. Burden of Proof, 269 a. ?//>('// Ozi'uer of Cargo, 269 Vol. I ADMIRALTY. 223 b. Upon Ozi'iier of I'csscl. 270 ( I.) Bill of Lading, 270 (2.) Stozvagc, 271 (3-) Baggage, 272 (4.) Incompetent AhMter, 272 ( 5. ) Shortage in Cargo Delivered. 2j2 (6.) Delivery of Cargo, 273 II. Personal Injuries, 274 A. Assault, 274 B. Negligence. 274 IV. JUDICIAL NOTICE, 275 1. Laivs and Regulations, 275 2. Notorious Facts, 276 3. Naz'i gable Waters, 276 4. Lease of Vessel, 276 5. Location of Places, 276 f). Shelving of Facts Judicially Noticed, 276 V. COMPETENCY OF WITNESSES, 2" 1. Incompetency, 277 A. Common Law Rule, 2/j B. Waiver of Objection, 277 2. Competent JVitnesses. 277 A. Parties, 2yj B. Master of Vessel, 278 C. O ?//('/• Persons. 278 VI. MODE OF TAKING EVIDENCE, 279 1. Ori)/ Testimony, 2jy A. Permissibility, 279 B. Mode of Taking Down, 279 C. Ora/ Cross-Exaniination, 2"/!.) D. Ora/ Evidence in the Supreme Court. 279 2. Affidavits, 279 A. /h F«'.;f C(7;/.sTj, 279 B. Affidavits of Merits, 279 C. Other Affidavits, 280 3. Depositions, 280 A. Rules of Practice, 280 B. Depositions de Bene Esse, 280 C. Comnrission to Take Depositions, 281 D. Objections to Depositions, 281 E. t/jc of Depositions Upon Another Libel. 282 4. Reference to Commissioners, 282 Vol. I 224 ADMIRALTY. A. Cases for Reference, 282 B. Proceedings, 283 a. Time for Taking E'^'idence, 283 b. Mode of Procedure, 283 c. Reception of Evidence, 283 d. Control of Proceedings by Court. 283 e. Objections to Evidence, 284 f. Report of Commissioners. 284 g. Objections to Report. 284 C. Decision of Commissioner, 284 D. Motion to Dismiss for Want of lividence, 285 E. Taxation of Testimony, 285 VII. DOCUMENTARY EVIDENCE, 285 1. Official Certificates. 285 A. OriginaJs, 285 B. Certified Copies, 286 C. Best Evidence, 286 2. Documents Pertaining to Vessels, 287 A. Log Book, 287 B. Protests, 288 C. Shipping Articles, 289 a. Admissibility, 289 b. Validity and Effect, 290 c. Best Evidence, 292 D. Bills of Lading, 293 a. Effect As Evidence, 293 b. Lco^a/ Effect, 293 c. Transfer, 294 d. Bt'j/ Evidence, 295 E. Charter Party, 295 a. Relation to Bills of Lading. 295 b. Usage. 296 c. Of/!fr Questions of Proof, 299 F. Other Documents, 300 a. Ship's Manifest, 300 b. Commercial Documents. 301 c. 5"t(r7'£'3' 0/ Vessel, 301 d. Delivery Book of Cargo, 301 e. Letters, 301 f. T?V/£? 0/ Vessel, 301 3. Judgments and Decrees, 303 A. Conelusi^'cness, 303 B. Inconelusiveness. 307 C. Proof of Record of Judg)uent. 311 D. B«/ Evidence, 311 Vol. I ADMIRALTY. 4. Official Documents, 312 A. Message of President, 312 1j. Official Proclamation, 312 C. Commission of Public Ship, 313 D. Certificate of Foreign Governor, 313 5. Parol Evidence in Relation to Documents, 313 A. Inadmissibility, 313 a. Contracts, 313 b. Otiier Instruments, 315 B. Admissibility, 316 a. Contracts, 316 (i.) Parties to Contracts, 317 (2.) Explanation of Contract, 318 b. Receipts, 320 c. Other Documents, 323 VIII. DECLARATIONS AND ADMISSIONS, 324 1. 0/ Master. 324 2. O/-' Captain, 326 3. O/' Other Members of Creiv, 326 4. 0/ Ow'«(?rj of Vessel, 327 5. O/^ Other Persons, 327 A. Attorney, 327 B. Shipping Notaries, 327 C. Admissions by Tender, Offer or Settlement. 327 IX. OPINION EVIDENCE, 328 1. Of Non-Experts, 328 2. 0/ Experts, 328 A. Admissibility, 328 a. Collision, 328 b. Transportation, 329 c. Marine Insurance, 329 B. Inadmissibility, 329 C. Weiglit of Expert Evidence, 330 X. RELEVANCE AND COMPETENCY OF EVIDENCE, 331 1. Admissibility, 331 2. Inadmissibility, 332 XI. WEIGHT OF EVIDENCE, 333 1. /» General, 333 2. /w Collision Cases, 334 A. OccMrr^ncfj o;; Board, 334 B. Relative Position of Vessels, 335 IS Vol. I 226 ADMIRALTY. C. Credibility of Witnesses, 335 a. Facts and Inferences Relating to Credibility, 336 b. Caution As to Testimony, 337 c. Positive and Negative Testimony, 337 d. Absence of Testimony, 337 3. In Cases of Seaman, 338 4. Position of Blockading Vessel, 338 5. Circumstantial Evidence, 338 XII. EVIDENCE UPON APPEAL, 339 1. In Circnit Court, 339 A. Trial dc Novo, 339 B. Burden of Proof Upon Appeal, 340 C. Neiv Evidence, 340 a. Admissibility, 340 b. Caution As to Neiv Evidence, 340 c. New Evidence After Default, 340 D. Decision of District Court Upon Conflicting Evidence, 341 E. Libel for Neivly Discovered Evidence. 341 F. Commission to Take Testimony, 341 G. Deposition Not Made Part of Record. 341 2. In Circuit Court of Appeals, 341 A. Appeals, Hozc Governed, 341 B. Trial de Novo, 342 C. Record Upon Appeal, 342 D. New Evidence, 343 a. When Allowed, 343 b. When Not Alloived, 344 c. Mode of Taking Evidence, 344 E. Decision of Lower Court, 344 F. Rehearing, 345 3. In Supreme Court, 345 A. Act of 1875, 345 B. Prior Decisions, 346 a. Trial de Novo, 346 b. Ne7v Evidence, 346 c. Deposition Taken in Circuit Court. 347 4. /;; Other Courts, 347 A. Appeal From Territorial Court. 347 B. New Evidence. 347 Vol. I ADMIRALTY 227 I. GENERAL PRINCIPLES AND RULES. 1. In Cases Generally. — A. Admiralty Proceedings Distin- guished. — Admiralt)' proceedings are of a peculiar nature, and as a class, are distinguished from actions at law and suits in equity.^ In general, no proceedings can be more unlike than those in the common law courts and in the courts of admiralty." a. Trial by Jury Not a Test. — That a trial by jury may be had in a common law court of the same subject matter, is not a test of the jurisdiction in admiralty,^ and does not require a trial by jury in admiralty court.* When a case of concurrent jurisdiction comes rightfully into a court of admiralty, it is to be conducted, tried and decided by the court according to the usages of that court ;^ in which a trial by jury is generally not allowed," except in cases arising upon the lakes under the Act of 1845.' b. Court Judge of Law and Pact. — A court of admiralty is judge both of the law and of the facts.* A verdict of a jury, when allowed, is deemed only advisory to the court." The court of admiralty will determine a question of fraud or good faith in the purchase of a vessel, from the evidence, upon the same principles which usually govern trials by jury.'" c. Proceedings Modeled Upon Civil Law. — The proceedings in the courts of admiralty are, in general, modeled after the forms of the civil law," though the courts of the United States do not 1. Waring v. Clarke, 5 How. 441. Exclusion From General Statutes. Admiraky proceedings are so pecu- liar and diverse from ordinary civil suits, that they will be deemed ex- cluded from general statutes regu- lating civil proceedings, unless ex- pressly alluded to. Atkins v. Fibre Disintegrating Co., i Ben. 118, 2 Fed. Cas. No. 600. 2. The Schooner .\deline. g Cranch 244. Principles of Common Law Inap- plicable. — The principles of the common law are inapplicable to process and proceedings in admiralty. Clarke v. New Jersey Steam Nav. Co., I Story 531, 5 Fed. Cas. No. 2859; The Harriet, 01c. 222, II Fed. Cas. No. 6096. 3. Waring v. Clarke. 5 How. 441. 4. Davis V. New Brig. Gilp. 473. 7 Fed. Cas. No. 3643 ; Boon v. The Hornet, Crabbe 426. 3 Fed. Cas. No. 1640; Waring v. Clarke, 5 How. 441. 5. Boon V. The Hornet. Crabbe 426, 3 Fed. Cas. No. 1640; Davis v. New Brig, Gilp. 473, 7 Fed. Cas. No. ^643; Atlee V. Packet Co., 21 Wall. 389' 6. Waring v. Clarke, 5 How. 441 ; The Sarah, 8 Wheat. 391 ; U. S. v. The Betsey and Charlotte, 4 Cranch 442; Whelan v. U. S., 7 Cranch 112; Parsons v. Bedford, 3 Pet. 433 ; The Margaret, 9 Wheat. 421 ; The Ven- geance, 3 Dall. 297 ; Atlee v. Packet Co.. 21 Wall. 389; The Paolina S., II Fed. 171; Clark v. U. S., 2 Wash, C. C. S19, S Fed. Cas. No. 2837; The Erie Belle, 20 Fed. 63; Bigley v. The Venture, 21 Fed. 880. 7. The Eagle, 8 Wall. 15: Gillet V. Pierce, i Brown Adm. 553, 10 Fed. Cas. No. 5437. 8. Elwell V. Martin, i Ware S3, 8 Fed. Cas. No. 4425. 9. The Empire. 19 Fed. 558; San- derson V. City of Toledo, 7^:, Fed. 220. 10. The Romp, Olc. 196. 20 Fed. Cas. No. 12,030. 11. American Ins. Co. v. Johnson, Blatchf. & H. 9. I Fed. Cas. No. 303 : U. S. V. The Betsey and Charlotte, 4 Cranch 442 ; The Schooner Adeline, 9 Cranch 244. Proceedings in Rem. — A proceed- ing in rem is a proceeding under Vol. I 228 ADMIRALTY. exercise all the jjinvers of admiralty courts organized under the civil law.'- (1.) Process Acts of Congress. — The Process Act of I/Sy regulat- ing proceedings in admiralty referred generally to the civil law ; but the Act of 1792 employed the terms: "According to the principles, rules and usages which belong to courts of admiralty, as distin- guished from courts of common law," which referred to the admi- ralty practice of this country, as engrafted upon the British prac- tice." d. Causes Governed by Maritiine Lazv. — Causes in admiraltx are governed by the rules of the maritime .law, as recognized and adopted in this country," excepting in so far as modified by t-lie legislation of Congress.'" (1.) Effect of Local Law. — The maritime law and the jurisdiction of the admiralty courts thereunder cannot be limited or abrogated by any local law,'" though a court of admiralty may, in the exercise of its maritime jurisdiction, enforce a state statute conferring a maritime right, according to the rules of courts of admiralty.'' (2.) Law of Nations. — A court of admiralty is a court of the law the civil law. The Mo.ses Taylor, 4 Wall. 411- 12. Ex parte, Easton, 95 U. S. 68. 13. Manro v. Ahiieida, 10 Wheat. 473- 14. Maritime Law in the United States Though the constitvitio 1 grants judicial power over all cases of admiralty and maritime jurisdic- tion, a case in admiralty does not arise under the constitution or laws of the United States, but such cases are as old as navigation, and the ancient law, admiralty and maritime, is applied by the federal courts to the cases as they arise. American Ins Co. V. Canter, i Pet. S'l- The constitutional grant had refer- ence to the maritime law which was generally recognized in this countrv when the constitution was adopted. Ex parte Easton, 98 U. S. 68: The Lottawanna, 21 Wall. 558. And is not to be restricted or in- terpreted by what were cases of ad- miralty and maritime jurisdiction in England. Waring t. Clark. 5' How. 441 : Steele v. Thatcher, i Ware 85. 22 Fed. Cas. No. i.3.,148: Davis v. Seneca, Gilp. 10, 7 Fed. Cas. No. .^650; The Seneca. ,3 Wall, Jr. 395,21 Fed. Cas. No. 12.670 : The Huntress. 2 Ware 80, 12 Fed. Cas. No. 6914. Operation of Maritime Law. The maritime law is only so far Vol. I operative in any country, as it is adopted by its laws and usages. The received maritime law may differ ii' different countries without impairing the general integrity of the .system, as a harmonious whole. The I.,otta- wanna, 21 Wall. 558: The Scotland, IDS U. S. 24. 15. The Barque Chusan, 2 Story 455, 5' Fed. Cas. No. 2717: U. S. v. The Little Charles, i Brock. 347, 26 Fed. Cas. No. 15.612; The Siren, 13 Wall. 389; Butler v. Boston etc. Steamship Co., 130 U. S. 527: The City of Washington. 92 U. S. 31 : Ex parte Garnett, 141 U. S. r. 16. Butler v. Boston etc. Steam- ship Co., 130 U. S. .527: The J. E. Rumbell, 148 U. S. i ; Workman r. New York City, 179 U. S. 5.5-': The Lottawanna, 21 Wall. 558 : The Eagle V. Fraser. 8 Wall. 15: The Barc|uc Chusan, 2 Story 455, 5 Fed. Cas. No. 2717. 17. Pevroux ?■. Howard, 7 Pet. 324; The J. E. Rumbell. 148 U. S. i; The Lottawanna, 21 Wall. 558. Jurisdiction Not Conferred. — No state law can confer jurisdiction upon the admiralty courts, and local laws can only furnish rules to ascertain the rights of the parties, in cases of maritime jurisdiction. The Or- leans. II Pot. 175. ADMIRALTY. 229 of nations, and derives in part its jurisdiction from tiiat law."* The law of prize, which is part of the general maritime law/'' is based upon the law of nations, consisting of the common consent of civ- ilized countries.-" No one nation can change the law of the sea.-' (3.) Usages of the Sea. — The usages of the sea were the rules of decision in admiralty in cases of collision, prior to the adoption of the sailing rules by Congress. -- (4.) Judicial Question. — The question as to what are the true limits of the maritime law, and of the admiralty jurisdiction, is a judicial question.-''' B. Gener.-xl Rules oe Evidence. — a. State Rules Inapplicable. State laws and rules regulating evidence in the state courts are not applicable in a court of admiralty holding its session within the state.-* b. Common Laii' Rules. — In general, courts of admiralty follow the common law rules of evidence, when justice does not require a departure therefrom,-^ but they are not confined to the strict rules of common law as to the admission of evidence.-" Where justice 18. The Huntress, 2 Ware 89, 12 Fed. Cas. No. 6914. 19. The Siren, 13 Wall. 389; The Admiral, 3 Wall. 603. 20. The Schooner Adeline, 9 Cranch 244; 30 Hogsheads of Sugar. 9 Cranch 191. General Maritime Law From the general practice of commercial nations in making the same general law the hasis and groundwork of their respective maritime systems, the great mass of maritime law which is received by those nations in com- mon became the maritime law of the world. The Lottawanna, 21 Wall. 558. 21. The law of the sea is of uni- versal obligation, and no statutes of one or two nations can create obli- gations for the world. Like all the laws of nations, it rests upon the common consent of civilized com- munities. The Scotia, 14 Wall. 170. 22. The City of Washington, 92 r. S. 31. 23. The Lottawanna. 21 Wall. 55S 24. Construction of Judiciary Act §34 of the Judiciary act of Congress which adopts state rules of evidence applies only to civil cases at common law. and not to cases in admiralty. The Independence, 2 Curt. 350, 13 Fed. Cas. No. 7014; The William Jarvis, i Spr. 485, 30 Fed. Cas. No. 17.697. Competency of Witnesses. — State statutes making the parties com- petent witnesses cannot apply to a court of admiralty. The Indepen- dence, 2 Curt. 350, 13 Fed. Cas. No. 7014 ; The Australia, 3 Ware 240, 2 Fed. Cas. No. 667. Depositions " According to Com- mon Usage." — § 866 of the Revised Statutes authorizing federal courts to issue commissions to take deposi- tions " according to common usage," does not require a court of admiralty to conform to the practice of the state courts, and it may by rule pro- vide a different method for taking depositions. The Westminster, 96 Fed. 766. m5. The J. F. Spencer, 3 Ben. 337. 13 Fed. Cas. No. 7315; The Ann Green, i Gall. 274, i Fed. Cas. No. 414; The Liverpool Packet, i Gall. 513, 15 Fed. Cas. No. 8406; The San Jose Indiano, 2 Gall. 268, 21 Fed. Cas. i\o. 12,322; Jeffries v. De Hart, 102 Fed. 765. Rules as to Competency of Wit- nesses The rules of the common law as to the competency of wit- nesses are adopted in a court of ad- miralty in the exercise of its juris- diction as an instance court. The Boston, I Sum. 328, 3 Fed. Cas. No. 1673 ; except as modified by act of congress. U. S. v. Cigars. Woolw. 123, 28 Fed. Cas. No. 16,451. 26. F.lwell r. Martin, i Ware 53. Vol. I 230 ADMIRALTY. requires it, courts of admiralty may take notice of facts outside of the record,-' and may accept hearsay and belief as testimony.'-^ c. Laxity of Rules in Admiralty. — From the nature of the case heard, the character of the witnesses, and the place ( the sea) where not much documentary evidence is made or preserved, the rules of admiralty are lax and must often bend to circumstances.-" d. Rules of Lqiiify. — Courts of admiralty, within the limits of their jurisdiction, administer justice rather according to the enlarged and liberal rules and principles of equity, than the strict rules of the common law,'" and will equitably construe documen- tary evidence.'^ In causes in admiralty based upon negligence, if the negligence alleged is proved, evidence of the contributory negli- gence of the libellant, will not bar recovery, as in an action at law ; but the admiralty court will determine the case upon principles of equity, and damages will be awarded or apportioned between the parties, as equity and justice may require.'- But courts of admi- ralty do not recognize the equity rule making a sworn answer equal to two witnesses, or one witness with corroborating circumstances.'' Nor can thev award distinctly equitable relief,'"* or enforce ec|uitablc titles.'^ 8 Fed. Cas. No. 4425 ; The J. F. Spen- cer, 3 Ben. 337, 13 Fed. Cas. No. 7315'; The Vivid, 4 Ben. 319, 28 Fed. Cas. No. 16,978; The Harriet, Olc. 222, II Fed. Cas. No. 6096. Proof of Commercial Documents. A court of admiraUy may receive commercial documents in evidence on proof less formal than would be necessary in a common law court. The Boskenna Bay, 22 Fed. 662. 27. The J. F. Spencer, 3 Ben. 337, 13 Fed. Cas. No. 7315. 28. The Olinde-Rodrigues, 89 Fed. los; The Estrella, 4 Wheat. 298. 29. The Vivid, 4 Ben. 319, 28 i ADMIRALTY c. Examination in Prepavatorio. ■ — As a settled rule, the captors are required to bring in for the examination /';; preparatorio the master, principal officers, and others of the crew of the captured vessel, and the examination should be confined to these,*" unless special leave is first given by the court to examine other witnesses.*^ In the absence of special leave, the testimony of other witnesses should be excluded from evidence at the hearing.^- (1.) Deviation From Rule. — Any deviation by the captors from the settled rule must be explained to the court, or condemnation will be withheld.*^ An unexplained examination confined to witnesses not on Ijoard the captured vessel, is a great irregularity.** But where the monition against the cargo is not replied to, although no one on board was sent as a witness, the testimony of a person pres- ent at the capture of the vessel and cargo, will be allowed against the cargo.*'' If the usual testimony is shown to be unavailable, the want of it may be supplied by affidavits of the captured taken bona fide in another port.*" but not by copies of them.'^ (2.) Examination Upon Standing Interrogatories. — The examination in preparatorio is taken in reply to standing interrogatories.** .gen- erally adopted by the courts of prize in this country,*" and is usually taken before standing prize commissioners."" The witnesses brought in by the captors, in order to prevent collusion, should be examined nea. 2 Gall. 78. 3 Fed. Cas. No. 1686 ; I Wheat. Appendix 495; 2 Wheat. Appendix 81. Examination of Charterer Tin- charterer of a vessel, entered as supercargo, should be examined a< one of the crew of the captured vessel. The Adula, 89 Fed. 351. 80. The Olinde Rodrigues. 89 Fed. los; The Sir William Peel, ^. Wall. 517; The Newfoundland, 89 Fed. 99; The Alliance, Blatehf. Pr. Cas. 646, I Fed. Cas. No. 246 ; i Wheat, .■\ppendix, 495-6. 81. The Alliance, Blatchf. Pr. Cas. 646. I Fed. Cas. No. 246; The Falcon, Blatchf. Pr. Cas. 52, 8 Fed. Cas. No. 4616; I Wheat. Appendi.\ 496. 82. The Olinde Rodrigues, 8y Fed. 10:; ; The Sir William Peel. ^ Wall. 51;- 83. The Arabella, 2 Gall. 368. i Fell. Cas. No. 501. Omission of Duty Reprehended. The omission of duty on the part of the captors to obey the settled rule is reprehended in the strong- est terms by the prize courts, and if not explained, is deemed indicative Vol. I of fraud. The Bothnea, 2 Gall. 78, ? Fed. Cas. No. i685. 84. The Alliance, Blatchf. Pr. Cas. 646, I Fed. Cas. No. 246. 85. The Wave, Blatchf. Pr. Cas. 329, 29 Fed. Cas. No. 17,299. 86. 2 Wheat. Appendix 24; The Arabella, 2 Gall. 368, I Fed. Cas. No. 501. 87. The Arabella, 2 Gall. 368. i Fed. Cas. No. 501. 88. The George, I Wheat. 408; 1 Wheat. Appendix 495 ; 2 Wheat. Appendix 81 ; The Dos Hermanos, 2 Wheat. 76; Gushing v. Laird, 107 U. S. 69; The Ann Green, I Gall. 274, I Fed. Cas. No. 414. 89. Adoption of Standing Inter- rogatories. — Tlie standing interro- gatories of the English High Court of .\dmiralty were generally adopted as a model by the district judges in the principal states, during the war of 1812, with few additions and scarcely any variations. I Wheat. Appendix 49^ ; 2 Wheat. Appendix 81. 90. I Wheat. Appendix 495'; The .A.nn Green, i Gall. 274, i Fed. Cas. No. 414. ADMIRALTY. 237 as soon as possible after the arrival of the captured vessel,'" and without communication with or instruction by counsel,"- and should be separately examined."^ The standing interrogatories are framed to elicit the truth on the question of prize or no prize, and to draw forth everything, within the knowledge of the witnesses, on the controversy between the captors and the captured."* (3.) Duty of Commissioners on Examination. — It is the duty of com- missioners in examining the witnesses, not merely to require a formal and direct answer to every part of each interrogatory, but to require each witness to state the facts with all minuteness and detail,''^ and not to suffer a witness to evade a sifting inquiry.'"' (4.) Objections to Examination. — Exceptions to the mode of proof should be taken at the examination, or they will be considered waived,"'' and the court will not notice on the final hearing objec- tions to irregularities of the commissioners in the mode of examina- tion, or in the admission of testimon}', or to the competency of witnesses examined."* An irrelevant statement of a witness exam- ined made in relation to another witness, will be stricken out."" (5.) Sealing and Custody of Examination. — The examination in pre- paratorio, when completed and signed b}' the witnesses, should be sealed and directed to the custody of the proper district court, together with any paper not already lodged by the captors in the registry of the court.' C. Test Affid.wits of Ci,.mmants. — Claimants of the captured property, or of any part of the cargo, are required to make a test 91. 92. 69; 1 93. 94. 95. I Wheat. Appendi.x 495. Ciishing f. Laird, 107 U. S. Wlieat. .Appendix 497. I Wheat. Appendix 498. The George, i Wheat. 408. The .^nn Green, i Gall. 27.1, I Fed. Cas. No. 414. 96. I Wheat, .\ppendix. 41S. Solemnity of Examination in Preparatorio. — The greatest solem- nity is attaclied to the examination ill frcftaratorio ; and a witness ex- amined will not be allowed afttrvvar 1 to contradict his own declarations in answer to the standing interro- gatories, npon the important qnes- tion of domicile or national charac- ter. Cargo of El Telegrafo. i Newh. 383. 5 Fed. Cas. No. 2535. 97. Intervention of Consul Im- material The intervention of a consul who intervened for the claimant cannot excuse laches in failing to object to the mode of proof at the proper time. The Elizabeth, Rlatchf. Pr. Cas. 250, 8 Fed. Cas. No. 4350. 98. Mode of Rectifying Testi- mony In order to rectify or sup- press testimony, an application should be made to court upon special motion, with notice, pointing out irregularities complained of, and praying proper relief. The Ezilda, Blatchf. Pr. Cas. 232, 8 Fed. Cas. No. 4599. Enlargement of Testimony A witness examined upon the standing interrogatories cannot claim a right to modify or enlarge his testimony after its completion and submission ; but where mistake appears, the court may allow him to answer special interrogatories. The Peter- hof¥, Blatchf. Pr. Cas. Cas, No. 11,022. 99. The Peterhoff. Cas. 345, 19 Fed, Cas. 1. Signature of Witness. — When the evidence is taken, each sheet is afterwards read over- to the witness and separately signed. I Wheat. Ap- pendi.x 498. Vol. I 345. 19 Fed. Blatchf. Pr. No. 11,022. 238 ADMIRALTY. affidavit of the verity of their claims," which should rei:;;ularly state that the property, both at the time of the shipment and at the time of the capture, belonged, and will, if restored, belong to the claim- ant,' and the claimant may aver that the alleged prize is not liable to condemnation and seizure.* a. Test Affidavits by Agent. — Test affidavits by an agent of the claimant when the principal is out of the country, is the common course of the admiralty.^ But claims in prize cases should not be verified by agents, where the principals are within the jurisdiction, as the captors in such case have a right to the oath of the claim- ant." If a test affidavit is made by an agent, in the absence of the principal, if he is within reach, his suppletory oath should be ten- dered." When the claim is put in by the master in behalf of the owner, the master's affidavit may state his belief merely.^ But the test affidavit of an agent who does not assume to have personal knowledge of the facts stated, is not evidence." b. Papers Annc.ved to Affidavits. — Papers annexed to the test affidavits are not thereby made evidence, and will be stricken from the record as irregular and inadmissible." c. Limits of Claim and Affidavit. — The claim, answer and test oath of the claimants should not stand in opposition to the ship's papers, and preparatory examination, unless the case arose before the war," and should be limited to the question of prize or no prize, and introduce no matter extraneous thereto.'- Nor can the claim- 2. I Wheat. Appendix 500; The Schooner Adeline, 9 Cranch 244; The Lively, i Gall. 315. 15 Fed. Cas. No. 8403; The St. Lawrence, i Gall. 467, 21 Fed. Cas. No. 12,232; The Sally. I Gall. 401, 21 Fed. Cas. No. 12,258; 2 Wheat. Appendi.x 21. 3. 2 Wheat. Appendix 21. Irregularity Not Fatal An ir- regularity in the affidavit of owner- ship, in omitting to state it as of the time of the shipment, is not fatal The Schooner Adeline, g Cranch 244. 4. The Lynchburg, Blatchf. Pr. Cas. 49, Fed. Cas. No. 8637a; The Napoleon, Blatchf. Pr. Cas. 296, 17 Fed. Cas. No. 10,012; The Joseph H. Toone, Blatchf. Pr. Cas. 124, 13 Fed. Cas. No. 7540; The John Gil- pin, Blatchf. Pr. Cas. 291, 13 Fed. Cas. No. 7343. 5. I Wheat, .\ppendix 500; The Schooner .Adeline, 9 Cranch 244. 6. The Lively, I Gall. 315, 15 Fed Cas. No. 8403 ; The St. Lawrence, I Gall. 467, 21 TFcd. Cas. No. 12,232; The Sally, i Gall. 401. 21 Fed. Cas. No. 12,258. Vol. I 7. The Schooner Adeline, 9 Cranch 244. 8. Gushing v. Laird, 107 U. S. 69. 9. The D, Sargeant. Blatchf. Pr. Cas. 576, 7 Fed. Cas. No. 4098. 10. The Delta, Blatchf. Pr. Cas. I.'?3. 7 F'ed- Cas. No. 3777 : The Em- press, Blatchf. Pr. Cas. 146. 8 Fed. Cas. No. 4476; The Cheshire, Blatchf. Pr. Cas. 151, 5 Fed. Cas. No. 2655. Correspondence Referred to in Test Affidavit. — The test affidavit cannot be considered as evidence of the correspondence referred to there- in, as being in possession of the claimant ; and if the correspondence is not itself produced in evidence, it will be presumed adverse to the claimant. The Sally Magee, 3 Wall. 451- 11. I Wheat. Appendix 501 ; The Ann Green, i Gall. 274, i Fed. Cas. No. 414; The Diana, 2 Gall. 93, 7 Fed. Cas. No. 3876. 12. The Delta. Blatchf. Pr. Cas. 133. 7 F'ed. Cas. No. 3777; The Em- press, Blatchf. Pr. Cas. 146, 8 Fed. Cas. No. 4476: The John Gilpin, ADMIRALTY. 239 ant question the authority of the captors,'^ nor any irregularities on the part of the captors." The affidavit of the claimant that he is not within the exceptions of a proclamation, which is silent as to the capture involved, is not proof of the negative averred. '^ D. Further Proof. • — Where the court has doubts upon tlu- hearing, it may in its discretion order further proof either siio spontc,'" or upon motion of an interested party upon affidavits or other proof showing ground therefor. '' The court may by its order, provide that both the claimants and the captors shall be allowed the benefit of further proof.'* But upon a simple order for further proof, the captors are not entitled to introduce new evidence, if not specially authorized,'" unless the new evidence is upon plea and proof, in which case both parties are permitted to introduce new evidence to support their respective allegations.-" a. Mode of Further Proof. — Further proof, when allowed 1)\ the prize court, may be taken by affidavits,"' and additional docu- Blatchf. Pr. Cas. 291, 13 Fed. Cas. No. 7343 ; The Napoleon, Blatchf. Pr. Cas. 296, 17 Fed. Cas. No. 10,012; The Sunbeam, Blatchf. Pr. Cas. 316, 22 Fed. Cas. No. 13,013; The Joseph H. Toone, Blatchf. Pr. Cas. 124, 13 Fed. Cas. No. 7540; The Lynchburg, Blatchf. Pr. Cas. 49, 15 Fed. Cas. No. 8637a ; The Louisa Agnes, Blatchf. Pr. Cas. 107, ij Fed. Cas. No. 8531 ; The Cheshire, Blatchf. Pr Cas. 151, 5 Fed. Cas. No. 2655. 13. The Tropic Wind. Blatchf. Pr. Cas. 64. 24 Fed. Cas. No. 14,486. Question Between Government and Captors The question of the au- thority for the seizure is between the government and the captors, and is one with which the claimant has nothing to do. It only goes to the question whether condemnation shall go to the government or to the captors. The Dos Hermanos, 2 Wheat. 76 ; The Amiable Isabella, 6 Wheat. I. 14. The Joseph H. Toone, Blatchf. Pr. Cas. 223, 13 Fed. Cas. No. 7541. 15. The Gray Jacket, s Wall. 342- 16. The Sir William Peel, s Wall. 517; The Sally Magee, 3 Wall. 45i- 17. The Sally Magee, 3 Wall. 451: The Sir William Peel, 5 Wall. 517; The .\my Warwick, 2 Spr. 123. I Fed. Cas. No. 341. Exceptions to Rule Requiring Showing The general rule rc- (|uiring a detailed showing upon oath to obtain an order for further proof, does not apply where it is sought to meet evidence of an opponent by counter evidence on the same points. The Amy Warwick, 2 Spr. 123, i Fed. Cas. No. 341. Rejected Depositions Used as Affi- davits The rejected depositions of witnesses whose depositions were not properly taken upon the prepara- tory examinations may be used as affidavits on motion for an order for further proof. The Sir William Peel, 5 Wall. 5I7- 18. The George, i Wheat. 408; I Wheat. Appendi.x 504; The Mary, 8 Cranch 388; The St. Lawrence, 8 Cranch 434; The Fortuna, 2 Wheat. 161; The Venus. I Wheat. 112; The Grotius, 8 Cranch 456 ; The Sir Wil- liam Peel, 5' Wall. 517 1 The Olinde Rodrigues, 174 LT. S. 510. 19. I Wheat. Appendix 504. Affidavits of Captors Exceptional. Except under peculiar circumstances, the affidavits of captors are not re- ceived in our prize courts. 2 Wheat. .Appendix 26. 20. I Wheat. Appendix 504. 21. I Wheat. .Appendix, 504, 506. Affidavits Taken in Foreign Coun- tries Ufon further proof allowed. .•\ffidavits taken in foreign countries before notaries public, whose at- testations are properly verified are in general admissible. 2 Wheat. Ap- pendix 26: The Arabella, 2 Gall. 368. I Fed. Cas. No. 501. Vol. I :m) ADMIRALTY nientary evidence then introduced, if properly verified.-- When the benefit of further proof is allowed to the captors, their affidavits, properly attested, are admissible evidence as to the facts within their knowledge.-^ Claimants, upon further proof, may produce affi- davits showing- their proprietary interest,-'' and authenticated copies of correspondence and invoices bearing upon that question.-'' Further proof, when allowed upon appeal to the supreme court, in a prize case, must be taken by commission under its rule.-" But it is a general rule of the prize court not to issue a commission to take evidence in the enemy's country.^' b. Caution As to Further Proof. — An order for further proof is made with caution, because of the temptation it holds out to fraud and ])erjury,-* and will not be allowed in favor of a party who is guilty of fraud or misconduct,-" or who has shown himself capable of abusing the order. ^" c. Further Proof of Claimants. — IJberal indulgence is usualh' 22. I Wheat. Appendix 504, 506 ; I,a Nereyda, 8 Wheat. 108. Necessity of Verification of Papers. Papers hy themselves prove nothing, and both the original ship's papers and papers introduced upon further proof must be verified to the satis- faction of the court. 2 Wheat. Ap- pendix 23; The Fortuna, 2 Wheat. 161. 23. The Sally, i Gall. 401, 21 Fed. Cas. No. 12,258; I Wheat, .'\ppendix 506: 2 Wlieat. .'\ppendi.x 26. Affidavits of Captors, 'When Al- lowed — The attestations of captors, upon further proof allowed to them, are admissible under the ordinary usage of prize courts, especially as to facts within their knowledge relating; to the circumstances of the capture, and no objection lies to their com- petency as witnesses in the prize court. The Anne, 3 Wheat. 435. 24. 2 Wheat. Appendix 26; The Friendschaft, 3 Wheat. 14; The Ata- lanta, 3 Wheat. 409; The Mary, 9 Cranch 126. TTsage as to Further Proof by Claimant It is so much the liabit of the prize courts to expect that upon further proof allowed the claimant will comply with the usual and almost invariable practice to prove his proprietary interest upon oath, and to explain the nature, origin and character of his rights, that the absence of such proofs leads to considerable doubts. La Nereyda, 8 Wheat. 108. Vol. I Introduction of Letters Referred to Letters referred to in an affi- davit on further proof should be pro- duced and further time may be al- lowed therefor. The Frances, 8 Cranch 354. 25. The Friendschaft. 3 Wheat. 14; 2 Wheat .-X-ppendix 26. 26. The London Packet. 2 Wheat. 371; 2 Wheat. Appendix 26: The Argo, 2 Wheat. 287, note ; Tlie For- tuna, 2 Wheat. 161. 27. The Diana, 2 Gall. 93, 7 Fed. Cas. No. 3876; 2 Wheat, .\ppendix 26. 28. The Sally Magec, 3 Wall. 4St ; The Gray Jacket, s Wall. 34-2; The Adula. 176 U. S. 361 ; The St. Law- rence, 8 Cranch 434. 29. I Wheat. Appendix 505-6; The St. Lawrence, 8 Cranch 4.34 ; The Hazard, 9 Cranch 205 ; The IJos Hermanos, 2 Wheat. 76; The Pi- zarro, 2 Wheat. 227 ; The Gray Jacket, 5 Wall. 342; The Liverpool Packet, I Gall 513, 15 Fed. Cas. No. 8406; The Sally, i Gall. 401, 21 Fed. Cas. No. 12.258; The Bothnea, 2 Gall. 78, 3 Fed. Cas. No. 1686; The George, 2 Gall, 249, 10 Fed. Cas. No. 5327; The Betsy, 2 Gall, 377, 3 Fed. Cas, No, 1364; The Springbok, Blatchf, Pr, Cas, 434, 22 Fed. Cas. No, 13,- 264. 30. The San Jose Indiano, 1 Mason 38, 21 Fed. Cas. No. 12.324; I Wheat, .\ppcndix 506. ADMIRALTY. 241 allowed to claimants who have not clearly violated good faith, in ordering further proof to support their claim,"' especially if there is doubt as to the proprietary interest and neutral character of the claimants,^- or if the preliminary proofs do not satisfactorily estab- lish a lawful capture.^^ Further proof for the claimants received without objection, though otherwise objectionable, will be deemed consented to, and allowed.^"' (1.) When Not Allowed. — The claimant will not be allowed further proof to contradict his evidence at the preparatory examination.''" Further proof should be denied to a claimant who has falsely 31. I Wheat. Appendi.x 504; The Frances. 8 Cranch 354 ; The St. Law- rence, 8 Cranch 434 ; The Dos Her- nianos. 2 Wheat. 76; The Atalanta, 3 Wheat. 409 ; The Amiable Isa- bella, 6 Wheat. I ; The London Packet, 5 Wheat. 132; The Ann Green, i Gall. 274, i Fed. Cas. No. 414; The Rapid, I Gall. 295, 20 Fed. Cas. No. 11,576; The Liverpool Packet, I Gall. 513, 15 Fed. Cas. No. 8406; Moodie -■. The Betty Carth- cart. Bee 292. 17 Fed. Cas. No. 9742; The Avery, 2 Gall. 308,' 2 Fed. Cas. No. 671 ; The Falcon, Blatchf. Pr. Cas. 52, 8 Fed. Cas. No. 4616; The Julia, 2 Spr. 164, 14 Fed. Cas. No. 7576. Indulgence to Remove Doubts of Good Faith Where the case of the claimant seemed false and fraudulent but there was a possibility that it might be genuine, the court said : " This court, without better evidence than was thus presented to our view, gave the most liberal indulgence for procuring evidence to support the claim. We now express our satis- faction in having done so, inasmuch as it has enabled an honest man both to save his property, and vindicate his reputation." The Venus, 5 Wheat. 127. Fraud of Master Not Imputable to Claimant. — The fraud of the master of a belligerent vessel in throwing papers overboard, cannot preclude a bona Ade neutral claimant of part of the cargo, to whom no fraud was imputable, from being allowed fur- ther proof of property. The Friendschaft, 3 Wheat. 14. 32. The Mary, 9 Cranch 126; The San Jose Indiano, 2 Gall. 268; 21 Fed. Cas. No. 12,322. Names and Domiciles of Copart- 16 ners Where the shipment was made to a firm, who were claimants of the cargo, if their names do not appear, further proof will be ordered as to the names and domiciles of each of its members. The Adeline, 9 Cranch 244. Consignment to Neutral Claimant. A bill of lading consigning goods to a neutral claimant, though without invoice or letter of advice, is a suffi- cient foundation for further proof. The Friendschaft, 3 Wheat. 14. Doubt as to Neutrality of Claim- ant If the neutrality of the claimant is in doubt upon the ship's papers, he cannot complain of the delay in restitution attending further proof to remove the doubt. The George, I Wheat. 408. 33. The Sir William Peel. S Wall. 517; I Wheat. Appendix 504; The Grotius, 8 Cranch 456; The Amiable Isabella, 6 Wheat, i ; The Ann Green, I Gall. 274, I Fed. Cas. No. 414; The Rapid. I Gall. 295, 20 Fed. Cas. No. 11,576; The Liverpool Packet, i Gall. 513, 15 Fed. Cas. No. 8406: The Nellie, Blatchf. Pr. Cas. 553, I7 Fed. Cas. No. 10,095; The Falcon. Blatchf. Pr. Cas. 52, 8 Fed. Cas. No. 4616; The Avery, 2 Gall. 308, 2 Fed. Cas. No. 671 ; The Julia, 2 Spr. 164, 14 Fed. Cas. No. 7576. 34. The Pizarro, 2 Wheat. 227. 35. The Alexander, I Gall. 532, I Fed. Cas. No. 164; The Adula. 176 U. S. 361. Shipment in Hostile Ship If the shippers in a hostile ship fail to put on board documentary evi- dence of a neutral character, they will be denied further proof. The Flying Fish, 2 Gall. 374. 9 Fed. Cas. No. 4892. Vol. I 242 ADMIRALTY. claimed property belonging in part to another,''" or who is a mere voluntary assignee of claims for which he has paid nothing, and which he has agreed to prosecute at his own risk and expense,^' or if he has made a guilty concealment in his test-affidavit and claim,''*' or has been guilty of concealment or spoliation of papers which is not satisfactorily explained,'''' or of a fraudulent use of papers.'"' Further proof will not be allowed where the case for the claimant is incapable of satisfactory explanation," nor will it be readily allowed upon appeal upon the same points upon which it .vas allowed in the lower court/- d. Fitrtlicr Proof of Captors. — When the case at the original hearing is not sufficiently clear to authorize either condemnation or restitution of the captured property, the captors will be allowed further proof of its validity.'"' They will be allowed further proof where the circumstances create a suspicion of the illegality of the voyage,''* or where part of the cargo libeled as prize was taken from a burned ship from which no witnesses could be obtained, ^"^ or where the sinking of the captured vessel precludes a preparatory examination of the crew.^° or to rebut a collusive capture,"" or to rebut the defense of claimants.''* or to counteract 36. Tlie Dos Hermanos, 2 Wheat. 76. 87. The Euphrates, 8 Cranch 385. 38. The Gray Jacket. 5 Wall. 342, 39. Eelaxation of Rule It is a relaxation of the ri;les of the prize cotu't to allow further proof where there is a concealment of ma- terial paper. The Fortuiia, 3 Wheat. 161 ; The Pizarro, 2 Wheat. 227 ; The St. Lawrence, 8 Cranch 434 ; i Wheat. Appendi.x 505. 40. I Wheat. Appendix 505. 41. The Dos Hermanos, 2 'Wheat. 76; The Hazard, 9 Cranch 205'; The I'.uphratcs, 8 Cranch 385 ; The Adula, 176 U. S. 361 ; I Wheat. Appcndi.x 505. 42. The Dos Hernianos, 2 Wheat 76. 43. The Groiius, 8 Cranch 456; The Sir William Peel, 5 Wall. 517; The Newfoundland, 89 Fed. 99, 176 U. S. 97; The Olinde Rodrigucs. 89 Fed. 105, 91 Fed. 274: The Nellie, Blatchf. Pr. Cas. 553, 17 Fed. Cas. No. lo.ogs; The Elizaheth, Rlatchf. Pr. Cas. 250. 8 Fed. Cas. No. 4350. The ,\nnie. Blatchf. Pr. Cas. 209, i Fed, Cas. No. 415. Irregularity of Captors Wlure the captors have been irrcKidar in not bringing in the ship's papers, and the master nf the captured ship, Vol. I further proof nf the nature of the captured property will be ordered. The London Packet, i Mason 14, i.S Fed. Cas. No. 8474. '44. The Newfoundland. 89 Fed. 99, 176 U. S. 97: The Olinde Rod- rigues, 89 Fed. 105. 45. The Thomas Watson, Blatchf. Pr. Cas. 120, 23 Fed. Cas. No. 13,- 933; The Sarah, Blatclif. Pr. Cas. 19s, 21 Fed. Cas. No. 12,337. t6. The Actor, Blatchf. Pr. Cas. 200, I Fed. Cas. No. 36. 47. Exculpation of Charge of Fraud Where the captors arc charged with direct and positive fraud which is to strip them of their rights, it will rarely happen that the original evidence on the question of condemnation or restoration of the captured vessel will afford sufficient light to determine whether the cap- ture was bona fide or collusive, and if the circumstances are of doubtful appearance, justice requires that an opportunity he afforded to the cap- tors to explain those circumstances, and to clear themselves of the im- putation of fraud. The collusiveness of the capture must be almost con- fessed before the court will refuse further proof. The George, i Wheat. 408. 48. Further Proof After Opinion ADMIRALTY. 243 further proof allowed to the claimants,'-' or to add proof where the claimants failed to object to the proof taken prior to the liearing,''" or to establish a joint interest in the prize. '^^ (1.) When Not Allowed. —When the case for the claimant appears unsuspicious upon the original evidence, the court is inclined not to allow further proof to the captors,"^ and will not ordinarily include the captors, where the case stands merel}- for further proof by possil)Ic claimants who have not appeared and may not appear.^'' e. Failure of further Proof. — \\'here an order for further proof is made, and the party disobeys its injunctions or neglects to com- ply with them, courts of prize consider such negligence as con- tumacy leading to presumptions fatal to the claim. ^■' Where in a doubtful case further proof is allowed for a year and a day to claim- ants who have not appeared, if no claimant appears and makes proof within that period, all claims are deemed abandoned and condemna- tion follows as of coiu'sc."'' Where further proof was allowed to captors and claimants, and the claimants without adducing proof moved for restitution, the\- could not reserve a right to further proof in case of denial of the motion. ''° Pronounced. — Where the claimants niaflo a full defense on the record, the lihcllants were allowed to put in further proof after the opinion was pronounced. The Sarah Starr, Blatchf. Pr. Cas. 69. 21 Fed. Cas. No. i2.,^52. 49. Tile St. Lawrence, 8 Cranch 4.U. The Mary, 8 Cranch 388: The Fortuna, 2 Wheat. 161 ; The Venus, I Wheat. 112; The Sir William Peel. 5' Wall. .SI-. 50. Excuse Not Required In such case no excuse need he shown for failure to bring in as witnesses only the master and cahin boy nut of a large crew, in order to allow further and explanatory proof bv the cap- tors. The Elizabeth, Blatchf. Pr. Cas. 2S0, 8 Fed. Cas. No. 4350. 51. The George, i Wheat.' 408. 52. The Bothnea. 2 Gall. 78. 3 Fed. Cas. No. 1686; i Wheat. .\p- pendix 504. 53. ] Wheat. Appendix 504 ; 2 Wheat, .\ppendix 19, 20, 21-fi. 54. Conclusive Evidence of Hos- tile Interest. — If, upon further proof allowed, no proof is adduced, or if proof is defective, or the parties refuse to swear, or swear evasively, it is deemed conclusive evidence of hostile interest. I Wheat, .\ppendix :;o6; La Nereyda, 8 Wheat. 108; The 'Pearl, 5 Wall. 574. 55. Suspension Confined to Cases of Doubt. — The suspen^ion for a year and a day is confined to cases where it is doubtful upon the original evidence whether the prop- erty captured belongs to an enemy or to a neutral. The Falcon, Blatchf. Pr. Cas. 52, 9 Fed. Cas. No. 4616: The Julia, 2 Spr. 164, 14 Fed. Cas. No. 7576; The Harrison, i Wheat. 298; I Wheat. Appendix 501; 2 Wheat. Appendix 20; The .\deline, 9 Cranch 244; The Avery, 2 Gall. 308, 2 Fed. Cas. No. 671. If the right of capture is not doubt- ful, notwithstanding there are un- explained defects in the original proof, condemnation will be made at the hearing, without suspension for further proof. The Zaralla, Blatchf. Pr. Cas. 173, 30 Fed. Cas. No. 18203; The Gipscy, Blatchf. Pr. Cas. 126, 10 Fed. Cas. No. 5456. Claim Presented During Suspen- sion A claim presented within the limit of a year and a day al- lowed therefor, cannot be approved in the supreme court upon appeal ; but the cause will be remanded to the court below, for presentation to that court. The Harrison, i Wheat. 298. 56. Settled Practice The set- tled practice of the prize courts for- bids the taking of proof under such Vol. I 244 ADMIRALTY. II. RELATION OF PROOF TO PLEADING. 1. In General. — Though the technical rules of the common law- pleading do not prevail in admiralty, . there must be a substantial agreement between the pleadings and the proof,-'' and in general no evidence is admissible unless it is applicable to some allegation in the libel'** or in answer. =" Evidence outside of the allegations made by either party cannot be considered in support of the cause of action or defense."" A. Ex'iDENCE Under General Pleading. — Evidence of special damage may be given in admiralty under a general allegation,''' and damages may be proved under a prayer for general relief."- and are not limited to the specific amount averred in the libei."^ The circumstances. The Olinde-Rodri- gues, 174 U. S. 510. 57. Hays v. Pittsburg G. & B. Packet Co., 33 Fed. 552 ; Jenks v. Lewis, I Ware 43, 13 Fed. Cas. No. 7280; McKinley v. Morrish, 21 How. 343; The William Harris, i Ware 373, 2g Fed. Cas. No. 17,69s; Krammc r. The New England, i Newb. 481. 14 Fed. Cas. No. 7930; Campbell i'. The Uncle Sam, i Mc- AU. 77, 4 Fed. Cas. No. 2372; The Boston, I Sum. 328, 3 Fed. Cas. No. 1673 ; The Sarah Ann, 2 Sum. 206, 21 Fed. Cas. No. 12,342; The Mor- ton, I Brown Adm. 137 17 Fed. Cas. No. 9864. 58. McKinley v. Morrish, 21 How. 343 ; Soule z\ Rodoconachi, Newb. 504, 22 Fed. Cas. No. 13,178; The Thomas Melville, 31 Fed. 486; Jenks V. Lewis, i Ware 43, 13 Fed. Cas. No. 7280; The Boston, i Sum. 328, 3 Fed. Cas. No. 1673; The Wil- liam Harris, I Ware 373, 29 Fed. Cas. No. 17,695. 59. Examples. — Evidence is in- admissible to show a forfeiture of seaman's wages, not pleaded in the answer, or to prove, under a plea that libellant, a pilot, withdrew his signal and sailed away ; that other pilots offered their services at the same time, and that taking the libel- lant as pilot would have incon- venienced the vessel (Marshall ?'. The Earnwell, 68 Fed. 228), or to prove a defense, not pleaded, that a lien was lost by laches (The Shady Side, 23 Fed. 731). Orne i'. Town- send, 4 Mason 541, 18 Fed. Cas. No. 10,583; Turner v. The Black War- rior, I McMl. 181, 24 Fed. Cas. No. Vol. I 14,253 ; The Boston, i Sum. 328, 3 Fed. Cas. No. 1673. 60. The Morton, i Brown Adni. 137, '7 Fed. Cas. No. 9864; Kramme V. The New England, i Newb. 481. 14 Fed. Cas. No. 7930; Davis v. Leslie, I Abb. Adm. 123, 7 Fed. Cas. No. 3639; The Sarah Ann, 2 Sum. 206, 21 Fed. Cas. No. 12,342 ; The Rhode Island. 01c. 505, 20 Fed. Cas. No. 11,745- Examples Evidence of a naked tort cannot support a libel upon a contract. Hays 7'. Pittsburg G. & B. Packet Co., 33 Fed. 552. Nor can evidence supply facts not averred in an information for forfeiture in ad- miralty. The Hoppet, 7 Cranch 389. Nor can a penalty demanded against a vessel be recovered upon proof of grounds not averred. The Pope Catlin, 31 Fed. 408. Nor can proof of a claim for salvage or as lighter- men be considered upon a libel in rem for seamen's wages. The Sarah E. Kennedy. 29 Fed. 264 ; nor can proof of a defense not pleaded avail the claimants. The Washington Ir- ving, Abb. Adm. 336, 29 Fed. Cas. No. 17,243; White v. Rainier, 45 Fed. 773- 61. West V. The Uncle Sam. i McAll. 505, 29 Fed. Cas. No. 17,427- 62. Penhallow v. Doane, 3 Dall. 54; The Gazelle, 128 U. S. 474: Pratt V. Thomas, i Ware 4.^7. lO Fed. Cas. No. ii,377- 63. Grubbs v. The John H. Fisher (Dist. Court 'W. D. of Pa.), 22 Pitts. Law J. N. S. 122; Pratt v. Thomas, i Ware 437, 19 Fed. Cas. No. 11.377; The Gazelle, 128 V. S. ADMIRALTY. 245 court of admiralty is not precluded from grantino- an_\- relief appro- priate to the case appearing upon the record and prayed for in the libel, merely because the entire case is not distinctly stated in the libel." B. Material Variance. — In courts of admiralty there are no technical rules of variance which will prevent recovery in a merito- rious case."^ The object of the rule requiring a substantial agree- ment between the pleadings and proofs is to prevent surprise,*"* and the unintended omission in the libel to state facts proved which have not occasioned surprise,"'' or which have been supplied by the defense,"' is not a material variance which will be allowed to work injury to the libellant. 2. Amendments to Support Evidence. — A. Of Libel. — The libellant will be allowed to amend his pleadings to conform to the proof at any stage of the case,"" or to support evidence of increased 474; AlcCready v. The Brother Jona- than, 15 Fed. Cas. No. 8732a. 64. Dupont V. Vance, ig How. 162. Relief Upon Substantial Facts Al- leged If a libellant propounds with distinctness the substantive facts upon which he relies, and prays, either specially or generally, for appropriate relief (even if there is some inaccuracy in his statement of subordinate facts, or of the legal effect of the facts propounded), the court may award any relief which the law, applicable to the case, war- rants. The Gazelle, 128 U. S. 474. Relief Inconsistent With Prayer. Where specific relief and general relief were both prayed for, it was held in the circuit court that no relief could be granted which was entirely inconsistent with or differ- ent from the specific relief prayed. Wilson z'. Graham, 4 Wash. C. C. 53, 30 Fed. Cas. No. 17,804. 65. The Clement. 2 Curt. 363, J Fed. Cas. No. 2879; The Cambridge, 2 Low. 21, 4 Fed. Cas. No. 2334; Crawford v. The William Penn. 3 Wash. C. C. 484, 7 Fed. Cas. No. 3373 ; Davis v. Leslie, I Abb. Adm. 123, 7 Fed. Cas. No. 3639; The Ga- zelle, 128 U. S. 474; Dupont V. Vance, 19 How. 162 ; West v. The Uncle Sam, i McAU. 505, 29 Fed. Cas. No. 17,427; Talbot v. Wake- man, 23 Fed. Cas. No. 13,731a; The General Meade, 20 Fed. 923 ; West V. Silver Wire etc. Mfg. Co., S Blatchf. 477, 29 Fed. Cas. No. 17,425; Young V. The Kendal, 56 Fed. 2^,7 ; Davis V. Adams, 102 Fed. 52b ; Henry V. Curry, I Abb. .\Am. 433, 11 Fed. Cas. No. 6381 ; The Syracuse, 12 Wall. 167. Waiver of Variance An ob- jection that the libel does not allege the particular facts proved by reason of its generality, cannot be urged upon appeal for the first time. The Quickstep, g Wall. 665. Objection to a variance must be taken when the evidence is offered at the trial, and it is too late after the evidence is closed. Dunstan v. The Kirk- land, 3 Hughes 641, 8 Fed. Cas. No. 4181. 66. Dupont I'. Vance, 19 How. 162; The Quickstep, 9 Wall. 665; The Syracuse, 12 Wall. 167. 67. The Clement, 2 Curt. 363, 5 Fed. Cas. No. 2879; The Quickstep, 9 Wall. 66s ; The Syracuse, 12 Wall. 167. 68. The Iris, i Low. 520, 13 Fed. Cas. No. 7062 ; The Cambridge, 2 Low. 21, 4 Fed. Cas. No. 2334. Defendant Not Surprised by His Own Showing While the court takes care to prevent surprise, the defendant cannot be surprised when he makes a case for the libellant. Dupont V. Vance, 19 How. 162; Deming v. The Rapid Transit, 52 Fed. 320. 69. Davis v. Leslie, i Abb. Adm. 123, 7 Fed. Cas. No. 3639; Nevitt v. Clark, 01c. 316, 18 Fed. Cas. No. 10,138; The City of New Orleans, Vol. I 246 ADMIRALTY. damages,'" or of a newly discovered ground of forfeiture,"' or of the different ownership of a vessel from that alleged.'- Where a supplementary libel is allowed in a prize case to support additional testimony, such testimony must be confined to the new allegations."'' The libel may be amended to add interrogatories to he answered by the defendant.'"* a. When Not Allo-a'cd. — An amendment of the libel will not be allowed so as to chalige the entire nature of the claim to the prejudice of the rights of others,'^ nor to introduce a new ground of claim upon which proper evidence has not been taken, after the defendant's witnesses have gone,'"' nor to support evidence of a distinct kind of negligence, or new kind of damage, where the cir- ctimstances make it inequitable,'' nor inec|uitably to support an increased claim for demurrage." B. Of Answer. — A defective answer may be amended so as to point out what proof of notice is to be introduced.'" or to sustain proof of damages by a collision,*" and the court may grant leave to change an admission in the answer to a denial.'*' but a clean show- 33 Fed. 683; Davis t'. Adams. 102 Fed. 320. Change of Tort to Contract An amendment may lie allowed to con- form to the proofs, even although it may change a libel for tort to one upon contract, when required by equity and natural justice, and when the amendment will not be a hard- ship to the defendant. Where there is no objection to evidence, and no dispute about the facts, the pleading- will be deemed amended to support the proofs. The Rhode Island, 17 Fed. 554; The Maryland, IQ Fed. 551- 70. iMcCready v. The Brother Jonathan, 15' Fed. Cas. No. 8732a; The St. John, 7 Blatchf. 220, 21 Fed. Cas. No. 12,224 ; Darrell z'. The Alice Gray, 6 Fed. Cas. No. 3579; The J. E. Trudeau, 54 Fed. 907. 71. U. S. V. the Haytian Repub- lic, 57 Fed. 508. 72. U. S. V, The Que.'u. 4 Ben. 237, 27 Fed. Cas. No. 16,107. 73. The Boston, i Sun. 328. 3 Fed. Cas. No. 1673. 74. Interrogatories to be Ap- pended Interrogatories must be appended at the close of the libel, and cannot be propounded after answer without an amendment of the libel. The Edwin Baxter. 32 Fed. 295. 75. Prejudicial Amendment. Vol. I Material men, claiming as such, in their pleadings and proofs, cannot, on final argument, be allowed to amend to change the entire nature of their claims so as to prejudice the rights of other creditors seeking payment from an inadequate fund. The Alanson Sumner, 28 Fed. 670. 76. The Keystone, 31 Fed. 412. 77. Inequitable Circumstances. The circumstances making such amendment inequitable, are the dis- persion of the goods damaged, long lapse of time, loss of defendant's witnesses, and a failure to explain why a distinct kind of negligence desired to be proved was not made part of the original libel. The Thomas Melville, 3T Fed. 486. 78. Increase of Demurrage De- nied An amendment of a libel to increase a claim for demurrage will be denied, when the fads were known, and the claim as pleaded was twice before verified on oath, and the amendment was not asked until after trial and apportionment of damages. New Haven Steamboat Co. v. Mayor etc., 36 Fed. 716. 79. Virginia Home In.s. Co. v. Sundberg, 54 Fed. 389. 80. The Pennsylvania, 12 Blatchf 67, :9 Fed. Cas. No. 10,951. 81. Kenah v. The John Markee Jr., ^ Fed. 45: Whitney r. The Em- ADM IRA LTV. 247 iiig of grounds must be made by affidavit to cbange an admission to a denial, or to allege a new defense not previously sbown.*- a. When Not Alloz<.'cd. — An answer cannot be amended after the hearing to contradict a material admission therein,'*'' nor to set up and prove a different claim of right from that contended for to the close of the trial,** nor so to recast the answer, in view of the decision, as to shift the burden of proof, and obtain other advan- tages ;*^ nor can it be amended at the hearing to conform to the evidence, by changing an averment of a material fact deliberately pleaded, under fidl knowledge of the grounds relied upon bv the libellant,'*'' 3. Pleadings As Evidence. — A. In Geneual. — Neither party to a suit in admiralty can contradict the averments of his own plead- ing.*' A sworn answer is in general, not evidence, as such for the respondent,'* but it may be referred to, to explain ambiguities in the testimony, and in aid of presumptions arising from the evidence, to supply connecting links in the proof,*'' and when such answer is fully responsive to the libel, and states the case fairly, it has some effect as evidence for the respondent.*" B. Admissions in Pleading. — One party is entitled to rely ujion averments made by the opposite party, as admissions of the facts averred.'" and thou"h the answer be amended to change an admis- pire State, i Ben. 57, 29 Fed. Cas. No. 17.586. 82. Amendment Denying Docu- ments An amendment to deny docimnents before admitted, rcciiiiros an affidavit denying the signatures. and explaining the admission ; and to deny copies admitted correct requires a showing that the originals are in the possession of the libellant. and can be produced without delay. Lamb V. Parkman, 14 Fed. Cas, No, 8019. 83. The Mary C. i Hask. 474. 16 Fed. Cas. No. 9201. After decision upon appeal that averments in the answer insisted upon at the hearing and in ar- gument, were conclusive admis- sions that appellant's vessel was in fault, there is no equity in an ap- plication to amend by striking out those averments and it nnist be denied. The Horace B. Parker. 74 Fed. 640, 20 C. C. A, 572. 84. McCarthy v. Eggers, 10 Ben. 688. 15 Fed. Cas, No. 8681: The Prindiville, i Brown Adm. 485. ig Fed. Cas, No, 11,435. 85. Lamb v. Parkman. 14 Fed, Cas, No, 8019, 86. The Inla. 1.3 Fed. Cas. No. 7057, 87. Totlen v. The Pluto. 24 Fed. Cas. No, 14,106. 88. The Crusader, i Ware 448. 6 Fed, Cas. No. 3456: The .Australia, 3 Ware 240, 2 Fed. Cas, No. 667; Cushman v. Ryan, I Story gi. 6 Fed, Cas. No. 3515; The Thomas & Henry, i Brock. 367. 23 Fed. Cas. No. 13,919; Jay V. Almy, i Woodb. & M, 262. 13 Fed. Cas, No. 7236. 89. The Crusader, I Ware 448. 6 Fed, Cas, No. 3456. 90. Equity Rule Not Applied. The equity rule as to the effect of a sworn answer as testimony is not applied in admiralty. Hutson v. Jor- dan. I Ware 393. 12 Fed, Cas. No. 6959 ; U. S, V. The Matilda. 5 Hughes 44, 26 Fed. Cas. No. 15.741 ; Eads v. The H. D. Bacon, Newb, 274, 8 Fed, Cas. No. 4232 ; The Crusader, i Ware 448, 6 Fed, Cas, No, 3456; Jay V. .'Mmy, i Woodb, & M, 262. 1 1 Fed. Cas. No. 7236. 91. Totten V. The Pluto. 24 Fed. Cas. No. 14.106; Ward v. The Fashion, 6 McLean 152, Newb. 8, 29 Fed, Cas. No. i7,i.S4; The Belle. 6 Ben, 287. 3 Fed, Cas. No, 1271 ; Vol. I 248 ADMIRALTY. sion to a denial, such amendment does not relieve the respond- ent from the efifect of the admissions as evidence."- In general, an allegation of the libel which is neither expressly admitted nor denied, is not deemed admitted, and must be proved,"'' but in certain cases the failure to deny an averment of the libel, may be taken as an admission of the facts averred."* a. Failure to Take Issue. — The libel must generally be proved in case of default,"" but the court has discretion whether to require proof or not."" An admission in answer to a libel for seamen's wages, that the seamen shipped for the voyage and performed the service, entitles them to recover without proof if no defense is shown."' Where a plea to the libel interposes no defense, the court may either allow an answer to be filed, or enter a decree at once for the damages claimed."' b. Absence of Replication. — If the answer is sworn and no repli- cation is filed, the truth of the answer is deemed admitted,"'' but if the sworn answer was not demanded, the libellant may contradict The Aldebaran, 01c. 130, i Fed. Cas. No. 150; The Santa Clans, 01c. 428, 21 Fed. Cas. No. 12,327; The Serapis, 37 Fed. 436. Allegations as Evidence The allegations of a party are not evi- dence for him unless used by the other side as evidence, and when so used, they are to be weighed as they deserve without requiring more than one witness in all cases to overcome them. Jay v. Almy, i Woodb. & M. 262, 13 Fed. Cas. No. 7236. The libellant in a suit for seaman's wages is entitled to use an admission as to the date of his service, without being bound by an averment as to when it began. Berry v. The Mon- tezuma. 3 Fed. Cas. No. 1358a. 92. Kenah v. The John Markee Jr., 3 Fed. 45 ; 'V\'hitney z'. The Em- pire State, I Ben. ^7, 29 Fed. Cas. No. 17,586. 93. the Dictator, 30 Fed. 699; Clarke v. The Dodge Healey, 4 Wash. C. C. 651, 5 Fed. Cas. No. 2849. 94. Examples The failure to take a dilatory plea and to contradict facts in a seaman's libel showing that the action was not premature, precludes proof of the contrary. The William Harris, i Ware 373, 29 Fed. Cas. No. 17,695- The failure to deny a material averment of the libel in a collision case, will be considered upon a con- Vol. I flict of testimony on the point, not- withstanding an amendment was al- low'ed to deny the averment. Hutson V. Jordan, i Ware 393, 12 Fed. Cas. No. 6959. 95. Phipps V. The Lopez, 43 Fed. 95; Cape Fear Towing and Transpor- tation Co. z'. Pearsell, 90 Fed. 435 ; Sanders i'. The Sea Fowl, 21 Fed. Cas. No. i2.2Q6a. Cause Heard Ex Parte Upon default, the cause is heaid and adjudged e.v parte; but when mistake of the defendant appears, through ignorance of the practice, his counsel may be allowed to offer evidence as iinticus curiae. The David Pratt, I Ware 495, 7 Fed. Cas. No. 3597. The filing of a claim does not stay proceedings e.v parte by the libellant, if there is no appearance on the return day. Baxter z>. The Dona Fermoas, 2 Fed. Cas. No. 1123a. 96. U. S. V. The Mollie, 2 Woods 318, 26 Fed. Cas. No. 15,795. Effect of Default as an Admission. A default amounts to a formal ad- mission of the truth of the allegations of the libel against a vessel. Rostron z: The Water Witch. 44 Fed. 95. 97. The Belle, 6 Ben. 287, 3 Fed. Cas. No. 1271. 98. The Sea Gull, Chase 14S. 21 Fed. Cas. No. 12,578. 99. The Mary Jane, I Blatchf. & H. 390, 16 Fed. Cas. No. 9215. ADMIRALTY. 24'J it by proof, without rci)lication or notice of iiroof.' When evidence is ofTered at the hearing, if no objection is made to the faihire to lile a replication, it is deemed waived. - C. Limitation of Pleadings As Evidence. — Where two Hbels for salvage are separately filed, the answer of the vessel admitting the allegations of one libel cannot conclude the other libellant.^ A libel in admiralty cannot be" given in evidence against the libellant in another court as an admission or confession.* The statement of a seaman in a libel for wages is not competent evidence to prove services rendered under shipping articles.'^ D. Interrogatories and Answers. — Either party in an admi- ralty proceeding has the right to append interrogatories to his pleading touching the matter at issue, which the other party must answer under oath," and upon default of such answer the subject matter may be taken pro confcsso against him.' The answers to the interrogatories are evidence in the cause, for both parties,' though not positive evidence in favor of the party answering them," and not conclusive as to disputed facts in favor of either party. ^^ Answers to interrogatories, annexed to the pleadings which admit 1. The Infanta, i Abb. Aflni. 263, 13 Fed. Cas, No. 7030. 2. Thomas r. Gray, i Blatchf. & H. 493, 23 Fed. Cas. No. 13,898. 3. The Venezuela, 55 Fed. 416. 4. Evidence by Cestui Que Trust. Where the suit was brought by the hbellant as a trustee, the cestui qui- trust may give in evidence the record of recovery by the trustee, to show the recovery and the title on which it rested. Church z'. Shelton, 2 Curt. 271, s Fed. Cas. No. 2714. 5. The Osceola, 01c. 450, 18 Fed. Cas. No. 10,602. 6. The David Pratt, i Ware 495, 7 Fed. Cas. No. 3597; Cammell v. Skinner, 2 Gall. 43, 9 Fed. Cas. No. 5210; The Australia, 3 Ware 240, a Fed. Cas. No. 667 ; Admiralty Rules, 23. 27, 30, 32. Compliance with Admiralty Rules. The admiralty rules of the supreme court requiring the interrogatories to be appended at the close of the plead- ing, must be complied with. Scobel V. Giles, 19 Fed. 224: The Edwin Baxter, 32 Fed. 296. Inspection of Documents Not Al- lowed. — Interrogatories appended to the libel must be confined to issuable matters to which only the defend- ant's oath is required, and such as ask for the production of letters be- tween defendants and their agents to prove damage, should be stricken out. Havermeyers etc. Co. t'. Coni- pania etc. Espanola, 43 Fed. 90; Stoffregan v. The Mexican Prince, 70 Fed. 246. 7. Admiralty rules 23, 27, 30, 32 ; The David Pratt, I Ware 495, 7 Fed. Cas. No. 35-97. 8. The David Pratt, i Ware 495, 7 Fed. Cas. No. 3597; The Australia, 3 Ware 240, 2 Fed. Cas. No. 667 ; The L. B. Goldsmith, Newb. 123, 15 Fed. Cas. No. 8152. 9. Cushman v. Ryan, i Story 91, 6 Fed. Cas. No. 3515; The Serapis, 37 Fed. 436. 10. Effect of Answers as Evidence. Their effect at most is to turn the scale of disputed evidence when in cquilibrio. They are no more evi- dence for one party than the other, and will not be conclusive for either, if the weight of proof is on the other side, or if by self-contradiction sus- picion attaches to the answers them- selves. The equity rule as to the effect of answers as evidence does tiot apply in favor of an answer to in- terrogatories. Eads V. The H. D. Bacon, Newb. 274, 8 Fed. Cas. No. 4232; The L. B. Goldsmith, Newb. Adm. 123, IS Fed. Cas. No. 8152. ; Vol. I 250 ADMIRALTY. facts, stand as evidence like the pleadings and reqnirc no further proof of the facts admitted." III. PRESUMPTION AND BURDEN OF PROOF. 1. General Presumption. — A. X'icssel and Cakgo. — Joint owners of a vessel and cargo are presumed to own in equal parts, unless the contrary appears.'^ A consignee of cargo is presumed to know the contents of the charter-party." It will be presumed that a contract of shipment is controlled by maritime law, and that the principles of general law were not changed by statute in another jurisdiction, where consigned bills of lading limiting the liability of a vessel were executed, though changed in the place of the forum. ^* The master of a vessel must be presumed to have con- tracted to carry wheat in reference to the course of trade connected with getting it forward.'^ B. Master of Vessel. — The person described as master in the registry of a vessel must be deemed master for every legal intend- ment and purpose,'" and a person once a master will be presumed to continue such until displaced by some overt act or declaration of the owners.'" The master is conclusively presumed to know the existence and contents of the ship's papers.'* C. Evidence. — It is presumed that evidence wilfully suppressed by an owner or claimant, would be adverse, if produced.'" A claim- ant is presumed to confess the truth of facts within his knowledge, which he does not deny in presence of the court.-" Where the tes- timony is irreconcilable and evenly balanced, the non-production of a material witness by one who has the burden of proof, raises a decisive presumption against him."' \\'here the evidence is con- ■ flicting, a waiver of the libellant's claim cannot be presumed. -- 2, Burden of Proof in General, — A. Performance of Condi- tions. — The burden is ujjon the libellant to show the performance 11- The Serapis, 37 Fed. 436. lie governed accordingly. The Con- Rebuttal of Presumption In- voy"s Wheat, 3 Wall. 225. surancc by each owner in different 16. The Dubuque, 2 .\bb. 20, 7 parts may rebut the presumption of Fed. Cas. No. 4,110. equal ownership. The Betsey, 23 Ct 17. fhe Tribune 3 Sum. T44. 2.| CI- 277. ped. Cas. No. 14,171. 12. Shaw 7'. Thompson, Olc. 144. 10 t^i t r o ,^^ 10. p 1 r> M ,^»^,/; 1°- The Julia. 8 C ranch 181. 21 Fed. Cas. No. 12,726. •' 13. The Countess of Dufferin, 10 19- The Bermuda. 3 Wall. 514: Ren. 155, 6 Fed. Cas. No. 3280. The Sally Magcc. 3 Wall. 451 I The 14. "the Henry B. Hvde, 82 Fed. .Vndromeda, 2 Wall. 481 ; The Oc- f,g] ' tavia, I Wheat. 20; The Luminary. 15. Course of Trade for Wheat. S Wheat. 407. Where the course of trade for wheal 20. The Silver Moon, i Mask. demanded that it should be shipped 262, 22 Fed. Cas. No. 12,856. at a particular port through an 21. The Fred. M. .Lawrence, 15 elevator to a railway, the master of Fed. 635. the vessel must be held to have con- 22. The llaniillon J. Mills. 22 traded with knowledge of it, and to Fed. 790. Vol, I ADMIRALTY 251 of the statutory conditions of enftircing a lien upon a vessel,-' and that the conditions of suit embodied in shipping articles have been complied with.-'' The burden is upon the owner of the vessel to prove that a sufficient medicine chest was provided for seamen.-' B. Non-Performance. — The burden is upon the libellant to show non-performance or injury from neglect or unskillful per- formance of an agreement to tow a vessel,-" and to prove an e.xcuse for failure to exercise usual display and diligence in performing lighterage service.-' C. Interpret.xtion of Conditions. — The burden is upon a libellant to prove his interpretation of the conditions of a charter party as to " working hours," according to the custom of the port.-* D. Title Under AI.-\ster'9 Sale. — The burden is on one claim- ing title under the sale of a vessel by the master, by virtue of his office, to prove that the sale was bo)ia Mc and necessary."" E. Wrongs. — The burden is upon a libellant for demurrage to prove that a fault caused the delay ,^'' and is upon the libellants against a tug for taking seamen and their baggage from a ship to prove knowledge of those in charge of the tug, that they were doing a wrongful act.'" F. PiLOT,\r,E. — The burden is upon a pilot suing for pilotage fees for services not performed, to prove the refusal or neglect of the master of the vessel to accept his ofifer,^- and to show that upon speaking a vessel for pilotage, his offer and signals were heard and understood."-' The burden is upon the libellant of a tug in charge 23. Kretzmcr v. The William A. Levering. J5 Fed. 783. 24. Proof of Right to Sue. Where the shipping articles forbade a suit for wages of seamen until the ship was imloaded. the burden is upon them to show cither that the vessel was actually unloaded when the libel was filed, or that the ship had been moored for the full time allowed for unloading. Granon v. Hartshorne, i Pdatchf. & H. 454, 10 Fed. Cas. No. 5689. 25. Harden v. Gordon. 2 Mason i4i, II Fed. Cas. No. 6047. 26. The Webb, 14 Wall. 406 ; The Burlington v. Ford, 137 U. S. 386 ; The G. H. Starbuck, 5 Ben. 53, 10 Fed. Cas. No. 5378. 27. The Nadia. 18 Fed. 729. 28. Proof of Suspension of Hire. Where the charter-party provided for a suspension of hire " in the event of damage preventing the working of the ship for more than 24 working hours," and the ship was docked for repairs from Saturday afternoon to Monday afternoon, and the charterer ^uing for such suspension claimed that the contract did not mean day liours merely, but one day and night of 24 consecutive hours, the burden was upon him to prove that the word^ used had that meaning according to the custom of the port in loading and unloading vessels. The Prin- cipia, 34 Fed. 667. 29. The Henry, I Blatchf. & H. 465, II Fed. Cas. No. 6372; The .\melie. 6 Wall. 18. Purchase of 'Wrecked -VesseL The purchaser of a wrecked vessel from the master may prove honesty of the master and the necessity to sell, by presumptive evidence. The Lucinda Snow, .A.bb. .\dni. 305, 15 Fed. Cas. No. 8591. 30. Levech v. Cargo of Wooden Posts, 34 Fed. 917. 31. The G. H. Starbuck. 3 Ben. 53, 10 Fed. Cas. No. 5378. '^32. The Talisman, 23 Fed. II i", The Thomas Turrall, 6 Ben. 404, 23 Fed. Cas. No. 13.932; The Harriet S. Jackson, 32 Fed. no. 33. The Mascotte, .39 Fed. 871. Vol I 252 ADMIRALTY. of a pilot for injury to the tow, to show that the tug caused such injury.'^'' G. Wages of Seamen. — The burden is upon seamen suing for wages to prove all facts denied except as to the shipping articles and log book,^^ and to sustain the suit in accordance with the ship- ping articles.^" The burden is upon the master of the vessel suing for services performed to show employment for the voyage.''' The burden is upon the owners of the vessel to prove defenses to an action for the wages of seamen,^' or payments made thereon,^" and to give clear proof that the seamen were informed of and agreed to a clause in an unusual place in the shipping articles, reducing their wages. ^^ H. Change of \'ovage. — The burden is on the charterer of a vessel taking a different voyage from that agreed upon in the charter to prove that such voyage was substituted therefor.^' 3. In Cases of Prize. — A. Presumptions. — a. Title. — Title is presumed from possession,*- and is presumed to be in accordance with the ship's papers. '"' b. Hostility of Ship and Cargo. — A ship sent into an enemy's port for adjudication as prize, and allowed to proceed upon her voyage therefrom, is presumed to have the enemy's license,''* and if the proprietary interest in a captured vessel does not clearly appear, she is presumed enemy's property,*'^ and goods found upon a hostile ship are presumed to be enemy's property.'"' (1.) Trade 'With Enemy. — The trade from an enemy's country is 34. Benefit of Reasonable Doubt. 40. The Ringleader, 6 Ben. 400, In such case, the tug in charge of 20 Fed. Cas. No. 11,850. the pilot should have the benefit of 41. 'V\'heelwright v. 'Walsh, 42 any reasonable doubt as to whether Fed. S62. the weather forbade the continuance 42. Extent of Presumption, of her course. The Frederick E. The presumption of title from posses- Ives, 25 Fed. 447. sion prevails in admiralty as against 35'. Orne v. Townsend, 4 Mason a') except the rightful owner, and 541, 18 Fed. Cas. No. 10,583. where neutral property is taken from ' ,'c ^ Tj I T, , the prior possession of the rightful 00. Granon v. Hartshorne, i v u- ■ ^ a ,- j Di » 1 r o TT _ p J /- XT owner, its ownership is not affected Blatchf. & H. 454, 10 Fed. Cas. No. ^^^ ^^^ possession of a British priva- S?; Burden Sustained by In- teer from which it is recaptured by *•■«_„„ T J ^ .. • , an American privateer. Ihe Keso- ference. In order to sustain such ^^^^. ^ p^„ ^ ^ Wheat .\ppendix burden by inference from services rendered in getting the vessel ready ^3 ' ^^^ Resolution, 2 Dall. i ; for the voyage, the inference must b. ^,^^ ^^^,^^ p ^ j^, ^ g g such as to exclude all reasonable 44 ^^^ Langdon Cheves, 4 doubt of employment for the voyage. wjieat ,0^ Jones r. Davis, I Abb. Adm. 446, l,< 45. '^ ^heat. Appendix 24. Fed. Cas. No. 7460. 46_ ^^^^ London Packet, s Wheat. 38. The Belle, 6 Ben. 287, 3 Fed. ,32; The Sally Magee, 3 "Wall. 451; Cas. No. 1271 ; The 'V'illa y Herman. The Carlos F. Roses, 177 LI. S. 655; lOi Fed. 132. The Flying Fish, 2 Gall. 374, 9 Fed. 39. The Napoleon, Olc. 208, 17 Cas. No. 4892; The San Jose In- Fed. Cas. No. 10,015; The FritheofT, diano, 2 Gall. 268, 21 Fed. Cas. No. 14 Fed. 302. 12,322; 2 Wheat. Appendix 24. Vol. I ADMIRALTY. 253 deemed hostile, regardless of the domicile of the parties/' A neu- tral ship violating her neutrality in aid of the enemy is deemed enemy's property/'* and a colorable transfer of an enemy's vessel to a neutral, is presumed from continued hostile trade under the management or in the interest of the former owners, and from non- payment of the purchase money.'"' An American ship dealing with the enemy is deemed hostile, and lawful prize. ^" c. Blockade. — The intention to violate a blockade may be pre- sumed from the conduct and position of the vessel when captured.''' The deviation of a voyage into a blockaded port is presumed to be in the interest of the cargo, if it is not shown that those in charge had no knowledge of the blockade. °- (1.) Notice of Blockade. — Notice of a blockade at the port of des- tination will be presumed from its notoriety when the voyage was begun, ^''' and a vessel in a blockaded port when the blockade was begun, is presumed to have knowledge when it began.-''* A public blockade notified to neutral powers is presumed to continue until public notification or other absolute proof of its discontinuance."''' B. Burden of Proof. — a. Captors. — The burden is upon the captors to prove a lawful capture of enemy's property ,'''' and to overcome any presumption from the ship's papers to the contrary." b. Claimants. — The burden is upon the claimants to rebut any presumption or suspicion of hostile interest,^* to prove neutral inter- 47. The Friendschaft. 4 Wheat. 105 ; The Cheshire, 3 Wall. 231 ; The Prize Cases, 2 Black 681. 48. Maley v. Shattuck, 3 Cranch 458; The Brig Eastern, 2 Dall. 34; The Society, 9 Cranch 209; The Hazard, 9 Cranch 205 ; The .Antonio Johanna, i Wheat. 159; The Fortuna, 3 Wheat. 236; The Baigorry, 2 Wall. 474; The Hart, 3 Wall. 559; The Comniercen, 2 Gall. 261, 6 Fed. Cas. No. 3055; The Alliance, Blatchf. Pr. Cas. 262, I Fed. Cas. No. 245; The Gondar, Blatchf. Pr. Cas. 266, 10 Fed. Cas. No. 5526. 49. The Benito Estenger, 176 U. S. 568. 50. The Alexander, 8 Cranch i6y ; The Julia, 8 Cranch 181; The Au- rora, 8 Cranch 203; The Sally, 8 Cranch 382; The St. Lawrence. 8 Cranch 434; The Hiram, 8 Crancli 444; The Joseph, 8 Cranch 451; The -Admittance, 18 How. no; The Rugen, I Wheat. 62 ; The Diana, 2 Gall. 93, 7 Fed. Cas. No. 3876. 51. The Cornelius, 3 Wall. 214; The Cheshire, 3 Wall. 231. 52. The Sunbeam, Blatchf. Pr. Cas. 656, 23 Fed. Cas. No. 13,615. 53. The Adula, 89 Fed. 351. 54. Law of Nations This pre- sumption is a settled rule of the law of nations. Prize Cases, 2 Black 635. 677. 55. The Baigorry, 2 Wall. 474. 56. The Resolution, 2 Dall. i ; The Thomas Watson, Blatchf. Pr. Cas. 120. 23 Fed. Cas. No. 13.933; The Sarah and Caroline, Blatchf. Pr. Cas. 123, 21 Fed. Cas. No. 12,340. 57. The Ship Resolution, 2 Dall. I. 58. Proof to Overcome Presump- tion In order to overcome a pre- sumption of enemy's property, the proof must be clear- and unquestion- able. The Resolution, 2 Dall. i. And the claimants must show the absence of anything to impeach the transaction,, and disclose fully all the circumstances. The Carlos F. Roses, 177 U. S. 655; Hooper v. U. S. 22 Ct. CI. 408. Vol. I 254 ADMIRALTY est,"'" or foreign property alleged,''" and to make clear proof of title"' and of payment therefor. "- c. Blockade. — The burden is upon a neutral vessel attempting to enter a blockaded harbor to prove beyond a reasonable doubt, that it was owing to absolute and uncontrollable necessity."^ d. Halation of Neutrality. — Where one belligerent vessel cap- tured by another seeks the aid of a neutral port for restitution, the burden is upon its owner to prove a violation of neutrality,''^ and clear proof of any violation thereof which is charged will justify restitution to the owner,"''' but if they fail to prove it beyond a rea- sonable doubt, restitution will be ordered to the captors."" (1.) Augmentation of Force. — The burden is upon the captured ves- sel charging an augmentation of force by the captors by enlistment in the neutral territory, to prove such enlistment,"' and is then upon the captors to prove enlistment of subjects of their government transiently within the United States."' 4. Cases of Forfeiture. — A. Registry of Vessels. — To sustain a forfeiture of a vessel for violation of the registry of vessels act, the burden is upon the prosecution to prove the violation beyond a reasonable doubt,"" but if a prima facie case is made, the burden is upon the claimants to rebut it bv papers and other proofs within their power, else the vessel will be condemned.'" T\. E.^n!.\K^,o .\kd Non-Intkrcourse L.\ws. — .\ ]irohii'itefl cargo 59. Tlie Benito Esicngor, i"6 U. S. 568; The Jenny, ; 'Wall. 18 v. U. S. V. The Lilla, 2 Ciiff. 169, 26 Fed. Cas. No. 15,600; U. S. r. Havward. 2 Gall. 485. 26 Fed. Cas. No. i,=;„?.. Shute, 18 How, 463 ; Snow V. Hill, 20 How. 543; The Victory, 168 U. S. 410; The R. L. Mavbey, 4 Blatchf. 88, 20 Fed. Cas. No, 11,- 870; The Relief, Olc. 104, 20 Fed. Cas. No. 11,693; The Santa Claus, Olc. 428, 21 Fed. Cas. No. 12,327; The Chesapeake, i Ben. 23, 5 Fed. Cas. No. 2642 ; Sturgis 7'. Clough, 21 How. 451 ; The Scranton, 5 Blatchf. 400, 21 Fed. Cas. No. 12,558; The Niagara, 3 Blatchf. 37, 18 Fed. Cas. No. 10,220; The Washington, 3 Blatchf. 276, 29 Fed. Cas. No. 17,220; The Cayuga, i Ben. 171, 5 Fed. Cas. No. 25.36. 18. 'The Winona, 8 Blatchf. 499, 29 Fed. Cas. No. 17,411: The New- Orleans, 8 Ben. loi. 18 Fed. Cas. No. 10,179; The Washington Irving, Abb. Adm. 336, 29 Fed. Cas. No. 17,243: The J. D. Peters, 42 Fed. 269; Merchants and Miners Transp. Co. T'. Hopkins, 108 Fed. 890: Squires v. Parker, lOi Fed. 843; Barker v. The City of New York. I ClifT. 75, 2 Fed. Cas. No. 765; Newton r. Stebbins, 10 How. 586; The Monticello, 17 How. 152 ; The Oregon v. Rocca, 18 How. 570 ; N. Y. etc. S. S. Co. I'. Rumball, 2i How. 372; The Fannie, 11 Wall. 238; The Scotia, 14 Wall. 170: The Falcon, 19 Wall. 751 ; The Sea Gull, 23 Wall. 165; The Commerce, 16 Wall. 3.^: The Clarita & The Clara, 23 Wall. I ; Ward v. The Fashion, 6 McLean, Vol. I 260 ADMIRALTY. fective by the fault of the saihng vessel.^" A change of course of the sailing vessel is not presumed negligent, if the fault of the steamer made the collision inevitable."" A steamer colliding with a flat boat or floating boat, is presumed negligent.-' A steamer is deemed negligent in not avoiding collision with another vessel where it failed to slacken its speed,-- or to stop and reverse the engine in a case of emergency.-^ A sailing vessel at fault for not having the fog horn required is presumed to have contributed negli- gently to a collision with a steamer in a fog.-'' g. One Vessel Overtaking Another. — One vessel coming behind another and seeking to pass it is presumed negligent for any result- ing collision,-^ but a vessel wrongfully or carelessly interposed in 152, 29 Fed. Cas. No. 17,154; The Maverick, i Spr. 16, Fed. Cas. No. 9316; The -Carroll, 8 Wall. 302; N. Y. etc. S. S. Co. V. Calderwood, 19 How. 241 ; The Fairbanks, 9 Wall. 420; The City of Paris, 9 Wall. 634; The Stephen Morgan, 94 U. S. 599; The Abbotsford, 98 U. S. 440; The Louisiana, 21 How. I ; The Civilta and The Restless, 103 U. S. 699; The Belgenland, 114 U. S. 355: The Benefactor, 102 U. S. 214; The Nacooche, 137 U. S. 330; The Blue Jacket I'. The Tacoma Mill Co., 144 U. S. 371; The Martello, IS3 U. S. 64. Presumption Against Willful Col- lision A steamer colliding with a sailing vessel is presumed not to have run it down willfully. The Rochester, 81 Fed. 237, 19. Mistakes In Extremis The steamer is not responsible for mis- takes jji e.vtrcniis caused by the fault of the sailing vessel. The Blue Jacket -■. Tacoma Mill Co., 144 U. S. 371. 25 Fed. 831. Deviation of Course The sail- ing vessel may deviate sufficiently to avoid obstructions, but is deemed at fault in not resuming her course, and in taking it into the pathway of the steamer. The John L. Has- brouck, 93 U. S. 40s ; The Potomac, 8 Wall, ■^90; The Scotia, 14 Wall. 170; The Illinois, 103 U. S. 298; The S. C. Tryon, 105 U. S. 267. 20. The Falcon, 19 Wall. 75; The Fairbanks, 9 Wall. 420; The City of Paris, q Wall. 6'?4; The Wenona. ig Wall, 41; The Lucille, 15 Wall. 676; The .Adriatic. T07 U. S, 512. Violation of Sailing Rule. _ The failure of the steamer to keep out Vol. I of the way is no defense for the sailing vessel in violating an express sailing rule. The Stephen Morgan, 94 U. S. 599- 21. Ure V. Coffman, 19 How. 50; Pearce v. Page, 24 How. 228; Nelson T. Leland, 22 How. 48 ; Fretz z\ Bull. 12 How. 466 ; Culbertson z\ Shaw, 18 How. 584; The Southern Belle, Newb. 461, 6 Fed. Cas. No. 3462. 22. The Pennsylvania. 19 Wall. 125 ; Newton v. Stebbins. 10 How. 586; The Sea Gull, 23 Wall. 165; The Alleghenv, 9 Wall. 522; The Favorita, 18 Wall. 598; McCready V. Goldsmith, 18 How. 89; The Martello, 153 U. S. 64: The Nacooche, 137 LI. S. 330; The Vic- tory, 168 U. S. 410; Rogers v. The St, Charles, 19 How. 108 ; The New York V. Rae, 18 How. 223, 23. The Sea Gull. 23 Wall. 165: The Martello, 153 U. S. 64: The City of New York, 147 V. S. 72; Nelson v. Leland. 22 How. 48: Wil- liamson r. Barrett, 13 How. lOi. 24. The Martello, 153 L^. S. 64: The Bolivia, 49 Fed. 169 ; Merchants and Miners Transp, Co. f. Hopkins, 108 Fed. 890; The Pennsvlvania, 19 Wall. 125. 25. Whitridge '•. Dill, 23 How. 448; The Great Republic. 23, Wall. 20; The Cayuga, 74 Wall. 270; The Suffolk County, 9 Wall, 651; The Carolus, 2 Curt, 69, 5 Fed, Cas, No. 2424; The Rhode Island. 01c. 505. 20 Fed. Cas. No. Il,74i; The Governor. I Abb. Adm. 108. 10 Fed. Cas. No. S'6,i5; Ward v. The Dousman, 6 Mc- Lean, 211. 29 Fed, Cas, No, 17.153: The Osceola, 30 Fed. 383 : The Has- brouck, 29 Fed. 463 ; The Continental. 31 Fed, 166; The Narragansett. 01c. ADMIRALTY. 261 ihc track of another, so as to render the colhsioii inevitable, is deemed responsible therefor,-'' and the overtaking vessel is not pre- sumed responsible for a collision which would not have occurred but for the fault of the other vessel.-' h. Collision With Moored Vessel. — There is a presumption of negligence against any moving vessel which collided with another vessel that was moored,-** unless it was anchored in an improper and unexpected place which rendered the collision inevitable.-"' The presumption of fault is conclusive against the moving vessel, where the vessel at anchor collided with was on proper ground and showed proper lights,'"' and where the colliding vessel had her can- vas fully spread in a fog so as to prevent prompt maneuvering.'^ B. Burden of Proof. — a. In General. — The burden of proof is upon the libellant to establish negligence of the libelled vessel in causing the collision,'- and to prove the freedom from fault of his own vessel.'' The burden is ujjon each of two colliding vessels to 246, 17 Fed. Cas. No. 10,019; Sea- man V. The Crescent City, i Bond 105, 18 Fed. Cas. No. 12,581 ; The Rhode Island, i Blatchf. 363. 20 Fed. Cas. No. 11,743; The City of Merida, 24 Fed. 229; The Isle of Pines, 24 Fed. 498. 26. The New Jersey, Olc. 415, 18 Fed. Cas. No. 10,161 ; The Narragan- sett, Olc. 246, 17 Fed. Cas. No. 10,- 019. 27. Long Island R. Co. v. Killien, 6- Fed. 365. 28. Mercer v. The Florida, 3 Hughes 488, 17 Fed. Cas. No. 9433; The St. John, 54 Fed. 1015 : The Brady. 24 Fed. 300; The Bulgaria, 74 F'ed. 898; The Scioto, 2 Ware 360. 21 Fed. Cas. No. 12,508; The Lady Franklin, 2 Low. 220, 14 Fed. Cas. No. 7984; The Oregon, 158 r. S. 186; The Le Lion, 84 Fed. lOli; Stroiit V. Foster, I How. 89; The Granite State, 3 Wall. 310; The Louisiana, 3 Wall. 164; The Bridge- port, 14 Wall. 116; McCready v. Gold.smith, 18 How. 89; The South- ern Belle, 18 How. 584; The New York V. Rae, 18 How. 223 ; The Vir- ginia Ehrman, 97 V. S. 309. " 29. The .\ilsa, 76 Fed. 868 ; The Oliver, 22 Fed. 848; Strout v. Foster, I How. 89; Martin v. Five Canal Boats. 24 Fed. 500. 30. The Florida, 3 Hughes 488, 17 Fed. Cas. No. 9433. 31. The George Bell. 3 Hughes 368, II Fed. Cas. No. 5856. 32. The Edwin H. Wehster, 18 Fed. 724; The William Young, Olc. 38, 30 Fed. Cas. No. 17,760; The Joseph Stickney, I Fed. 624; The .-Amanda Powell, 14 Fed. 486; The David Dows, 16 Fed. 154; The New Jersey, Olc. 415, 18 Fed. Cas. No. 10,161 ; The Neptune, Olc. 483. 17 Fed. Cas. No. 10,120; The Rescue, 51 Fed. 927; The Fred Schlesinger, 71 Fed. 747; The Hercules, 5s' Fed. 120; The Wioma ^5 Fed. 3(8; The Maryland, 14 Fed. 367 ; The Chas. L. Jeffrey, 55 Fed. 685 ; The Washington Irving, Abb. Adm. 336, 29 Fed. Cas. No. 17,243. Libel of Tow Ag^ainst Tugs A ship towed by a tug, libelling its own tug and another for collision has the burden of proving negligence against each tug separately. The L. P. Day- ton, 18 Blatchf. 411, 4 Fed. 834, 120 U. S. 3.V. Identity of Libelled Tug. — A canal boat libelling a steam tug for collision, has the burden to prove the identity of the defendant, with the colliding tug. The City of Chester, 18 Fed. 603. 33. Collision Upon Canal, — The libellant for collision upon a canal has the burden to excuse his non- compliance with a rule of the canal. The Curtis Park, 19 Fed. 797. A canal boat tying up in a fog on the tow path side has the burden to prove a sufficient warning to an ap- proaching vessel colliding therewith. The City of Milwaukee, 14 Fed. 365 ; The Relief, Olc. 104, 20 Fed. Cas. Vol. I 262 ADMIRALTY. ■establish fault on the part of the other,"'' and is upon a vessel neglecting ordinary precaution to prove that such neglect did not cause or contribute to the collision.-'^ A vessel clearly in fault fur a collision ha-s the burden to prove clearly the contributory negligence of the other vessel,'"' and any reasonable doubt must be resolved in its favor. ^' b. Neglect of Statutory Rules. — A vessel neglecting compliance with a statutory rule of navigation, has the burden to prove not only that such neglect did not cause the collision,''* but also that it could not have contributed thereto,'"' and that the collision would have happened if the statute had not been violated,''" and to establish by clear and indisputable evidence that she was not wholly at fault, ^' or that she was justified in departing from the rule by impending peril,^- or by agreement/^ c. J'esscl Bound to Keep Out of ll'ny. — A vessel bound in duty to keep out of the way of another has the burden to prove either that she kept out of the way," or that there was a sufficient reason for not doing so,''-'' that due care was used to avoid the collision,^'' No. 11,693; Ward v. The Fashion, 6 McLean 152, 29 Fed. Cas. No. 17,- 154; The Cohimbus, Abb. Adm. '384, 6 Fed. Ca.s. No. 3043 ; The Charles L. Jeffrey, 55 Fed. 685; The Henry Clark r. O'Brien, 65 Fed. 815. 34. The Victory, 168 U. S. 410. 35. The H. F. Dimock, 77 Fed. 226; The John Craig, 66 Fed. 596; The Anglo-Norman, Newb. 492, 16 Fed. Cas. No. 9174; The Clapp v. Young, 5 Fed. Cas. No. 2786; The Great Republic, 23 Wall. 20; Don- nel! I'. Boston Towboat Co., 89 Fed. 757; The Lion, i Spr. 40, 15' Fed. Cas. No. 8379 ; The George W. Roby, III Fed. 601; Call V. Old Dominion S. S. Co., 31 Fed. 234. 36. The Churchill, 103 Fed. 690; The Minnie, 100 Fed. 128; The City of New York, 147 U. S. 72; The Oregon, 158 U. S. 186: The Victory, 168 U. S. 410; The Mexico, 84 Fed. 504. 37. The City of New York, 147 U. S. 72; The Victory, 168 U. S. 410; The Umbria, 166 U. S. 404; The Ludvig Holberg, 157 U. S. 60; The Saale, ^g Fed. 716; The Minnie, 100 Fed. 128; The Oregon, is8 U. S. 186. 38. The St. Louis, 98 Fed. 750; The Trave, 55 Fed. 117. 39. The Richelieu etc. Co. •;■. Bos- ton, 136 U. S. 408; The Martello v. Willey, 153 U. vS. 64; The Britannia, Vol. I 153 U. S. 130; The Glendale, 81 Fed. 633; The Trave, 55 Fed. 117; Tnanies Towboat Co. r. Central R. Co. 61 Fed. 117; St. Louis and N. O. Transp. Co. Z'. U. S., 33 Ct. CI. 51; The Lansdowne, 105 Fed. 436; 1 he Bolivia, 49 Fed. 169 ; The Yar- mouth, 100 Fed. 667 ; The Belden v. C!;asc, 150 L'. S. 674. Absence of Mechanical Foghorn. The absence of the mechanical fog- horn required by statute, must be shown not to have contributed to a colHsion in a fog. The Pennsylvania V. Troop, 19 Wall. I2> 40. The Saale, 59 Fed. 716. 41. Taylor r. Harwood. Taney 447 ; Martinez r. Anglo-Norman, Newb. 492, 16 Fed. Cas. No. 9174. 42. Belden z: Chase, 150 U. S. 674; Crockett ;'. Isaac Newton, 18 How. 583 ; The Sunnvsidc, 91 L'. S. 208. 43. The .Milwaukee, I Brown Adm. 313, 17 Fed. Cas. No. 9626. 44. The City of .-Kugusta. 80 Fed. 297. 45. The lava, 14 Blatchf. 524. 13 Fed. Cas. No. 7233- 46. The Norniandie. 4'' Fed. 151; The Wenona. 8 Blatchf. 499, 29 Fed. Cas. No. 17,411 ; The Henry Clay, 72 Fed. 1021 ; The Maverick, 75 Fed. 845; The Liva, 14 Blatchf. 524, 13 Fed. Cas. No. 7233; The George L. Garlick, 88 Fed. 553; Henderson v. ADMIRALTY. 2f)3 and that it was inevitable/' or was owing to the fauh of the other vessel/* d. Vessel Bound to Kec[> Course. — A vessel in duty bound to keep her course, which changed it prior to collision, has the burden to show that the change of course was justified by the conduct of the other vessel,*'' or was necessary to avoid immediate collision.'" or did not contribute to the collision,^' and that the collision was inevitable,^- and without fault on her part/''' e. Moored Vessels. — (1.) Burden TJpon Moving Vessels. — The bur- den is upon a moving vessel which collides with a moored or anchored vessel to rebut the presumption of negligence,^'' and to Cleveland, 93 Fed. 844 ; Merchants and Miners Transp. Co. z: Hopkins, 108 Fed. 890; Squires v. Parker, lOi Fed. 846; The Oregon z: Rocca, 18 How. 570; U. S. S. Co. z: Rumball, 21 How. 385 ; The Lucy, 74 Fed. 572 ; The Clement, 2 Curt. 363, 5 Fed. Cas. No. 2879; The Bessie \Iorris, 13 Fed. 397. 47. The Mary A. Bird, 102 Fed. 648 ; Merchants and Miners Transp. Co. V. Hopkins, 108 Fed. 890; The Clement, 2 Curt. 363, 5 Fed. Cas. No. 2879; The Henry Clav, 72 Fed. 102; U. S. S. Co.' I'. Rumball, 2X How. 372 ; The Nettie Sundberg, 100 Fed. 886 ; La Bourgogne, 86 Fed. 475: The Homer, 99 Fed. 795; The X'irginia Ehrman, 97 \J. S. 309. Steamship Colliding With Sailing ■Vessel A steamer colliding with a sailing vessel has the burden to prove that it could not have been prevented by any reasonable precaution. Squires Z'. Parker, lOi Fed. .S53- 48. The :\Iary Bird, loi Fed. 648 ; The lava, 14 Blatchf. 524, 13 Fed. Cas. No. 7233; The Lizzie Major, 8 Ben. 333. 15 Fed. Cas. No. 8422; The Washington Irving, .\bb. Adm, 336, 29 Fed. Cas. No. 17,243; The Seneca, 47 Fed. 87 ; Bigelow v. Nickerson, 78 Fed. 113; The Clement, 2 Curt. 363, 5 Fed. Cas. No. 2879; The Gypsum Prince, 67 Fed. 6l2. 49. Turning Toward Backing Vessel. — A vessel bound to keep her course which turned toward a vessel that was backing out of her way. has the burden to prove a suffi- cient cause therefor in the conduct of the backing vessel. The Corsica z: Schuyler, g Wall. 630. Sheer of Steamer The burden of proving that the sheer of a steamer in a narrow channel was caused by the fault of a meeting steamer, and tow, is on those al- leging it. The Alexander Folsom, 52 Fed. 403. 50. The Ella Warner, 30 Fed. 203. 51. Donnell z'. Boston Towboat Co., 89 Fed. 757. 52. Tlie Sagua ?•. The Grace, 42 Fed. 461. 53. Sheering Caused by Suction. A vessel sheering from lier course, owing to the alleged suction of another vessel, and colliding with a third vessel which had agreed to pass in a certain way. must "prove her entire freedom from fault. The Ohio, 91 Fed, 547. 54. Henderson z\ Cleveland, 93 Fed. 844; The America, 95 Fed. 191 : The Milwaukee. 2 Biss. 509, 17 Fed. Cas. No. 9625; The Wm. M. Hoag, 69 Fed. 742; The Dean Richmond, 103 Fed. 701, 107 Fed, looi ; Amos- keag etc. Co. z: The John Adams, i Cliff. 404, I Fed. Cas. No. 338. Rebuttal of Presumption There is not only a presumption in favor of a vessel at anchor because she is at anchor, but also a presumption of fault on the part of the colliding vessel, which shifts the burden upon the latter to rebut it by clear proof of the fault of the vessel at anchor. The Oregon, 158 U. S. 186, Steamer Towed Out of Slip .\ steamer towed out of a slip which injured moored vessel by jamming it with the towline, has the burden to show that she was without fault. The City of Augusta, 30 Fed. 844. Vol. I 264 ADMIRALTY. show that she could not have prevented the colHsion,^^ and that the moored vessel was at fault.'" The burden is upon a vessel breaking away from her moorings and colliding with another vessel at anchor, to prove inevitable accident,'^ and to excuse the breaking away and drifting against the other vessel.'* (2.) Burden Upon Moored Vessel. — The burden is upon a barge sunk at her mooring amidst breaking ice, after a collision, to show that the sinking was not caused by the breaking of the ice, but was the fault of the colliding vessel.''" A vessel anchored in a channel at night lias the burden to prove that she exhibited a proper light and maintained a watch to prevent the collision."" A vessel moored in an improper place has the burden to show that the collision was not catised by its fault, but by the act of the other vessel."^ Upon collision in a dense fog between a steamer and a moored vessel, the burden is upon the moored vessel to show that she was moored in a proper place. "- (3.) Burden Upon Ship Towed. — The owner of a ship which collided with a vessel at anchor, while towed by a tug, has the Ijurden to prove the negligence of the tug."' f. Collision in Narrow Place. — An unencumbered steamer pass- ing a tug with a heavy tow in a narrow channel has the burden to prove that the side of passage chosen was the only safe one, and that she took every precaution to avoid the collision."* A steamer crossing the channel of a river to anchor mvist prove great care against collision."' and a steamer backing from a shoal in a narrow 55. The Nettie Siindberg, lOO which made the posts give way at Fed. 886: La Bourgogiie. 86 Fed. which they were moored. The 475. Waterloo and The Glenalvon, 79 Exoneration of Moving Vessel. Fed. 113, 100 Fed. 332; The Chick- A moving vessel colliding with a ves- asaw. 38 Fed. 358. sel at anchor must exonerate her- 59. ^he Maryland, 14 Fed. ^67. self by proof that it was not m en ti a • £_ r> 1 £., her power to prevent the collision by ^°- ^he Armoma, 67 Fed. 362. anv practicable precautions. The 61- St. Louis M. V. Transp. Co. Homer, 99 Fed. 795; The Milwaukee, '^'^ U. S., 33 Ct. CI. 250. 2 Biss. 509, 17 Fed. Cas. No. 9625; 62. Amoskeag etc. Co. v. The The Louisiana. 3 Wall. 164 ; The John Adams, I Cliff. 404, 1 Fed. Cas. Virginia Ehrman and The Agnese, No. 338. 97 U. S. 309. 63. Responsibility of Ship. 56. ,\moskeag etc. Co. v. The Where the collision was caused by John Adams, I Cliflf. 404, i Fed. Cas. the wrong steering of the ship, and No. 338; The Oregon, 158 U. S. 186; its failure to steer with the tug, the The Milwaukee, 2 Biss. 509, 17 Fed. ship alone is deemed responsible Cas. No. 9625 ; The Porter v. therefor. The Invcrtrossachs, 59 Hemunger, 6 Can. F,x. 208. Fed. 194. 57. The Fremont, 3 Sawy. 571, 9 But where the ship tried to follow Fed. Cas. No. 5094 ; The Louisiana, the tug, but was negligently thrown 3 Wall. 164. loose from it, and caused to collide 58. Sufficiency of Excuse A with the anchored vessel, the ship is sufficient excuse is slinwn by proof not deemed at fault. The James that all practicable precautions were Gray, 106 LL S. 184. taken and that the breaking away 64. The Lucy, 74 Fed. 572. and collision were owing to a storm, 65. The Maryland, 14 Fed. 367. Vol. I ADMIRALTY. 265 place has the Inirilen to show that the liacking (hd not contribute to a colhsion with a barge in tow.°° g. Collision With Pier. — A vessel complaining of the owner of a pier for collision has the bnrden to prove that she was not in fault, and that the pier was an obstruction to navigation.'" 7. Towage. — A. Presumptions. — Damage sustained b\- the tow does not ordinarily raise a presumption that the tug has been in fault,''' but the negligence of the tug may be presumed from the circumstances,'''" and will lie presumed where the tow was stranded upon a shoal owing to the fact that the tug deviated from a proper course,'" or where the tow was not properly constructed, and broke loose to its injury,'^ or where the stopping of the tug in its harbor caused the tow to impinge upon a pier,'- or where a tow delivered in good condition was sunk,'^ or logs were lost from a seaworthy raft by collision with the shore and breaking of the tow-line,'* or by insecure fastening of the raft.'^ The presumption that government buoys correctly indicate places of danger, cannot justif}' the fol- lowing of them blindly by a tug which towed a vessel upon a rock without looking for displacement of the buoys. '° B. Bl^RdEn oe Proof. — a. Upon Oivncrs of Tow. — The burden is upon the owners of the tow to prove a breach of the contract of towage," and negligence of the tug,'' and that such negligence was the proximate cause of the loss," and to show a total loss of the tow, and that it would cost more than it would be worth to raise and 66. The John Craig, 66 Fed. S96. 67. The Henrv Clark v. O'Brien, 65 Fed. 815. 68. Contract of Towage The contract of towage requires no more than that he who undertakes to tow shall carry out his undertaking with that degree of caution and skill which prudent navigators employ in similar services. The Steamer Webh, 14 Wall. 406. 69. The Steamer Webb, 14 Wall. 406; The Quickstep. Q Wall. 665; The Seven Sons, 29 Fed. ^43. 70. The Steamer Webb, 14 Wall. 406. 71. The Quickstep, 9 Wall. 665. 72. The Margaret, 94 U. S. 494; The Cayuga, 16 Wall. 177. 73. The Seven Sons. 29 Fed. .543. 74. Loss of Files From Raft. The mere loss of piles from a raft in tow will not be presumed negli- gent. The A. R. Robinson, 57 Fed. 677 : Wilson ?■. Siblev, .36 Fed. 379. 75. The Wasp. 8<5 Fed. 470. 76. The Hercules, 8l Fed. 218. 77. Breach of Contract The burden is upon one who alleges breach of the contract of towage to show either that there has been no attempt at performance, or that there has been negligence or imskillful- ness to his injury in the perform- ance. The Steamer Webb, 14 Wall. 406. 78. Richter v. The Olive Baker, 40 Fed. 904; The Frederick E. Ives, 25 Fed. 447 : The Brazos, 14 Blatchf. 446, 4 Fed. Cas. No. 1821 ; The Mary, 14 Fed. S84; The Aurora, 2^ Fed. 778; The "Hercules, 55 Fed. 126: The America. 6 Ben. 122, i Fed. Cas. No. 282; The George L. Garlick, 16 Fed. 703;The W. H, Simpson, 80 Fed. 153 ; Pederson t'. John D. Spreckels & Bros. Co., 87 Fed. 938: The Car. bonero. 106 Fed. 329 ; The W. E. Gladwish, 17 Blatchf. 77, 29 Fed. Cas. No. 17,355- 79. The Carbonero. 106 Fed. 329. loss After Towage The loss of a barge three days after the towage was finished must be proved to have been proximately caused by negli- gent towage. The Mary, 14 Fed. 5S4- Loss of Dredge Towed A libel- Vol. I 266 ADMIRALTY. repair it.**" Where the tug assumed no risk of unseaworthiness. the tow which sprung a leak has the burden to prove the amount of loss over what it would have been if due care had been lised/' The owners of a tow lost in a squall, have the' burden to prove negligence of the tug in proceeding before the squall,**- and if the tug was in charge of a pilot, it should have the benefit of any reasonablq doubt as to the weather's permitting continuance. **■■ b. Upon Owners of Tug. — The owners of the tug have the bur- den to excuse the stranding of the vessel towed out of her usual course,'* or the abandoning of the tow during a storm,*^ or the striking of the tow upon a rock,"' or unseen obstructions in the channel,*' and to prove that the grounding of the tow was in the customary channel, and owing to unusually low water,*** and that due care was exercised by the tug in navigation.*" The burden is upon a tug which stopped en route in breach of contract, to prove that the subsequent loss of the tow from springing a leak and cap- sizing, was not owing to such breach,''" and where a tug stopped en route for good reason, and the tow was thereafter injured in a squall, the tug has the burden to prove that at no time could she have resumed the towage so as to avoid the injury."^ 8. Salvage. — The burden is upon the owner of a wrecked vessel to prove that the price agreed upon for salvage was exorbitant, and was extorted under unfair circumstances,"- and to prove a defense of the forfeiture of the claim of salvage by misconduct,"^ and to prove an alleged agreement to pay the usual compensation, instead of a fixed compensation as alleged in the libel."'' 9. Seaworthiness. — A. Presumptions. — a. Implied Contract. In every contract to carry goods by sea, an implied contract of war- ranty of absolute seaworthiness of the vessel at the beginning of the voyage, is presumetl, in the absence of a stipulation to the con- lant seeking to recover the value of 87. The Ellen .McGovern. 27 Fed. a dredge sunk while in tow, must 868. prove that the negligence of the tug 88. The James H. Brewster, 34 caused the sinking. The Hercules, Fed. 77. 55 Fed. 120. 89. The Steamer Wchh. 14 Wall. 80. Dowell z: The Pa. R. Co., 1.3 406; The Ellen McGovern. 27 Fed. Blatchf. 403, 7 Fed. Cas. No. 4039. 868; The Kalkaska, 107 Fed. 959. 81. McCormick v. JarreU, .57 Fed. 90. Phillips f. The Sarah, 38 Fed. 380. 2^2. 82. The George L. Garlick, 16 "91. The W. E. Cheney, 6 Ben. Fed. 703; The Frederick E. Ives, 25 178, 2Q Fed. Cas. No. 17,344. Feci. 447. 92. Connoly r. The Dracona, 5 83. The Frederick E. Ives, 25 Can.' Ex. 146. Fed. 447- 93. Pleading and Proof. — The 84. The Steamer Webb, 14 Wall. defense of misconduct must be 406 ; The Kalkaska, 107 Fed. 959. si)ecially pleaded with distinctness 85. The Clematis, i Brown .A.dm. and must be proved as alleged. The 499, 5 Fed. Cas. No. 2876. .Me.xandra, 104 Fed. 904. 86." The Belle, 8g Fe- the bill of lading,'" or existed when the goods were laden on board,'" or was the result of inherent 25. Excepted Perils of Navigation. "Where an excepted peril of navi- gation is shown prima facie, there is no presumption of neghgence from injury to the cargo, and the burden of proving it to avoid the excep- tion is upon the claimants of the cargo. Western Transportation Co. V. Downer. 12 'Wall. 129 : Clark v. Barnwell. 12 How. 272. Excepted Leakage — To avoid an exception of average leakage, the claimant of casks of wine, shown to be casks of an inferior quality, has the burden to prove greater than average leakage, and that it was owing to the vessel's negligence. 'Vaughan 7'. 630 Casks of 'Wine. 14 Blatchf. 517, 22 Fed. Cas, No. 12,- 918; The Henry B, Hyde. 90 Fed. 114; Turner Z'. The Black 'Warrior, I McAll. 181, 24 Fed. Cas. No. 14.- 253; Hunt V. The Cleveland, 6 Mc- Lean 76, 12 Fed. Cas. No. 6885; The Portuense. 35 Fed. 670: The Montana, 17 Fed. 377; The Jefiferson, 31 Fed. 489 ; The Hindoustan, 67 Fed. 794-, Crowell v. Union Oil Co.. 107 Fed. 302. 26. Natural Deterioration. Damage to goods shipped resulting either from an intrinsic principle of decay, or from the humidity and dampness of the ship, must be borne by the owner of the goods unless he proves that the damage might have been avoided by reasonable care of the ship. Clark T. Barnwell. 12 How. 281. Excepted liability for the deteriora- tion of garlic must be borne by the owner thereof unless he makes the same proof. Tlie Hindo\istan, 67 Fed. 794. 27. The Adriatic, 16 Blatchf. 424, I Fed. Cas. No. 90; The "Vin- cenzo, 10 Ben. 228, 28 Fed. Cas. No. 16,948; Nelson v. National S. S. Co., 7 Ben. 340. 17 Fed. Cas. No. 10,112. 28. Bad Handling. — The bad handling of goods stowed, is in- cluded in bad stowage. The Black Hawk, 9 Ben. 207, 3 Fed. Cas. No. 1469; Rich V. Lambert, 12 How. 356; The America, 8 Ben. 491, I Fed. Cas. No. 283 ; The Delhi, 4 Ben. 345. 7 Fed. Cas. No. 3770: Crowell v. Union Oil Co., 107 Fed. 302; The Connaught. 32 Fed. 640; The Cen- turion, 68 Fed. 382. 29. The Carlotta. 5 Fed. Cas. No. 2621. 30. Degree of Proof. — The ves- sel must prove clearly beyond a rea- sonable doubt that the loss was caused by excepted perils of the sea, and it is not sufficient to prove that it might have been so caused. The Compta, 4 vSawy. 375, 6 Fed. Cas. No. 3069. ftuestions of Fact Whether ex- cepted perils includes breakage and leakage in the violence of the sea is a question of fact depending on the circumstances of the case. The Frcy, 106 Fed. 319. 31. Nelson 7'. Woodruff, i Black Iron Injured by Rust Where iron shipped as in good order and condition but marked " rusty," was badly corroded with rust from salt water at the end of the voyage, the vessel has the burden to prove that when received on board, it was other- wise aflfected than by atmospheric rust. The Nith, .36 Fed. 86. Vol. I ADMIRALTY. 271 defects,^- and that the vessel is not at fault for such damage.^" (2.) Stowage. — The vessel has the burden to rebut presumed negligence in the stowage of the cargo-,^* and to prove that the injury could not have been avoided by reasonable care in stowage."^ 32. Western Mfg. Co. v. Guiding Star, 37 Fed. 641 : The Olbers. 3 Ben. 148, 18 Fed. Cas. No. 10,447. Prima Facie Soundness Where the owner of a vessel is committed to the prima facie facts of soundness and good condition of potatoes ship- ped the burden is on him to over- come the prima facie presumption, and to prove that the potatoes when loaded on board were unsound and unfit for shipment. The Howard J'. Wissman, 18 How. 231. Visible Circumstances The prima facie evidence arising from the shipping of goods as in good order and condition only extends to open and visible circumstances and does not preclude the vessel from sustaining the burden to show that the loss was due to intrinsic qualities or the heat and humidity of the ves- sel for which the vessel was not responsible. Nelson v. Woodruff, I Black 156. Contents Unknown Where the bill of lading adds to the shipment " contents unknown " any implication of admission as to the intrinsic qualities of the article is excluded. Clark I'. Barnwell, 12 How. 272 ; The Columbo, 3 Blatchf. 521, 6 Fed. Cas. No. 3040; The California, 2 Sawy. 12, 4 Fed. Cas. No. 2314. Apparent Good Order Where goods in packages were shipped " in apparent good order " the burden is on the vessel to show that a package was in fact secretly defective or in- sufficient. The Oriflamue, i Sawy. 176. 18 Fed. Cas. No. 10,571. 33. The Maggie M., 30 Fed. 6q2 ; The Zone, 2 Spr. 19, 30 Fed. Cas. No. 18,220; Zerega r. Poppe. .^.bb. .■\dm. 397. 30 Fed. Cas. No. 18,213 ; The Burgundia, 29 Fed. 607 ; The Martha. Olc. 140, 16 Fed. Cas. No 9145 ; Soule V. Rodocanachi. Newb 504, 22 Fed. Cas. No. 13,178. Broken Cask of Wine Where a cask of wine shipped as in good order was broken the vessel must show that the damage was not caused by its negligence. The Black Hawk, 9 Ben. 207, 3 Fed. Cas. No. 14(19- Goods Properly Packed The vessel must show that goods prop- erly packed were not damaged by its fault. The Historian, 28 Fed. 336. Damage Upon Ordinary Voyage. The burden is upon the vessel to sliow that goods damaged upon an ordinary voyage were not damaged by its negligence. The Wilhelmina, 3 Ben. no, 29 Fed. Cas. No. 17,658. Damage From Rats — Damage from rats is not included in ex- cepted perils of the sea, and the burden is upon the owner of the vessel to rebut presumed negligence from such damage. Stevens i'. Navi- gazione Generale ItaHana, 39 Fed. 562. 34. The Maggie M., 30 Fed. 692 ; The Black Hawk, 9 Ben. 207, 3 Fed. Cas. No. 1469; The Burgundia, 29 Fed. 607. Stowage of Salt Over Iron The stowage of salt over iron around the main mast, without drainage away from it is presumed negligence, which the vessel must overcome by proof that the iron was injured by rust otherwise than by such salt mi.xed with sea water which broke down the mast coat during the storm and burst in upon the salt and iron. The Nith, 36 Fed. 86. Precaution in Stowage Goods injured from mere "blowing" upon an ordinary voyage are presumed to have been negligently stowed and the burden is upon the vessel to prove otherwise and that proper precautions were taken to avoid the danger. The Wilhelmina, 3 Ben. no, 29 Fed. Cas. No. 17,658. 35. Oil Stowed Over Cork. Where oil barrels stowed over cork bales got adrift in heavy weather and being thereby smashed injured the cork, the burden is on the vessel to prove that reasonable care in storing the cargo could not have avoided Vol. I 272 ADMIRALTY. (3.) Baggage. — The owners of a vessel carrying passengers have the burden to prove that injury to baggage resulted wholly from inevitable accident,^" and that baggage damaged in a storm was properly stowed.^' (4.) Incompetent Master. — The owners of the vessel have the bur- den to prove diligence in the employment of an incompetent master by whose incompetent management the cargo was injured.^* (5.) Shortage in Cargo Delivered. — The burden is upon the vessel to explain a short delivery of cargo under a bill of lading specifying a greater amount, and to show that it delivered all that it received f^ but it is upon the shipper or owner of the cargo to prove the delivery of the greater amount to the vessel if no bill of lading was taken/" or if it specifies that the (juantit)', number or weight is unknown/' and the injury. The Maggie M., 30 Fed. 692. 36. Inevitable Accident. — In order to prove inevitable accident it must be shown that the injury could not have been prevented by any human efforts, sagacity and care. The Majestic, 166 U. S. 375; Dibble V. Morgan, i Woods 406, 7 Fed. Cas. No. 3881. 37. Drifting of Baggage.—Where baggage got adrift in a severe gale and was thereby damaged the burden is upon the ship owner to prove that it was properly stowed in order to avail himself of excepted perils of the sea. The Kensington, 88 Fed. 331. 38. Burden Not Sustained. Such burden is not sustained, but the owners of the vessel must be deemed negligent toward the owners of the cargo, where it appears that they Iiave employed a master of such intemperate habits and so addicted to into.xication, as to render him un- fit for his position without exercising due diligence in such employment. The Guild Hall, 58 Fed. 796. 39. Alanchester v. Milne, -A-bb. Adm. 115, 16 Fed. Cas. No. 9006; The J. W. Brown, i Biss. 76, 14 Fed. Cas. No. 7590; Brouty i'. 5346 Bundles of Staves, 21 Fed. SQO. Degree of Proof. — The proof of mistake in quantity should be clear and unquestionable to rebut the evi- dence afforded by the bill of lading. Goodrich v. Norris, Abb. ."Hdm. 196, 10 Fed. Cas. No. 5545. Weighing Done by Ships. — Where the ships did the weighing, the vessel Vol. I is exonerated by proof that it de- livered to the consignee, all that it received from the shipper. Hopkins V. Wood, 12 "Fed. Cas. No. 6693. Estoppel of Vessel. — The vessel is not ordinarily estopped as against the shipper to contradict the weights and quantities specified in the bill of lading, and it cannot be estopped to show that no cargo was delivered under the bill of lading. Pollard v. Vinton, 105 U. S. 7 ; The Freeman v. Buckingham, 18 How. 182 ; The Lady Franklin, 8 Wall. 325; The Sutton V. Kettell, I Spr. 309, 23 Fed. Cas. No. 13,647 ; Adams v. The Pilgrim, I Ohio Dec. 477. Clean Bill of Lading A clean bill of lading for a specified quan- tity or which expressly specifies that any deficiency is to be paid for by the vessel, cannot be, avoided by proof of delivery of a less quantity as being all that was received. Merrick v. 19,514 Bushels of Wheat, 3 Fed. 340 ; Sawyer z: Cleveland Iron Min. Co., 69 Fed. 211; Creighton v. George's Creek, 6 Fed. Cas. No. 3382. 40. Manning z'. Hoover, Abb. Adm. 188, 16 Fed. Cas. No. 9044. 41. Unknown Particulars In an action for a short delivery of cargo, where it a])pears that the ves- sel delivered all that it received, the amount shipped must be shown by the claimant where the bill of lading specifies " quantity and qualitv un- known " or " weight and quality un- known " or " weight, contents and value unknown," or " weight un- known," or that the vessel is " not ADMIRALTY. 273 to ^liow the value of goods not delivered/- (6.) Delivery of Cargo. — The shijiper suing for non-deHvery of cargo must prove it,^'' whereupon the burden is upon the vessel to show delivery,''* or to excuse a failure to deliver it to the con- signee,^^ and to show that a missing part was placed upon a wharf where his goods were kept,*" and that notice was given to the con- accoimtable for mmibers or weiglU." Abbott V. The National S. S. Co., 33 Fed. 895 ; Eaton v. Neiimark. 33 Fed. 891, 37 Fed. 375; Cani- 'part V. The Prior, 2 Fed. 819; The Pietro G., 38 Fed. 148; The Ismaele, 14 Fed. 491 ; The Qiierini Stam- phalia, ig Fed. 123 ; Tlie Fern Holme, 24 Fed. 502. Presumptive Liability Removed. By snch clauses the presumptive lia- bility of the vessel for a short de- livery of an amount stated in the bill of lading is removed and a short delivery cannot be claimed under proof by the vessel of complete de- livery of what was received in the absence of further proof than the amount stated in the bill of lading or in a weigh-master's certificate; and where different weights are put in evidence the greater cannot be adopted without preponderating proof. Eaton v. Neumark, 3? Fed. 891; Abbott V. National S. S. Co., 33 Fed. 895; Pietro G., 38 Fed. 148; The Qnerini Stamphalia. 19 Fed. 123; The Ismaele, 14 Fed. 491. Burden on Consignee Under such clauses the burden is on con- signee claiming a short delivery to prove that the missing quantity was abstracted by the vessel and to prove that an increased shortage in de- livery of goods separated by its agents from those of another con- signee, who received an increase of the amount shipped was owing to the fault of the vessel. Eaton v. Neumark. 37 Fed. 373; The Ismaele. 14 Fed. 491. Proof of Shortage. — Under such a clause it will require more than the proof that a weigher found some of a specified number of bags of canary seeds shipped a few pounds short in weight to establish respon- sibility for shortage. The Fern Holme, 24 Fed. 502. Bona Fide Purchaser. — The ves- 18 sel may under such a clause clear itself of a short delivery of a par- ticular number and weight stated by proof of complete delivery of the amount shipped even as against a bona tide purchaser of the bill of lading. 42. Seller v. The Pacific. Deady 17. 21 Fed. Cas. No. 12.644. 43. Alternate Consignees Under a bill of lading specifying delivery to either one of two persons the shipper must give some evidence showing that no delivery was made to either of them, and proof of non- delivery to one of them is not suffi- cient. The Falcon, 3 Blatchf. 64, 8 Fed. Cas. No. 4617. 44. Burden, How Cast Slight evidence of non-delivery will cast the burden on the vessel to prove delivery. The Falcon, 3 Blatchf. 64, 8 Fed. Cas. No. 4617. 45. Delivery to True Owner. The vessel may show as an excuse for non-delivery to the consignee that the goods were delivered to the true owner. The Idaho, 93 U. S. 575- Absence of Excuse It is no ex- cuse for a delivery by the vessel to the wrong person where the bill of lading stipulated for delivery to order and was not produced. The Thames. 14 Wall. 98. A Mis-delivery by the vessel is not excused though made by mistake or imposition. The Santee, 2 Ben. 519, 21 Fed. Cas. No. 12.328; 7 Blatchf. 186. 21 Fed. Cas. No. 12.- 330 ; The Huntress, 2 Ware 89, 12 Fed. Cas. No. 6914. 46. Carry v. Atkins, 6 Ben. 562, 5 Fed. Cas. No. 2399. Reception of Goods at Wharf. A consignee who received the goods from the vessel at the wharf, without qualification or reservation, upon proof by the vessel of due care and delivery of all in its possession. Vol. I ;74 ADMIRALTY. sigiiee of the place of delivery/' or that it was excused hy usages and circumstances,'"* and to prove usages atfecting the delivery,'"* or that the vessel acted inider the consignee's directions,-''" and to establish an agreed day for delivery.^' 11. Personal Injuries. — A. Assault. — The burden is on the master to justify an assault and battery committed upon a seaman,"^- but- is upon a seaman suing a vessel for an assault by the master to prove that the master was acting within the scope of his duty f^ and to prove that an assault by the master by way of punishment for his fault was excessive in degree, or unlawful in its kind."'' The burden is upon a father who sues for an assault upon his minor child upon the high seas, to prove actual damage, or what is such by intendment of law.''" B. Negligence. — The burden is on the vessel to prove that injury to a stevedore from fall of an insecure stanchion was not occasioned by its negligence,'*" and to show in case of injury to a longshoreman from falling on a dark night through an unlighted hatch, in the path to the bunkers, that he customarily left the hatches open on dark nights without a light. '^^ The burden is upon has tlie burden to prove that a sub- sequenlly discovered deficiency was chargeable to the wrongful acts of the vessel. McCready v. Holmes. 15' Fed. Cas. No. 8733. 47. The Prince Albert, 5 Ben. 386, 19 Fed. Cas. No. 11.426. 48. The Mary Washington, Chase 125, 16 Fed. Cas. No. 9229. Notorious IJsage A usage or custom to excuse notice must be known to the shipper and must be clear and notorious. Howe v. Lex- ington. 12 Fed. Cas. No. 6-6ys.. Ignorance of Names of Consignees. A master of a vessel who has wrong- fully omitted to sign bills of lading, and sailed without learning the names of the consignees cannot ex- cuse notice to them of the landing of the goods. The Peytona, 2 Curl. 21. 19 Fed. Cas. No. 11.058. 49. Usages of Place of Delivery. Contracts for the delivery of cargo are presumed to have been made with reference to the reasonable usages of the place of delivery. The Richmond, i Biss. 49. 20 Fed. Cas. No. 11,796; Field v. Lovctt Peacock, 9 Fed. Cas. No. 4768 ; Irzo v. Perkins, TO Fed. 779; The .Mill Boy, 13 Fed. 181 ; The Grafton. OIc. 4.^ 10 Fed. Cas. No. 5656; I Blatchf. 173. lO Vol. I Fed. Cas. No. 5657; Bradstreet v. Heran, Abb. Adm. 209, 3 Fed. Cas. No. 10.792; The Boston, i Low. 464, •? Fed. Cas. No. 1671 ; Higgins v. U. S. Mail S. S. Co., 3 Blatchf. 282, 12 Fed. Cas, No. 6469; Devato z>. 823 Barrels Phimliago, 20 Fed. 510. 50. The Staincliffe. 15 Fed. 350. 51. Petrie v. Heller, 35 Fed. 310. 52. Treadwell "'. Joseph, i Suin. 390, 24 Fed. Cas. No. 14,157. 53. Spencer v. Kellev, ^2 Fed. 838. 54. Carleton v. Davis. 2 Ware 225, 5 Fed Cas. No. 241 1; Stout v. Weedin, 95 Fed. looi. 55. Plummer ;■. Webb, i Ware 75. 19 Fed. Cas. No. 11.234. 56. Failure to Inspect Stanchion. In the absence of evidence of care to inspect the stanchion, the fasten- ings of which were insecure, for injury to the stevedore from its un- expected fall, he being ignorant of the insecurity, the vessel is respon- sible. Tlie William Branfoot. 48 Fed. 914. 57. TJnlighted Lanterns The ship is rcs]>onsible for the unlighted condition of the passage-way while coaling, although supplying lanterns, without using care to see that they were lighted. The Saratoga, 87 Fed. 349. ADMIRALTY. 275 a person injured by a tug in freeing Ijarges for tow, to sliow the negligence of the tug/*' and is upon a laborer eniploj-ed in stowing cotton in the hold of a ship, injured by the rolling against him of bales of cotton lowered by the winchman. to prove the incom- petence or gross negligence of the winchman in order to charge the shi]) for the injury. ■'■' A libellant suing for negligence does not have the burden to ])rove his freedom from contributory fault.'"'" IV. JUDICIAL NOTICE. 1. Laws and Regulations. — Courts of admiralty will take judicial notice of regulations of the light-house board made upon authority of an act of Congress,"' and that laws of the sea have been recog- ni;:ed and acquiesced in by the jirincipal commercial states of the world,''- and that a rule of international law exempts fishing vessels from capture as prize, in the absence of a treaty or public act of the government :'•■' the supreme court will take judicial notice of a treaty, in pursuance of which a decree in admiralty, correct when made, will be reversed and restoration decreed as provided in the treaty:"* but. an appellate court will not take judicial notice of a rule of supervising inspectors, which the lower court held to have been violated.*" A foreign statute caimot be judicially noticed,"" but must be offered in evidence and be made part of the record upon appeal."' 58. Burden Not Sustained The Imrdeii is not sustained when the testimony of the tug's crew leaves the evidence equally credible on liotli Mdes. The Meta. 88 Fed. 2i. 59. Incompetence of Winchman. Tlie incompetence of a winchman whose duties required skill cannot relieve a ship-owner from liability for the injury on the ground that he was a fellow-servant where the ship- owner did not use reasonable care to provide a skillful winchman. The Anaces, 96 Fed. 856. 60. The Frank and Willie, 45 Fed. 494. 61. Rules Prescribing Lights. Rules prescribing the number and kinds of lights to be placed on the draws of bridges across navigable streams were iudicially noticed, though not pleaded nor ofifered in evidence. Smith v. City of Shako- pee. 103 Fed. 240. 62. Recognition of Historical Fact. — Tliis is only a recognition of the historical fact that, by common consent of mankind these rules have been acquiesced in as of general ob- servation ; the law of nations may be judicially noticed and need not be proved as facts. Sears r'. The Sco- tia, 14 Wall. 170. 63. Works of Jurists The works of jurists and commentators on international law are resorted to by the courts for trustworthy evi- dence of what that law really is. The Paquete TIabana. 175 U. S. 677. 64. Treaty Affecting Rights of Parties A treaty is the law of the land, and where it affects the rights of parties litigating in court, the treaty binds those rights and is as much to be regarded by the court as an act of Congress, and a vessel cannot be condemned, the restora- tion of which is directed by the treaty. The Peggv, I Cranch 103. 65." The Clara, SS Fed. 102. 66. Sears •;■. The Scotia. 14 Wall. 170; The New York, 82 Fed. 81Q. 67. Insufficient Certiiicate The statement of the clerk that a foreign statute returned upon appeal is a correct copy of the statute as pub- lished without any showing that it was made part of the record by Vol. I 276 ADMIRALTY. 2. Notorious Facts. — The courts will take judicial notice of the notorious course of travel between a neutral port and blockadetl ports,"** and that certain persons have been notoriously engaged in violating a blockade;"" they will take judicial notice of historical facts, and consult public documents and histories in determining such facts." They will take notice that American gold coin became an article of merchandise and traffic.'^ 3. Navigable Waters. — Courts of admiralty will take judicial notice that the waters on which a maritime contract is to be per- formed are navigable,'" and that the yachting season in northern waters ends before the first of November."" .4. Lease of Vessel. — Judicial notice will be taken that, under a lease of a sailing vessel for ninety-nine years, the vessel will have fallen apart, and that the owner will be dead before the expiration of the term.'^ 5. Location of Places. — Upon a libel against a ferry-boat cross- ing East River from Astoria to New York, the court will judicially notice that Astoria is on Long Island, and that its inhaliilants have commercial relations with other states."^ The court will judicially notice the situation of a town in a foreign country which lies at the mouth of the river wdiere a bar exists which the vessel in suit could not cross.'" 6. Showing of Facts Judicially Noticed. — The claimant of a lien for wages may bring tiefore the court facts judicially known, which do not appear in the libel, in an allegation attached to exceptions."" being offered and received in evi- dence will not entitle it to be con- sidered. The New York, 82 Fed. 819. b8. The Mersey, Blatchf. Pr. Cas. 187, 17 Fed. Cas. No. 9489; The William H. Northrup, Blatchf. Pr. Cas. 23s. 29 Fed. Cas. No. 17,696; The Stephen Hart, Blatchf. Pr. Cas, 387, 22 Fed. Cas. No. n.,364 : The Peterhoff, Blatchf. Pr. Cas. 463. 19 Fed. Cas. No. 11.024. 69. The Minna, Blatchf. Pr. Cas. 333. 17 Fed. Cas. No. 9634. 70. U. S. V. 1500 Bales of Cot- ton, 27 Fed. Cas. No. 15.958. 71. Current History. —The court in 1868 took judicial notice of the fact that gold coin was no longer used as money in the business of the country, but had become an article of merchandise and traffic. U. S. t'. American Gold Coin, i Woolw. 217, 24 Fed. Cas. No. 14,439. 72. Lands t'. Cargo, etc. of Coal, 4 Fed. 478; King t. .-Xmerican Transp. Co., i Flip. i. 14 Fed. Cas. No. 7787. Vol. I 73. Demurrage. — The allowance of demurrage after the close of the yachting season, of which the court takes judicial notice, without any proof of any use of the vessel there- after, is improper. The Conqueror, 166 U. S. no. 74. The Cygnet. 66 Fed. 349. 75. Commerce With Ferry-Boats. The court will judicially notice that commerce is there carried on with other states by means of the ferry- boats ; and proof that a ferry-boat from Astoria to New York was ready to carry all passengers and freight that might offer, was suffi- cient to throw upon the ferry-boat the burden of proving that they were not destined for otlier states, in order to avoid the provisions of the steamboat act re(|uiring her boiler to be inspected. The Sunds- wick, 6 Ben. 112, 23 Fed. Cas. No. 13.624. 76. The Peterhoff, Blatchf. Pr. Cas. 463, 19 Fed. Cas. No. 11,024. 77. The Seminole, 42 Fed. 924. ADMIRALTY 277 V. COMPETENCY OF WITNESSES. 1. Incompetency. — A; Co.mmox Law Rule. — In the absence of an act of Congress altering the rule of the common law, wit- nesses who were incompetent to testif}' at common law are held incompetent in the instance court of admiralty.^* Interested wit- nesses are excluded excepting in cases of necessity, and state laws allowing the party to testify are inapplicable.'" The master of a vessel is incompetent to prove any matter of defense which origi- nated in his own acts for which he was responsible,*" and is not competent to prove that a medicine-chest was on board the vessel for the purpose of throwing the expense of medical advice on a seaman.'^ B. W'ainek oE Objectiox. — The court will receive the testi- mony of the libellants, if not objected to by the respondents,'*" and an objection that a witness w-as interested cannot be made after the hearing.*" A libellant who, upon the taking of a deposition, cross-examined the witness and read the cross-examination in sup- port of the libel, cannot afterward object to the competency of his testimony in chief for the claimants of the libelled vessel.** 2. Competent Witnesses. — .\. Parties. — An interested party may be examined upon interrogatories, upon demand of the adverse party. *^ Seamen having a common interest in the litigation may testifv for each other,*'' and the testimony of joint libellants in an 78. Testimony of Parties. — The testimony of parties to a suit sliould 1)e taken nnder a special order of tlie court showing the cause, so that, in the order, the court may restrict tlie inquiries within the exceptions to the rule which renders parties in- competent witnesses. The Boston, i Sum. 328, 3 Fed. Cas. No. 1673. Rules of Evidence Admiralty courts are governed by the same rules of evidence as common law courts, as respects the competency of witnesses, where justice does not require a different rule. The J. F. Spencer, 3 Ben. 337. 13 Fed. Cas. No. 7315- 79. The Independence. 2 Curt. 350. 13 Fed. Cas. No. 7014: The .■\ustralia, 3 Ware 240. 2 Fed. Cas, No. 667; The William Jarvis. i Spr. 485, 2g Fed. Cas. No. 17.697. 80. The William Harris, i Ware .^73. 29 Fed. Cas. Nn. 17,695. Forfeiture for Misconduct The master of the vessel is not a compe- tent witness upon an information in rem for a forfeiture occasioned by his misconduct. The Hope. 2 Gall. 48, 12 Fed. Cas. No. 6678. Lost or Damaged Goods hi a suit ill rem against the vessel for the value of lost or damaged goods, the master is an interested and in- competent witness, unless made com- petent by release. The Peytona, 2 Curt. 21, 19 Fed, Cas, No. 11,058, 81. The William Harris, i Ware 373, 29 Fed, Cas. No. 17,695, 82. Ferrara v. The Talent, Crabbe 216, 8 Fed. Cas. No. 4745. 83. Nelson v. Woodruff, i Blatchf. 156. 84. The Osceola, 01c. 450, 18 Fed, Cas, No, 10,602, 85. The Australia, 3 Ware 240, 2 Fed, Cas, No, 667; Gammell v. Skin- ner, 2 Gall, 45, 9 Fed, Cas, No. 5210; The David Pratt, I Ware 509, 7 Fed. Cas, No, 3597 ; Cush- man v. Rvan, i Story 91, 6 Fed. Cas. No, 3515-; The L. B, Goldsmith, Newd). .A.dm, 123, 15' Fed, Cas, No. 8152; The Serapis, i7 Fed. 436. 86. Question of Credibility. — The only question, in such case, is as to the credibility of the witnesses, and not as to their competency. The Elizabeth v. Rickers. 2 Paine 291, 8 Fed. Cas. No, 4353, Vol, I 278 ADMIRALTY. action in rem is admissible, one for the other.'*' Parties are ren- dered competent by permission of the court to strike their names oflf as parties to the action in order that they may testify where good cause is shown therefor;'*'* and parties generally are rendered competent to testify in admiralty cases by the act of Congress of July 12, 1864, giving parties such right in civil actions/^'' In courts of prize, no person is incompetent to testify, merely on the ground of interest."" B. Master of A'essel. — The master of a vessel is rendered competent to testify where his interest in the event of the litigation is released, ''^ and is a competent witness for the owner of the vessel in a suit /)) inn for wages,"- and the master and crew are compe- tent witnesses for the owner of a vessel in case of collision. "■' The master is a competent witness for the owners in a suit for contribu- tion by way of general average, for loss of the mast, sails and rigging of the vessel sacrificed for the common benefit of ship. cargo and freight,"^ and also in a suit by the owners of the vessel against the shippers of cargo for freight, where the defense is that the cargo was never delivered to consignee. '■'■'' C. Other Persons. — An officer who aided in a seizure for vio- lation of the revenue laws, is a competent witness for the govern- 87. Scrutiny of Evidence Sucli testiniDiiy, though legally admissible, ought to be narrowly scrutinized, and received with great caution. Graham v. Hoskins, 01c. 224, 10 Fed. Cas. No. 5669; The Swallow, 01c. 334, 23 Fed. Cas. No. 13.665. 88. The Osceola, 01c. 450, 18 Fed. Cas. No. 10,602. 89. Definition. — The phrase " civil action," as used in the stat- ute, includes all judicial controver- sies in which rights of property are involved, and extends to the trial of a seizure of property for the viola- tion of the internal revenue laws, and the claimant of the property is a competent witness in his own he- half. U. S. V. Cigars, Woolw. 123, 28 Fed. Cas. No, 16.451. 90. Common Law Doctrine Not Applied — It is a mistake to suppose that the common law doctrine as to competency, is applicable to prize proceedings. The testimony of in- terested persons is admissible, sub- ject to all exceptions as to its credi- bility. The Anne. 3 Wheat. 43.';- 91. Bottomry Bond The mas- ter of a vessel wlio gave a bottomry bond, is a competent witness for the owner of the bond, particularly if released by him. The Medora, I Spr. 138, 16 Fed. Cas. No. 9,391 : Furniss v. Magonn, Olc. 55. q Fed. Cas. No. 5163. Release by Some Part Owners .\ release of the master made by some of the part owners of lost or dam- aged goods will render him compe- tent to testify in a suit tn rem to recover their value. The Peytona. 2 Curt. 21. 19 Fed. Cas. No. 11.058. A sale by the master of his interest as part owner of the vessel before suit, and a release to him by his co- owners of all liability to them for re- covery of wages, render him a com- petent witness in an action against the vessel therefor. The Osceola. Olc. 450. 18 Fed. Cas. No. 10.602. 92. The TTudson. Olc. 396. 12 Fed. Cas, No. 6831. 93. The Osceola. Olc. 450. 18 Fed. Cas. No. 10.602. 94. Exception — The case is ex- cepted where the master would be exonerated from some certain lia- bility, provided the owner should prevail. Patten v. Darling, i ClifT. 254. 18 Fed. Ca.s. No. 10.812. 95. Swctt V. Black. T Spr. 574. 23 Fed. Cas. No. 13.690. Vol. I ADMIRALTY. 279 ment."" An informer is made by statute a competent witness at the trial, when he is a necessary witness."'' VI. MODE OF TAKING EVIDENCE. 1. Oral Testimony. — A. ri;i;.Missir,iLiTV. — t)ral testimony is not permissible in prize cases, ""^ bnt is permitted in proceedings in admiralty generally by Section 30 of the Judiciary Act.''-' B. Mode of Taking Down. — Oral evidence in an admiralty case should be taken down in the narrative form, and not by ques- tions and answers.' C. Or.\l Cross-examination.- — The oral cross-examination of witnesses on a commission sent abroad may be allowed on condition of waiving irregularity in the motion for the commission. - D. Oral Enidknce; in the Supreme Court. — Oral evidence may be used in the supreme court in an admiralty proceeding to prove the value in a matter of dispute,^ liut it cannot be used as further evidence in the cause.'' 2. Affidavits. — A. In Prize Causes. — Atifidavits of ownership are used in jirize causes,'' and the want of regular evidence in such causes may be supplied by the affidavits of the captured crew, in a proper case." B. Aefid.-wits of Merits. — An affidavit of merits, or a sworn answer showing merits, is required in order to set aside a default in an admiralty case.' The rule of courts of law that affidavits of merits should be made by the parties is not inflexible in admi- ralty, and such affidavits mav be made by the attorney or proctor upon good cause shown.' Where affidavits are conflicting as to the 96. Contingent Interest. — The is within reach of the court in a contingency that trespass would be cause of admiralty jurisdiction brought against the officer for the should give his testimony in open seizure is too remote to sustain the court, unless his deposition is taken objection of incompetency. U. S. i'. by order of the court. The Samuel, 25 Cases of Cloth, etc., Crabhe 35'6, i Wheat. 9. 28 Fed. Cas. No. 16.562. 1. The Syracuse. 6 Blatchf. 238, 97. Necessity a Question for the 23 Fed. Cas. No. 13,718. Court Of the necessity of the in- 2. The Louisiana, i Ben. 328, 15 former's becoming a witness, the Fed. Cas. No. 8536. court is to judge, after hearing the 3. U.' S. r'. Brig Union. 4 Cranch evidence in the case, and the deposi- 216. lion of the informer, taken before 4. The Samuel, 3 Wheat. 77. the trial, is not admissible. The 5. The Schooner Adeline, g Thomas and Henry, i Brock, 367. 23 Cranch 244; The Grey Jacket, 5 Fed. Cas. No. 13,919. Wall. 342, i Wheat. .-Xpp. =;oo. 98. The George, 2 Gall. 24Q. 10 6. The .\rabella. 2 Gall. .368. i Fed. Cas. No. 3327. Fed. Cas. No. 501. 99. Provision of Judiciary Act. 7. Matters of Opinion. — An affi- The .^oth section of the judiciary act davit of merits setting forth matters directs that "the mode of proof by of opinion is not sufficient. Scott v. oral testimony and the examination The Young .America, Newh. 107. 21 of witnesses in open court, shall be Fed. Cas. No. 12.550. the same in all the courts of the 8. Authority of Proctor. — A United States." and a witness who proctor in admiralty is in many cases Vol. I 280 ADMIRALTY merits of the cause, a motion to discharge the respondent from arrest on the ground that there is no cause of action against him, cannot be granted." C. Other Affiu.wits. — A proctor may make affidavit upon a motion to file adchtional security for costs. ^" An affidavit must be made to show the exchision of a witness which is not reported by the master to whom the cause was referred, and to show to the court the testimony expected to be given by such witness." An affidavit of the respondent cannot be used upon the hearing of an exception to the libel,'- nor can affidavits be used to support a motion to discharge property from custody. '■' Affidavits may be used in the supreme court to prove the value of the matter in dis- pute,'* but cannot be used as further proof tmless taken upon com- mission.'^ 3, Depositions. — A. Rulks of Practice. — A court of admiralty is not required liy Section 886 of the Revised Statutes, to conform to the practice of the state courts in taking depositions, and it may by rule provide a different method of taking them.'" B. Depositions de Bene Esse. — Depositions dc bene esse may be taken in the district and circuit courts in admiralty cases," but cannot be taken upon appeal to the supreme court,"* or to the cir- clothcd witli all tlie authority of the party himself, and courts of admi- ralty admit proctors to all the func- tions of attorneys-at-la\v, and they may make affidavits on motions inci- dental to the suit, when the facts cannot he supposed to be peculiarly within the knowledge of the party. The Harriet, Olc. 222, 11 Fed. Cas. No. fx396. 9. Wicks z: Ellis, Abl>. .\dm. 444. 29 Fed. Cas. No. 17,614. 10. The Harriet. Olc. 222, 11 Fed. Cas. No. 6096. 11. Object of Affidavit. — Such affidavit is required in order that the court may know whether the ex- cluded testimony would be independ- ent evidence, or only cumulative. The New Philadelphia, i Black 62. 12. Prince Steam Shipping Co. v. Lehman, 39 Fed. 704. 13. Ownership, How Determined. The question whether the property sought to be discharged upon affi- davits, is the property of the United States, cannot be determined upon affidavits, Imt should be raised by claim and answer. Cartwright v. The Othello, i Ben. 4^. 5 Fed. Cas, No. 2483. 14. Appeal in Collision Case. Upon appc.-il in a collision case, to Vol. I the supreme court, leave was granted to the appellants to make proof of the jurisdictional value by affidavits. The Grace Girdler, 6 Wall. 441- 15. The London Packet, 2 Wheat. 16. Rule in Admiralty Under a rule in admiralty of a district court, which permits parties to attend the examination of witnesses whose testimony is taken on commission, either personally or by their proc- tors, if the adverse party desires to be represented he should furnish the name and address of his representa- tive to the party taking out the com- mission or to the commissioner, in order that lie may be notified. The Westminster. 96 Fed. 766. 17. The Argo, 2 Wheat. 287 ; The London Packet, 2 Wheat. 371 : The Samuel. 1 Wheat, g; The Osceola, Olc. 450, 18 Fed. Cas. No. 10,602. 18. Unauthorized Practice — The 30th section of the judiciary act of 1789 as to taking depositions dc bene esse, applies in terms only to cases in the district and circuit courts, and not to cases pending in the supreme court : but an unauthorized practice had prevailed prior to this decision, to take depositions de bene esse in ADMIRALTY. 281 cuit court of appeals.'-' Such a deposition cannot be taken in a foreign countr)'.-" A deposition dc bene esse cannot be taken mereh- because of the habiHty of the witness to be ordered out of the reach of the court.-' Such a deposition can only be used upon proof that the attendance of the witness cannot be procured upon the trial, and is not evidence-in-chief. '" The waiver of objection to a deposition de bene esse, does not make it a deposition-in-chief.-'' C. Commission to Take Depositions. — No commission is allowable to take depositions in an enemy's country in prize cases,-* but in admiralty cases generally, commissions are issued to take evidence in foreign countries.-'' Commissions must issue to take depositions for use as further evidence upon appeals in admiralty- cases.-" D. Objections to Depositions. — A deposition taken before the clerk of the court to the knowledge of the objecting parties will be admitted in an admiralty case, notwithstanding objections that there was no preliminary proof of the materiality of the evidence, and that it was not proved that the commission was sealed up, and causes there pending, and because- of this unaulliorized practice, leave was given to take the testimony in due form, luider commissions in the su- preme court, where depositions dc bene esse according to the usual practice were objected to. The .■\rgo, 2 Wheat. 287. 19. The Becche Dene. 55 Fed. jjn. 20. Tlie .McNaiKh-a, 104 Fed. 904. 21. Unauthorized Deposition. — .\ deposition dc liciic esse not author- ized by tlie terms of the judiciary act nor by any order of tlie court, is inadmissible in evidence. The Sam- uel, I Wheat, g. 22. The Samuel, i Wheat, g. Proof Required ,\ party who offers a depositioi-i dc bene esse in evidence, must show that the requi- sites of the judiciary act have been complied with, and that the depo- nent is out of reach of the court, as provided in the act, and unless he does this, the deposition cannot be read. Thomas and Henry, i Brock. .^67, 23 Fed. -Cas. No. i.^gig. 23. Construction of General ■Waiver The general waiver of objection to the deposition de bene esse must be understood as extend- ing the waiver to the deposition only in the character in wbich it was taken, and not as imparting any new character to it. The Thomas and Henry. I Brock. 367, 23 Fed. Cas. No. I ?,9ig. 24. The Diana, 2 Gall. g^. 7 Fed. Cas. No. 3876. 25. -Waiver of Irregularities. Where there were irregularities in a motion made by the claimant for a commission to examine witnesses abroad, and the libellants offered to waive such irregularities, provided the claimants would permit them to cross-e.xamine the witnesses orally, the court issued a commission allow- ing them to do so. The Louisiana, I Ben. 328, 15 Fed. Cas. No. S536. Appointment of Commissioner. Upon application for a commission to take a deposition abroad, if no other person is known wdio could act as commissioner, the wife of the wit- ness may be named by the court as commissioner. The Norway, 2 Ben. 121, 18 Fed. Cas. No. 10,358. -Witnesses Not Named in Commis- sion The testimony of the wit- nesses whose names were not in- serted in a commission to take testi- mony abroad, may be taken if it is satisfactorily proved after return of the deposition that their names and materiality were not known when the commission was sued out and transmitted. The Infanta, i Abb. Adm. 263, 13 Fed. Cas. No. 7030; The Diana, 2 Gall. 93, 7 Fed. Cas. No. 3876. 26. The Louisiana, i Ben. 328. Vol. I 282 ADMIRALTY. that no notice was given of its liling.-" A libellant who submitted to an objection to a deposition at the trial, on being allowed a continuance with leave to re-examine the witness, cannot long afterwards use the same deposition objected to.-'* A motion to suppress depositions must be promptly made after they have been returned to the court.-" The depositions of witnesses for a claim- ant will not be suppressed because taken before answer, if prejudice to the libellant does not appear.^" E. Use oi' Deposition Upon Anotukk Libel. — A deposition taken upon a libel for a collision on behalf of the owners of the injured vessel, libellants, is not admissible upon a libel for the same collision by the master of the vessel on behalf of the cargo owners."' Depositions taken without notice to the defendants in another suit for collision, though involving the same questions as upon the second libel, are not admissible where the defendants are not the same and had no right or opportunity to cross-examine the wit- nesses, especially where no reason appears why the witnesses were not introduced in person. ^- 4. Reference to Commissioners. — A. Cases for Referknce. The court will refer causes in admiralty to commissioners or ref- erees for their opinion and advice on questions of fact,"'"' or questions of nautical skill. "'^ or to state an account.''^ or accertain flamages,^" 27. The Argo, 2 Wheat. 287 ; The London Packet, 2 Wheat. 371 ; The Beeche Dene, 55 Fed. 526 ; The GHde. 68 Fed. 719. Sufficiency of Acts of Clerk. Where the clerk of the court was the commissioner wlio filed the deposition in the clerk's office, it need not be sealed up and directed to the clerk, and where it was marked " filed " in the clerk's office and the usual order was then en- grossed upon the minutes that the deposition be filed and opened, the failure of the libellants to give for- ma! notice of the act of filing to the respondent's proctor only leaves to the latter the burden of disproving the regularity of the proceedings. Nelson 7'. Woodrufif. i Black 156. Presumption of Order for Commis- sion Where both parties joined in the execution of a commission is- sued in the usual form by the clerk of the court, it must be presumed that an order for the conunission was entered or waived. Rich v. Lambert. 12 How. .147. 28. The Emulous, 24 Fed. 43. 29. Smith r-. Serapis, 49 Fed. 393. 30. The Pride of the Ocean. 10 Ben. 610. 19 Fed. Cas. No. 11.419. Vol. I 31. The John H. Starin, g Ben. 331, 13 Fed. Cas. No. 7351. 32. Rutherford v. Geddes, 4 Wall. 220. 33. Lee v. Thompson, 3 Woods 167, 15 Fed. Cas. No. 8202. 34. Reference to Expert Commis- sioners Where the rights nf par- ties depend upon questions of nauti- cal skill or seamanship in the man- agement of a vessel, the court may refer the subject to persons skilled in navigation, and act upon their re- port thereon. The Emilv. Olc. 132. 8 Fed. Cas. No. 4,453. 35. Shaw V. Collyer, 4 Blatchf. 370, 21 Fed. Cas. No. 12,718. 36. The Ship Shand, 4 Fed. 925; The Lively, i Gall. 315, 15 Fed. Cas. No. 8403: Murray v. The Charming Betsey, 2 Cranch 64; The Baltic. 3 Ben. 195, 2 Fed. Cas. No. 824 ; Howe I'. The Lexington, 12 Fed. Cas. No. 6767b ; The Narragansett, Olc. 388, 17 Fed. Cas. No. 10.020; Farre'll v. Campbell, 7 Blatchf. is8, 8 Fed. Cas. No. 4682; Taber v. Jenny, I Spr. 315, 23 Fed. Cas. No. 13,720; Ross V. Southern Cotton Oil Co., 41 Fed. 152; The Transit, 4 Ben. 138. 24 Fed. Cas. No. 14,1,38; The Beaver, 8 Ben. 594; 3 Fed. Cas. ADMIRALTY 283 or to take the testimony. ■■' U. Proceedings. — a. Time for Taking Ei'idcncc. — A limited time for closing all evidence before the commissioners, tixed by order of the court, will be enlarged upon proof of new evidence which the party could not prociTVe to be taken within the time limited. -'^ b. Mode of Procedure. — The proceedings on a reference to a commissioner to compute damages in a collision case are to be con- ducted in the manner usual on a reference in chancery ;■■" but com- missioners appointed to state damages in a case of illegal capture, are subject to common law rules. ^" c. Reception of Evidence. — Commissions appointed to state damages should not hear c.v parte evidence without notice to the other party.'" L'pon an order of reference to a commissioner to ascertain damages, a statement by the court as to a fact affecting the amount of damages, and not material to the question of lia- bility, is not binding, and does not preclude either party from introducing any competent evidence before the con.imissioner as to the extent of the damages. ■*" d. Control of Proceedings bv Court. — If the commissioner refuses to allow a witness to testify before him, application should be made to the court to control the proceedings upon a certificate of the commissioner, prior to the report of the commissioner,""^ and a statement of the commissioner in his report of the refusal of a witness to testify before him will be disregarded by the court.''* On a reference to the master to take evidence, where a witness was not allowed to testify before him, whose exclusion was not reported Xo, 1200; Panama R. Co. v. Napier Shipping Co.. 6i Fed. 408. Questions Not Submitted. — Tlie conrt will not hear qnestions arising on a reference to tlie commissioner to compute damages, at the instance of tlie parties, unless they have suh- mitted them to the commissioner, and he has decided them, or de- clined to do so. The E. C. Scran- ton. 2 Ben. 81. 8 Fed. Cas. No. 4271. Legality of Order of Reference. The legality or propriety of an order of reference to ascertain damages cannot be impeached upon exception to the commissioner's report. The Rhode Island, I .\bh. .\dm. 100, 20 Fed. Cas. No. 11.74J. 37. Power of Court. _ The court of admiralty, whenever it deems it necessary or expedient, may refer a cause to a commissioner to take tes- timony ; and it is not necessarj-v when the cause is referred to the clerk as such commissioner, to assign any especial reason for such refer- ence. The Wavelet. 25' Fed. 733 ; The SalHe P. Linderman, 22 Fed. SS7: The New Philadelphia, i Black ■1,62 ; Puget Sound Machinery Depot V. The Guy C. Goss. 53 Fed. 826. 38. The Ruby. 5 Mason 451, 20 Fed. Cas. No. 12,10?. 39. The E. C. Scranton. 2 Den. 81. 8 Fed. Cas. No. 4271. 40. The Lively, i Gall 315. 15 Fed. Cas. No. 8403. 41. The Lively, i Gall. 315. 15 Fed. Cas. No. 8403. 42. Tlie Ship Shand. 4 Fed. 925. 43. Application to Court Ap- plication to the court in the case of any improper or irregular proceed- ings by a commissioner, or to con- trol the proceedings before Iiini, can only be had on a certificate as to his proceedings. The E. C. Scranton, 2 Ben. 81. 8 Fed. Cas. Xo. 4271. 4 Ben. 127, 8 Fed. Cas. Xo. 4272. 44. The Peterhoff, Blatchf. Pr. Cas. 463, ig Fed. Cas. Xo. 11.024. Vol. I 284 ADMIRALTY. l)y the master, proof must be made to the court of such exchision and of his proposed testimony.'''' e. Objections to Evidence. — An objection to tlie mode of proof before a commissioner should J#e taken at the examination, or it will be considered waived.'"'' Ubjection to the admission of evi- dence before the commissioner cannot be raised by exception to his report.''" A neglect at the trial to object to the competency of evidence is a waiver of the right to object to the same evidence upon a subsequent reference to the clerk.'"' Exceptions to evidence before the commissioner, not accompanied b}- report of the evidence objected to, cannot be noticed.''' f. Report of Conuitissioners. — Commissioners appointed to assess the amount of damages in a case of illegal capture, should make a special report, stating the items in detail.'"'" The clerk's report in matters referred to him should state. facts and conclusions, and not detail the evidence at length.''' A report of a commissioner ap]3ointed to ascertain the amount due to the libellant, need not detail the allowances, unless a specification is demanded. ^- g. Objections to Report. — .\n objection to the report as to the amount of damages in an admiralty case cannot be taken by argu- ment.''^ Upon a new trial upon appeal, the appellant may object to damages found by a commissioner in the district court, though not there objected to.''' The credibility and reliability of witnesses cannot be investigated on exceptions to the report unless the objec- tions rest wholly on questions of law.''-'' C. Decision of Commissioner. — The decision of the commis- sioner on questions of fact is not conclusive.'''" and will be reversed when clearl}' erroneous :^~ but the court will adopt the conclusion of the commissioner where the testimony conflicts unless there is 45. Tlie New Philadelphia, i any explanation of the principles on Black ,?62. which that .sum was allowed by the 46. The Elizabeth, Blatchf. Pr. commissioners are improperly al- Cas. 2;o, 8 Fed. Cas. No. 4350. lowed. Murray ;■. The Charming 47. "The E. C. Scranton. 4 Ben. Betsey. 2 Cranch 64. 127, 8 Fed. Cas. No. 4272; The Tran- 51. The Trial, i Blatchf. & H. sit. 4 Ben. i-?8. 24 Fed. Cas. No. 94, 24 Fed. Cas. No. 14,170. T4.1.38; The Emily, 4 Ben. 235, 8 58. Mitchell r. Kelsev, 17 Fed. Fed. Cas. No. 4451. Cas, No. 9663. 48. The Trial,' Blatchf, & H. 04. 53. Howe r. The Le.xington. 12 24 Fed. Cas, No. 14.170. Fed, Cas, No. 6767b. 49. Indefinite Exceptions. _ In- 54. Farrell r. Campbell. 7 Blatchf. definite exceptions to the admission 158. 8 Fed. Cas. No. 4682; Ross or exclusion of evidence, or to its j.^ Southern Cotton Oil Co. 41 Fed. insufficiency, not properly explained jj^. by evidenc'e, must be rejected. The "55 ^^^^.j^,, ,, q.,,^. Commandcr- Commander-m-Ch.ef. i Wall. 43- i„-Chief, 4 Fed, Cas, No, 2215. 50. The Lively. I Gall. 315. 15 .„ ' ^ „, ,,, . Fed. Cas. No. 8403. /^- L4^%^'^°"t'P'"«"' ^ ^°"''' Improper Assessment of Damages. '"z. 15 red. Las. No. 8202. Damages assessed as a gross sum 57. The Cayuga. 59 Fed. 483. 8 without any 'specification of items or C. C. .\. 188. Vol. I ADMIRALTY 285 a clear preponderance of evidence,''" or palpable error appears."'" D. Mu'noN TO DiSiMiss i'ok Want of Eviuicxcu. — Where the libellant rested his proof before the commissioners without notice of further proof, whereupon the claimant filed a motion to dismiss for want of evidence, and without then submitting the motion to the court, but upon notice that it was not waived proceeded with his evidence, the claimant is entitled to have the motion decided by the court on the evidence in chief for the libellant, unaided by evidence adduced by the libellant on cross-examination of claimant's wit- nesses, or in rebuttal.''" E. Taxation of Testimony. — Under the revised statutes, upon the reference of an admiralty case to a commissioner to take testi- mony, the testimony of each witness is to be considered as a depo- sition, and is taxable as such.''' VII. DOCUMENTARY EVIDENCE. 1, Official Certificates. — A. Originals. — The official certificate of a notary is competent evidence in admiralty to prove the making of a marine protest and its contents."- The commission of a public ship, signed by the proper authorities of a nation to which she belongs, is complete proof of her national character."'' The certifi- 58. Holmes v. Dodge, Abb. Adm. 6o, 12 Fed. Cas. No. 6637 ; Panama R. Co. V. Napier Shipping Co., 61 Fed. 108. Decision by Experts. — Where a case in rem is referred to e.xperts to ascertain and report upon facts appertaining to their calling or ex- perience, their decision will be adopted, unless there is a manifest preponderance of testimony against it. The Isaac Newton, .^bb. .Vdm. 588, 13 Fed. Cas. No. 7090. Decision Upon Maritime Lien. Where the right to a maritime lien for supplies depends on questions of fact, such as whether the supplies were ordered by the master and fur- nished on the credit of the vessel, and the evidence is conflicting, the finding of the commissioner thereon, who heard and saw the witnesses, will not be disturbed. The John AIc- Dermott, 109 Fed. 90. 59. The Narragansett. Olc. 388, 17 Fed. Cas. No. 10.020; Panama R. Co. z: Napier Shipping Co., 61 Fed. 108, 9 C. C. A. 533. 60. Puget Sound r^Iachinerv De- pot V. The Guy C. Goss, ii Fed. 826. 61. Proctor's Affidavit. — The proctor's affidavit to expenses ac- tually incurred, is not sufficient, if objected to, to support a ta.xation by the clerk. The Sally P. Linderman, 22 Fed. 557. 62. Deposition Not Required. The examination of the notary upon a deposition under a commission is not required as additional proof. The Gallego, 30 Fed. 271. Protest of Master of 'Vessel. Where a protest was certified by the master of a vessel, a copy thereof, which the master when called as a witness, did not dispute, is admissible evidence. The Vivid, 4 Ben. 319, 28 Fed. Cas. No. 16,978. 63. Absolute 'Verity of Commis- sion. — Mr. Justice Story, deliver- ing the opinion of the court, said : '' The commission, there- fore, of a public ship, when duly authenticated, so far at least as foreign courts are concerned, imports absolute verity, and the title is not examinable. The property must be taken to be duly acquired and cannot be controverted. This has been the settled practice between nations ; and it is a rule, founded in public convenience and policy, and cannot he broken in upon, without Vol. I 286 ADMIRALTY. cate of a consul in a foreign port, that a seaman was discharged by his consent, is conclusive evidence, if not assailed for fraud;"* but a consular certificate of the discharge of a seaman, on applica- tion of the master, is only prima facie evidence of the facts stated therein,. as against the seaman."' B. CiiKTiFiED Copies. — The proceedings of a vice-admiralty court of a foreign nation, certified to be a true copy from the record, are sufficiently verified to be admitted in evidence by proof of the hand-writing of the judge and the register of the court to the certificate.''''' Certified copies of documents relating to the condem- nation and sale of a vessel, certified by the British consul to be copies of official documents on file in his office, and provecl by depo- sitions before the trial, are admissible in evidence."" C. Best Evidence. — The certificate of a consul is not the best evidence of any unofficial act, or of any act not performed by himself."* A paper certified by a consul to be a true copy of a endangering the peace and repose, as well of neutral as of belligerent sovereigns. The commission in the present case is not expressed in the most equivocal terms ; but its fair purport and interpretation must be deemed to apply to a public ship of the government. Tlie Santissima Trinidad. 7 Wheat, 28,?. Commission of Unacknowledged Government. — The seal to the com- mission of a new government not acknowledged by the government of the United States, cannot prove it- self ; but the fact that a vessel cruising under such commission is employed by such government, may be established by other evidence, without proving the seal. U. S. v. Pahner, 3 Wheat. 610. Cited also in The Estrclla, 4 Wheat. 298. 64. Showing of Consent Essen- tial The discharge of a seaman in a foreign port by the consul can only be certified upon the consent of the seaman given or proved before him and the party relying upon such discharge in defense to an action for subsequent wages, must show that such consent was given. Lamb V. Briard, Abb, Adm. 367, 14 Fed. Cas. No. 8010; The Atlantic. Abb. Adm. 451. 2 Fed. Cas. No. 620. 65. Effect of Certificate of Dis- charge If such certificate of dis- charge was granted by the consul for a cause sanctioned by the usages and principles of maritime Vol, I law, as recognized in the United States, the payment of the wages then earned bars future wages ; but the certificate being only prima facie evidence of the material facts stated, in a suit for wages for the unper- formed part of the voyage by the discharged seaman, it may be proved that the discharge was illegal or without sufficient cause. The F. F. Oalcs, 36 Fed. 442, Fraud of Master If the master fraudulently procures a certificate of discharge by a United States consul in a foreign port, he can claim no benefit or immunity under it. Tingle V. Tucker, i Abb, Adm. 519, 23 Fed. Cas. No. 14.057. 66. Mumford v. Bowne. .Anthon S6. 67. The J. F. Spencer, 3 Ben, 337. 13 Fed, Cas, No, 7315, 68. Certificate As to Ship's Pa- pers. — The certificate of tlie Amer- ican consul at a foreign port under his seal of office, that the ship's papers were lodged with him, agree- ably to the requisitions of the embargo law, is good evidence of that fact, but not of other facts stated in it- U. S, v. Mitchell, 2 Wash. 478, 26 Fed. Cas, No. 15,791. Certificate As to Penalty — The certificate of a consul is competent to remit a penalty due (he United States, but is not evidence of acts which arc not official nor within his personal knowledge. Brown v. The ADMIRALTY. 287 bill uf lading is not admissible, though the part)' had but one original.'' ' An attested copy of a bottomry bond executed in a for- eign country, is not the best evidence ; but the court will continue the cause to allow the original to be produced.'" The commission of a vessel cruising under a foreign government, which was lost with the vessel, may be proved by oral evidence. '^ A verified cer- tificate of a foreign justice is not the best evidence in favor of the captors of the vessel, but an authenticated copy must be produced. '- W here original shipping articles proved before a commissioner were redelivered to the vessel, which proceeded on its voyage, a copy thereof, certified by the commissioner, is competent evidence.'-' 2. Documents Pertaining to Vessels. — A. Log Book. — The log book of a vessel is not per sc proof of the facts stated therein, except as provided by statute ;'^ but entries in a ship's log made with full knowledge and opportunity of ascertaining the truth, are admissible proof thereof, against the party making them.'^ A log book stating a desertion by seamen is not conclusive evidence thereof."" The log book of a vessel is admissible evidence of the liulepeiidence, Crabbe 54, 4 Fed. Cas. Xo. 2014; The .\lice, 12 Fed. 923. Authority of Consul's Certificate. A consul's certificate of any fact is not evidence between third persons unless expressly or impliedly made so by statute- Leby v. Burley, 2 Sum. 355', 15 Fed. Cas. No. 8300. 69. The Alice, 12 Fed. 923. 70. The Jerusalem, 2 Gall. 191, 14 Fed. Cas. No. 729^ 71. The Eslrella. 4 Wheat. 298. 72. Presumptive Evidence for Claimants. — The rule of evidence which applies forcibly against the captors, does not apply to the claim- ants, and the sworn certificate has the force of presumptive evidence in their favor. Miller z'. The Sliip Resolution. 2 Dall. 24. 73. Henry v. Currv, .\bb. .\dm. 43,3. II Fed. Cas. No. 6381. 74. A Log Book Kept by the Master is not evidence upon an in- dictment for confining the master. U. S. V. Sharpe, Pet. C. C. 118, 27 Fed. Cas. No. 16,264; U. S. v. Gil- bert, 2 Sum. 19, 25 Fed. Cas. No. 15,204; Jones V. The Phoenix, i Pet. .\dm. 201, 13 Fed. Cas. No. 7489; Worth V. Mumford, i Hilt, i. 75. Statement Binding Upon Of- ficers of the Vessel. — Tlie testimony r>f the officers of a sailing vessel, that certain ropes were in good con- dition at the time of an accident resulting from the parting of the ropes, will not prevail over a state- ment in the ship's log that they were in bad condition. The Lamington, 87 Fed. 752.^ An entry in the ship's log book, if it tells against the party making il, must be accepted as the truth, and can no more be denied than a deed. The Newfoundland, 89 Fed. 510. 76. Log Book Not Conclusive. If the log book states a desertion, it may be repelled by proof of the falsity of the entry, or its being made by mistake. Orne v. Townsend, 4 Mason 541, 18 Fed. Cas. No. 10,583. The entry in the log book is not conclusive evidence, and is to be admitted in support of no circum- stances, but those stated in Act April 23, 1800 (2 Stat. 48) which makes it legal evidence in proof of desertion. Jones V. The Phoenix, i Pet. Adm. 201, 13 Fed. Cas. No. 7489. In order that a ship's log book may be admissible in evidence in a proceeding for the statutory forfeit- ure of a seaman's wages for deser- tion, under Act Cong., July 20, 1790 (i Story Laws, p. 102, §§2, 6), pro- viding that absence without leave of master or officer commanding the ship, for 48 hours, if the fact is entered on the log book on the day when the seaman leaves, is a forfeit- ure of wages, the entry on the log liook must be in strict compliance with the statute : and an entry that Vol. I 288 ADMIRALTY. time of her arrival at and departure from a port.' ' Written entries by the captain in a memorandum book, made a month later from alleged original entries in pencil, erased, are not entitled as evidence to be considered as a log book properly kept." A log book to be admissible in evidence must be sufficiently identified.^'' A clause in the British Shipping Act making certain entries in the official log book competent evidence in all courts does not make them such in the courts of this country.**" B. Pkotusts. — The protest of the master of a vessel may be given in evidence to corroborate*' or contradict his testimony;*'' but where the protest is a mere narration of bad weather met with, it cannot be received as evidence for himself or his owners.*' A protest is not evidence to show that the captain is not charge- able with the loss of cargo.** The protest of a charterer against the men abandoned the ship, is not sufficient, since the fact that the men left the vessel without leave must be entered distinctly. Worth z: jMumford, i Hilt. i. To prove the absence of a seaman for 48 hours without leave as evi- dence of desertion under the stat- ute, a proper entry in the log book is indispensable, though not conclu- sive evidence. The entry, to support the statutory forfeiture, must be made the day the absence takes place ; and it must state the name of the seaman against whom the forfeiture is pro- posed to be enforced. The Rovena, I Ware 313, 20 Fed. Cas. No. 12,090. An entry of desertion in a ship's log book is not admissible in evi- dence to show a general maritime desertion. 77. Sniallwood v. Mitchell, 2 Hayw. 145. 78. Original Entries. — Such written entries are not entitled to be considered as evidence of the con- temporaneous original entries. Brink J'. Lyons. 18 Fed. 805. 79. Proof of Log Book. — If a log book be oflfered in evidence, it should be proved to be the book report kept on the voyage. It is not suffi- cient to prove the handwriting of the mate as to some of the entries in it. U. S. V. Mitchell. 2 Wash. C. C. 478, 26 Fed. Cas. No. 15,791. In debt on an embargo bond, the log book is admissible, where it has been identified by a witness, though he does not recollect seeing the mate make regular entries in it; it also Vol. I appearing that every exertion has been made to procure the attendance of the mate. U. S. v. Mitchell. ^ Wash. C. C. 95, 26 Fed. Cas. No. 15,792. 80. law of Forum. — The ad- missibility or competency of evi- dence in a legal proceeding pertains to the remedy, and is governed by the lex fori, and therefore a clause of the British Shipping Act of 1854. making certain entries in the official log book competent entries in all courts, docs not make them so in the courts of any other country. The City of Carlisle, 39 Fed. 807. 5 L. R. A. 52. 81. Sampson 7: Johnson. 2 Cranch 107, 21 Fed. Cas. No. 12,281. 82. V. S. V. Sharpe. Pet. C. C. 118, 27 Fed. Cas. No. 16.264. Use of Protest as Evidence. — The protest of the master of a vessel is not evidence per se. It can only be used to impeach the testimony of the master himself, or as inci- dently corroborative of the log book. Straffin v. Newell. T. U. P. Charlt. 172; Lamalere v. Caze, i Wash. 413, 14 Fed. Cas. No. 8002. The protest of some of the crew taken abroad may be read to in- validate their evidence taken under a commission. Winthrop r. Union Ins. Co., 2 Wash. 7, 30 Fed. Cas. No. 17.901. 83. Merriman <■. The May Queen, Ncwb. 464, 17 Fed. Cas. No. 9481. 84. Cunningham v. Butler. 2 Hayw. 392. ADMIRALTY. 289 the action of the vessel in a foreign port, and ex parte depositions in support of the facts therein alleged, are not admissible to estab- lish a controverted fact.*"" The protest of one of the crew of a captured vessel made at the first port arrived at in the United States, and left with the brokers of insurers to fix the date of loss, is admissible for that purpose, but is not evidence of any fact con- tained in it.'*'' C. Shipi'Ing Articles. — a. Admissibility. — Shipping articles, being the proper and usual documents for the ship for the voyage, are, in the admiralty, always admitted as evidence of the terms of hire,*^ though the evidence is not ordinarily conclusive,** and the shipping articles are not the sole evidence of the rights of the sea- men,*" unless the seamen have, with full understanding of its stipu- lations, signed the shipping articles,'"' or have stipulated for shares 85. Otis Mfg. Co. V. The Ira B. Ellems, 48 Fed. 591. 86. Ruan v. Gardner, i Wash. 145, 21 Fed. Cas. No. 12,100. 87. Willard v. Dorr, 3 Mas. 161, 29 Fed. Cas. No. 17,680; Ketland v. Libering, i Wash. 20, 14 Fed. Cas. No. 7744; The Atlantic, i Abb. Adni. 451, 2 Fed. Cas. No. 620; The Exile, 20 Fed. 878; Veacock -c'. McCall, i Gil. 329, 28 Fed. Cas. Wo. 16,904. 88. The Elvine, 19 Fed. 528 ; Wil- lard V. Dorr, 3 Mas. 161, 29 Fed. Cas. No. 17,680; The Samuel E. Spring, 27 Fed. 764; The Samuel Ober, 15 Fed. 621 ; The Lola, 6 Ben. 142, 15 Fed. Cas. No. 8468; The Cypress, i Blatchf. & H. 83, 6 Fed. Cas. No. 3530; The Ringleader, 6 Ben. 400, 20 Fed. Cas. No. 11,850; Wickham v. Blight, i Gil. 452, 29 Fed. Cas. No. 17,611; The Rocham- beau, 3 Ware 304, 20 Fed. Cas. No. 11.973; The Australia, 3 Ware 240, 2 Fed. Cas. No. 667. 89. The Trial, i Blatchf. & H. Adm. 94, 24 Fed. Cas. No. 14,170; Patten v. Park, Anthon 32 ; Wick- ham f. Blight, I Gil. 4=2, 29 Fed. Cas. No. 17,611; Sheffield v. Page, I Spr. 28s, 21 Fed. Cas. No. 12,743; Page V. Sheffield, 2 Curt. 377, 18 Fed. Cas. No. 10,667. Agreement With Shipping Agent. The shipping articles are not the sole evidence of the seamen's rights. Ef- fect must be given to an agreement made by the shipping agent at the time when the articles were signed and relied upon by the seamen as forming part of the contract, where such an agreement is clearly proved. 19 Statements, representations, and agreements made to the seamen by shipping notaries, when the articles are signed, bind the ship, and that without reference to the instructions which the captain has given the notary. When the ship-owner al- lows a shipping agent to employ a crew for him he holds out to the seamen, that the shipping agent has authority to bind the ship by the con- tract whicli he makes. The actual bargain inade between the shipping agent, and the seaman, at the time of the shipment, binds the ship. The Lola, 6 Ben. 142, 15 Fed. Cas. No. 8468. Other Evidence. — A seaman is not obliged to call for the shipping articles on the trial of his action for wages, in order to establish presumptive right to recover. His right depends, not upon the articles, but upon tlie service, and this he may prove by other evidence ; e. g., the testimony of the master. The Trial, i Blatchf. & H. 94, 24 Fed. Cas. No. 14,170. 90. The Quintero, i Low. 38, 20 Fed. Cas. No. 11,517. Explanation of Contract. — A contract signed by seamen which was fully explained to them before they signed it, is conclusive upon them. A sailor who has signed shipping articles in the presence of a consul speaking the same language as him- self, shall not absolve himself from duty thereunder by alleging that he did not understand what he agreed to do. The Exile, 20 Fed. 878. Officers Bound by Shipping Arti- Vol. I 290 ADMIRALTY. of the vessel's earnings.'" b. Validity and Effect. — Any stipulations in shipping articles which derogate from the legal rights, or just compensation of the seamen,'- or any stipulations, the nature and operation of which cles The mate of a vessel is con- cluded by the shipping articles speci- fying his compensation, and, in the absence of fraud, the master of a whaling ship is concluded by the terms of his contract with the owners for compensation. Slocum V. Swift, 2 Low. 212, 22 Fed. Cas. No. 12,954; Veacock i: AlcCall, Gilp. 329, 28 Fed. Cas. No. 16,904; The Lakme, 93 Fed. 230. Stipulation as to Suit A stip- ulation in shipping articles that sea- men shall not sue until the vessel is unladen, is binding upon them, if fairly made. Granon i'. Hartshorne, i^ Blatchf. & H, 454, 10 Fed. Cas. No. 5689. 91.' Shipping Articles for Whal- ing Voyage. — Where shipping ar- ticles were entered into for a whaling voyage which contemplated the pay- ment of the officers and crew by shares of the vessel's earnings, a stipulation therein that any one of them who might be prevented from performing his duty during the whole of the voyage, should receive a share only in proportion to the time served by him, is binding upon all the offi- cers and crew without evidence that special explanation of it was made to the seamen. In general, seamen are bound by their contract for wages of a specified rate, or where the mode of compensation is by proportional division of the earnings of the vessel among the owners, offi- cers and crew. The Atlantic, Abb. Adm. 451, 2 Fed. Cas. No. Ojo. Unexplained New Provision. — Where shipping articles were in the usual printed form for whaling voyages, with an additional clause in writing, containing novel conditions as to the mode of computing the shares of the seamen, a seaman to whom such new provisions were not made known at the time of the ship- ment is not bound by such pro- visions. Mayshew v. Terrv. i Spr. 584. 16 Fed. Cas. No. 9361. Shares Treated as Wages .^g^ee- ments in shipping articles by which Vol. I the seamen are to receive a share of the profits of the voyage, are con- tracts of hiring and the shares may be recovered as wages. Reed v. Hussey, i Blatchf. & H. 525, 20 Fed. Cas. No. 11,646. 92. Brown v. Lull, 2 Sum. 443, 4 Fed. Cas. No. 2018; iMatern v. Gibbs, I Spr. 158, 16 Fed. Cas. No. 9273- Unjust Agreements All agree- ments and arrangements with sailors are subject to examination in the court of admiralty and if unjust will be set aside and disregarded. Waling V. The Christina, Deady 49, 28 Fed. Cas. No. 17,059 ; The Almatia, Deady 473, i Fed. Cas. No. 254; The Ringleader, 6 Ben. 400, 20 Fed. Cas. No. 11,850; The Mermaid, 104 Fed. 301 ; The Occidental^ 101 Fed. 997. A stipulation in shipping articles that if the seaman, having absented himself from his vessel, afterwards returns to his duty, his return shall not relieve him from a forfeiture of his wages, is void. Freeman v. Baker, i Blatchf. & H. 372, 9 Fed. Cas. No. 5084. Illegal Stipulations — So far as shipping articles provide for a for- feiture of wages in excess of that provided by statute, they are contrary to law. A general coasting and trading voyage, in which the vessel is trading at ports in different states, is within the act of Congress of July 20, 1790, requiring the contract with the seamen to be in writing, and a verbal contract is illegal and not binding. The Crusader, i Ware 448, 6 Fed. Cas. No. 3456. The court will not countenance an evasion of U. S. act of June 26. 1884, prohibiting the payment of advance wages to sea- men, and declaring that such ad- vance payment shall constitute no defense to an action for recovery of full wages — an evasion, for instance, where the rate of wages stated in the shipping articles is less than that agreed on by parol, the difference being paid in advance. The Samuel ADMIRALTY. 291 were not fiill_v explained to the seamen, will be held void.'-'^ Ship- ping articles are void wdiich do not sufficiently describe or state the nature of the voyage,"'' and where the voyage is properly described E. Spring, 2y Fed. 764; The San .Marccis, J/ Fed. 567. Exceptions to Void Articles U. S. Rev. St. § 4523, making void ship- ments of seamen made contrary to statute, etc., has no application to contracts whereby fishermen ship for shares in the catch. The Corneha 2vl. Kingsland, 25 Fed. 856. The acts of Congress of 1790 and 1840, entitling seamen shipped with- out written articles, to demand the highest rate of wages, etc., do not apply to fishing vessels. Seamen shipped on these, by parol agree- ments, can recover only the wages agreed for. The lanthe, 3 Ware 126, 12 Fed. Cas. No. 6992. Compare The Australia, 3 Ware 240, 2 Fed. Cas. No. 667. 93. The Almatia, Deady 473, I Fed. Cas. No. 254; The Rocham- beau, 3 Ware 304, 20 Fed. Cas. No. 11)973; Brown v. Lull, 2 Sum. 443, 4 Fed. Cas. No. 2018; Harden v. Gordon, 2 Mason 541, 11 Fed. Cas. No. 6047 ; Sarah Jane, i Blatchf. & H. 401, 21 Fed. Cas. No. 12,348; The Cyprus, i Blatchf. & H. 83, 6 Fed. Cas. No. 3530; Heard v. Rogers, I Spr. 556, II Fed. Cas. No. 6298; Matern v. Gibbs, i Spr. 158, 16 Fed. Cas. No. 9273 ; Mayshew v. Terry, i Spr. 584, 16 Fed. Cas. No. 9361 ; The Disco, 2 Sawy. 474, 7 Fed. Cas. No. 3922. Reduction of Wages An unusual clause in shipping articles inserted in an unusual place in the article, re- ducing the wages of the seamen upon a returning voyage from Hong Kong to San Francisco will be set aside and disregarded as unjust in admiralty unless the ship owner gives clear proof that the sailors were clearly informed of and agreed to it. and in the absence of such evidence the seamen were entitled to recover full wages for the voyage, notwithstanding they had signed releases in full under protest of their ignorance of the clause in- serted. The Ringleader, 6 Ben. 400, 20 Fed. Cas. No. 11,850. Forfeiture of Wages A court of admiralty will avoid a clause in shipping articles which was not clearly explained to the seamen, and which undertook to forfeit all their wages and property if they should be absent from the ship for 48 hours without the express permission of the master. The Quintcro, i Low. 38, 20 Fed. Cas. No. 11,517. New Stipulations Not Explained. Any new or unusual stipulations in the shipping articles which derogate from the rights or privileges of a seaman under general maritime law will be held void in admiralty unless it appears that they were fully and fairly explained to the seamen, and that an additional compensation was allowed, adequate to the new restric- tions. The Australia, 3 Ware 240, 2 Fed. Cas. No. 667. Ambiguity in Shipping Articles. Any ambiguity in the shipping ar- ticles should be resolved in favor of the seaman, it being the duty of the master or owner of the vessel to have the shipping articles couched in plain language which the seamen cannot misunderstand. Wope v. Hemenway, i Spr. 300, 36 Fed. Cas. No. 18,042 ; Jansen v. The Theodor Heinrich, Crabbe 226, 13 Fed. Cas. No. 7215; The Disco, 2 Saw. 474, 7 Fed. Cas. No. 3922. 94. Rights of Seamen If the shipping articles do not sufficiently describe the voyage, the seaman may leave at any time; and if the master imprison him because he refuses to remain and do duty on board, this is a tort. Snow v. Wope, 2 Curt. 302, 22 Fed. Cas. No. I3,i49- Where a crew was shipped on an indefinite voyage, the destination of which was concealed from the sea- men, the seamen are not bound to work in loading a cargo at the com- pensation fixed by the shipping ar- ticles, at such concealed destination. The Brookline, i Spr. 104, 4 Fed. Cas. No. 1937. A shipping contract which does not specify the duration or place of termination of a voyage is not bind- ing on the seamen. Walling v. Vol. I 292 ADMIRALTY. therein, it cannot be varied by proof,"^ and if departed from, the seamen are not bovrnd,^** and if broken up without cause the seamen may claim full wages for the voyage, less earnings meanwhile.''' c. Best Evidence. — In a suit upon shipping articles by a seaman to recover wages for the voyage, if the articles are not produced bv the master or owner at the trial, after due requirement, his state- The Christina, Deady 49, 28 Fed. Cas. No. 17,059. But a defect in shipping articles in not specifying the terminus of the voyagej will not justify the mas- ter in discharging the seamen abroad. The presumption is, that a return to the United States was intended. Burke v. Buttman, i Low. 191, 4 Fed. Cas. No. 2160. A seaman cannot be bound for service on a ship during a particular voyage or for a definite period of time, so as to be chargealile with desertion, which will forfeit his wages, because he leaves the ship before the completion of the voyage or the expiration of such time, un- less he signs shipping articles, as prescribed by Rev. St. §4511, which definitely state the nature of the voyage. The Mermaid, 104 Fed. 301. illegal Articles — Shipping articles which provide for a voyage to or from ports to be determined by tlie master, or fixed at his option, do not definitely statd the nature of the voyage as required by the Revised Statutes, and are illegal and void. Tlie Occidental, loi Fed. 997 ; The Mermaid, 104 Fed. 301. 95. Voyage Described Conclusive Upon Owner — The voyage described in the shipping articles is conclusive upon the ship owner in an action in rem by the seamen for their wages. The Triton, i Blatchf. & H. Adm. 282, 24 Fed. Cas. No. 14,181. It cannot be shown that it was un- derstood that the vessel was not to complete the voyage described in the shipping articles. Thompson v. Tlic Oakland, 23 Fed. Cas. No. I3.97i- Effect Upon Seamen. — Where the shipping articles, describing the voyage, were fully explained to the seamen before they signed it, they are concluded thereby. The Quin- tero, I Low. 38, 20 Fed. Cas. No. 11.517- But where two voyages were ex- pressly agreed upon, one of which Vol. I was described in the articles and the other was not and both were per- formed, the mariner may prove the oral agreement and recover accord- ingly. Page V. Sheffield, 2 Curt. 377, 18 Fed. Cas. No. 10,667; Sheftield V. Page, I Spr. 285, 21 Fed. Cas. No. 12,743. 96. The William Jarvis, I Spr. 485, 30 Fed. Cas. No. 17,697; The Gem. I Low. 180, 10 Fed. Cas. No. 5304 ; Potter v. Allin, 2 Root 63 ; The Laura Madsen, 84 Fed. 362. 97. The Maria, i Blatchf. & H. Adm. 331, 16 Fed. Cas. No. 9074; Campbell v. The Steamer Uncle Sam, I McAU. 77, 4 Fed. Cas. No. 2372. Death of Seamen During Voyage. Where seamen shipped for a whole voyage and died before the return of the vessel, their administrators may recover full wages. Walton v. The Neptune, I Pet. Adm. 142, 29 Fed. Cas. No. I7,I3S- Seamen Forced From Vessel. Where seamen were forced from the vessel, who had shipped for the voyage, they are entitled to wages to the time of its completion, de- ducting earnings meanwhile. Sing- strom V. The Hazard, 2 Pet. Adm. 384, 22 Fed. Cas. No. 12,905. Where seamen have been lurncd oflf from an armed vessel without their consent, and without lawful cause, they are entitled to their shares of prizes taken during the voyage for which they are shipped. The Heroe, 21 Fed. 525. Where the crew of a fishing vessel were not allowed to participate in the fishing by the owners of the vessel, as provided for in the ship- ping articles, they are justified in leaving the vessel, and are entitled to be paid their full share of the catch. Goodrich r. The Domingo. I Saw. 182, 10 Fed. Cas. No. 5543; The Hibcrnia, T Spr. 78, 12 Fed. Cas. No. 6455. ADMIRALTY. 293 ment of the contents thereof, when disputed, will be prima facie evidence of the same.'-"* In an action grounded upon shipping arti- cles, seamen are not bound to produce them, even when they are on the records of an admiralty court, in consequence of the vessel's capture, and after a notice to the defemlant to produce them, they may prove their contents by oral evidence."" Original shipping articles proved before a commissioner, and given up to the vessel which has departed, may be proved by a copy certified by the com- missioner.' Charges made on shipping papers of advances to the seamen in the course of the voyage, are not evidence until verified by the suppletory oath of the master.- D. Bills of Lading. — a. Effect As Evidence. — A bill of lading in the usual form, is a receipt for goods, which is not conclusive evidence in relation to any contract," or of an express agreement as to the price of freight,* or of the amount of cargo upon which the freight is to be estimated,"* or of the condition of goods when laden on board, as between the original jjarties," but is conclusive as against assignees of the cargo for a valuable consideration.' Unless fraud or mistake is shown the bill of lading is conclusive evidence of the articles shipped.* b. Legal Effect. — The prima facie legal effect of a bill of lading, is to vest the ownership of the goods in the consignee." Usage 98. The O.sccola, 01c. 450, 18 Fed. Cas. No. 10,602. 99. Patten v. Park, Anthony 46. 1. Henry v. Curry, Abh. Adm. 4,^,^. II Fed. Cas, No. 6,vSi. 2. The David Pratt, i Ware 509, 7 Fed. Cas. No. 35'97. 3. Knox V. Ninctta. Crabbe 534, 14 Fed. Cas. No. 7912. 4. Simmes z: Marine Ins. Co., 2 Cranch C. C. 618, 21 Fed. Cas. No. 12,862. 5. The Henry, i Blatchf. & H. 465, II Fed. Cas. No. 6372. 6. Bradstreet v. Heran, i Abb. Adm. 2og, 3 Fed. Cas. No. 1792; Baxter v. Leland, i Abb. .Adm. 348, 2 Fed. Cas. No. 1124; The Martha, Olc. 140. 16 Fed. Cas. No. 9145; Nelson ;■. Woodruff, i Black. 156. 7. Bradstreet v. Heran, i Abb. Adm. 209, 3 Fed. Cas. No. 1792. 8. Backus v. The Marengo, 6 Mc- Lean 487, 2 Fed. Cas. No. 712. False Bills of lading. — The owner of a vessel may deny the validity of bills of lading fraudu- lently signed by the master of the vessel, as against the lyoiia fide owners of the bills of ladine. where the master had no authority to ex- ecute them so as to bind the owner's interest in the vessel, and his sig- nature of the bills of lading was obtained by fraud and represented no goods actually delivered upon the vessel, and were negotiated solely for obtaining money upon them. The Freeman v. Buckingham, 18 How. 182; Pollard i'. Vinton, ic; U. S. 7. Neither the master of a vessel nor the shipping agent of steamboats upon rivers, has authority to bind the vessel or its owners by a false bill of lading for goods or cargo not received for shipment, and such bills of lading, being outside of the power conferred upon the master is void in the hands of a person, who may have afterwards, in good faith, laken it and advanced money on it. Pollard V. Vinton. 105 U. S. 7. 9. Consignment for TTse of Third Party The effect of a consign- ment of goods, generally is to vest the property in the consignee ; but if the bill of lading is special to deliver the goods to A for the use of B, the property vests in B, and the action must be brought in his name in case of loss or damage. Grove T. Bryan, 8 How. 429. Presumptive Title of Consignee. Vol. I 294 ADMIRALTY. may be shown to qualify the effect of a bill of lading." A bill of lading signed after damage to the cargo will not have the effect to increase the liability of the vessel." A through bill of lading does not import joint liability of the separate vessels upon which the goods were shipped. '- c. Transfer. — The endorsement of a bill of lading has the effect to transfer all right in the consigned property to the assignee. ^^ A bill of lading is presumed to vest the title in the consignee, unless the contrary is shown by thd bill of lad- ing itself, or by e.xtrinsic evidence. The Sally Alagee. .? Wall. 451: I^aw- rencc ■:■. Minterii. 17 How. 100. Bill of Lading to Shipper's Order. A bill of lading taken, deliverable to the shipper's own order, is in- consistent with an intention to pass the ownership of the cargo to the person for whom they were pur- chased, even if the shipment was made in the purchaser's own vessel, where the consignment was to a bank as security for payment of drafts drawn by the shipper upon the consignee. Dowes z: National Exchange Bank, gi U. S. 618. 10. Broadwell v. Butler, 6 Mc- Lean 296, 4 Fed. Cas. No. 1901 ; Andrews 7: Roach, 3 Ala. 190. Usages Part of Contract Parties who contract on a subject-matter concerning which known usages pre- vail, incorporate such usages by implication into their agreements, if nothing is said to the contrary; and a usage of the trade for a vessel to touch and stay at a port out of its course, established as a general usage, forms part of the contract of carriage, created by the bill of lad- ing, even if the general usage be not known to the particular shipper. Hostetter r. Park, 137 U. S. 30; Thatcher v. JMcCnlloh, OIc. 365, 23 Fed. Cas. No. 13,862, Delivery of Cargo. — Where a cargo is, by a bill of lading, to be delivered at a designated port of wide e.xtent, without specifying a particular place, the custom of the port controls the delivery, and a usage may be shown for a majority of the consignees of the cargo of a general ship to name a suitable place of discharge. Devato v. Eight Hundred and Twenty-Three Barrels Plumbago, 20 Fed. 510. Vol. I Specific Terms Not Varied by Usage. — Where an option is ex- pressly given to the shipper alone, no usage can be shown to authorize the consignee to exercise the option. McGovern v. Heissenbuttel, 8 Ben. 46, 16 Fed. Cas. No. 8805. The legal efifect of the language of bills of lading cannot be varied by slight proof of a custom which is not notorious and certain, and has not been uniform in its application, or long established in practice. Gar- rison V. Memphis Ins. Co., 19 How. 312; Brittan -'. Barnabv, 21 How. 537- A usage in San Francisco, however general, cannot have the force of custom to release its merchants from the obligation of a bill of lading, nor can any previous assent to the usage of any particular firm engaged there in the shipping business, though acquiesced in Ijy one who had had other dealings with it, be interpreted into an agreement, so as to deprive him of a right under an ordinary bill of lading, subsequently made. Brittan ?'. Barnaby, 21 How. 537. Evidence is not admissible to vary the common bill of lading, by show- ing a custom contrary to its legal effect. The Reeside, 2 Sum. 567. 20 Fed. Cas. No. 11,657. 11. The Edwin, i Spr. 477, 8 Fed. Cas. No. 4300. 12. Sumner ?■. Walker, .^o Fed. 261. 13. Purchase of Stolen Bill of Lading Tlie purchaser of a stolen bill of lading, who has reason to believe that his vendor was not the owner of the bill, or that it was held to secure the payment of an outstanding draft, is not a bona fide purchaser, and is not entitled to hold the merchandise covered by the bill against its true owner. Shaw v. Merchant's National Bank, loi U. S. 557; Ryberg i'. Snell. 2 Wash. 294, ADMIRALTY. 295 The assignee has a right to have the goods discharged from the vessel for examination and comparison with the bill of lading, but cannot require delivery without paying freight.'* Under a bill of lading to order the vessel takes the risk of delivery to the endorsee.'^ d. Best Ex'idcncc. — A copy of a bill of lading, with affidavit of its correctness, is not the best evidence, and is not admissible to prove the original.'" A bill of lading is not necessary as evidence where a suit is not brought upon it.'' A paper certified by a consul to be a true copy of a bill of lading is not admissible, though the party has but one original. '* E. Ch;\kter-Partv. — a. Relation to Bills of Lading. — As between the shipowner and the owner of a charter-party, shipping his own goods, the charter-party controls the bill of lading where there is a difference between them ;'*' but bills of lading are not, as between the shipowners and the charterers, new contracts super- seding all stipulations contained in the charter-party in regard to the delivery of the goods. ^^ A parol charter will control an incon- sistent bill of lading signed after the vessel is loaded and leaves the port."' A clause of a charter-party providing that bills of lading should be signed by the master, excludes implied authority in the charterers, to bind the ship by bills of lading.-- Tf a charter- 21 Fed. Cas. No. 12,189; Walter v. Ross, 2 Wash. 283, 29 Fed. Cas. No. 17,122; The Treasurer, I Spr. 473, 24 Fed. Cas. No. 14,159; The Marv Ann Guest, OIc. 498, 16 Fed. Cas. No. 9197; Conard v. Atlantic Ins. Co., I Pet. 386; The Vaughan and Telegraph, 14 Wall, 258; The Thames, 14 Wall. 98. 14. The Treasurer, i Spr. 473, 24 Fed. Cas. No. 14,159. 15. The Thames, 14 Wall. 98. 16. Wood V. Roach, 2 Dall. 180. In this case, Bradford, Justice, said : " The paper offered in evidence is not a bill of lading; but it is offered as a copy, and to prove that a bill of lading, of the same tenor and date was executed. If the instru- ment itself were produced, proof of the signature would be prima facie evidence that it was given when it bears date ; but when the instrument does not appear, it cannot be sup- plied by the oath of the defendant." The evidence was accordingly re- jected. 17. Newhall z: Ni.xon. 4 Wall. 572. 18. The .Mice. 12 Fed. 923. 19. Ardan S. S. Co. v. Theband, 35 Fed. 620; The Chadwicke, 2g Fed. 521. 20. Stipulations in Charter-Party. A clause of the charter-party saying that "the charterers' responsibility shall cease when cargo is all on board and bills of lading signed," does not terminate the responsibility of the ship to the charterers upon the charter-party — especially where the charter contains a provision that the goods are to be delivered accord- ing to the custom at the port of dis- charge, and other provisions in regard to the appointment of steve- dores and designation of wharf for unloading. The lona, 80 Fed. 933. 21. Huron Barge Co. 7'. Turncy, 71 Fed. 972. 22. Bills of Lading Signed by Charterers. — Though a provision of a charter-party, that the master shall sign bills of lading as presented, with indemnity from the charterers, does not authorize the charterers to sign bills of lading themselves, or require the master to give bills of lading for goods carried on deck, so as to bind the ship thereby, where the charter provides that goods car- ried on deck shall be at the char- terer's risk; yet a ship and its master are bound to third persons under bills of lading executed by the charterers in his presence and Vol. I 29r> ADMIRALTY. party makes no mention of primage, none can be allowed, though stipulated for in the bill of lading.-'' Where a consignee of the charterer has notice that the freight must be paid to the master and not to the charterer, it imposes the like obligation upon him as if expressly reserved in the bill of lading, and such consignee must be presumed to know the contents of the charter-party.-* b. Usage. — A charter-party should be construed conformably to the usage of trade in general, and to the particular trade to which it relates.-^ A charter-part}- which expressly provides for the with his knowledge and concurrence, as if signed by the master in person; and the ship cannot deny privity with actual known shippers of cargo, under cover of a single bill of lading given to the charterers as sole ship- pers, where to the master's knowl- edge, clean bills of lading were is- sued to the actual shippers in his presence by the charterers as his agents. Tlie Sprolt, 70 Fed. 327. 23. Carr r. Austin etc. Co., 14 Fed. 419. 24. Control of Vessel When, by the charter-party, the possession and control of the vessel remains with the master and owner, the con- signee cannot deal with the char- terer as owner for the voyage, and a payment by him to the charterer by crediting debts due him from the charterer on the freight, will not discharge his liability to the master who may recover the freight from him to the amount due on the charter-party. Shaw v. Thompson, 01c. 144, 21 Fed. Cas. No. 12,726. 25. Balfour v. Wilkins, 15 Saw. 429; Houge V. Woodruff, 19 Fed. 136; Gronn i'. Woodruff, 19 Fed. 143 ; Continental Coal Co. 2: Bird- sail, 108 Fed. 8S2, 48 C. C. A. 124. Construction of Charter - Party. In Raymond 'i\ Tyson, 17 How. 53, the court said : " First, it must be remembered, tliat a charter-party is an informal instrument as often as otherwise, having inaccurate clauses, and that on this account they must have a liberal construction, such as mercantile contracts usually receive, in furtherance of the real intention of the parties and usage of trade. So Lord Mansfield said a long time since. Abbott, in his treatise relative to merchant ships and seamen. Story's edition, 188, gives the nde of construction very nnicb in the Vol. I same words, but perhaps with rnore precision. ' The general rule which our courts of law have adopted, in the construction of this as well as other mercantile instruments, is, that the construction should be lib- eral, agreeable to the real intention of the parties, and conformable to the usage of trade in general, and of the particular trade to which this contract relates." Chancellor Kent, in his 47th chapter on the contract of Affreightment, cites the rule ap- provingly. The late Mr. Justice Thompson, of this court, asserts it in Ruggles r. Bucknor, i Paine 358. Judge Story acted upon it ten years afterwards, in the case of the Volunteer, i Sum. 550; and again in another case, 2 Sum. 589. . . . The other case mentioned in 2 Sum. 5S9. Certain Logs of Mahogany v. Richardson, was one which was decided upon the inaccurate and in- consistent stipulations of a charter- party by a liberal construction of them, in furtherance of the real in- tention of the parties, and the usage of trade." Custom as to Stowage. — A charter-party for the transportation of merchandise from Calcutta to Boston, prescribing no mode of stow- ing, tacitly refers to the established and known usage of the trade for the manner of stowing the cargo. Lamb r. Parkman, i Spr. 343, 14 Fed. Cas. No. 8020. Custom of Trade — .^ custom of trade in reference tb a particular cargo which is not excluded by the terms of the charter-party is admissible in evidence to qualify its terms as part thereof. Albion Pliospbate M. Co. 7'. Wyllie, 77 Fed. 541. Custom as to Navigation — Under a charter-party extending to the close of navigation upon the Great ADMIRALTY 297 usage and customs of the place of loading and discharge of cargo, binds the owner of the vessel by the proved customs of the port."" The established usage of a port for loading or discharging vessels may be shown to explain the meaning of uncertain language in the Lakes evidence is admissible to prove the customary close of the season of navigation thereupon. Eddy v. Northern S. S. Co.. 79 Fed. 361. Explanation of Doubtful Terms. Established usage may lie shown to e.xplain the meaning and use of du- Iiious and uncertain phrases in tlie charter-party. Balfour v. Wilkins, 5 Saw. 429, 2 Fed. Cas. No. 807. Proof of. Usage. — A custom or usage of the port in which a char- ter was made, may be shown in evi- dence in a suit to determine the rights of the parties under the char- ter-party, where it is silent on the subject to which the custom relates in order to place the court in the position of the parties when the charter was made ; but to entitle the custom to be read in the charter- party, there must be no room in the evidence to doubt of its existence, and it inust appear to be reasonable, certain, consistent with the language of the charter-party, and not con- trary to law, and so general and long established that the parties are con- clusively presumed to have con- tracted with reference to it. Conti- nental Coal Co. V. Birdsall, 108 Fed. 882. A custom for like vessels to tow additional vessels, is not sufficiently proved to be construed into a char- ter-party, so as to allow the char- tered vessel to cause delay by such towage, where it appears that such vesseh do not always engage in such towing. The Oregon, 55 Fed. 666. Usage, When Inapplicable The usage of a special line of trade to ship certain goods at a particular season of the j'ear cannot enter into the construction of a charter-party not naming the date of shipment or delivery, though executed at such season, when from unavoidable causes, it was impracticable to carry out the shipment at the time in- tended. Hall V. Hurlbut, Taney 589, ir Fed. Cas. No. 5936. .\ custom created by the charterers subsequent to the charter-party, will not. like a general custom, be incorporated in the charter-party for the purpose of construing its obligations. The George Dumois, 88 Fed. 537. Invalid Custom. —A custom in the Chinese coolie traffic, to overcrowd vessels, has no binding effect in the construction of a charter-party, so as to require a vessel carrying Chinese, to carry such a number of passen- gers as is dangerous to life and health. The Hound, 12 Fed. Cas. No. 6371. 26. Customs Provided for in Charter-party. — The owner of a vessel is bound by the customs of a port to which he contracts to carry cargo, where the charter provides that '' the cargo is to be brought alongside the vessel and taken away at the expense and risk of the char- terers, according to the use and cus- toms of the place of loading and discharging. Bertellote v. Part Cargo of Brimstone, 3 Fed. 661. Where, by the terms of a charter-party, the vessel was to take a cargo of coal to be furnished by the hirer, and there were to be lay-days, as customary in loading, and the cargo was to be received as customary, both parties are bound to conform to a peculiar custom shown to exist at the port of loading, as to the mode of loading, receiving and fumishine the carg >. Nichols V. Tremlett, i Spr. 361, 18 Fed. Cas. No. 10,247. Seager v. N. Y. and C. Mail Steamship Co., 55 Fed. 880. Aff'g. 55 Fed. 324. Delivery As Customary Under a charter-party providing for the dis- charge of a cargo of fruit at the usual fruit-berth as fast as the ves- sel can deliver " as customary," that term relates to the duty of the ves- sel, not of the charterers, and pro- vides for the delivery as fast as the custom of the port will allow. Good V. Isaacs, C. A. (1892,) 2 Q. B. 555. Delay in Delivery — Under a charter-party, providing for the dis- charge of the cargo " with customary dispatch," a custom of the port, au- Vol. I 298 ADMIRALTY. charter-party ;-' but unambiguous lano'uage in a charter-party hav- ing a fixed and definite meaning, cannot be changed or limited by evidence of local usage.-*" " Customary cleaning " provided for in thorizing certain delays, cannot jus- tify the consignee in voluntarily de- laying the discharge of the cargo in violation of the express terms of the contract. " Customary dispatch in discharging" means discharging with speed, haste, expedition, due dili- gence, according to the lawful, rea- sonable, well-known customs of the port of discharge, and means the same as " usual customs." Lindsay V. Cusimano, lO Fed. 302. 27. A charter-party entered into at Liverpool, England, to load a ves- sel with grain at Portland. Oregon, which provided that the charterers should have thirty working days, not counting " rainy days." in which to load the vessel, is in contemplation of law, made at Portland, Oregon ; and the condition and the conven- iences of that port for loading ves- sels with grain, and the established usage thereof, upon that subject, may be shown to explain the meaning and use of the uncertain phrase " rainy day," which was intended at that port, to apply only to the days on which the rainfall was such as to prevent the loading of the vessel with safety and convenience. Balfour v. Wilkins, 5 Sawy. 429, 2 i'ed. Cas. No. 807. Delay in Discharging Cargo. Lender a charter-party providing for demurrage for delay caused by the charterer, a custom of the trade re- quiring the vessel to deliver the cargo at different places in the same port, will prevent demurrage for de- lay, in going from one place of dis- charge to another. The Mary E. Taber, i Ben. ic^, 16 Fed. Cas. No. 9208. Discharge of Cargo of Salt One who buys a cargo of salt on board a chartered vessel after her arrival, is bound only to reasonable dili- gence in discharging conformably with the custom of the port; and by usage in the salt trade, rainy weather is to be deducted from the time of the discharge. Houge v. Woodruff, TQ Fed, 136; Gronn v. Woodruff, ig Fed. 143. Vol. I Custom As to Piling Cargo A custom of the port of discharge re- quiring the vessel to pile its cargo of hemp upon the dock, for one-half its width and the length of the vessel, is not inconsistent with the printed clause of the charter-party, that " cargo shall be received and deliv- ered alongside of the vessel within the reach of her tackles," and the vessel is not entitled to extra com- pensation for handling such cargo according to the custom. Seager i'. N. Y. & C. Mail S. S. Co., 5-5 Fed. 880, aftirniing 55 Fed. 324. TInforseen Obstacles There is no implied agreement that a char- terer will unload or discharge the ship in the customary time at the port of delivery, regardless of all extraordinary circumstances and un- forseen obstacles. Empire Transp. Co. I'. Philadelphia & R. Coal & L Co.. 77 Fed. 919, 35 L. R. A. 623. 28. Ten Thousand and Eighty-two Oak Ties, 87 Fed. 39^; The Gazelle, 128 U. S. 474. Working Days. —The term "work- ing days." as used in the charter- party, is unambiguous, and has a fixed and definite meaning which cannot be varied by evidence of local usage. Pederson v. Engsler, 14 Fed. 422. Dispatch for Discharge of Cargo. L'nder a charter-party providing for a dispatch for discharging cargo at Havana, the custom and rules of the port of Havana, cannot control as to the time for discharging cargo there, and the risk of delay in deliv- ery of the cargo by the rules of that port requiring it to be delivered only at the mole, is upon the charterers and not upon the owners of the ves- sel. Sleeper v. Puig, 17 Blatchf. 36, 22 Fed. Cas. Nn. 12,941. Time for Loading In a charter- party allowing " eighteen working days, Sundays excepted," for load- ing, evidence of custom cannot con- trol those words, and " rainy days " cannot be excepted under proof of custom of the port. The Cyprus, 20 Fed. 144. ADMIRALTY. 299 a charter-party, is disproved by damage to the cargo resulting from insufficient cleaning.-'' c. Other Questions of Proof. — Where the proof shows that the vessel's service began on the day of a date of a charter-party, it is immaterial that it is proved to have been executed stibsequent to its date.^" An unambiguous charter-party,^^ or a written contract therefor, is conclusive evidence of its terms,^- though an ambiguous charter-party may be explained by evidence.^'' A sub-charterer charging fraud of the master in stowing cargo in violation of his rights, is bound to prove it.'"' A charter-party which never became a binding contract as a whole, is evidence of an implied contract in the subsequent use of the vessel, so far as adopted without objection.'"* Stipulations that the general owners shall keep the vessel in good condition during the charter, and receive goods at the request of the charterer, and none without the charterer's assent, are conclusive evidence that the possession and control of the vessel are retained bv the general owners.-'^'' It will not be Safe Port for Discharge Under a clause in a charter-party by which the charterers were bound to order the vessel "to a safe, direct, Norwe- gian or Danish port, or as near thereonto as she could safely get and always lay in discharge, afloat," the charterers cannot order the vessel to a port having a bar across its mouth, which it is impossible for the vessel to pass either in ballast or in cargo, where the only anchorage outside the bar is not reasonably safe for the vessel to lie and discharge ; and evi- dence cannot be received of a cus- tom to consider such a port as safe, inasmuch as it would directly con- tradict the charter-party. The Ga- zelle, 128 U. S. 474. 29. Insufficient Cleaning. — A charter-party provided that the ves- sel, after delivering her cargo of pe- troleum CUT a voyage previous to that under the charter, should be "cleaned as customary previous to loading homeward cargo." Said homeward cargo consisted of fruit which was impregnated with petroleum and otherwise damaged thereby. Held, that the fact of damage by petroleum must be accepted as evidence that the vessel was not cleaned in the customary or proper manner, as re- quired by the charter. The Carlotta. 9 Ben. I, 4 Fed. Cas. No. 2413. 30. Rowlev V. U. S., 8 Ct. CI. 189. 31. The Eli Whitney, i Blatchf. ?6o, 8 Fed. Cas. No. 434s: The .A.u- gustine Kobbe, 37 Fed. 702 ; Baker v. Ward, 3 Ben. 499, 2 Fed. Cas. No. 785. 32. Galgate Ship Co. v. Starr, 58 Fed. 894. 33. The Wanderer, 29 Fed. 260. 34. The Lloyd, 21 Fed. 420. 35. Implied Contract — ■ Where a charter-party was signed by brokers for both parties, subject to approval by the owners of two disputed clauses, which were never agreed to by the owners, the charter-party is not a binding contract, and no con- tract can be implied in favor of the owners as to the disputed clauses, but the delivery of the vessel by the owners to the charterer is an implied adoption of all the terms of the existing charter-party, and a waiver by the owners of the vessel of previous objections thereto. La Compania, etc. z'. Spanish-.\meri- can Light and Power Co., 31 Fed. 492. 36. Charter - Party Containing Covenants A charter-party, sound- ing wholl}' in covenants, and con- taining agreements that the owner was to fit the vessel for the voyage, and that she should take in a cargo furnished by the charterer, reserving the cabin, and also room for tlie crew, water, provisions, etc., and that the charterer was to pay a stipulated freight for the cargo, is to be construed under the presumption of law against the change of ownership, and, as he- Vol. I 300 ADMIRALTY. presumed in the absence of evidence that there was any defect in the chartered vessel or fauh in her management by reason of deten- tion from injury caused by heavy seas, under a charter-party for voyages specified at a rate per diein/^' The valuation of a yacht fixed' in the charter-party is conclusive evidence of its value as between the parties, in the absence of any showing of fraud or mis- take.^* The owners of the vessel are bound to prove the meaning of technical language which they have caused to be put into the charter-party, and to show a breach of the charter-party.''" The court will not compel plaintiff to produce a charter-]iarty of which defendant has a counterpart.""' F. Other Documents. — a. Ship's Manifest. — The ship's mani- fest of cargo, required by law to be recorded in the custom-house, may be proved by a copy thereof, certified under the hands and seal of the custom-house officers, and shown to have been compared with the record.'" On a libel charging a vessel with violation of the embargo act, the report and manifest of her cargo are admissible to be shown where it was taken on.*'- Upon a prosecution for iiig in the light of the acts of the parties under it. an affreightment for tlie voyage, and not a letting of the entire ship. The Aberfoyle, i Abb. Adm. 242, I Fed. Cas. No. 16; Leary i'. U. S., 14 Wall. 607. Presumption. — The presumption is, that the owner does not waive his rights under the general rules of law. The Erie, 3 Ware 252, 8 Fed. Cas. No. 45 1 J. Demise of 'Vessel Where the owner parts with all possession and control of the vessel to the charterer the contract is one of demise for the voyage, with rent payable at the end of the term. U. S. v. Shea, 152 U. S. .78. Inclination of Courts The in- cHnation of courts is to construe a charter-party as a contract of af- freightment charging the ship-owners as carriers and not as a demise of the vessel, unless its tenor clearly calls for the latter construction. Richardson v. Winsor, 3 Clifif. 395, 20 Fed. Cas. No. 11,795,'. 37. Burden Upon Charterer. Where a cliarter-party is not for time specified, but for voyages specified, the rule is, that the owners are hound only to due diligence amid the circumstances in which the voyages are made, altliougli the compensation is an allowance /rr diem ; and if the charterer alleges a want of this Vol. I diligence, the burden is on him to prove it. Bowley v. U. S., 8 Ct. CI. i8<). 38. 'Valuation of Pleasure Yacht. A pleasure yacht has no determin- able market value, and where the charterer of the yacht provided that " for the purpose of this charter the value of the yacht shall be con- sidered and taken at the sum of seventy-five thousand dollars. ($75,- 000)" and that tlie liability of the charterer should not exceed that sum, such provision is intended solely for the purpose of fixing the damage in the case of loss or in- jury to the yacht. Upon her total loss while in possession of the charterer, the owner was entitled to recover the full amount stipulated, without any deduction on account of hire paid by the charterer. Moore V. Sun Printing & Publishing Ass'n., 95 Fed. 485. 39. The John H. Pearson, 14 Fed. 749- Burden Upon Libellants Libel- lants are bound to prove their inter- pretation of a charter-party. The Principia, 34 Fed. 667. 40. Sampson v. Johnson, 2 Cranch C. C. 107, 21 Fed. Cas. No. 12,281. 41. U. S. V. Johns, 4 Dall. 412. 48. U. S. V. The Little Charles, 1 Brock. 347, j6 Fed. Cas. No. 15,- 612. ADMIRALTY. 301 smuggling, the manifest of the steamer produced from the usual place of deposit of ship's manifests in the custom-house, is ailmissi- ble, where it appears that no other manifest of the voyage is on file.-"^'- b. Coiiiiucrcial Documents. — Commercial documents executed abroad may be considered as evidence without strict proof, if the question arises unexpectedly on the trial and res gestae show their authenticity and correctness.^'' c. Surz'ey of Vessel. — The report of a survey made upon an examination of a vessel to ascertain her situation after disaster in a foreign port, is evidence that such a survey was made, but not of the facts stated in it;*^ but if the surveyors, in a deposition, refer to their certificate of a survey of the vessel, as containing all they know, it becomes evidence of the facts stated in it.^" A copy of a survey of a vessel not purporting to be made by any one con- nected with her, and not proved to be correct, is not admissible against her.*' d. Delkrrv Book of Cargo. — The delivery book of cargo, show- ing the order in which the goods were unladen, is better evidence, and entitled to greater weight than the testimony of the crew.** e. Letters. — Where the claimant of a cargo libelled as prize, relies upon letters to show title, he must produce the letters them- selves, if their absence is not accounted for, and his affidavit as to their contents will not be received.*" A letter of instructions from the owners to the captain of the vessel at the time of sailing, sworn to by the captain to be the only instructions he had, are admissible to prove that he had no orders to buy the vessel on their account in case of capture. °" Letters written to parties by their own agents which were no part of the contract of shipment, but were mere reports by the agents to their principals, are not admissible for such parties, or to corroborate the agents as against third persons.^' f. Title of Vessel. — The statement of the title of the vessel in the custom-house documents is not conclusive evidence thereof,^' and one who holds the legal title to a vessel may be shown to be a mortgagee thereof."^ The certificate of enrollment of a vessel 43. The Missouri, 4 Ben. 410, 17 48. Llado v. Tritone. i; Fed. Fed. Cas. No. 9653; U. S. v. The Cas. No. 8427. Missouri, 9 Blatchf. 433, 26 Fed. 49. The Sally Magee, 3 Wall. 451. Cas. No. 15,785. 50. Story z: Strettel. i Dall. I.-?. 44. The Boskenna Bay, 22 Fed. 51. Ins. Co. v. Guardiola, 120 U. 662. S. 642. 45. Watson v. Ins. Co. of North 52. Chickering v. Hatch, i Story America, 2 Wash. C. C. 152, 2q Fed. 516, 5 Fed. Cas. No. 2671. Cas. No. 17,284; U. S. V. Mitchell, 53. Morgan v. Shinn, 15 Wall. 2 Wash. C. C. 478, 26 Fed. Ca^;. No. loq. 15,791. Inconclusive Facts — The facts 46. U. S. V. Mitchell, 2 Wash. that the bill of sale was recorded: C. C. 478, 26 Fed. Cas. No. 15,791. that the vessel was re-enrolled in the 47. The Vivid, 4 Ben. 319, 28 Fed. name' of the transferee; that a policy Cas. No. 16,978. of insurance was taken out in his Vol. I 302 ADMIRALTY. is not prima facie evidence of ownership thereof,-'^ but is, upon incidental questions, prima facie evidence of the port to which the vessel belongs/^ 'i he builder's certificate and registry and enroll- ment are not conclusive evidence of ownership.^" Delivery of a vessel to the agent of the person for whom it was built, unaccom- panied by any written conveyance, vests the title in the owner.'*' A ship built in the United States for alien residents abroad, becomes their property without documentary proof of title.'*'* By the gen- eral maritime law, a transfer of a ship should be evidenced by a bill of sale f'^ but the equitable ownership of a vessel may be shown without a bill of sale or registry."" A bill of sale of a vessel, accompanied by possession, is only prima facie evidence of title."' name as owner, and that no note or bond was taken by him, will not overcome positive evidence that the bill was taken as a mere security for a loan. Davidson v. Baldwin, 79 Fed. 95. 54. Dudley v. The Superior, i Newb. Adm. 176, 7 Fed. Cas. No. 4115- Evidence of Ownership Under a law which makes criminal certain acts done on board a vessel owned in whole or in part by a citizen of the United States, an American registry is not even pritna facie evi- dence of such ownership ; though such registry is made by the gov- ernment only on the presumption of such ownership, and after oath by one or more persons of such ownership by them. Nor is general reputation of such ownership any evidence of it. Ownership, in such a case, is a fact to be proved as other facts. U. S. V. Brune, 2 Wall. Jr. .264, 24 Fed. Cas^ No. 14,677. The purchaser of a part of a vessel from one not in possession, but who claims to be the owner, although exercising no acts of ownership, is not an innocent purchaser without notice of true ownership, no inquiry having been made of known part- owners as to the validity of the seller's title, and no inference can be justified from the certificate of en- rollment, which afifords not e\fen prima facie evidence of ownership. The Nancv Dell. 14 Fed. 744. 55. Rebuttal of Evidence The enrollment of a vessel, although inad- missible to show title, yet on an incidental question regarding liens, is prima facie evidence of tlie port Vol. I to which the vessel belongs. Evi- dence of the notorious residence of the owner, at a place nearer to some other port than that of enrollment, may be available in contradiction thereof. Dudley v. The Superior, I Newb. Adm. 176, 7 Fed. Cas. No. 4115- 56. Showing of Fraud. — The real owner of a vessel, who claims as builder, may prove his owner- ship, and show that the builder's certificate and registry and enroll- ment have been fraudulently made and issued in the name of another. Scudder v. Calais Steamboat Co., I Cliff. 370, 21 Fed. Cas. No. 12,565. 57. Subsequent Bill of Sale to Agent Where there was no origi- nal intent on the part of the agent to appropriate the vessel to his own use, when it was delivered to him for the owner, the subsequent act of the agent in taking the bill of sale to himself, four months afterwards, would not divest the owner's title and vest it in the agent, and the purchaser of the vessel from one holding it in trust for the real owner with notice of the trust, can stand in no better situation than the seller. Scudder v. The Calais Steamboat Co., I Cliff. 370, 21 Fed. Cas. No. 12,565. 58. Passage of Title. — The pass- age of the title of such ship is the same as that of any other chattel. The Active, Ok. 286, i Fed. Cas. No. 34. 59. Weston v. Penniman, i Mason 306, 29 Fed. Cas. No. 17,45 s. 60. Hall V. Hudson, 2 Spr. 65, IT Fed. Cas. No. 5935. 61. Full Title — In order to con- ADMIRALTY 303 A bill of sale of a ship need not recite the certificate prescribed by the registry act.''- 3. Judgments and Decrees. — A. Concll"Si\exess. — A sentence of condemnation of a vessel by a court of competent jurisdiction concludes the title,"^ and a decree of condemnation or acquittal in admiralty is conclusive evidence of title in an action for damages."* The decree of a foreign court of admiralty condemning insured property for a breach of blockade is conclusive evidence of the breach of blockade in a collateral action on a policy of marine insurance,"^ and where the property is condemned as that of the stitute a full title under the bill of sale, accompanied by possession, as against the creditors of ihe vendor, the transfer should be bona fide and for a valuable consideration. It is not necessary to the title that the vessel shall be enrolled in the custom house, such enrollment being only necessary to entitle to the character and privileges of an American vessel. Hozey v. Buchanan. i6 Pet. 215. 62. D'Wolf V. Harris, 4 Mason 515, 8 Fed. Cas. No. 4221. 63. Rose V. Himley, 4 Cranch 241 ; Hudson V. Guestier, 4 Cranch 293 ; Wheelwright r. Depeyster, i Johns. 4-1; Jenkins z'. Putnam, i Bay 8; Williams v. Armroyd. 7 Cranch 424; The Globe, 2 Blatchf. 427, 10 Fed. Cas. No. 5483; Bradstreet r. Nep- tune Ins. Co., 3 Sum. 600, 3 Fed. Cas. No. 1793; Armroyd v. Williams, 2 Wash. 508, I Fed. Cas. No. 538; Gushing z: U. S.. ae Ct. CI. i. 64. Conclusiveness in Trespass. In Gelston v. Hoyt, 3 Wheat. 246, Story J. says : " If a sentence of condemnation be pronounced, it is conclusive that a forfeiture is in- curred ; if a sentence of acquittal, it is equally conclusive against the forfeiture ; and in either case, the , question cannot be litigated in another forum. . . . Nothing can be better settled than that a sentence of condemnation is, in an action of trespass for the property seized, con- clusive evidence against the title of the plaintiff." In an action of tres- pass for taking the plaintiff's vessel, where the plaintiff established title by a decree of the district court of the United States, a subsequent judg- ment rendered in a state court, bear- ing on the question of title was of no avail to counteract the plaint- iff's evidence of title. Dennison j'. Hyde, 6 Conn. 508. In trespass by the owner of the lessel for an illegal seizure a sentence of restitution of the vessel without a justification of the seizure is conclusive evidence of the plaint- iff's right to maintain the action. Gelston v. Hoyt, 3 Wheat. 246; Hoyt J'. Gelston, 13 Johns. (N. Y.) 141; affirmed 13 Johns. 561. 65. Forfeiture of Insurance Poli- cies The sentence of a British prize court condemning the vessel for attempting to commit a breach of blockade, forfeited the marine insurance policy and exonerated the underwriters from their liability, and the sentence of condemnation for breach of the blockade, was con- clusive evidence of the commission of that offense, which vitiated the policy, and it was error to permit evidence to disprove that fact Croudson v. Leonard, 4 Cranch 434. Where the sentence of a court of admiralty condemning a vessel re- cited that, at the date of the decree, the port which the vessel attempted to enter was blockaded,, in an action on a policy to recover for the total loss arising from the condemnation, evidence is inadmissible to sustain the policy to show that at the time of her capture, the port was not blockaded. Marvland Ins. Co. v. Bathurst, 5 Gill & J. (Md.) 159. In an action upon an insurance policy upon a vessel and cargo where tlie defendants produced the sentence of a court of vice-admiralty of Gib- raltar, condemning the vessel for a breach of blockade, " by egress and for other sufficient reasons," the words, " for other sufficient reasons " were held matter of surplusage and Vol. I 304 ADMIRALTY. enemies of the foreign country, the decree of a foreign court of admiralty is conclusive evidence in such action of a breach of the warranty of neutrality of the insured property."" The decree of restitution of a vessel, illegally seized, is conclusive evidence of the illegality of the seizure."' A decree in rem in admiralty, is con- clusive evidence of facts stated therein, against all parties inter- ested."* A decree in a former action may be conclusive against the decree was held to be conclusive evidence of a breach of blockade which discharged the underwriters. Baxter !■. New Eng. Marine Ins. Co., 6 Mason 277 ; Vandenheuvel v. United Ins. Co., 2 Johns. Cas. 127; Ludlow V. Dale. I Johns. Cas. 16; Goix z'. Low, I Johns. Cas. 341. 66. Groning v. Union Ins. Co., I Nott. & AI. 337. Prima Facie Evidence Li tlie following cases it is held under the facts that the sentence of a foreign court of admiralty, condemning prop- erty as that of the enemj', is com- petent prima facie evidence of that fact, but not conclusive. Lambert v. Smith, I Cranch C. C. 361, Fed. Cas. No. 8028; Maley v. Shattuck. 3 Cranch 458; Bourke v. Cranberry, Gill (Md.) 16; Vanderheuvel v. Lhiited Ins. Co., 2 Johns. Cas. (N. Y.) 127; Goix V. Low, I Johns. Cas. (N. Y.) 341; New York Firemen Ins. Co. V. De Wolf, 2 Cow. (N. Y.) 56. 67. The Appollon, 9 Wheat, 362; Magoun v. New Eng. Marine Ins. Co., I Story 157, 16 Fed. Cas. No. 8961 ; Hoyt V. Gelston, i ? Johns. CN. Y.) 141: Gelston v. Hoyt, 13 Jolms. (N. Y.) 561, 3 Wheat. 246. Conclusiveness of Acquittal In Gelston "■. Hoyt. 3 Wheal. 246, Story J., says : " A distinction, however, has been taken and attempted to be sustained at the bar, between the effect of a sentence of condemnation and of a sentence of acquittal. It is admitted that the former is con- clusive ; but it is said that it is other- wise as to the latter, for it ascer- tains no fact. . . . Lord Chief Justice De Gray declares that the rule of evidence must be, as it is often declared to be, reciprocal ; and that in all cases in which the sen- tences favorable to the party are to be admitted as conclusive evidence for him, the sentences, if unfavor- Vol, I able, are, in like manner, conclusive evidence against him. . . . .\nd upon principle, where is there to be found a substantial difference be- tween a sentence of condemnation and of acquittal in rem? If the former ascertains and fixes tlie forfeiture, and, therefore, is conclusive, the latter no less ascertains that there is no forfeiture, and, therefore restores the property to the claimant. . . . A sentence of acquittal in rem, does, therefore, ascertain a fact, as much as a sentence of condemna- tion ; it ascertains and fixes the fact that the property is not liable to the asserted claim of forfeiture. It should, therefore, be conclusive upon all the world of the non-e.xistence of the title of forfeiture, for the same reason that a sentence of condemna- tion is conclusive of the existence of title of forfeiture. It would be strange, indeed, if when the forfeiture ex directo could not be enforced against the thing, but by an acquittal was completely purged away, that indirectly the forfeiture might bs enforced through the seizing offi- cers ; and that he should be at liberty to assert a title for the government, which is judicially abandoned by, or conclusively established against, the government itself." 68. The Mary Anne. I Ware 99, 16 Fed. Cas. No. 9195; Penhallow v. t)oane, 3 Dall. 54; Otis v. The Rio Grande, I Woods 279. 18 Fed. Cas. No. 10.613 ; Blanque v. Peytavin, 4 Mart. (La.) 458; Stewart v. Warner. I Day (Conn.) 142; The Garland, 16 Fed. 283 ; Peters v. Warren Ins. Co., 3 Sum. 389. 19 Fed. Cas. No. 11,035; Cnculla V. La. Ins. Co., 5 Mart. (La.) 464; Cuculla V. Orleans Ins. Co., 6 Mart. (La.) 14: Mankin v. Chandler. 2 Brock. 125, 16 Fed. Cas. No. 9030; Bailcv 7'. Sundberg, 40 Fed. 483; The William Murtaugh, 17 Fed. 259; Andrews v. Brown, 3 ADMIRALTY. 305 Cush. (Mass.) ijo; Zeno v. La. Ins. Co., 6 Mart. (La.) 63. Decree of Foreign Court — The decree of a foreign prize tribunal of general jurisdiction, condemning a vessel for a violation of law is con- clusive that the seizure was made in conformity with law. To give such jurisdiction, the prize need only be seized and possessed by the captor, in the captor's country or in a neutral's. Cheriot v. Foussat, 3 Binn. (Pa.) 220. To hold a sentence of a foreign court in rem conclusive on the parties, personal or public notice to the parties, and proper judicial pro- ceedings, must appear. Bradstreet v. Neptune Ins. Co., 3 Sum. 600, 3 Fed. Cas. No. 1793. The sentence of acquittal of a foreign court acting in rem. in cases of revenue seizure and prize, is con- clusive, except in cases of fraud. Magoun v. New Eng. Marine Ins. Co., I Story 157, 16 Fed. Cas. No. 8961. The conclusiveness of a decree of the admiralty court of a foreign country, condemning as prize an American vessel, is not aflfected by the fact that the original owners were deprived of an opportunity to contest the right of the captors ; it appearing that in no event could the decree have been different on the facts admitted. Whatever may be done by foreign courts in reference to the established principles of the law of nations relative to the con- clusiveness of sentences of foreign prize courts, the courts of the United States will not, for purposes of retaliation, depart from the fixed law of nations, which declares that they are conclusive. .■Xrmrovd i'. Wil- liams, 2 Wash. C. C. 508." I Fed. Cas. No. 538; affirmed in Williams v. Armroyd, 7 Cranch 423. The doctrine that the sentence of a foreign court of admiralty in a prize case, is conclusive of any mat- ter of fact directly decided, rests upon the propriety of leaving the cognizance of prize questions ex- clusively to prize jurisdiction; and the impropriety of revising the de- cisions of the maritime courts of other nations, whose jurisdiction is co-ordinate throughout the world. 20 Croudson v. Leonard, 4 Cranch 434 ; Juando v. Taylor, 2 Paine 652, 13 Fed. Cas. No. 7558; Vandenheuvel V. United Ins. Co., 2 Johns. Cas. 144; Baxter v. New Eng. Marine Ins. Co., 6 Mass. 277, 7 Mass. 275. Decree in Federal Court A decree in rem in a federal court of admiralty is conclusive upon the parties in any subsequent litigation. Jenkins v. Putnam, i Bay (S. C.) 8; Denison v. Hyde, 6 Conn. 508; Hoyt V. Gelston, 13 Johns. (N, Y.) 141 ; Gelston v. Hoyt. 13 Johns. 561, 3 Wheat. 246; Buchanan f. Biggs, 2 Yeates (Pa.) 232; Mankin v. Chandler, 2 Brock. 125; Bailey v. Sundberg, 49 Fed. 583 ; The William Burtagh, 17 Fed. 259; The Navarro, Olc. 127, 17 Fed. Cas. No. 10.059; .\ndrcws v. Brown, 3 Cush. 138. Decrees in Rem — In proceedings in rent, in the district court of the LInited States, for the condemnation of a vessel, all persons having an interest in the subject-matter, whether as seizing officers, or in- formers, or claimants, are, or may be parties, so far as their interest ex- tends ; and the decree of the court acts upon the thing in controversy, and the decree is binding upon all the world upon the points which it professes to decide. The seizing offi- cer cannot be deemed a stranger to the decree in rem, and is bound by a decree which ascertains the seizure to be tortious ; but if he were a stranger he would still be bound by the decree of a court of competent jurisdiction in rem as to the points directly in judgment, as being con- clusive upon the whole world. Gel- ston I'. Hoyt, 3 Wheat. 306. A decree of acquittal on a pro- ceeding in rem, without a probable cause of seizure, and not appealed from with effect, is conclusive, in every inquiry before any other court, that there was no justifiable cause of seizure. The Appollon, 9 Wheat. 362. The determination of an issue of fact and law against a claimant under a libel in rem is conclusive after an appeal therefrom is dismissed, in a subsequent suit in personam between the same parties in respect to the same matter. Wager z: Providence Ins. Co., 150 U. S. 99. Vol. I 506 ADMIRALTY. a libel in admiralty. ''" One admiralty court may carry into efifect In an action on a policy of in- surance for loss occasioned by a collision at sea, a libel and decree against the vessel insured, in a pro- ceeding in rem in the admiralty court for damage done to the other vessel by the collision, is sufficient evidence against the insurers, both of the collision and of the negligence of the master and crew of the vessel insured. Street v. Augusta etc. Co., 12 Rich. Law (S. C.) 13. Where a steamboat had been libelled and sold by order of a federal court in one state, its decree will be held conclusive in another state, not- withstanding a suit had been pre- viously commenced in such other state on some of the same claims for which the vessel was sold. Thoitias V. Southard, 2 Dana (Ky.) 475. A judgment _of condemnation in the United States district court can- not be examined in a stale court in an action of trespass against the officers. Buchanan v. Biggs, 2 Yeates (Pa.) 232. Where, on a libel in rem for col- lision, the master of the libellee, though not a formal party, takes an active part in the defense, a dis- missal on the merits renders the question res judieata, as against a subsequent libel in personam against him. Bailey v. Sundberg, 49 Fed. The owner of a vessel, in case of injury to the vessel and cargo, may maintain an action for damage to both against another vessel causing the injury; and after the latter has been once arrested, and given bail for the whole damage, if the owner of the cargo afterwards cause all claim on his account to be withdrawn from the suit, he cannot, ordinarily, again maintain an action against the same vessel ;';( rem, and arrest her a sec- ond time for the damage. The Wm. Murtagh, 17 Fed. 259. A decree in admiralty in the dis- trict court of the iJnited States, that the possession of a certain ves- sel should be delivered to the libel- lant, on the ground that the libellee had violated a contract for the sale and delivery thereof by the libellant Vol. I to him, is a good bar to a bill in equity by the libellee against the libellant, for a specific performance of the same contract ; provided such violation was material to the decision of the libel, was put in issue therein, and was decided by the court; but if such violation was not material, or if the case was not decided on that point, or if it be ambiguous, or not apparent on the face of the decree, on what ground the decision was made, such decree is not con- clusive evidence of the fact of the violation of the contract. Andrews V. Brown, 3 Cush. (Mass.) 138. 69. The Globe, 2 Blatchf. 427, 10 Fed. Cas. No. 5483; Ball v. Tren- holm, 45 Fed. 588; The Navarro, 01c. 127, 17 Fed. (ias. No. 10,059; Coflfee V. U. S., 116 Sup. Ct. 437; Faucett V. The L. W. Morgan, 6 Fed. 200. Foreign Judgment A foreign judgment in a suit at law against the vessel's owner for damages for a collision is no bar to a suit in rem in this country; but such judgment is conclusive as to the extent of the damages. The East, 9 Ben. 76, 8 Fed. Cas. No. 4251. Former Federal Judgment. — A judgment of acquittal, in a criminal prosecution for a violation of the internal revenue laws, is conclusive in favor of defendant, as claimant of the property involved in a sub- sequent suit in rem, when, as against him, the existence of the same act or fact involved in the criminal prosecution is in issue as cause for the forfeiture of such property. CofTey v. U. S., 116 U. S. 426. The owner of a vessel which was sunk by collision with a steamer, brought a libel in rem, and the steamer was attached, but no notice was given or publication made as required by Adm. Rule 9. Subse- quently, the steamer was released on her owner's giving bond to the libel- lant for less than her value. A decree dismissing the libel was bind- ing on the libellant only, and would not prevent a new libel by the owner of the cargo. Bailey v. Sundberg, 49 Fed. 583. I C. C. A. 387. ADMIRALTY 307 the decree of another admiralty court/" 1!. Inconclusiveness. — A foreign sentence of condemnation of a vessel merely as prize, is not conclusive evidence that the legal title of the vessel was not in a subject of a nevUral nation ;'' and its decree condemning a vessel as prize, if ambiguous or based upon insufficient reasons, is not conclusive evidence of a breach of a 'war- ranty of neutrality.'- The decree of a foreign court of admiralty A verdict and judgment against the owners of a vessel in a suit to charge them personally with the penalties incurred, under §4465 of the Revised Statutes, for carrying a greater number of passengers than was stated in the certificate of in- spection, is not conclusive against their vendees in a subsequent suit ill rem in admiralty to enforce against the vessel the lien of the penalties, under § 4469, the title of the vessel not being involved in the former action its owners not being privies to the suit, and they may show in the subsequent suit in rent in admiralty that the number of passengers illegally carried was less than the number found in the first suit. The Boston, 8 Fed. 628. A cause of action different from a suit in personam in which a judg- ment was recovered before the decree in an admiralty suit was en- tered cannot render . such former judgment res adjudicata in the ad- miralty suit. Gray v. National S. S. Co., 7" Fed. 273; The William Mur- tagh. 17 Fed. 259. 70. Penhallow v. Doane, 3 Dall. 54; The Centurion, i Ware 490. 5 Fed. Cas. No. 2554. Conclusiveness of Decree Upon a libel to carry into effect the decree of another admiralty court, the grounds of the decree, cannot be in- quired into, the decree in rem being conclusive on all the world. Pen- hallow T'. Doane. 3 Dall. 54. Decree of Foreign Admiralty Court — The federal admiralty courts will carry into effect the sentences and decrees of foreign admiralty courts. Otis V. The Rio Grande, I Woods 279, 18 Fed. Cas. No. 10,- 613. But an admiralty court will not carry into effect the decrees of foreign admiralty courts any further than a court of common law will carry into effect the judgments of other tribunals. Bowler v. Eldridge, 18 Conn. I ; Pennsylvania R. Co. J'. Gilhooley, 9 Fed. 618. 71. Bourke f. Cranberry, Gilmer (Va.) 16; Vandenheuvel v. United Ins. Co., 2 Johns. Cas. 451. Limits of Conclusiveness — The conclusiveness of the sentence of a foreign court of admiralty cannot include more than its own correct- ness, and does not establish any par- ticular fact, without which the sen- tence tnay have been rightly pro- nounced. The mere condemnation of a vessel libelled as enemy's property, which may proceed upon any ground not stated and which might merely forfeit the protection of the neutral character of the vessel, is not conclusive against the fact of its neutral character and that fact remains open to investigation in another suit. Maley v. Shattuck, 3 Cranch 458. The condemnation of a vessel as lawful prize, affords no judicial in- ference of the vessel's being enemy's property, as there may be other just causes of condemnation. Goix Z'. Low, 2 Johns. Cas. 480; Bailey v. C. S. Ins. Co., I Treadw. Const. 381. Stipulation of Proof — A stipula- tion in a policy warranting the prop- erty to be American, proof to be made here, is not set aside by the sentence of a foreign court against the neutrality ; but the same may be vindicated here, notwithstanding such sentence. Sperry r. Delaware Ins. Co.. 2 Wash. 243, Fed. Cas. No. 13,236; Maryland Ins. Co. <■. Woods, 6 Cranch 29. 72. Uncertainty in Decree. Where the libel in a prize case asserted in one place that the prop- erty was French and in another that it was American, and where it was impossible to fix by the record of a foreign court whetlier the prize was Vol. I 308 ADMIRALTY. is not prima facie evidence of facts rebutted by the record,'^ and is onl_v prima facie evidence of the facts upon which the condemna- tion is founded, where the inference from the record is not concUi- sive.''' The judgment in a former action is not conchisive evidence French or American, evidence may be received in an action upon policies of marine insurance to establish American ownership within the war- ranty that the property was Amer- ican. Vasse V. Ball, 2 Dall. 270. In an action on a policy of in- surance, a judgment of a foreign court of adiniralty condemning the ship for a breach of blockade is con- clusive only when it states the specific cause of condemnation ; and where the decree stated that the ves- sel was condemned for a rescue from a belligerent captor, or otherwise, the assured was permitted to give evidence disproving the fact of such rescue. Robinson t'. Jones, 8 Mass. 536, 5 -\ni. Dec. 114. Insufficient Reasons for Decree. To constitute the breach of warranty by the assured, against seizure or detention of a vessel on account of illicit or prohibited trade, there must be an illicit or prohibited trade in fact, existing, and it is not sufficient that there has been a condemnation under a pretext of such a trade in a foreign court of admiralty where the presumption of facts to war- rant a condemnation is repelled by a detail of the precise grounds upon which the sentence was pronounced. Johnson v. Ludlow, 2 Johns. Cas. 481 ; Francis v. Ocean Ins. Co., 6 Cow. 404. A decree of a court in the Island of Hayti, not founded on a libel, and in which no trial was had, con- demning a vessel and cargo belong- ing to a citizen of the United States for an alleged breach of blockade, is not conclusive evidence of that fact. Sawyer z: Maine Fire and Marine Ins. Co., 12 Mass. 291. Where a vessel was seizcil and confiscated by the courts of Mexico, and il appeared by the record of the proceedings that there was no suit- able allegation of the offense in the nature of a libel, and there was no statement of facts ex directo upon which the sentence professed to be founded, the proceedings and decree Vol. I were not conclusive as to the ex- istence of the laws of Mexico, the jurisdiction of the court, and the cause of seizure and condemnation. Bradstreet z'. Neptune Ins. Co., 3 Sum. 600, 3 Fed. Cas. No. 1793. 73. Johnson v. Ludlow, 2 Johns. Cas. 481. 74. Vasee z'. Ball, 2 Dall. 270. Decree in Foreign Prize Court. Though the decree of a foreign prize court of admiralty condemning as prize, property libelled as enemy's property, is not conclusive against the neutrality of the vessel, Maley V. Shattuck, 3 Cranch 488; yet such a decree is competent prima facie evidence that goods condemned as enemy's property were such, in a suit upon a policy of insurance against the goods condemned. Lam- bert v. Smith, I Cranch C. C. 361. New York Cases — The decisions in New York cases are contrary to the decision of the federal courts that the decree of a foreign court of admiralty is conclusive as to the points decided therein, and hold that the decree of a foreign court of ad- miralty is only prima facie evidence of the facts stated in express terms as to the grounds of condemnation. In Ocean Ins. Co. ?'. Francis. 2 Wend. (N. Y.) 64, the chancellor said: "In all such cases, the de- cisions of the court condemning a vessel or cargo as a good and lawful prize, is conclusive to change the property, and can never be inquired into collaterally in any of the courts of the country under whose juris- diction such condemnation took place. It has also been decided in the supreme court of the LTnited States, and in some of our sister states, as well as in England, that the sentence is final and cnnclusivc against all the world, not only to change the property, hut as to the facts on which tlie condemnation was founded, and that neither can be examined directly or collaterally by the courts of any other country. (Croudson v. Leonard, 4 Cranch 434; ADMIRALTY. 309 of title or right if the court had no jurisdiction of the subject-mat- ter/'^ A foreign decree of damages for collision is not evidence of the collision or its causes or consequences, but only of the Dempsey v. Ins. Co. of Philadelphia. I Binn. (Pa.) 209, note; Baxter v. New England Marine Ins Co., 6 Mass. 277 ; Stewart v. Warner, i Day (Conn.) 143. This court, however, has adopted a different rule, which must now he con- sidered as the settled law of the state. It is, that the sentence of a foreign court of admiralty con- demning the property as good and lawful prize, according to the laws of nations, is conclusive to change the property, but it is only prima facie evidence of the facts on which the condemnation purports to have been founded. And in a collateral action, such evidence may be rebutted by showing that no such facts did, in reality, exist. ( Vandenheuvel v. United Ins. Co., 2 Johns. Cas. 451 ; New York Firemen Ins. Co. ;■. De Wolf, 2 Cow. 56.)" Disproof in Cases of Fraud. Where the sentence of a foreign court of admiralty and prize in rem was founded in fraud, it is not con- clusive upon the parties and they may disprove it by evidence. Brad- street r. Neptune Ins. Co., 3 Sum. 600, 3 Fed. Cas. No. 1793. 75. Rose 'l'. Himely, 4 Cranch 241 ; Bradstreet i'. Neptune Ins. Co., 3 Sum. 600, 3 Fed. Cas. No. 1793 ; Swift V. Myers, 37 Fed. 37; Cheriot V. Foussat, 3 Binn. (Pa.) 220. While the presumption is that a foreign court which has condemned a prize is a legitimate tribunal, yet where it is shown that the court was constituted by a military com- mander, especially where not shown to be the commander-in-chief, the burden is on the party supporting the condemnation to show that the court was instituted by lawful authority. Snell i". Fousatt. 3 Binn. (Pa.) 239 note, i Wash. 271. Although the decision of a prize court of competent jurisdiction is conclusive as to the ownership of property, and a court of common law has no jurisdiction of prize, yet if plaintiff claims goods as his property, which defendant denies on the ground of their having been con- demned for prize, a court of common law may inquire whether the con- demnation was pronounced by a court of competent authority. Wheel- wright I'. Depeyster, i Johns. (N. Y.) 471, 3 Am. Dec. 345. The state courts may decide whether or not a prize court had jurisdiction over the subject matter and its judgment will not be con- clusive evidence unless it had such jurisdiction. Slocum z'. Wheeler, i Conn. 129. Jurisdiction of State Court. Downs I'. Allen, 22 Fed. 805. Where the proceedings in a state court to enforce a maritime lien were void for want of jurisdiction, an incidental finding of the existence of the lien and of the amount due, is not conclusive in a subsequent proceeding in the federal court to enforce the same lien. The B. F. Woolsey. 7 Fed. 108. The regularity of the judgment in a state court cannot be assailed in the federal court in the absence of proof that there was no jurisdiction in the state court. Barker v. Par- kenhorn, 2 Wash. C. C. 142, 2 Fed. Cas. No. 993. Judgment of Federal Court — The jurisdiction of a district court of the United States is always open to inquiry when its judgment is relied upon in a state court. McCauley v. Hargrove, 48 Ga. 50. State courts have the restricted right to examine collaterally into the alleged defects of judgments ren- dered by United States courts, to ascertain whether the court which rendered the judgment had juris- diction, and whether it exercised that jurisdiction according to the legal forms of proceeding. Want of juris- diction may be shown either as to the subject-matter or the person, or in proceedings in rem, as to the thing. Paste v. Lewis, 39 La. Ann. 5, I So. 307; Gould V. Jacobson, 58 Mich. 288, 25 N. W. IQ4. Vol. 1 310 ADMIRALTY. amount awarded.'" A decree of restitution to the claimant in admiralty is (. Bonzey, 6 Me. 474. Absence of Note Where the bill of sale of a vessel, absolute in its terms, is positively shown by parol evidence to be only intended as a mortgage to secure loans by way of advances, the amount of which was not known at the time of the bill of sale, the fact that no bond or note was taken, does not make the bill of sale any the less a mortgage. Morgan t. Shen, 15 Wall. 105. Registration of Vessel The fact that the vessel was registered in the name of the mortgagee cannot affect the admissibility of the parol evidence or render the mortgagee who is not in possession of the vessel, liable for supplies and repairs, fur- nished to the ship. Davidson v. Baldwin, 70 Fed. 05; Howard v. Vol. I 324 ADMIRALTY fraud in the procurement of title to a vessel ;" antl that the title is in others than those who appear in the enrollment and bill of sale f-' and to contradict the certificates of foreign notaries to written docu- ments ;■''" and tlic protest of the loss of a vessel." VIII. DECLARATIONS AND ADMISSIONS. 1. Of Master. — The declarations and admissions of the master, though not strictly part of the res gestae, are admissible against the owner of the vessel, when made concerning the contract with the seamen,'^- or a contract to save a sunken vessel.^' The master, when upon a voyage, is the general agent of the owner, and his declarations and admissions within tlie scope of his authority, bind the owner,^* and are evidence against him in a case of colli- O'Dill, I Allen 85' : Hesketh v. Stevens, 7 Barb. 488; Cutler v. Thurlo, 20 Me. 213 : Lord v. Fer- guson, g N. H. 380; Cordray v. Mordecai. 2 Rich. 518. Proof Required. — An absolute bill of sale of a vessel, will be construed as a mortgage only upon the clearest proof that it was intended as secu- rity. Purington ;■. Aklurst, 74 111. 490. Interest in Resale Where a bill of sale for a vessel, absolute in its terms, e.\pressed a certain sum as the consideration, parol evidence is admissible to show that the purchaser was to pay an additional sum in case be resold the vessel within six months for a greater sum than that expressed in the bill of sale. Clark V. Geshon, 66 Mass. 589. 48. Scudder v. Calais Steamboat Co., I Cliff. 370, 21 Fed. Cas. No. 12,565; Ealer v. Freret, II La. Ann. 45.S. 49. Evidence by Part Owner. In Whiton v. Spring, 74 N. Y. i6g, the court said : " There w.as no error in allowing the plaintiff, Crowell, to recover as owner of one-eighth of the brig. It was competent for him to show, as he did, that he owned the one-eighth, in fact, al- though the registry of the vessel, and the bill of sale to conform thereto, showed that he owned but one thirty-second part and that the other three thirty-second parts be- longed to other parties. The bill of sale and the regislrv were not conclusive: and I know of no rule of Vol. I law that prohibited parol proof of the actual truth as to the ownership. I believe it is the settled law of this country that it may be shown that by a parol agreement or transfer the title to a vessel is actually in one while the ship's documents show it to be in another. Colson v. Bonzey. 6 Me. 474; Ring v. Franklin, 2 Hall 0. 50. U. S. V. The Jason, Pet. C. C. 450, 26 Fed. Cas. No. 15,470. 51. Contradiction of Protests. Where the protest of the loss of a vessel is introduced in evidence on the trial of an accusation against the insurers, evidence of declarations contradicting the protest, made by persons who subscribed it, is ad- missible to discredit the protest. The objection that it is hearsay does not apply. Church v. Teasdale, i Brev. 2.S.';. 52. The Enterprise, 2 Curt. 317, 8 Fed. Cas. No. 4497 ; The Napoleon, Olc. 208, 17 Fed. Cas. No. 10,015. 53. Fades v. The H. D. Bacon, I Newb. 274, 8 Fed. Cas. No. 42-!2. 54. Fades v. The H. D. Bacon. I Newb. 274. 8 Fed. Cas. No. 4232. Declarations As to Injury to Goods — In an action against the shipowner, the declarations of the master in regard to the injury to the goods, made to the agent of the plaintiff before the goods were de- livered according to the terms of the bill of lading, are admissible in evidence against the defendam. Price 7'. Powell, 3 N. V. 322. Admissions by Master in Posses- sion In an action against a vessel .IIUIIRALTY. 325 sioii.^^" A foreign master, wliu uiulerstands and speaks English im- perfectly, will not be charged upon his declarations or admissions in that language, without clear proof that he well understood the mean- ing of what was addressed to him, and of the words used by him in reply. ^" The statements of the master, when sailing on his own responsibility, under contract with the owners, do not Innd the owners,"" and his statements are inachnissible to show the owner- for collision, where the vessel was in possession and under control of the master and no ownership of the vessel appears, the admission of the master in regard to the collision is competent evidence though made subsequently to the collision, with like effect as if he were the owner, the possession of the property being considered in such case, prima facie evidence of ownership. Bailey v. The New World, 2 Cal. 370. Declarations Without Authority. The declarations of the master of the vessel made respecting the loss of it, after the loss, and after he has ceased to be agent of the owner, are not admissible in evidence against the owner. Polleys v. Ocean Ins. Co., 14 Me. 141. Where the master of a vessel who was part owner, procured a marine insurance on his interest with loss payable to himself, and the vessel was lost with himself and all on board, in an action on the policy by a creditor, claiming that it was ob- tained for his benefit, to secure a loan to the master, the declaration of the master as to his loan and policy were not admissible as evi- dence in favor of the creditor in the absence of proof that the master was acting as agent of the creditor in effecting the insurance. Sleeper V. L^nion Ins. Co., 61 Me. 267. 55. Bailey v. The New World, 2 Cal. 370. Declaration of Master After Col- lision Where a steamer collided will] and sank a schooner, the dec- laration of the master of the schooner, when taken on board the steamer after the collision, is ad- missible in evidence. Bedwell v. Potomac, 8 Wall. 590. In this case, the court said : " The master admitted, as soon as he was taken on board the steamer after the disaster, that the colhsion occurred through his fault, and this admission was repeated when he noted his protest. His statements on the point were full and e.xplicit, and could not have been easily misunderstood, but if they were not true, or were mis- understood, why was he not called to contradict or e.\plain them? The legality of this evidence cannot be questioned, for courts of admiralty have uniformly allowed the dec- laration of the master, in a case of collision, to be brought against the owner, on the ground that when the transaction occurred, the master represented the owner, and was his agent in navigating the vessel. This sort of evidence is confined to the confession of the master, and cannot be extended to any other person in the employment of the boat, for in no proper sense has the owner in- trusted his authority to any one but the master. The authorities on this subject are collected in the case of The Enterprise, 2 Curt. C. C. 320." Where the testimony is conflicting, the court will give weight to the fact that the master of one of the colliding steamers, in statements made immediately afterwards and in his official reports, deliberately made some weeks later, did not attribute the collision to any fault of the other steamer alleged in the libel. The Frostburg. 25 Fed. 4!;i. Great weight should be given to the admissions of the master of a colliding vessel, though not on deck at the time of collision, who states to the injured party that his own vessel was in fault, and promises to pay the damages done by her. The Douglass, l Brown Adm. 105, 7 Fed. Cas. No. 4031. 56. The Lotty, OIc. 329, 15 Fed. Cas. No. 8524. 57. Tucker v. Stimpson. 12 Gray 4S7. Vol. I :^26 ADMIRALTY. ship of the vessel, if i.L't made in the presence of the person sued as owner.^* 2. Of Captain. — The statement of the captain of a vessel, informing the agents of the owners of damage done to the vessel recjuiring repairs, and advising the purchase of coal to be loaded during repairs, is admissible as part of the res gestae;'"" and the statements of the captain made in the discharge of his duty, while the vessel was in a sinking condition, as to the observed cause of it, are competent evidence ;'■" but his statements are not admissible in case of loss or injury, unless shown to be part of the res gestae;" and if made by way of narration, after the occurrence of the injury, cannot be received in evidence against the owners of the vessel. "- 3. Of Other Members of Crew. — The admissions of the pilot made after the event, are not competent against the shipowner."'' Declarations of members of the crew, made immediately after the collision, become a question of the weight of evidence.''* 58. Chambers v. Davis, 3 Whart. (Pa.) 40. 59. Law z: Cross, i Black (U. S.) 533. 60. Western Ins. Co. v. Tohm, 32 Ohio St. 77- 61. Exclusion of Declarations. It was not error in the court below to exclude evidence of declarations made by the captain of tlie tug after she had become disabled, in regard to the occurrence, where it was not stated what was proposed to be proved and it was not shown that such declarations were a part of the res gestae. Union Ins. Co. V. Smith, 124 U. S. 405. 62. Murphy -e. May, 9 Bush (Ky.) 33- Narrative As to Causes of Injury. The declarations of the captain of a passenger steamer, in reference to the causes of an injury sustained by a pas- senger in getting on the boat, made two days after the accident, are not admissible evidence against the steamer. Northw. & W. U. Packet Co. V. Clough, 20 Wall. 5-28. In this case, the court said ; " A captain of a passenger steamer is empowered to receive passengers on board, but it is not necessary to tliis power, that he be authorized to admit that cither his principal, or any servant of his principal, has been guilty of negligence in receiving passengers. There is no necessary connection be- tween the admission and the act. Vol. I It is not needful the captain should have such power to enable him to conduct the business intrusted to him, to wit : the reception of passen- gers ; and, hence, his possession of the power to make such admissions affecting his principals is not to be inferred from his employment." Admissions made by the captain of a steamboat as to the cause of a collision are not admissible in an action against the owners of the boat, when the admissions were made when the captain went on board another vessel, immediately after the collision. Rogers v. McCune, 19 Mo. 557. Where a passenger on a steam- ship was injured by the lurching of a vessel in the absence of a hand- rail, the declaration of the captain, iTiade after the accident, that the place was dangerous and he would have it remedied, are inadmissible against the steamship company. .\m. S. S. Co. V. Landreth, 102 Pa. 131- 63. The Fanwood St. 61 Dents Fed. 52,5. 64. Weight of Declarations of Sailors A sailor whose testimony contradicts' statements deliberately made by him in writing, iiumediately ; Iter the collision, is entitled to little credence as a witness. The Douglass, I Brown ,\dm. 105. 7 Fed. Cas. No. 4031. But the declarations of inem- I <'rs of the crew made in loose con- versation directly after the col- lision, will have but slight weight ADMIRAISV. 327 4. Of Owners of Vessel. — 'i he auiiii^sions of one of several pail- owners of a vessel will not bind the others;'^'' and the declarations of one joint owner in possession of the vessel are admissible for other joint owners.'''' A subsequent report to the owner of a vessel by an agent concerning a transaction is inadmissible against the owner."' 5. Of Other Persons. — A. ArroRNiiY. — A statement by an advo- cate made by authority of the party represented, in open court, the day after the hearing of an admiralty cause, may be taken as an admission in contradiction of the evidence submitted by such party."' JJ. SiiiPi'iNC Notaries. — Declarations made to seamen by ship- ping notaries, at the time of sailing, bind the ship."'-' C. Admissions by Ticnder, Offer or Settlement. — A tender by respondents upon a libel for services is an admission of owner- ship of the vessel ;'" and an abandoned agreement to arbitrate, after refusal of a tender of damages for collision, is an admission of fault. '^ The settlement by a tug of her tow's claim for damages against their deliberate testimony to the contrary. The New Jersey, 01c. 415, 18 Fed. Cas. No. io,i6l; Whit- ney V. The Empire State, I Ben. 57, 29 Fed. Cas. No. 17,586; and are entitled to little weight in deter- mining disputed questions of fact, in reference to the navigation of the respective vessels. The Hope and The Freddie L. Porter, 4 Fed. 89. Declarations Made Under Excite- ment Evidence of verbal state- ments made in time of excitement and peril should be received with great caution, and when opposed to the direct and concurring testimony of many witnesses, is entitled to but little weight. The Masten, i Brown. Adm. 436, 16 Fed. Cas. No. 9266. Written Protest of Captain and Crew A written protest made by a captain and crew on the morning after a collision, which corresponds with their testimony in court, is com- petent evidence to sustain the tes- timony of the captain, when sought to be impeached by proof of con- tradictory statements. Ward v. The Fashion, 6 McLean 152, 29 Fed. Cas. No. 17,154. Beclaration Without Weight. No weight is to be attached to evi- dence of a declaration made by one of the crew of a steamer, which col- lided with a sailing vessel, that he saw the light of the sailing vessel in time to have avoided the collision. The Roman, 14 Fed. 61. 65. Clark -•. Wicks, 106 U. S. 13- Admission of Part Owner A statement made in another suit by a part owner of a vessel injured by collision, as to the e.vtent and value oi her repairs, is not binding on his co-owners, who were merely tenants in common with him and not partners and is not admissible as evidence against them. \ joint owner will not be bound by the admission of his co-owner that damages for injuries are payable to an insurer instead of the owners, made in a proceeding to which such joint owner is not a party. The Betsy, 2^ Ct. C. C. 277. 66. Admissions at End of Voyage. The admissions of the master, who is a part owner of the vessel, made at the end of the voyage, as to the meaning of a technical phrase of a charter-party do not conclude cither him or his co-owners upon the merits of the case. The John H. Pearson, 14 Fed. 749. 67. The Burdett, 9 Pet. 682. 68. The Harry, 9 Ben. S24, n Fed. Cas. No. 6147. 69. The Lola, 6 Ben. 142, 15 Fed. Cas. No. 8468. 70. Jones v. Crowell. 13 Fed. Cas. No. 7459. 71. The S. Shaw. 6 Fed. 93. Vol. I 328 An MIR. -I LTV is evidence of an admission of fault on her part, in a subsequent suit against a colliding vessel for the damages so paid." Admissions made in an oiifer of compromise voluntarily proposed, without reservation, are competent evidence.'-' IX. OPINION EVIDENCE. 1. Of Non-Experts. — The testimony of a seaman as to the value of the wardrobe of the wife and children of the captain of a vessel, lost by collision, has no weight as evidence.'* 2. Of Experts. — A. Admissibility. — a. Collision. — In cases of collision, the testimony of experts is admissible to show the bear- ing of a steamer's rate of speed upon her navigation ;'■''' and to show whether the special circumstances of the case rendered a departure from the statutory sailing rules necessary ;'" and to prove the value of an injured vessel.'^ In such cases, the court may refer nautical 72. The Hattie M. Spraker, 29 Fed. 457. 73. Gibbs v. Johnson, 10 Fed. Cas. No. t;384. 74. The Oregon, 89 Fed. 520. 75. The Blackstone, I Low. 485, 3 Fed. Cas. No. 1473. 76. Special Usage of Navigation. In a suit to recover damages caused by the sinking of a pilot boat by a steamer during maneuvers incident to the transfer of the pilot, the evi- dence of e.xperts is admissible to show the usage of navigation under such circumstances. The Alaska, 33 Fed. 107; The Clytie, 10 Ben. 588, 5 Fed. Cas. No. 2913. 77. Value of Pilot Boat. — In the absence of evidence as to the market value of the pilot boat injured in a collision, resort may be had to the judgment as to such value of persons acquainted with the business and with her earnings. The Emilie, 4 Ben. 235. In the absence of a market for the chartering of pilot boats, it was proper to resort to the judg- ment of persons acquainted with the piloting business, as to the value of the time of the vessel, based upon the employment she was in, its character and its constancy, and its then recent results. Such value must include only the value of the use of the boat, as a vessel without pilots and crew, or stores. The Transit, 4 Ben. I ^8, 24 Fed. Cas. No. 14.1.^8- Best Evidence of Market Value. Vol. I In case of a total loss of a vessel by collision, the best evidence of her market value is the opinion of com- petent persons who knew tlie vessel shortly before she was lost, and the next best evidence is the opinions of persons familiar with shipping and the transfer of vessels. The Col- orado, Brown Adm. 411, 6 Fed. Cas. No. 3029. In ascertaining the market value of a vessel sunk in a collision, the commissioner or court is not restricted to the evidence of com- petent persons who knew the vessel and testified as to her market value, though that is in general the best single class of evidence. Leonard 7'. Whitwill, 19 Fed. 547. Estimates of Cost of Repairs. Estimates of the cost of repairs of injury received by the collision, though competent in the absence of better evidence, are not so where the repairs have actually been made. The Mayflower, Brown Adm. 376. Place "of Proof of Value. — Where a vessel is lost at sea, proof of her value at the time and place of her loss may. in ordinary cases, be made by evidence of her value at the last port of departure or at the place of her destination. The Pennsyl- vania. 5 Ben. 253, 19 Fed. Cas. No. 10.948. Value of Use of Ferryboat F..\- pcrt evidence is admissible to show the value of the use of an injured ferryboat. The Cayuga. 7 Blatchf. 3R5, 5 Fed. Cas. No. 2537. AlUllRAl.TV. S2') questions to experienced navigators.''" and may call in a navigator of experience as nautical assessor of damages.''' Competent sea- men on board of a colliding vessel may testify as to whether she was managed with skill and prudence.*" b. Transportation. — The testimony of experts is admissible to prove the value of goods damaged in transportation when the mar- ket value was not ascertainable.*' The testimony of an experienced navigator is admissible to show the negligence of a tug in the mode of transporting laden barges, one of which was sunk.'- Experi- enced shipmasters are competent to show whether a vessel had a full cargo.'-' c. Marine Insurance. — In actions upon marine insurance, the opinion of experts, of nautical skill, is competent as to the pru- dence of the management of the lost vessel and as to the cause of 78. The Emily, Olc. 132, 8 Fed. Cas. No. 4453; Lowrv j'. Tlie Port- land, 15 Fed. Cas. No. 8583. 79. Power of Districi Judge. — In a collision case there is no error in the district judge's calling to his assistance a navigator of experience as nautical assessor. The Fountain City, 62 Fed. 87, to C. C. A. 278. 80. Opportunities of Observation. The testimony of competent sea- men on board a vessel, as to whether she was managed with skill and prudence is entitled to more weight from their better opportunities to observe, than the testimony of wit- nesses on board another vessel, who had no particular opportunities to judge of the matter. The Northern Warrior, i Hask. 314, 17 Fed. Cas. No. 10,325, 81. Bareness of Market Where it appears that on the day on which the damaged goods should have ar- rived, there were no sales, and the market was hare, the testimony of experts is admissible to prove the value. The Colon, 10 Ben. 366, 6 Fed, Cas. No. 3025, 82. Testimony of Captain of Tug- boat The captain of a tugboat who had had many year's experience and was familiar with the making up of tows, was competent to testify as to whether it would be safe or prudent for a tugboat on a bay to tow three boats abreast with a high wind. The court said : " The witness was an expert and was called to testify as such. His knowledge and ex- perience fairly entitled him to that position. It is permitted to ask questions of a witness of this class, which cannot be put to ordinary witnesses. . . . The testimony of experienced navigators on questions involving nautical skill was admis- sible. . . . The books give a great variety of cases in which evi- dence of this character is admis- sible, and we have no doubt of the competency of the evidence to which this objection is made. Eastern Transp. Line v. Hope, 95 U. S. 297. 83. Covenant in Charter-Party. Where a charter-party covenanted for a full cargo of general merchandise without specifying any particular amount to be received, the question, what was " a full cargo " under all the circumstances and whether the ship could have been safely loaded to a greater depth, was a question that could be solved only by ex- perienced ship-masters. The court said : " What was a full cargo for this ship to carry with safety was not a fact which could be settled by any rule of law or mathematical computation, and the court must necessarily rely upon the opinions of those who have experience, skill and judgment in such matters. .\t least three competent witnesses of this character testify that the ship was loaded as deep as prudence would permit under all the circumstances. Both the district and circuit court were of the same opinion, and we do not find in the evidence, anything to convince us that they have erred." Ogden V. Parsons, 23 How, 167. Vol. I 5.10 ADMlUAL'rV her loss ;'■' and to show thai an unusual method of stowing cargo was a fact material to the risk.^'^ B. Inadmissibility. — The opinion of navigators is not admissi- ble to show the amount of earnings lost by a vessel damaged by collision ;*" or while detained for repairs.*' The practice of bring- ing in sea-faring men to assist the court in cases of salvage has not been sanctioned in this country.** The testimony of experts is not admissible to prove that a rule of navigation recognized by general maritime law does not exist in a particular locality.*'' Opinions of experts are not admissible upon questions of negligence which require no expert knowledge or training."" C. WEIGHT OF Expert Evidence. — The opinions of experts, however qualified and trustworthy, cannot bind the conscience of the court,'" and though uncontradicted as to the value of the use 84. Loss of Insured Tug In an action upon a policy of marine in- surance upon a lost tug, the master, the mate and foreman, of a tug, who were on board of her at the time she was lost on the lake, and her owner, each of whom had been engaged in navigation of the lake for many years, are competent as expert witnesses in regard to the loss, and in regard to the prudence and good seamanship of the management of the tug. Union Ins. Co. v. Smith, 124 U. S. 405. 85. Condition Implied in Policy. In M'Lanahan v. Universal Ins. Co., I Pet. 170, the court considered the question of the materiality of the risk at the time of sailing. The court said : " The material ingre- dients of all such inquiries, are mixed up with nautical skill, information, and experience ; and are to be ascer- tained in part, upon the testimony of maritime persons, and are in no sense judicially cognizable as matter of law. The ultimate fact itself, which is the test of materiality — that is, whether the risk be increased so as to enhance the premium — is, in many cases, an inquiry dependent upon the judgment of underwriters and others, who arc conversant with the subject of insurance." 86. Probable Employment Too Remote In an action for damages resulting from collision, mere opinion as to the probable employment of the vessel, and the amount of earning if so employed, is too speculative and contingent In be the foundation of Vol. I any rule of damages. The R. L. Maybey, 4 Blatchf. 439, 20 Fed. Cas. No. 11,871. See The Conqueror, 166 U. S. no. 87. Incompetent Evidence The mere opinion of the master and the mate of a vessel is incompetent evi- dence and cannot sustain an allow- ance for loss of the earnings of a vessel during her detention for re- pairs. The Isaac Newton, 4 Blatchf. 21, 13 Fed. Cas. No. 7091. See The Conqueror, 166 U. S. no. 88. The Waterloo, I Blatchf. & H. n4, 29 Fed. Cas. No. 17,257. 89. The Clement, 2 Curt. 363, 5 Fed. Cas. No. 2879; The Clement, I Spr. 257, 5 Fed. Cas. No. 2880. 90. Safety of Place for Wharfin- ger Where a wliarfingcr was in- jured by a steamboat in landing and was charged with contributory neg- ligence, the question whether the place where the wharfinger stood on the wharf was reasonably safe was a question depending on common knowledge and observation, and re- quiring no special training or ex- perience to decide and no opinions of expert witnesses thereupon were ad- missible. Inland and Seaboard Coasting Co. v. Tolson, 139 U. S. 551- Prudence of High Rate of Speed. Experts are not allowed to testify to the prudence or propriety of a steamer's keeping up a high rate of speed in a fog. The Blackstone, I Low. 485, 3 Fed. Cas. No. 1473. 91. The Iberia, 40 Fed. 893. ADMIRALTV VI I of a vessel, cannot prevcni ihe exercise of independent judgment on that question."- The conflicting opinions of experts as to the value of a vessel at the time of collision is of less weight than a sale of half thereof, then concluded for a specified sum."^ The tes- timony of experts should prevail in behalf of respondents where the libellant has not procured the best evidence obtainable."* The facts of the case will prevail over the opinions of each ship's com- pany as to the acts of the other,'"* and the clear testimony of eye- witnesses will prevail over the opinions of experts.'"' X. RELEVANCE AND COMPETENCY OF EVIDENCE. 1. Admissibility. — Facts which, if standing alone, would be irrelevant, are admissible in evidence upon the statement of counsel, that they are part of a chain of evidence which, as a whole, would be relevant.'" Where the intention or knowledge of a party becomes a material fact, collateral acts and declarations having a bearing on the issue, are admissible in evidence."' In an action 92. Friendly Experts Evidence of friendly experts as to the value of the use of a vessel, without any showing that the vessel was profit- able, or that there was a demand for its use in the market, is not sulifi- cient to sustain damages for its de- tention. The Conqueror, i66 U. S. no. 93. The Albert Dumois, 177 U. S. 240. 94. Absence of Best Evidence. On the question of the value of an iron bark injured by collision, where the libellant, instead of producing evidence of value from Scotland, where such barks are built and sold, called a New York expert, and respondent's expert fixed a lower rate, the libellant not having pro- duced the best evidence attainable, the testimony of respondent should prevail. The City of New York, 2.? Fed. 616. 95. Preference of Facts in Proof. In determining the merits in a case of collision, the court will look chiefly to the facts in proof, and will pay but slight attention to the opin- ions and hypotheses of witnesses, es- pecially those of each ship's com- pany, in respect to the acts of the other; and plans and diagrams, in- tended to exhibit the course, bear- ings, and distances of two vessels approaching each other, are of no value as evidence, when framed merely upon the conjecture or opin- ion of witnesses as to speed, relative bearing, and distances of the vessel. The Narragansett, Olc. 246, 17 Fed. Cas. No. 10, log. Opinions of Slight Weight. — The estimate or judgment of witnesses formed in the nighttime, and ex- pressed orally, or exhibited on. charter or diagram on a vessel in motion, are of slight weight in de- termining the relative position and bearing of another vessel, also under motion. The Argus, Olc. 304, I Fed. Cas. No. 521. 96. Course of Vessel — In case of a collision, the opinion of experts as to the vessel's course, when founded upon very nice calculation, will not obtain as against the clear testimony of eye witnesses. The D. P. Kelly v. Thompson, i Low. 124. Time of Dawn and Sunset. — Tes- timony of persons who have wit- nessed dawn and sunset at the place and season involved in the issue, together with that of eye witnesses to the facts in dispute, outweigh the received opinion of geographers and navigators as to the time of such phcnonema and the duration of twilight. Fletcher v. The Cubana, 9 Fed. Cas. No. 4863. 97. U. S. V. Flowery, i Spr. log, 25 Fed. Cas. No. 15,122. 98. Tobin V. Walkinshaw, I McAIl. 186, 2Z Fed. Cas. No. 14,070. Vol. I 332 ADMIRALTY. rclaliuy lo a vessel belonging lo llic plainliff, a letter of instructions from the plainlitif to the captain of the vessel is admissible in evi- dence for the plaintiff/ Agreements between the part-owners of a vessel, before fitting it out, may be proved on their part by the testimony of others to conversations heard between them.- The cost of the repairs of a vessel is competent evidence of the damage caused by collision," and in the absence of proof of the market value of the use of a vessel injured by collision, the books of the owner showing her earnings about that time are competent evidence of her probable earnings during the time of her detention.* Entries in books are explainable.'^ 2. Inadmissibility. — Evidence is incompetent to show a custom of vessels to run at full speed in a dense fog without a lookout;" 1. JMcClanachan v. McCarly, 2 Dall. SI. 2. Res Gestae Such conver- sations are evidence of the contract made between the part owners which was part of the res gestae of the fitting out of the vessel. Macy v. De Wolf, 3 Woodb. & M. 193, 16 Fed. Cas. No. 8933. 3. Evidence of Party Repairing. The party repairing the injured ves- sel should show positively that he has only reinstated the vessel in the condition in which she was before the collision. The W. H. Clark, 5 Biss. 295, 29 Fed. Cas. No. 17,482 ; La Champagne, 53 Fed. 398. 4. The Mayflower, i Brown Adm. 376, 16 Fed. Cas. No. 9345 ; The Transit, 4 Ben. 138, 24 Fed. Cas. No. 14,138; The Eniilie, 4 Ben. 235, 8 Fed. Cas. No. 4451 ; The Con- queror, 166 U. S. no. 5. Explanation of Entries. — Where coal was furnished to a vessel in a foreign port to enable her to make her voyage, it is to lie presumed that credit was given to the vessel and not exclusively to the owner, and entries of charges to the owner in the journal and ledger of the party furnishing the coal may be explained. The court said : '' If the credit was to the vessel there is a lien, and the burden of displacing it is on the claimant. He must show, affirmatively, that the credit was given to the company to the ex- clusion of a credit to the vessel. This he seeks to do by tlie form of charge in the libellant's journal and ledger. If it be conceded that these entries tend to support this position, they are far froin being conclusive evidence on the subject. Entries in books are always explainable, and the truth of transactions can be shown independent of tlieni. The form of charge in any book of original entries does not appear, as the day-book was not called for by the claimants, nor are the ' invoices ' which the libellant was directed to furnish with the coal produced. But, from the form of entry in the journal itself (where the amount furnished to each vessel is set opposite its name), we are lead to the conclusion tliat the day-book entries which are thus journalized were debited to each steamer by name. If this be so, the journal entries are not incon- sistent with the idea of the credit's being given on the security of the ship. More especially is this apparent when it is proven that the reason why monthly accounts were made out to the steamboat company in bulk was for the sake of con- venience, and to save a useless ac- cumulation of bills. There is noth- ing besides this journal entry to indicate that the coal was furnished on the personal credit of the com- pany, and, as other facts in the case are in favor of charge direct to the steamship, we do not think legal in- ference of credit to the ship is re- moved." The Patapsco, 13 Wall. 329. 6. Richelieu & O. Nav. Co. v. The Boston M. Ins. Co., 136 U. S. 408. Vol. I ADMIRALTY. 333 or to prove a local custom for masters of U\'^& to act as wheelmen;'' or a usage that crews were not treated for sickness at the ship's expense ;" or to prove what the captain of a vessel intended to convey by a signal. XI. WEIGHT OF EVIDENCE. (For Weight of Expert Evidence, see "OriNiuN EviuiCNCE, IX. 2, C") 1. In General. — Where the evidence is conflicting and e(|uallv balanced, the libellant must fail ;" but if the libellant recovers in such a case, the decree will be affirmed upon appeal, notwithstand- ing the conflict and even balance of testimony." Where the evi- dence on both sides is conflicting and equally credible, the weight of evidence is with the greater number ;'" or with the most probable theory of the case in view of the facts. ^^ More weight is to be given to the testimony of witnesses that an occurrence took place, than to that of those who testify that it did not take place, unless 7. The Coleman, i Brown 456, 6 Fed. Cas. No. 2981. 8. Rule Not Changeable The evidence of such usage is incom- petent to vary the settled rule that seamen are entitled to be treated at the ship's expense. Knight Z'. Parsons, I Spr. 279, 14 Fed. Cas. No, 7886. 9. Signal Tinder International Rnles In a collision case between the steamers governed by the inter- national rules, it is proper to exclude a statement by the captain of one of the vessels as to what informa- tion he intended to convey by a signal of one whistle, as the mean- ing thereof is conclusively deter- mined by the rule. The Eisbonense, S3 Fed. 293. 10. Failure of libellant. —Where the controversy turns wlioUy on questions of fact, depending upon testiiTiony which is so conflicting that no safe opinion can he formed of the merits, a decree dismissing the libel will be affirmed on appeal, on the ground that the libellants failed to establish their case by a prepon- derance of evidence. Lowell ?'. The Joseph Stickney, 56 Fed. 156, 6 C. C. A. 454 ; Assante r. Charleston Bridge Co., 40 Fed. 76?. The evidence will not warrant a finding in favor of a libellant where it is evident that the stories told by the witnesses for both parties are intentionally misstated and false. The Wionia, 55 Fed. 338. Where there is an irreconcilable con- flict of evidence as to whether there was any collision, libels for the loss will be dismissed. The .\manda Powell, 14 Fed. 486; The C. Van- derbilt, 10 Ben. 607, 6 Fed. Cas. No. 3524. In a great conflict of evidence as to the courses and conduct of colliding vessels, damages will be denied for want of preponderating proof. The Summit. 2 Curt. 150, 23 Fed. Cas. No. 13,606. Preponderance of Evidence. — Where the testimony is conflicting, but the preponderance is in favor of the libellants, the decree will be in their favor. Merchants' S. S. Co. V. The S. C. Trion, 4 Fed. 2?6. 11. The Sampson, 4 Blatchf. 281, 21 Fed. Cas. No. 12,279. 12. Clark 7: The Ruth. 39 Fed, 12S; The Dale, 46 Fed. 670; The Napoleon. Olc. 208, 17 Fed. Cas. No. 10,015 '■ The Dolphin, 6 Ben. 402, 7 Fed. Cas. No. 3972. 13. The Iroquois, 91 Fed. 173: The Vulcan and The Genevieve, 96 Fed. 850: The Qneen Elizabeth. 100 Fed. 874; The Florence P. Hall, 14 Fed. 408; Nester v. The City of Cleveland and The John ^farten, 56 Fed. 729 ; The Hope and The Freddie E. Porter. 4 Fed, 89: The Carroll, i Ben. 286, 5 Fed. Cas, Co, 245T ; The Genesee Chief 7'. Fitz- bugh, 12 How, 443, Vol. I 334 ADMIRALTY. it appears that the opportunity to know, and tlie attention were e(]ual.'* 2. In Collision Cases. — A. ( )ccrKRExcES on Board. — In cases of collision, the testimony of jx'rsons on board of one of the vessels respecting their own acts, will be deemed to outweigh the state- ments of persons on the other vessel as to such acts -^^ and the testi- mony of witnesses on board of a sailing vessel as to the strength and direction of the wind, is more reliable than that of those on board a steamer with which she came in collision;'" and the testi- mony of a steamer's ofliccrs as to her speed, is of more weight than 14. Dunning ;■. Bond, 38 Fed. 81?; Tlie Samniie, 6g Fed. 847. 13 C. C. A. 686; The Lizzie Henderson, 20 Fed. 524. 15. The Alexander Folsom, 52 Fed. 403, 3 C. C. A. 165; The Havana, 54 Fed. 411; The Express, 5S' Fed. .340; Diming; v. The Sam Sloan, 65 Fed. 125; The Gate City, 90 Fed. 314; The Isaac H. Tillyer, loi Fed. 478; The Falcon, 8 Fe-e merits, the court would reverse the decree and remand the case with directions to permit amend- ments and further proof. The Mabcy, 10 Wall. 419; The Caroline, 7 Cranch 496; The Mary .\nn. 8 Wheat. ,380. Insufficient Excuse The excuse that the party agreed that he would not introduce any testimony in the c< urt below, and therefore did not, is sufficient to justify a commission to take testimony in the supreme court, which is never allowed as of course. The Mabev, 1 1 Wall. 73?- Excuse Necessary No order for commission can be granted upon application unless a sufficient excuse was shown for not taking the evi- dence the usual way before the courts below. The Juanita, gi U. S. 366. Vol. I ADMIRALTY. 347 whether further proof should be allowed/ and would order furtlier proof where necessary to decide upon the validity of a capture,^ but would not allow further proof where the concealment of mate- rial papers appeared.' c. Dcf^ositioiis Taken in Circuit Court. — Depositions taken under contmission from the circuit court in admiralt}', pending' an appeal to the supreme court, were not admitted as part of the record upon appeal to the supreme court where no sufficient excuse was shown for not taking them in the usual way in the courts below, and no further proof had been ordered in the supreme court.'' 4. In Other Courts. — A. Appe.xl Fkom Tkkuitori.vl Court. An appeal from a territorial court sitting in admiralty is regulated by the rules of admiralty, and not by the territorial statutes.-' I). New EviDEN'Civ. — New evidence was not received upon an appeal in admiralty in Oregon f but in Washington Territory, new evidence was allowed to be introduced upon an appeal in admi- ralty from the territorial district court to the territorial supreme court.' 1. The London Packet, 2 Wheat. 2. The Grotiiis, 8 Cranch 4i6 ; The Sir Williarn Peel, 5 Wall. 517; The Venu.s, I Wheat. 112; The Friend- schaft, 3 Wheat. 14; The Fortiuia, 2 Wheat. 161. 3. The Fortnna. 3 Wheat. 236. 4. Similar Showing Required As TTpon Application in Supreme Court. The supreiTie court cannot admit depositions taken under a comrnission issued from the circuit court except upon a similar showing of suffi- cient excuse to that which is re- quired upon an application for a commission to take testimony in the supreme court. Leave was granted in this case to renew a motion to make the depositions taken in the circuit court pending the appeal a part of the record in case the defect of a want of a sufficient excuse could he supplied. The Juanita, 91 U. S. 366. Braithwaite v. Jordan, 5 N. D. S. 196. 6. 7. Cutler V. Columbus, i Or. loi. Phelps V. The City of Panama, I Wash. Ty. 615. ADMISSIBILITY.— See Competency; Relevency. Vol. I ADMISSIONS. By John 1). Works. I. DEFINITION AND NATURE OF, ^^=,y II. DIFFERENT KINDS, 339 1. Direct or Express, 360 2. Incidental, 360 3. By Implication, 361 A. Generally, 361 B. Fra;« Assumed Cliaracler, 3()i C. From Conduct, 362 D. From Silence and Acquiescence, 3O7 4. Self-Serving Statements, 383 5. Partial and Plenary, 390 6. Documentary, 390 7. Oto/ Statements, 396 8. Judicial, 397 A. Defined, 397 B. Made in Pleadiui^s, 398 a. Express Admissions. 398 b. Bv Failure to Deny Allegations in Pleadings in Ac- tion on Trial, 401 c. /;! Ot/icr Actions Betii.'een Same Parties. 424 d. /« Other Actions Where Parties Sot the Same. 425 e. By Demurrer, 436 f. Pleading Not Filed. 437 fj. Pleading Superseded by Amended Pleading. 437 li. Pleadings .Stricken Out, 441 !. IFithdraZi'n or Abandoned Pleadings. 442 j. Averments on Information and Belief. 442 k. Common Laiv Pleadings. 443 C Pleadings in Suits in Equity, 443 a. Geuerallx, 443 b. The Bill'. 443 (i.) Signed by Attorney Xol Ei'ideuce of .Id- mission, 443 (2.) Otiierivise if Signed or I'erified by Party, 444 (3.) irhere Mailer Ihrected by Jliin lo Be Inserted, 444 (4.) Antliorities Holding il Competent, 444 c. Ans7ver, 445 (I.) Generally. 445 (2.) Is CompelenI livideuce Against the Pefend- anl. 445 Vol. I AD.]J!SSI()i\'S. 349 (3.) And .igaiiisl His Successors, 446 (4.) Bill Need Not Be Offered — Exception, 446 (5.) Evidence of l-'erbal Admissions, When Suf- ficient to Overcome, 446 (6.) Must Be Taken As a Whole, 447 (7.) Conclusive on the Defendant. 44S (8.) Need Not Be S-a'orn to To Render Compe- tent Ai;ainst Pleader. 449 (9.) 0)1 Information and Belief, 449 (10.) ll'ithdraicn or Otherzcise Superseded Com- petent as Adnrission. 449 (11.) Not Tiled Competent Ai::;ainst Defendant, 449 (12.) May Amount to Declaration of Trust, 449 (13.) Not Competent Against Co-Defendant — Exceptions, 450 (14.) Not Competent in Another Action .igainst Keprescntati'-re, 451 (15.) Tailure of One Defendant to Anszirr Not Competent Against Anotlicr, 451 (16.) Admissions in the Ansiver, 452 (17.) Where the .Insiver Neither Admits Nor Denies, 454 (18.) Alleging Want of Knozi'ledgc, 456 (19.) Need Not Be Specific, 456 (20.) Matters Cliarged to Be Within Defendant's Knoivledge, 456 (21.) By failure to Anszver, 459 (A.) 53' Failure to File Replication, 459 (B.) The Filing of Necessary Pleading May Be I'l'aiz'ed, 460 (C.) Refusal to Anszi'cr, 460 (D.) Adiuissions Against Infants, 460 (22.) Guardian Ad Litem Cannot Bind By, 460 D. In Divorce Cases, 461 a. Case Not Made Out by Admissions in Pleadings. 461 b. Verbal Admissions or Confessions Insufficient. 462 (I.) Held Not to Be Competent Evidence, 462 (2.) Otiier Cases Hold Them Competent. 462 (3.) -Ind Others That Diz'orce May Be Granted on Alone, 463 c. Cannot Be Granted on Stipulation, 463 d. Necessary Allegations Not Ground for Divorce. Effect of Admissions, 463 E. In Open Court, 463 a. Generally, 463 b. When L<;sues Are Changed, 464 c. For the Purpose of the Trial. 4^4 Vol. I 350 ADMISSIONS. d. When Xut Umitcd, 465 e. By an Attorney Mnst Be Distinet and Fonnul. 466 f. Admissions in O/^ening Statement Not Binding, 469 g. Ho7c Must Be Made. 470 F. By Stipulation. 470 a. Generally. 470 b. Made for Purposes of tlie Trial. 471 c. Made Wit/tout Limitation. 471 (1. H01V Mnst Be Made or Proved. 472 e. Change of Issues Immaterial. 472 G. Agreed Case, 472 a. Generally, 472 b. Is Conelusizr, 472 c. Made for Purposes of Case Not Competent in Another Case. 472 H. Agreed Statement, 473 I. Bdls of Exeeptions, 475 J. Petitions and Affidavits. 47() a. Generally. 476 b. Affidati't of Third Party Proeured h\ Party to Suit, 478 c. Made by an Agent, 479 (1. Made by One Not Having Authority, 479 e. Not Admissible As Seeondary Evidence, When, 479 f. Must Be Offered in Evidence, 479 g. Whole Must Be Read, 480 K. To Az'oid Continuance, That Absent Witness Will Tes- tify to Certain Facts, 480 L. In Testimony Giz'cn As a Witness. 481 a. Generally. 481 b. Offer of Letter Admission of Its Correctness, 482 c. To Prove Omission to Make Claim, 483 (1. That Party IVas Compelled tn Testify Immaterial. 483 c. Hoiv Proved. 484 f. Ei'idencc Improperly Taken i'onipelent. 485 g. Party Need Not Be Called to Testify. 485 li. Testimony of Third Party Not Competent. 485 i. Exceptions, 486 j. For Purpose of Impeacliment, 486 k. Testimony on Trial Not an . Idmissiou. 4S6 ^[. /)( Depositions, 487 a. Generally. 487 1). When Deposition Incompetent As Such, 488 c. Where Party in Court, 488 (1. Not Conclusive, 489 e. JVhole Must Be Read, 489 f. Exceptions to the Rule, 489 g. Party Need Not Be Called. 489 Vol. I . IPMISSIONS. .v=^l N. Aiisiccrs to Iiitcrrugalorics, 489 O. Bills of Particulars, 4()o P. By Default. 490 Q. Offer to Confess Jinli^iiicnt or Siitfcr Default, 5(X) R. Confession of Judgment, 501 S. Paxnient of Money Dito Court. 302 III. TO WHOM MAY BE MADE, 503 1. Generally. 503 2. Po Adverse Party or His Agent. 503 3. Po Attorney or Agent, 503 4. Po Third Party, 503 IV. BY WHOM MAY BE MADE, 504 1. Parties to the Record. 504 A. Generally, 504 a. By One of 'Ai'o or More, 507 b. Other Declarations to B-vf^laiu Piadniissible, 507 B. Proper Parties, 508 C. Of Nominal Parties, 508 a. Generallv Incompetent. 508 b. Of Record Held Competent. 509 2. Of Persons Interested in Result, but Not Parties Compe- tent, 510 3. B\ Party in Possession Affecting Title. 510 A. Generally, 510 B. Grantors, Former OzK^icrs. and Priiics. 510 a. Of Grantor Admissible Against Hint and Claimants Under Hint, 510 b. Aitd Agaiitst Straitgers, 513 c. Agaiitst Whom Not Adntissible, 313 (I.) Prior Grantees. 313 (2.) Or Subsequent Grantee if Made .Ifter the Grant, 514 (3.) By Testator After Exectition of Jl'ill, 316 (4.) Of Ancestor as Between His Heirs. 317 (5.) By Tenant in Possession. 317 (1. To Shoiv Character of Possession. 317 e. Not Cotitpetent to Disproz'c Record Title. 318 f. To Establish Fraud itt Coitveyaitce. 320 .e:. .l/)(.\-/ Be Made When in Possession. 322 (I.) Ofherz^'ise As .tgaiitst Heirs or Devisees. 523 h. Must Be Against Interest, 524 i. Of Fidticiary in Possessioit, 324 j. lit One's Oiini Interest Wlien Admissible, 324 k. /;■/)//(' in Possession of Personal Property, 323 (i.) Generally, 523 (2.) As Against the Vendee. 326 (3.) Bv Donor Agaiitst Donee. 328 (4.) To Shozv Fraud in the Transfer. 528 Vol. I 332 .IDMISSIOMS'. C. Assignors and .Issignccs, ^t,2 a. Of Assignor Before Assignment Admissible, 53^ (i.) Execption — Negotiable Paper, '^2,2 b. To Shozv Fraud in the Transfer, k,t,^ c. By Assignor After Assignment Iuad]nissible, 535 (1. By Assignor in Bankniptey, 537 4. Bv Agents or Other Representati'^rs, 538 A. Generally, 538 B. Agents and Employees, 539 ' a. Must Be While Acting As Such and Within Au- thority, 540 b. JVhat Is Part of Res Gestae, 541 c. Agency and Authority Must Be Proved, 544 (i.) Cannot Be Proved by Admissions of Agent. 546 (2.) Proof of Agency for the Court, 547 (3.) Degree of Proof Required, 54S d. Proof of Ratification Sufficient, 548 C. General Agents, 548 D. Special Agents, 549 E. Public Officers or Agents, S4') a. Generally, 549 b. Admissible Only While Within Authority, 550 c. Must Be About' the Act Done, 550 d. Of Deputy Against His Principal, 551 e. By Party to Action Against Sheriff, 551 F. Officers and Employees of Prii'afe Corporations, 351 a. Generally, 551 b. Narrations of Past Transactions I)iadmissibU\ 352 c. Reports Made by Superior Otficers, 536 d. Must Be Acting As Agent, 536 G. Attorneys at Laiv, 557 a. Are Agents of Clients, 337 b. Admissions Competent Only When Within Then- Authority, 339 c. Not Competent to Prove That He Was Attorney, 560 d. By General Attorney, 360 c. Oral Admissions Out of Court. 560 f. Made in One Ca^^e Inadmissible in Another — Ex- ception, 560 g. Must Be Distinct and formal, 3(11 h. Generally Not Conclusive, $(n i. ]\Iade to Attorney, 561 H. Persons Referred to for Information, 361 a. Generally, 561 b. Must Be Such Reference As to Make Referee an Agent, 362 c. Must Be JVithi)! Autliority Given, 562 I. Husband and Wife, 362 Vol. I .■1D}[ISSfONS. 353 a. Generally, 562 b. Must Be Othcncisc Competent, 5G3 c. Does Competeney as IVifiiess Affect the Oitestioii, 564 d. As Agents for Each Other, 565 (I.) Must Be Within Scope of Authority. 565 e. Confidential Communications Inadmissible. 566 J. Trustees and Beneficiaries, 566 a. Of Trustee U'lieu Admi.'\sihle Against Cestui One Trust, 566 b. Of Trustee Without Beneficial Interest, 566 c. Miist Be Part of Res Gestae. 567 d. As to Past Transactions Inadmissible. 567 e. When Party to Record. 567 f. By Party Creating Trust. 568 (t.) 'To Establish Trust. 568 g. By Cestui Que Trust. 568 K. Guardians, 5O8 a. Against Themselves. 568 b. Against the Ward Not Admissible. 5O8 (i.) Exception — Res Gestae, 561; c. When Party to the Record, 569 d. Affecting fl'ard's Title to Land Iiunlinissible, 569 L. Guardians Ad Litem, 569 M. Personal Representatiirs, 569 a. Of Executors and Administrators, When Admis- sible, 569 b. Must Be Made When transacting Business of Estate, 570 c. Respecting Claims Against Estates, 570 d. Aff'ecting Title to Land, 570 e. By One of Several Admissible, 570 (i. ) Of Executor Against Co-Executor Held In- admissible, 571 (2.) Must Be About Their Joint Interest and Within Authority, 571 f. By Former Administrator, 571 g. As Against Heirs and De^'isees Inadmissible, 571 b. By Testator or Intestate, 571 N. Insured and Beneficiary. 572 a. Of Insured Against Beneficiary. 572 b. Exception — Jl'herc Insured May Charge Bene- ficiary, 573 c. Made Before Insurance is .Iffccted. 373 d. By Beneficiary, 373 5. By Strangers, 573 A. Generallv Inadmissible. 373 U. Exception to Rule. 574 a. Deceased Persons, 374 b. One Wlw Can Not Be Compelled to Testify, 374 Vol. 1 354 ADMLSSIOXS. c. Interest Must Be Pecuniary, 574 6. Persons Jointly Interested, 574 A. Generally, 574 B. By One of Sez'eral Owners Inadmissible, 576 a. By Stockholders of a Corporation, 577 C. To Take Debt Out of Stati/te of Limitations, 577 D. Partners, 578 a. Admissible Against the firm, 578 (I.) Mnst Be Acting as a Partner, 579 (2.) By Partner Since Deceased, 580 h. Made After Dissolution Inadmissible, 580 (I.) Contrary Rule Declared, 581 (A.) Admissible .-It^ainsi the Part\ Making If. 583 (B.) Must Relate to Past Business. 583 (2.) Where Partner Made Agent to Close Up Business, 583 (T,.) IVIiere Has Assigned to Co-Partner, 583 {4.) Not to Create New Obligation, 583 c. Partnership Must Be Proied. 584 (1.) Cannot Be Proved by . Idmissinns of One Alleged Partner, 584 (A.) Admissible ^■ii:;ainsf Parl\ Making It, (2.) Question of Partnership One jor the Court, 586 E. Principal and Surety, 586 a. Of Principal Against Surety. 58() (I.) Must Be Made at 'Time of Transaction, 587 (2.) /;( Case of Bond of Officer After Term Ex- pires. 588 (3.) iriicn Conclusiz'C. 589 ( 4. ) Confession of Judgment by Principal, 589 b. Of Surety Against Principal. 589 c. Of One Surety Against Another. 589 d. Guarantor and Guarantee. 589 F. Co-Conspirators, 589 a. /;( Furtherance of Conspiracv .Idiiiissible, 589 I1. Conspiracy Must Be Shozcn. 590 (I.) Cannot Be Proved bv Admissions of One Conspirator. 5(^2 (2.) Of Each .Idmissible .Igainst Him. 592 (3.) Order of Proof, 593 c. Question of Conspiracy One for the Court, 593 d. Made Before or After Conspiracy. Inadmissible. 593 e. Must Be in Purtlterance of Conspiracy, 594 7. Persons Under Disability or Restraint. 504 A. Generally, 594 B. Infants. 51:4 a. Generally. 3ij4 Vol. I .-IDMISSIONS. 355 b. /;; .Ictioiis for Injuries Ccmsiiig His Death. 594 C. Under Guardianship, 595 D. Non Compos, 595 E. Married IV omen, 595 a. Generally, 595 b. For What Purposes Inadmissible, 595 F. Under Duress, 595 a. When .himissihle. 395 V. WHAT ADMISSIONS NOT RECEIVABLE, 396 1. Generally, 5i;6 2. Admissions of Law, 596 3. For Sake of Compromise, 596 A. Generally, 596 B. 7v';(/i' Does Not ^-Ipply to Criminal Cases, 598 C. Must Be Made to Purehase Peace, 599 D. Question for the Court, 599 E. Admission of Facts Competent, 599 4. State Secrets. Coo 5. Jury Secrets, 600 6. Privileged Cominunications. Coo 7. Parol .Idmissions in Pais, (>oo A. Generally, 600 B. .■:/j- Evidence of Contents of Written Instruments, 600 C. To Prove Fact of Which Instrument Is Evidence, 601 D. Distinction Between Admission of Law and of Fact, 602 E. Cases Holding Such Admissions Competent, 602 F. As a Substitute for Written Evidence, 603 G. Competent to Prove Existence and Execution of In- strument, 603 H. As Secondary Evidence, (3o3 I. To Vary Terms of Written lustrunient. 603 8. Must Be Material to the Issue, 603 9. Made on Previous Trial of Same Action. 604 VI. MODE OF MAKING AS AFFECTING ADMISSIBILITY. C04 1. Generally. ("104 2. Through an Interpreter, 604 A. Designated by the Party Himself, 604 B. Appointed by the Court, 604 3. Through the Telephone, 604 A. Speaking Directly, 604 11. Tliroui:,h an Operator, 603 VII. HOW PROVED, fio5 1. Generally, 605 A. Exceptions, 605 a. Husband or Wife Competent to Prove, 603 b. Persons DisqualiHed to Testify. 605 c. When Admission is Confidential, 606 2. Bv Sleuograplier's Notes. 606 3. Particularity Required, 606 Vol. 1 356 ADMfSSIOXS. A. Generally, 606 B. Party M'aking Must Be Identitied, t;o6 C. Substance May Be Given, 606 4. Explanation by Party Making, 606 A. All That Was Said at the Time May Be Proved, 606 B. Not What Was Said at Another Time, 608 C. Or Occurring at the Time if Not Relevant, 609 D. Contained in H'ritten Instnnnent All Must Be Read, 609 E. Tn Correspondence Wliole May Be Required, 610 5. By Party Foundation For Inipeachnient Need Not Be Laid, 610 6. /;/ Pleading Must Be Read in Fz-idence. 610 VIII. WEIGHT TO BE GIVEN TO EVIDENCE OF, 610 I. Generally, 610 A. Should Be Received With Caution, 611 B. Strong Evidence When Satisfactorily Pro-^-ed, 611 C. IVeiglit To Be Determined by Jury, 612 IX. EFFECT OF WHEN PROVED, 612 1. When Conclusive, f)i2 A. Generally Not Conclusive, 612 a. Mad'c Under Oath, 613 B. Exception to the Rule. 613 a. Generally, 613 b. Judicial Admissions, 613 (I.) .is .S'ubstitute for Eiidence, ()13 (2.) In Pleadings, 613 (A.) But Not When Offered in Another Ac- tion, 614 (3.) Confession of Judgment, 614 (4.) To Avoid Continuance, Effect Of, 614 (5.) Made by Mistake, 614 (6.) Procured by Fraud, 614 c. When Acted Upon, 614 C. In Deeds, 613 D. In Other Writings, 615 E. Containing Hearsay. (115 F. Parol Admissions in Pais, 615 2. Effect for the Jury. ('115 CROSS-REFERENCES. Adverse Possession; .Affidavits; Answer; .\ttorne\- and Client; Best and Secondary Evidence; Confessions ; Declarations: Deeds; Depositions; Docnnientary I'.videncc ; Duress; Dying' Declarations ; Tnterjjreters ; T^irol Evidence; rartner^liip ; 1 'leadings ; I'rincipal ami .Vgent ; Principal and Sin-ct\ ; I'rixilegcd Conininnications ; Res Gestae. Vol. I JDMISSIONS. 357 I. DEFINITION AND NATURE OF ADMISSIONS. Definition. — An adniission, competent as evidence in a judicial action or proceeding, is a voluntary acknowledgment in express terms, or by implication, by a party in interest, or by another by whose statement he is legally bound, against his interest, of the existence or truth of a fact in dispute material to the issue.' Distinguished from Confessions. — The term admission is distinguish- able from that of confession. The former is applied to civil trans- actions and to matters of fact in criminal cases not involving criminal intent, the latter to acknowledgments of guilt in criminal cases. - Must Be Voluntary. — ' )ne of the elements of a Ijinding admission, as above defined, is that it must be voluntarily made. Therefore, if it is made under duress, or coercion of any kind, as where one is called as a witness and required to testify, there is a material dilTer- ence between civil and criminal cases in respect of the right to prove admissions so made. In the former, there is no valid reason why the statement made under oath, as a witness, should not be provable against a party, the same as if made voluntarily, in the strict sense. But if attempted to be used to criminate himself in a criminal case, the rule is different. Such statements cannot be used to incriminate the party making them on the same principle and for the same reason that he could not be compelled to answer a question on the witness stand if his answer would tend to incriminate him.-' 1. Definitions — Admissions are "concessions or volnntary acknowl- edgments, made by a party of the existence or trnth of certain facts." Bouvier's Law Die. "Recognition as fact or truth ; acknowledgment, concession ; also the e.xpression in which such assent is conveyed." Anderson's Law Die. "In the law of pleading and evidence an admission is an ac- knowledgement that an allegation is true." Rapelje & Lawrence Law Die. "\ statement, oral or written, sug- gesting any inference as to any fact in issue, relevant, or deemed to be relevant, to any such fact, made by or an behalf of any party to any pro- ceeding." Stephens' Dig. of Ev.. 39. a. Greenl. Ev., § 170 ; Stephens' Dig. of Ev., 39. 52; Notara v. De Kanialaris, 22 Misc. 337, 49 N. Y. Supp. 216 ; Chamberlayne's Best on Ev., § 523. 3. Cannot be used to Criminate. I Greenl. Ev., §193: Collett v. Lord Keith. 4 Esp. 212; State v. Senn, 32 S. C. 403, 11 S. E. 292; iMc(jahan v. Crawford, 47 S. C. 566, Car. 566. 25 S. E. Rep. 123 ; Collins J'. Wilson. 18 Kv. Law 1049, 39 S. W. x^- In State r. Senn. 32 S. C. 403. 1 1 S. E. 292, the question was as to whether testimony given by de- fendant in a criminal action before the coroner's jury, at a time when he was not charged with the crime, could be given against him upon the trial of the case. In speaking to the question, the court said : " To be admitted in evidence, confessions, or declarations in the nature of confes- sions, must be voluntary ; and there- fore, when made under the charge of crime, they are not, as a rule, re- garded vohnitary. Rut it has never been doubted that declarations made by one not a party, but in a prose- cution against another, are deemed voluntary, and, as such, may be sub- sequently used against him, as in the case of State v. Jones, 29 S. C. 201, 7 S. E. 296. where the only question was whether, in the matter Vol. I 358 ADMISSIONS. So a statement made by one while in the custody of an officer that would be excluded in a criminal case against him, mav be competent in a civil action.* of contradicting a witness, his writ- ten statement before the coroner was admissible against him, and it was rightly ruled that it was admissible for that purpose. This being the law, the inquiry was soon made as to what would be the rule when the statement was made by one not a party at the time, but made so afterwards ; the test being whether the statement was voluntary at the time it was made. The difference would seem to be small between a case where the charge was against another and where there was no charge at all. The earlier cases, however, seem to have taken the other view, and to have held that the subsequent charge and arrest operated retrospectively, and made the prior statement invol- untary, and therefore inadmissible. But the later cases seem to have considered the matter differently, and to have corrected the ' variance ' pointed out by Mr. Greenleaf. and have, as we think, in accordance with principle and all the analogies, set- tled the law otherwise." Conse- quently it was held in that case, that the testimony given by the defend- ant, before the coroner's jury, and before he was actually charged with the commission of the crime, was admissible against him, for the rea- son that it was voluntary at the time it was made. Testimony Taken De Bene Esse. In McGahan v. Crawford, 47 S. C. 566, 25 S. E. 123, the question was as to the admissibility of a dec- laration against interest, made by one whose testimony was taken de bene esse. The declaration was held to be competent evidence, based upon the ground that the declaration of a party, made under oath, in a civil action, is not involuntary. In that case it appeared that it was not shown that the person before whom the deposition was taken was an offi- cer authorized to take depositions ; but the rule is stated to be the s.une. whether the officer had such iiithority or not. Made Before Grand Jnry Not in Session — Again in Collins v. Wil- SLin, 18 Ky. Law 1049, 39 S. W. 33, the admission sought to be proved was made in the presence of the grand jury in their room, the grand jury not being in session, and the party not having been sent for, or called as a witness. The state- ment was made in the presence of the jury, after the party had been cautioned that it might be used against him. It was held that the admission was entirely voluntary, and competent to be proved against him, notwithstanding the fact that it was made in the grand-jury room, and in the presence of the jury. 4. Statement When in Custody Competent in Civil Case Co.x v. People, So N. Y. 500. In Notara v. DeKamalaris, 22 Misc. 337, 49 N. Y. Supp. 216, a civil action for the recovery of damages for conversion, it appeared that, prior to bringing the suit, the plaintiff had caused the defendant's arrest, on the charge of misappropri- ating the proceeds of the sales made, and it was offered to prove that the defendant, while so under arrest, had made admissions concerning the nature of his transactions, which they deemed material to establish their cause of action. It appeared that the admissions were made while the defendant was in the custody of the officer, and while under arraign- ment in the United States Court. In ruling upon the questions, as to the admissibility of this evidence, the court said : " But it is claimed by the defendant that different rules apply when the statements are made by a person while in the custodv of an of- ficer under a criminal charge, or while being arraigned in a criminal court. There is no warrant for such claim. The term ' admission ' is usually applied to civil actions, and ' confession ' to acknowledg- ments of guilt in criminal prosecu- tions. Where statements made by a defendant to an officer, involve him civilly, they may be received as an au:. 11. Express Admissions Greenl Ev., § 194 ; .Anderson's Law Die, Hodges V. Tarrant. M S. C. 608. 9 S. E. 10,^8. 12. Indirect or Incidental. England. — Stow j'. Scott. 6 Car. & P. 241 ; Peacock v. Harris, 10 East, 104. .Ihihaina. — Harmon i'. Goetter, 87 .\la. .125, 6 So. 9,3. Vol. I Connecticut. — Rroschart v. Tuttle, 59 Conn. I, II L. R. A. 2i, 21 Atl. 925- Illinois. — Day v. Gregory, 60 111. App. 34. AVzc )'V;-^.— Smith -.•. Hill. 22 Barb. 656 ; Hurd v. Pendrigh, 2 Hill 502. ds N. Y. Com. Law 501.) Pennsylvania. — Harrington v. Gable, 81 Pa. St. 406; Reed v. Reed, 12 Pa. St. 117; Cromelien v. >rau- ger, 17 Pa. St. i6g. South Carolina. — Lynn v. Thomp- son. I" S. C. 129. Indirect Admissions Li Hurd v. Pendrigh, 2 Hill 302, the action was on the case for the value of goods, lost by a common carrier, and the plaintiff was permitted to prove that, after the commencement of the suit, the defendant agreed that, if the plaintiff would swear to the bill of the articles lost, he would pay for them, and was also permitted, in connection with this testimony, to in- troduce in evidence his affidavit, showing such amount, on the ground ADMISSIONS. 361 the effect ol which will be considered under the head of admissions implied from conduct. But it may be by the admission or statement of some collateral fact that involves or assumes as true the fact in issue; and a mere inquiry may, under some circumstances, amount to an admission. '■• 3. Admissions by Implication. — A. Genek.m-i.v. — As we have seen, an admission of a fact may be implied from the assumption of a character, which is itself an admission, by conduct, or by silence or acquiescence. An admission may be made by acts or conduct or bv the failure to deny or speak, when called upon to do so by any statement made by another. li. Fro.m AssiMED Ch.\k.\cti;k. — With respect to the first of these, the assumption of character, it arises most frequently where one is charged in some official character, or the like, and the proof shows that he has acted as such. This is generally held to be sufficient prima facie evidence that he was the officer he assumed that taking the whole together, it amounted to an admission that the plaintiff was entitled to recover the value of the goods so sworn to. So it was held in Reed v. Reed, 12 Pa. St. 117, that the declaration oi a vendor, by parol contract, that he would not make a deed until his vendee had paid a specified balance of purchase-money, in the absence of precise evidence of the terms of the contract, was competent evidence to show how much was due to the vendor. Again, in Cromelien v. Mauger, 17 Pa. St. 169, where one person was indebted to another, in a book ac- count, and gave to his creditor a promissory note, payable to himself, and indorsed as collateral security, it was held that the promise to pay the account, subsequently made by the debtor to the holder of the note, the account being produced at the same time, was evidence from which the jury might infer an admission that the holder of the note was the owner of the claim. So in Smith v. Hill, 22 Barb, 656, it was held that where a party for- bids the sale of personal property on execution, upon the sole ground that the property is exempt from sale, this will be considered a virtual ad- mission that the execution and sale are in otiicr rcsl^ccfs legal and valid. 13. Wise V. Adair, 50 Iowa 104; Broschart v. Tuttle, 59 Conn, i, 11 L. R. A. 33, 21 Atl. 925 ; Day v. Gregory, 60 111. App. 34. Indirect Admissions In Bros- chart V. Tutllo. 50 Conn. i. 11 L. R. A. 33. 21 Atl. 925, an action to recover damages for the killing of a horse, by the alleged negligence of the defendant, it was held that a statement of the party, to the effect that he was a lawyer, and could carry on the suit at one-sixth the expense of the other; that he knew every juryman in the county; and that twelve men could not be got together that would decide against him. might be proved against him as an indirect admission, which, in the absence of explanation, would tend in some degree, to evince a con- sciousness of liabilty upon the claim. In Day v. Gregory, 60 111. App. 34. a similar case in which the plaintiff was permitted to prove that the defendant said to three or four of the witnesses, on different occasions, that it would be easy to beat ap- pellee in a law suit because he kept no account, it was held that the tes- timony complained of in connection with other circumstances in proof, might have tended to impeach the reliability of his account, and was therefore admissible. Vol. I 362 ADMISSIONS. to be, and avoiils the necessity of establishing, by direct evidence, his official capacity.'* But the doctrine is not confined to admissions of official character, but extends to the assumption of any character consistent with the truth of the fact sought to be established and inconsistent with its falsity. C. From Conduct. — Similar rules are applicable to admissions by conduct.^" Admissions implied from conduct are usually indirect, or incidental, and belong to that class as above defined. They result from the conduct of a party consistent with a state of facts against his interests and inconsistent with some claim made by him in the controversy in which his conduct is sought to be proved. For examples, the payment in part of a claim now disputed, or the payment of a like claim matle by another,'" or the omission from an inventory or schedule required by law to be made, of property owned by him, of the property now claimed and in 14. Implied from Assumed Char- acter — Cummin v. Smidi, 2 S. & R. (Pa.) 440; Rex V. Gardner, 2 Camp. 513, II Rev. Rep. 784; Trowbridge V. Baker. I Cow. (N. Y.) 249; Pritchard v. Walker, 3 Car. & P. 212; Chapman v. Beard, 3 Austr. 942, 4 Rev. Rep. 875. 15. Sears v. Kings County El. Ry. Co., 152 Mass. 151. 25 N. E. 98, 9 L. R. A. 117; Springer V. City of Chicago, 135 111. 552. 26 N. E. Rep. 514; 12 L. R. A. 609; Huntington v. American Bank, 6 Pick. 340 ; Readman v. Conway, 126 Mass. 374; St. Louis & S. F. Ry. Co. V. Weaver, 35 Kan. 412; 11 Pac. 408, 57 Am. Rep. 176. From Conduct In Sears v. Kings County HI. Ry. Co., 152 Mass. 151, 25 N. E. 98. 9 L. R. A. 117, an action brought by the treasurer of the corporation to recover for salary, it was held competent to show that he, as such treasurer, prepared a statement of its lialiilities. in which he did not inchide any claim of his own for salary ; and that he after- wards assented to, as correct, the statement of said habilities, which did not include his claim. In Huntington %>. American Bank, 6 Pick. 340, it was held that paying money into court, upon a quan- tum meruit count, is an admission of the contract as alleged. .\nd in Springer v. City of Chi- cago. 735 HI. 552. 26 N. E. 514, Vol. I 12 L. R. \. 609, it was held that an offer to sell property at a certain price may be proved against the owner as an admission of its value, at or near the time of the offer. In Readman v. Conway, 126 Mass. 374, it was held that on the issue of fact whether a landlord or his ten- ant was to keep in repair a platform in front of a shop, evidence that for an injury caused by a defect in the platform the landlord repaired it, is competent as an admission that it was his duty to keep the platform in repair. The court saying that " these acts of the defendants were in the nature of admissions that it was their duty to keep the platform in repair, and were therefore com- petent. 16. Galveston H. & S. A. Ry Co. f. Hertzig, 3 Tex. Civ. .'Vpp. 296, 22 S. W. 1013; Howland v. Bart- lett. 86 Ga. 669, 12 S. E. 1068; but see Slingerland t'. Norton. 35 N. Y. St. 426, 12 N. Y. Supp. 647. Payment to Third Party of Like Claim. — The case nf Howland v. r.artlclt, 86 Ga. 669. 12 S. E. 1068, was one in which an attorney, having collected a fund in which three clients were jointly and equally interested, upon a rule brought against him by two of them, and, it was held that evidence was ad- missible in their favor, that he pay to the third party a sum almost ADMISSIONS. 363 controversy/' or the giving in of property for assessment for taxes, or omitting from the tax hst the property in (Hspnte, or giving it in in the name of another/'* or the attempt to snborn witnesses or equal to that claimed of him by each of the other two, and that, yielding to the demand of the client, to avoid being ruled for the money, did not make the transaction incompetent evidence as an admission made by constraint, or with a view to the promise. Galveston H. & S. A. Ry. Co. v. Hertzig, 3 Tex. Civ. App. 296, 22 S. W. 1013, was an action against a railroad company for damages, resulting from a fire alleged to have been caused by negligence. The fire in question had spread from the land of the plaintiff to that of another party, and it was held com- petent to prove that the defendant had paid the parties to whose lands the fires from plaintiff's lands had spread, for the damages to their lands resulting from the same fire. A different rule was declared in Slingerland v. Norton, 35 N. Y. St, 426, 12 N. Y. Supp. 647, but upon the ground that negotiations or prop- ositions looking to the settlement of the controversy, would not be re- ceived in evidence as admission of liability. 17. Hendricks w. Huffmeyer (Tex. Civ. App.), 27 S. W. 777;- Ran- kin V. Busby (Tex. Civ. App."), 25 S. W. Rep. 678; Judkins -.'. Wood- man. 81 Me. 351, 17 Atl. 298; Lvon r. Phillips. T06 Pa. St. 57: Fullam V. Rose. t6o Pa. St. 47, 28 Atl. 497 ; Morrill v. Foster. 33 N. H. .■^79- Inventory Omitting Land. — Tn Hendricks z'. Huffmeyer (Tex. Civ. .\pp.), 27 S. W. 777, where the object was to establish a partition and allotment of land and that it was not the property of the decedent, the inventory filed by the administrator of such decedent was held to be ad- missible to show that the land was not included therein, and as a cir- cumstance tending to show that the land did not belong to the decedent. Same, Schedule of Bankrupt — So it was held in Rankin r. Rusby (Tex. Civ. App.), 25 S. W. 678, that the schedule in bankruptcy, made by the alleged owner, not including the land in question was competent as to the question whether a bank- rupt had or had not sold the land. It was said by the court that he was not estopped by his failure to in- ventory land, but it was a fact com- petent to go to the jury with refer- ence to the claim of the defendant that Rankin had resold one-half of the certificate to Powell. Schedule of Property. — In Judkins V. Woodman, 81 Me. 351.. i7 Atl. 298. where title to certain wood was in question, it was said by the court, " Objection was made to the admission in evidence of a paper said to be a schedule of articles, claimed by the mortgagee, and on which the wood in question does not appear. It was objected to on the ground of irrelevancy. We think it was admissible. It was prepared by the defendants, and was admissible upon the same ground that any dec- laration of a party, written or oral, is admissible." A like rule was declared in the case of Lyon v. Phillips, 106 Pa. St. !;7, with respect to the omission from a schedule of assets, filed by a bankrupt, of certain judgments, claimed to be owned by him. In Fullam v. Rose, 160 Pa. St. 4". 28 Atl. 497, the rule was applied against an executor, seeking to re- cover monev deposited by testator with defendant for safe keeping. It being held that a certified copy of the adjudication of the executor's ac- count IS competent to show that the claim in suit was taken therefrom. 18, Whitfield V. Whitfield, 40 Miss. 352; Lefever v. Johnson, 79 Ind =;^4; Steed v. Knowles, 97 Ala. :;7 3 "12 So. 75; Richardson v. Hitchcock, 28 Vt. 7S7; Jo"es v. Cum- mins, T7 Tex. Civ. App. 661, 43, S. W. 8.=;4. Assessed in the Name of Another, In Whitfield v. Whitfield, 40 Miss. -!52, where the contest was between the father and representatives of the Vol. I 3()4 ADMISSIONS. prevent their attendance, '" or corrupt jurors, or officers of the court, in his interest,-" such con(hict bein"- inconsistent with the son, as to the title of personal prop- erty, it was held to be competent to show by the assessor's books that during the time that the property was in the possession of the son, it was assessed, not as the property of the son, l)ut of the father. Tax List Omitting Property So in Lefever v. Johnson, yg Ind. 554, a suit for the recovery of personal property, it was held that the tax list, sworn to by a party showing no claim to the property in controversy was admissible in evidence against him. The court saying: "The list was a statement in writing, signed in a firm name and sworn to by ap- jjcllants ; it was made out under the direction of a public officer, in pur- suance of a duty enjoined by law, and is competent evidence, tending to show the amount and kind of property owned by the assessed at that time." Property Assessed Jointly. — In Steed V. Knowles, 97 Ala. 57,?, 12 So. 75, it was held competent to show that the party had had the land in question assessed as belong- ing to certain parties, one-half to each, as tending to show the owner- ship of the parties in and to tlie land at that time. Assessment Lists, and Rolls, When Competent. — In Jones i'. Cininiiins, 17 Tex. Civ. App. 661, 43 S. W. 854, it was held, generally, that original assessment lists are admis- sible in evidence against the parlies making them, the court saying : "The statements of parties to the suit, when pertinent, are always ad- iiiissible against them ; and we see no difiference between assessment lists, when signed by the parties, and other statements. It has been held that tax rolls are not admissible as declarations against a party." In this case a distinction is made be- tween the tax rolls made up by the assessor, or by his direction, and the original assessment lists, the former being mere copies of the original lists, and not ))inding upon the party. 19. Cruik-,hank v. Gordon, 15 N. V. St. 897, I N. V. Supp. 443 : Egan V. Bowker, 5 Allen 449. Procuring Absence of Witness. The case of Cruik^hank z\ Gordon, 15 N. Y. St. 897, I N. Y. Supp. 443, was an action for slander, and it was held competent to show against the defendant that, after the papers in the action were served, he offered the witness a thousand dollars to go to Canada, to avoid testifying on the trial. The court, in passing upon the action said: "It is difficult to conceive of a case wdiere an offer to suppress a witness is inadmissible. It was a virtual admission of the speak- ing of the slanderous words." Suborning Witness to Swear Falsely So in Egan r'. Bowker. 5 .Mien 449. proof was offered to show that one of the parties to the action liad suborned a witness to swear falsely in a deposition taken in con- nection with the case, although the deposition was not put in evidence by either party at the time, the court saying : " The evidence offered for the purpose of showing that the plaintiff had suborned a witness to testify falsely in support of his claim against the defendants, and. in connection therewith, that in procur- ing such false testimony he had acted under an assumed name, was clearly competent and ought to have been admitted. These facts were in the nature of admissions implied from the conduct of the party that his claim against the defendant was false and unjust. The inference is a reasonable and proper one, that a person having an honest and fan- debt which he claims to be due will not endeavor to support it by false- hood and frau.l: and the fact that he resorts to such means of proof has a tendency to show that he knows he cannot maintain his suit by evidence derived from pure and Iticnrrupt source;.' 20. Corrupting Jurors — Hastings V. Stetson. 130 Mass. 76: Kidd v. Ward. 91 Iowa 371. 59 N. 'W. 279- Vol. I .■U>MJSSJUXS. M>o justice of his claim or suit, or the performaucc of an\ act required of him by the terms of a contract or oljhgation, the vaUditv of which is in dispute,^^ or the offer to sell property at a given price as evidence of its value,-- or acting as agent of another for property that he now claims to have owned at the time,'-' or standing by and allowing property that he now claims as his own to be sold to another, without making his title known,-* or the acceptance by him of the benefits of a contract or transaction the validity of which he is attacking, and any other acts inconsistent with the claim he makes. ^^ 21. Floyd Cn. ■:•. .Morrison. 40 Iowa 188 ; Town of Sliaron v. Town of Salisbury, 29 Coini. 113; Harpswell V. Phibsburg, 29 Ale. 313; Browncll V. Town of Greenwich, 44 Hun 611, 4 L. R. A. 685, 114 N. V. 518, 22 N. E. 24. Settlement of Account In Town of Sharon i\ Town of Sahsbury, 29 Conn. 113, it was held that the select- men of a town liad full power, by virtue of their office, to settle an account presented by another town for supplies furnished for a pauper belonging to their town, and that the payment of sucli an account con- stituted an implied admission that the pauper was a settled inhabitant of the town, and that, therefore, evi- dence of such settlement and pay- ment was competeiU evidence of such admission. 22. Springer v. City of Chicago, i.?5 111. 552, 26 N. E. 514. 12 L. R. A. 609. 23. Duncan i\ Duncan, 26 La. Ann. 532^ 24. Wisdom ?'., Reeves, no Ala. 418, 18 So. 13 ; Cox z: Buck. 5 Strob. (S. C.) 367; Hatch V. Kimball, 16 Ale. 146; Traun v. KeifTer, 31 Ala. (N. S. ) 136; Wendell ^^ Rensselaer, I Johns. Ch. 344. Seeing Expenditures Made on Land Without Asserting Claim In Wendell z: Rensselaer, i Johns. Ch. 344-355, the rule is thus stated ; " There is no principle better estab- lished in this court, nor one founded on more solid considerations of equity and public utility, than that which declares that if one man knowingly, though he does it pas- sively, by looking on, suffers another to purchase and e.xpend money on land under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to e.xercisc his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel." Delivery of Property to Sheriff Under Process.— But in Traun r. Keiffer, 31 Ala. (N. S.) 136, while it was held that if a person offers another, in his presence, to purchase from a third person prop- erty to which he has a title, of which title the purchaser is ignorant, his failure to assert his title will estop him from afterwards setting it up against such purchaser, it is also held that the delivery of property to the sheriff or the payment of its as- sessed value in money, under proc- ess in his hands issued upon a judg- ment which is afterwards reversed, is no admission or ackuowdedgment of the plaintiff's title; and that where property is appraised as a part of an estate, in the plaintiff's presence, who has asserted no title, it is competent to rebut this evidence )iy the proof of the private asser- tions of the title by the plaintiff, to one of the appraisers, before the completion of the appraisement. It is further held in this case that an involuntary or compulsory sur- render cannot be evidence of an admission of title in another. 25. Alabama. — Sheppard v. Bu- ford, 7 Ala. (N. S.) 90; Lewis v. Robertson, too Ala. 246, 14 So. 166; Turreutine v. Grigsby, 118 Ala. 380, 2}, So. 666. Califoniia. — Arnold ?■. Skaggs, 35 Cal. 684. Coiiiiccficut. — Davidson v. Bor- ough of Bridgeport, 8 Coim. 472: Vol. I 3()() .-iDMISSIONS. It is held that claiming the privilege of refusing to testify by a party on the ground that his testimou)- will tend to criminate him, may be proved in a civil action as an implied admission of his Page V. Merwin, 54 Conn, 426, 8 Atl. 675. Illinois. — Burt V. Freiicli, 70 111. 254- Massacliusctts. — Elliott v. Hay- den, 104 Mass, 180; Readman v. Conway, 126 Mass. 374; Hathaway V. Spooner, 9 Pick. 23. Mississipf'- — Southern Ex. Co. v. Thornton, 41 Miss. 216. M issojtri. — The State v. Baldwin 31 Mo. 561 ; North St. Louis and C. Church V. McGowan, 62 Mo. 279. New Hainj>s!urc. — Moore v. Dunn, 42 N. H. 471. Nczv York. — Lobach v. Hotchkiss, 17 Abb. Pr. 88; Sheldon v. Sheldon, 65 N. Y. St. 693, ^2 N. Y. Supp. 419; Smith V. Hill, 22 Barb. 656. Oregon, — Heneky v. Smith, 10 Or. 349, 45 Am. Rep. 143. Pennsylvania. — Phillips v. Phil- lips, 8 Watts, 195; Lobb v. Lobb, 26 Pa. St. 327. Texas. — Georgia Home Ins. Co. v. O'Neal, 14 Te.x. Civ. App. 516, 38 S. W. 62. Inconsistent Facts. — The case of Arnold v. Skaggs, 35 Cal. 684, was on an account for goods, alleged to have been sold and delivered to the defendant. The liability of the defendant turned upon the question as to whether he or one Ingles was the owner of a cer- tain livery stable. It was proposed to show in the action that Ingles, who was in the actual possession of the stable, furnished to the assessor the tax list for the purpose of taxa- tion of the property and business of said stables, as the property of the defendant, and that subsequently the latter appeared with said Ingles before the board of equalization of the county, for the purpose of pro- curing a reduction of the amount of said assessment, and in connection with these facts, the tax list was offered in evidence. The court held that both the tax list and the act of Ingles professing to act as agent of the defendant in giving in the prop- erty for taxation, in the defendant's name, and the su1)scqnent conduct of Vol. I the defendant himself, in asking for the reduction of the assessment, were competent as admissions by conduct that the defendant was owner of the property. In Smith v. Hill, 22 Barb. 656, it was held that where a party forbids a sale of personal property upon e.xecution, upon the sole ground that the property is exempt from sale, this will be considered as a virtual ad- mission that the execution and sale are in other respects legal and valid. Heneky v. Smith, 10 Or. 349, 45 .\m. Rep. 143, was to recover damages for wrongfully and mali- ciously shooting plaintiff. The court Ijclow, as tending to establish the defendant's liability, admitted in evidence a deed, shown to have been executed by him and his wife, to a third party, of some twenty-five different lots or parcels of land, amounting in the aggregate to over four hundred acres, for the expressed consideration of $I2C0,00. The deed having been executed fourteen days after the shooting and sixteen days after the action was commenced, and the summons served. The court said : " In view of its character and the circum- stances under which it was exe- cuted, we think it was properly ad- mitted. The jury might reasonably infer from this act of the appellant, in view of all of" its surroundings, that it was prompted by a conscious- ness on his part, that the shooting of the respondent was unjustifiable, and that he was legally liable for the damages occasioned by it. In this view, it would operate like an ad- mission of liability, and be equally competent. .-Vdmissions may be by acts, as well as by words." In the case of Georgia Home In- surance Co. V. O'Neal, 14 Tex. Civ. .\pp. 516, 38 S. W. 62, an action upon a policy of fire insurance, it was contended by the defendant that the plaintiff forfeited the policy by his failure to comply with the clause referred to, nevertheless sub- jected the insured thereafter to ex- ADMISSIONS. 367 guilt, where, at the time his conduct in this respect is attempted to be proved, any prosecution for the offense is barred by the statute of hmitations.-" D. From SiLHXCb; and Aculmicscicxce. — So the silence of a party when a statement is made in his presence, against his interest, and is heard and understood by him. and is made in such way as to call upon him to deny it, if untrue, and the facts are within his knowledge, and the statement is made under such circumstances as naturally to call for a reply, amounts to an admission of the truth of the statement made, and may be sufficient to establish the fact as against him.'-' amination under oath, as authorized hy tlie terms of the pohcy. It was held that the action of the insurance company, through its adjuster, who had authority to represent it. in re- quiring the insured to suhmit to a sworn examination, under the stip- ulations in the policy, clearly recog- ni.-ed the validity of the policy, and it could not thereafter be heard to assert its invalidity upon the ground of forfeiture known then to exist. In Readman v. Conway, 126 Mass. '374. it was held that on an issue of fact, whether a landlord or his tenant was to keep in repair a plat- form in front of a shop, evidence that after an injury, caused by a defect in the platform, the landlord repaired it, was competent as an admission that it was his duty to keep the platform in repair, the court holding that the acts referred to were in the nature of admissions that it was the duty of the landlord to keep the platform in repair. So in Hathaway v. Spooner, 9 Pick. 2.^, it was held that where a person living upon land, to which he afterwards acquires a title, takes a deed of part of a tract described as bounding on such land, this is evidence against him. in the nature of a confession that the said land does not cover any part of the tract so described. 26. Childs r. Merrill. fi6 \'t. ,102, 29 Atl. 532. 27. From Silence and Acquies- cence England. — Doe z'. Forster, 1 3 East. 405 ; Gaskill v. Skene. 14 Ad. & E. (N. S.) 664: Neile v. Jakle, 2 C. & K. 709. 61 Eng. C. L. 708; Havslep v. Gymer, i Ad. & E. 162, 28 Eng. C. L. 96. United States. — Morris v. Xorton, 75 Fed. 912, 21 C. C. A. 553, 43 U. S. App. 739; Cross Lake Log- ging Co. %'. Joyce, 83 Fed. 989, 28 C. C. A. 250, 55 U. S. App. 221. Alabama. — McCulloch v. Judd, 20 Ala. 703; May v. HewLtt. 2>i Ala, 161 ; Hicks v. Lawson, 39 .Ala. 90. Georgia. — Block v. Hicks. 27 Ga. 522; ;\Iorris t'. Stokes, 21 Ga. 552. Indiana. — Pierce v. Goldsberr\-, 35 Ind. 317; Puett V. Beard, 86 Ind. 104; Ewing V. Bass, 149 Ind. i, 48 N. E. 241. Kentucky. — Milton v. Hiniter, 13 Bush. 163. Louisiana. — Olivier v. Louisville & N. R. Co.. 43 La. -\nn, 804. 9 So. 4.31- .Maine. — Blanchard v. Hodgkins, 62 ^le. 1 19 : Johnson v. Day, 78 Me. 224. 3 Atl. 647. Massaetiusetts. — Sears v. Kings County El. Rv. Co., 152 Mass, 151, 25 N. E. 98, 9 L. R. A. 117; Boston & Worcester R. Co. v. Dana, I Gray 83 ; President etc. of Green- field Bank v. Crafts, 2 .Allen 269; Dutton T. Woodman, 9 Cush. 255, 51 Am. Dec. 46; Simonds v. Patridge, 154 Mass. 500. 28 N. E. 901. Mississipl^i. — The State t'. Parish, 23 Miss. 483. Missouri. — Higgins v. Dellinger, I Jones, 397; Ball f. City of Inde- pendence. 41 Mo. .\pp. 469. .V,-Ti' /f(7»i/'.s/ii;v.— Morrill v. Rich- ey. 18 N. H., 29s; Wallace :■. Good- ell, 18 N. H. 439; Corser v. Paul. 41 N. H. 24, 77 -Am. Dec. 753. A'rtc York.— W'rtght v. Maseras, 56 Barb. 521 ; Morse v. Bogert, 4 benio T08. 17 N. Y. Com. Law 514; Jewett V. Banning, 21 N. Y. 27. Vol. I ."68 APMISSIOXS. Objection on One Ground Admits Non-Existence of Other Grounds. So where a jiarty objects to the doing of an act b_\- another, or the valicUty or elifect of any document, on certain specific grounds, this will l)c taken as an admission that no other grotmds of oljjection Xdfth Carolina. — Tredwell v. Graham, 88 N. Car. 208; Radford v. Rice, 2 Dcv. & Batt. 39. North Dakota. — Paulson Mercan- tile Co. v. Scaver, 8 N. D. 215, 77 X. \V. 1 00 1. Pi'iiiisvlt'ania. — .McClenkan v. Wc- .Millan, 6 Pa. St. 366; Coe v. Hut- un. I Serg. & R. 398; Orner v. Ilollnian, 4 Whar. 45. South Carolina. — Hendrickson v. .Miller. I S. Car. Const. 295; Cole- man I'. Frazier, 4 Rich. 146, 53 Am. Dec. 727. Tennessee. — Qnecncr v. Morrow, i Cold. 123. Te.vas. — Simonds v. Fireman's Fund Ins. Co., 35 S. W. 300. I'ermont. — Fenno v. Weston, 31 Vt. 345. W isconsin. — Kimball v. Post. 44 Wis. 471 : Hinton v. Wells, 45 Wis. Rule Stated — In .Morris v. Nor- ton, ■/i Fed. 912-924, 21 C. C. A. 553, the rnle is stated as follows : " The rnle is well settled that con- versations between parlies to a con- troversy in which one makes a state- ment of fart of which hoth have per- sonal knowledge, and which natnraUy calls for a denial hy the other' if the statement is untrue, are com- pct'.-nt against the silent parly, as admissions, by acquiescence, of the truth of the statement. The weight of the admissions varies with the circumstances of the case and the stri-ngth of the probability that the statement, if true, would have evoked a denial, and is always for the jury, guided by a proper cautiim of the cor.rt, as to the theory upon which such conversations are admitted." Statement to Officer of Corpor- ation, and TJndisputed — The case of Cross Lake I.o.gging Co. •:'. Joyce, 83 Fed. 989, 28 C. C. A. 250, was to recover damages from injury resulting from alleged neg- ligence, growing out of the in- competency of a fellow employee of the plaintiff. Immediately after the accident occurred, a statement was made to the superintendent of the logging company, by the plaintiff, that he, the plaintiff, had notified the superintendent of the incompetency of his fellow employee, and threat- ened to quit work at once unless he was replaced. At the trial the plaintiff was allowed to testify over the objection of the defendant that when Holin, the superintendent, came to his assistance, immediately after the accident occurred, he, the plain- tiff, exclaimed, "Frank, I wouldn't have lost my leg if you had done as you agreed to, and put another man in his place;" and that Bolin said nothing in reply to this remark. The Circuit Court of Appeals held llie testimony to have been com- ])etent on the ground that the dec- laration was a part of the res gestae, and said further: "".Moreover, the fact that Bolin, though charged by ihe plaintiff with being at fault, did not deny the accusation, may be regarded as in the nature of an ad- mission on the part of Bolin that the charge was true." Statement by Third Party. — In Olivier I'. Louisville & N. R. Co., 43 l.a. .Xnn. 804. 9 So. Rep. 431, where the action was for damages for an injury, alleged to have been caused by the negligence of the defendant, it was held that the statements of a companion of the plaintiff, relating to the cause of the accident, and made in his presence and not denied by him. had like force with his own admissions. Testimony at Trial Undisputed,. .And so it is held competent to prove that, at a former trial, witnesses were introduced against a party tending to establish a bargain with him of a particular character, and that, at the time, though offering himself as a witness in bis own behalf, he did not contradict such testimony. Blanchard v. Ilodgkins. 62 Me. 119. Made by Son in Presence of Father.— .\nd that evidence of a dec- laration of the son of one of the Vol. I .11 'MISSIONS. 369 parlies, made in the presence and hearing of his father, who remained silent, was competent evidence of an admission hy him. The conrt said : " We think the evidence was admis- sible. True it does not prove that the defendant made anj^ reply, but silence may sometimes be regarded as an admission. Whether it should he so regarded in this case, is a cpiestion for the jury to decide." Johnson v. Day, 78 Ale. 224, 3 Atl. 647. Statement Made by Witness. — In Boston Ry. Co. v. Dana, i Gray 83, 104, objection was made to proof of the statements of a witness made in the presence of the defendant. With respect to this objection, the court thus declared the rule : " But it ap- pears to us that, on the facts stated in the report, they were competent, as tending to prove admissions by the defendant. They stand on the familiar principle, that what was said to a party, together with liis replies thereto, or his silent acquies- cence in statements, afifecling his own interest, to which he has opportunity of replying, are admissible in evi- dence against him." In a Letter — So it is held that a letter, written to one alleged to he a member of a copartnership, stating that the writer had been informed that a copartnership liad been formed between said party and the other al- leged copartner, and the failure of the party to whom the letter was written to deny the facts so stated, is competent as tending to show an admission of the existence of such partnership. Dutton v. Woodman, 9 Cnsh. 255. Made to Authorized Agent. .\gain, il is held that tlie statement of a complainant, addressed to the authorized agent of the defendant, in reference to the matters of fact in controversy in the suit and not disputed or denied by the agent, are evidence for the complainant on the ground that the silence of the agent must be regarded as an implied aell were, upon the same prin- ciple, admissible ; for being made in the presence of her husband, without being contradicted by him, was on liis part a tacit admission of their truth, and what a person admits as well as what he says is receivable in evidence against liim, and conse- quently against any person claiming under him." In Hoyles z\ M'Kowen. 3 N. J. Law 253, the court said: "As to the declarations of the wife of llie de- fendant below, it is a general rule that the declarations of the wife shall not be given in evidence against lirr liusband. but there are exceptions Vol. I to ibis rule. ... It is every day's practice to adnnt in evidence anything said in the presence of the party and uncontradicted by him, and whether this is said by a stranger, by the wife of the party, or even by the opposite party himself it makes no difference." Husband Speaking for Wife in Her Presence — In Lindner v. Sahler, 51 Barb. S-^i the court said: "When a married woman acts and speaks by her husband, his declarations and acts are hers, and she must see to it. particularly when he assumes to act and speak in her presence for her, that he speaks and acts as the law and her duty would require her to speak and act if she spoke herself. She must in such cases dissent and disapprove his acts and declarations, or they should be deemed hers. Slie cannot stand by and hear him as- sert rights for her and in her behalf, or do wrong for her benefit, or refuse to do what her legal duty requires, and escape responsibility. She must be deemed to assent when she docs not dissent under such circum- stances." Conversations Between Husband and Wife — So it is held that con- versations between husband and wife, or admissions made by either to the other, in the presence of a third person, do not belong to the class of privileged communications between husband and wife, and may be given in evidence against the Inis- band like any other conversation in which he may have been concerned. .A.lliscm V. Barrow, 3 Cold. Tenn. -414- Is a Husband Called Upon to Deny Statement of Wife. — In Queener v. Morrow, i Cold. Tenn. 123, 128, the court say: "It is as- sumed as a corollary from tlie rule which excludes husband and wife from being a witness in a cause, civil or criminal, in which the other is a party, that the statements of the wife were inadmissible; and further, that, from the very nature of the relation between the parties, the hus- band was not called upon to con- tradict, or even to notice, the crim- inations of the wife. These dis- tinctions. thou,gh plausibly main- tained in the argument, are not APM/SSIONS. 373 ruk'. altliough supported by the weight of authorit)', has not gone unchallenged.^^ The rule is the same with respect to statements made by, to, or in the presence of other persons, acting in confidential relations, third parties being i^resent.^'' Possession of Papers. — I'nder some circumstances, the possession of papers will be taken as an implied admission of the existence or truth of the facts stated therein.'"^ Failure to Object to Account Rendered. ^ — So the failure to object to an account or other claim made or presented may be competent as tendiu"- to show an admission of the correctness of its items."" And sniuul. Til Phillips on Ev.. Si, it is l;iid down, correctly, as \vi- think, that a ' discourse between husband and wife, in presence of a third person, may be given in evidence a.sainst the husband, like any other conversation in which he may have been concerned.' "This must necessarily be so, and the .arencral rule, which excludes the wife from being a witness asainst her husband, is not infringed in its spirit, in such case. The statements of the wife are not received, or treated, as evidence against the hus- band, but merely as uidncemcnt to the responsive admissions, declara- tions, or acts of the husband at the time. Except for this purpose, the statements of the wife are of no effect." 33. Hoffman v. Hoffman's Exr. 126 Mo. 486, 29 S. W. 603; Fourth Nat. Bank v. Nichols, 43 Mo. App. Failure to Benv Statement of One by the Other not an Admission. — Tn Hoffman 7'. Hoffman's Exr.. siihra. it is said: "Admissions or declarations by n husband or wife in the presence of the other stand unon an entirely dif- ferent footing. Generally sneaking, at common law the .husband and wife are not competent to testify asrainst each othpr in contests with third persons. 'Much less could mere statements of one be used as evidence .-la'ainst thi' other. Neither, there- fore, would one stand under obliga- tion to dispute a statement made by the other, unless the circumstances were such as would create an es- (onnel to dcnv it. Besides, the verv relation of husband and wife is such as should deter one from dispuliiig in the presence of strangers, an a^ sertion made by the other." 34. Springer v. Byram. 137 Ind. 1.;. 36 N. E. 361 ; Sharon v. Sharon. 79 Cal. 63.?. 677; Gallagher .7: Williamson, 23 Cal. 331. 83 Am. Dec. 114; Moffatt v. Hardin. 22 S. Car. g: I\Iobilc & C. Ry. Co. v. Yeatcs. 67 .Ma. Tfij. Statements Made to Physician in Presence of Others The case of Surinper v. Byram. 137 Ind. t^. ?6 N. E. 361, was an action for nersonal injuries, alleged to havi> been sustained by the plaintiff while being transported in a passenger elevator in a public office bnildine, o\vned by the defendants. Tt was offered to prove by third parties as witnesses, that immediately aHi-r the accident, and while in the ambulance with the physician, the plaintiff made certain statements to the nhvsician as to the cause of the accident. The evidence was objected to on the ground that, being made to his nhv- sician, the statements were confiden- tial and could not be nroved asainst him, but it was held by the court that statements, made to the nhv- sician in the presence of third par- ties, were not confidential within the meaning of the statute of T"diana. and that they were admissible the snme as if made to some other rinrtv. The proof in this case being offered to be made, not bv the pbvsician but by others present ,-it the time the stnlenie'Tf" wns made. S."?. Possession of Paners as Tm- nlied Admission. — t Greenl. Ev., § loS ; Commonwealth ?'. Jeffries, 7 Alb-n ='R. cfiT. .S^ \.n, n-e -T..'. 36. Failure to Obieet to Account. Vol. I u4 ADMISSIONS. Unilcd Slates. — Field i'. Moulsoii, 2 Wash. C. C. 155, g Fed. Cas. No. 4.770- Ahibama. — McCullocli v. Jiidd, 20 Ala. 70,? ; Perry v. Johnston, 59 Ala. O48; Peck V. Ryan, 110 .\la. 336, 17 So. 733- Arkansas. — Broun v. Brown, i(j .\rk. 202. Georgia. — McLcndcn v. Shackel- ford. 32 Ga. 474. Illinois. — Bailey v. Benslcy. 87 111. 556; McCord I'. Manson, 17 111. App. 118; Weigle V. Branligani. 74 111. .Vpp. 285. loiea. — C'.nirchill ?■. Fulliani, 8 Iowa 45 ; Iowa City State Bank z\ Novak, 97 Iowa 270, 66 N. W. 186. Louisiana. — Didicr v. Angc, 15 La. Ann. 398. -Vrii' Hampshire. — North nmbcrland V. Cobleigh, 59 N. H. 250. Nc'a' Jersey. — Oram v. Bishop. 12 N. J. Law, 153. AVic FoWo.— Terry v. McNiel, 58 Barb. 241 ; Peck v. Richmond. 2 K. D. Eniith 380; Del Piano v. Cap- ronigri, 20 Misc. 541, 46 N. Y. Snpp. 452; Wilshnsen i'. Binns. 19 Misc. 547, 43 N. Y. Snpp. 1085. Pennsylvania. — Coe v. Hntton, i Serg. & R. 398; Darlington i'. Tay- lor, 3 Grant's Cas. 195; Tams. v. Lewis, 42 Pa. St. 402. South Carolina. — > McBride t'. Walls. 1 McCord. 3S4. Invoice of Goods Received and Retained Without Objection — In Field I'. Monlson, 2 Wash. C. C. 155. 9 Fed. Cas. No. 4770, it was held that an invoice of goods, received by the consignee, retained by him. and not objected to, and the truth of it not disproved, is evidence that all the .goods ennnioratcd in it were re- ceived by the consignee. Examination of Account So it was luld in .\lcCidloch ?'. Judd, 20 .Ma. 703, that where an acconnt was placed together with a number of others, in the hands of an attorney for collcclion. proof that the debtor came several times to his ofifice, and examined the bnndle of accounts in which it was filed, and made no ob- jection to either the correctness or justice of any of them, is sufficient to charge him with an acknowdedg- ment of the justice of the demand. General Statement of the Rule. Vol. 1 In Perry v. Johnson, 59 .\la. 648, 651, it was said: "The silence of a party, against whom a claim or right is asserted, is a fact which may be shown in an action for the enforce- ment of such claim or right from which the jury may infer an admis- sion of the truth of the assertion, and the rule is said to rest 'on that instinct of our nature, which leads us to resist an unfounded demand.' The common sense of mankind is expressed in the popular phrase, silence ^i^ives consent, wdiicli is but another furm of expressing the maxim of the law, (jni tacet con- scntirc videtur. The rule involves as facts on wdiich it rests, that it is the interest or duty of the party to wdiom the declaration or assertion is made, to reply to it. If it proceeds from one having, or asserting, or authorized to assert, adverse in- terests or claims, it is in the or- dinary course of human conducl, if the truth of the assertion is not ad- mitted, that dissent from it should be expressed." But it is ckarly pointed out in this case that the niere declarations of a stranger, or the mere expression of an opinion, and not the statement of a fact, is not such a statement as calls for a response, and consetpiently acquies- cence in il, is not inferrible from silence. Failure to Object to Account. In Brown v. Brown, 10 .Ark. ..02. il was held that where an account against a party is delivered to him, and on examining it carefully, he makes no objection to it, or anything contained in it, it amounts to an in direct admission of the debt ; aiin. — Smith J'. I Wash. Ter. (N. S.) 55- Wisconsin. — Murphey '' Wis. 370. 51 N. W. 573- 51. Learned Z'. Tillotson. 97 N. Y. I. AQ .\m. Rep. 508. 52. Porter z: T.edoux, 6 La. .?77- 53. McCallon z: Cohen. Civ. .\pp.). T,g S. W. 973. Kemiedy, Gates. 81 .Ann. ( TCN. Vol. I 380 .IPM/SSIONS. the statoincnts nuule by mere strangers and those made by parties in interest.^^ Effect of Failure to Deny Ex Parte Affidavits. — And it is held that where an order is made at;ainst a jjarty on ex parte affidavits cliarging fraud, a failure on his part to interpose a motion to vaeate the order does not amount to an admission of the truth of the charge of fraud or render such affidavits competent evidence/'''-'' "Whether Party Must Act Knowingly or Not. — The question whether the party must act knowingly or not depends upon circum- stances. This branch of the subject will be considered when we come to the effect of admissions when proved. But it may be stated, generally, in this connection, that a party cannot be boinid by admissions resulting from mere inference unless the act relied upon was done with knowledge of all the essential facts, in the absence of a showing that an innocent person has acted thereon to his injury. "^ 54. Statements Made by Str.in- gers. — Phillips v. Fowler, 23 Mo. 401 ; Romy v. Joliiistoii, 59 Ala. 6 '8: Ivec-Clark, etc.. Co. t. Yankee, g Col. .■\pp. 443, 48 Pac. 1050. Failure to Answer Letter from One Not a Party. -—In Lee-Clark etc Co. 7'. Yankee. 9 Colo. .'^pp. 44,^ jS Pac. 1050, it is said, in speaking of a letter addressed to the Hefcndam in the action, by a third party : " The fact that defendant had re- ceived such a letter from Mr. Tiidd. and failed to reply to it, could not have bound defendant in any man- ner. Judd was not a parly to this suit, and not even a creditor of the firm; and hence the reasons of d.^- fendant for such failure In reply were even less materi;il." Verbal Statement by a Stranger. Tn Phillips v. Towler, 23 Mo. 401. 403, the court said: "The court erred also in allowing the remarks of Robert Towler, made in the pres- ence of the intestate, to po to the iury. They were to the effect that ' the girl had burned plaintiff's stable, and confessed it.' The intestate, it seems, made no reply, and this was received as an admission of the fact on his part, implied from his sup- posed acquiescence in what was thus said in his hearing. Tn retrard to these admissions inferred from acf|uiescencc in (he verbal state- meiUs of others, on the maxim. 'Oiii Unci ritiisriitirc Tidrliir.' if has been most justly remarked, that nnlliing Vol. I can be more dangerous than this kind of evidence, and that it ought always to be received with caution, and never admitted at all unless the statements be of that kind that nat- urally call for contradiction — somi- assertion made to the party with re- spect to his rights, which by his silence he acquiesces in. (Moore 1'. Smith. 14 S. & R. 392). A distinc- tion is taken between declarations made by a party interested and a stranger, and it has been deter- mined, that, while what one party declares to the other, without con- tradiction, is adim'ssible evidence, what is said bv a third person may not be so. (Child Z'. Grace, 2 Car. & Payne. 193.")" 55. Talcott ;■. TTarris. 9? N. Y. 56. Whether the Party Must Act With Knowledge. — F.iv^iand. Rankin v. Horner, 16 East. 19T. Indiana. — Slate I'. Sutton, gg Tnd. 30a. Maine. — Robinson v. Bleu, :q Me. 100. Mississifl^i. — Kdwards 7'. Wil- liams, 2 How. (Miss.) 846. Mc7i' York. — Davis v. Galkadier. 124 N. Y. 487, 26 N. K. Rep. 1015. Ohio. — Griffith f. Zipperwick, 28 Ohio St. 388. PriDisvlvania. — I onibnrd & S. S. Pass. Rv. Co. V Christi;ui. tJ\ Pa Si ii.|. ifi All Ren. 62,8, i'cnnont. — Mattocks 7'. I.ymau. 16 \"l. 113. .IDMrSSlONS. 381 Admissions Based on Information and Belief. — All admission may be competent although of a fact not within the declarant's personal knowledge.'^' Admissions of a party niay be used against him though made wholly upon information and belief."^ Admissions As to Facts That Party Is Bound to Know And without actual knowledge, one mav be btumd when he has assumed rela- Statement to One Not Having Knowledge — In the case of tlie claim of a stL-p-son against his step- father's estate, for services ren- dered and goods fnrnished deceased in his hfe-time, the former, in the presence of the administrators of the estate, stated the particulars of hie claim, to which tlie admini<:tra'oi made no objection except to two or three items. The facts were not within their personal knowledge. It was said : " The administrators were engaged in trying to settle a dis- puted claim against the estate. They may therefore lie said to have been acting in their representative capa- city and in the discharge of their duty, but the claims of plaintiff un- >der consideration related to past transactions with their intestate, and, as Gallagher has testified, pertaining to matters not within his personal knowledge. No admission, there- fore, if made by him, would consti- tute a part of the res gestae. Con- sequently it was held that the fail- ure of the administrators to object not being a part of the res gestae was not admissililc at all. Davis v. Gallagher, 124 N. Y. 487, 26 N. E. 1045- Effect of Silence Question of kiidZiledge. — "To contradict an as- sertion, implies a knowledge of the i. ;■ ..;:o.;...i ul, bul to suiier a re- mark to pass uncontradicted docs not necessarily imply an admission of its truth. This would depend upon the knowledge of the party to whom the conversation was ad- dressed. If an individual were to say to another. I owe you so much and no more, and that other were to permit the remark to pass un- contradicted, it would lie admissible as evidence to show the extent of the debt, but it would be so because the remark was made in reference to a matter which must have been known, or which in all probability was known by the other party. On the other hand, if such a remark should be made in reference to a matter which must necessarily be unknown to the party addressed, his apparent acquiescence would amount to nothing. If the nature of the matter spoken should be such as would be likely to be known to the party to whom the conversation was addressed, such probable knowledge might be sufficient ground for ad- mitting the evidence ; but when the truth of the statement could not be known by the party addressed, the statement made to him could not be evidence, without showing that the truth of the matter was within his knowledge." Edwards i'. Williams. 2 How. (Miss.) 846, 849. 57. Sparr z: Wellmau, 11 Mo. 230; Chapman -.'. Chicago & K W. R \V. Co.. 26 Wis. 295, 7 Am. Rep. 81. If admissions made by a party arc based upon the supposition that certain information, given him by another, is correct, such admissions may, with other evidence, showing the correctness of the statements made to the party, be competent evi- dence against him. Chapman v. Chicago N. W. Ry. Co., 26 Wis. 295- 58. Reed v. McCord, 18 .\pp. Div. 381. 46 N. Y. Supp. 407; shaddock V. Town of Clifton. 2J Wis. 114. When Statement Without Knowl- edge Amounts to Admission — Thus it is held that a statement of an employer as to tlie cause of an accident by which his employee was killed, made at the coroner's in- quest, was competent in an action against him for damages, as an admission, though he had no per- sonal knowledge of the facts. Reed r. McCord, 18 App. Div. 381, 46 N. Y. Supp. 407. Vol. I 382 .IDMISSIOXS. tioiis from wliich kiiuwludgc niusl he presumed.''' 'I'lio anirls lia\e uniformly treated evidence of this kind as dano;er- ous and inicertain, and it is received witli great caution."" Effect of Admission for the Jury. — If an admission, direct, inciden- tal, or by inference, tends to establish a fact material to the case, it is competent, and whether it does, alone, or in connection with other facts proved, establish such fact, must be left to the jury.''' 59. Raggett v. Musgrave, 2 Car. & P. 556; Alderson r. Clay, i Stark 405. 2 Eng. C. L. 157- 60. Evidence of Kecelved with Caution. — rnitai .S'/ii^-.?.— Oaltoii v. United States, 22 How. 436. Georgia. — Carter i-. Buclianan, 3 Kelly 513; Rolfe 7: Rolfe. 10 Ga. 143- Iowa. — Clnirchill t. Fulliam. 8 Iowa 45. MassacliHsclls. — Wlinncy !■. Hoiigli- ton, 127 Mass. 527; Larry !■. Shor- btirne, 2 Allen 34. Missouri. — Pliilltps v. Ttnvler. 2,^ Mo. 401. New Iliiiiil'shirc. — Corser 7'. Paul, 41 N. H. 24. 77 Am. Dec. 753. I'ermoiit. — Mattocks v. I.ynian. 1(1 Vt. 113. Extent of the Rule.— The jnry was instructed that no act or dec- laration of tlie defendant, as a pay- ment niade or claimed to have been made, without disputing at the time tlie correctness of the account, is a circumstance which may be con- sidered by the jury as proof of and tending to prove the correctness of such an account. This was held to be stating tlie proposition entirely too broadly, and it was said : " The defendant is not called upon to dis- pute the account on every occasion, and care should be exercised in determining whether the circum- stance called for was such a.s to cause his admission tn have weight against him." Chnrclnll ?■, luilliani. S Iowa. 45. Evidence Should be Received with Great Caution. — hi I.arry f. Sher- burne, 2 Allen 34, it is said: "There is therefore nothing to .show that the evidence of the otter to pay could have any effect as an admis- sion. It is true that there are cases where a party may be aflfected in his rights by proof of a silent ac- Vol. I quiescence in the verbal statements of others. But such evidence is always to be received and applied with great caution, especially where it appears, as in this case, that the statements are made, not by a party to the controversy, but by a stranger. There are many cases where the in- tervention of a third person may properly be deemed unnecessary, and his statemeiUs be regarded as im- material and impertinent. To them no reply need be made; and no in- ference can be drawn from the fact that they are received in silence." 61- Hagenbaugh z'. Crabtree, ^^ 111. 22h. When Failure to Deny Evidence of Admission — In the case cited u is said; "That such evidence is proper for the consideration of a jury is undeniably true, but it is equally true that such evidence is not conclusive. Nor is such silence always evidence of the truth of the statement thus made. .^Vud it is for the obvious reason that under a variety of circumstances, it would be highly improper for a party to niake a denial. The proprieties of life should not be outraged or even violated in making such a denial. Nor would the party be bound to do so, if it would lead to violent alter- cation between the parties. ' If such a denial would lead to a breach of the peace, or even to an mdccent quarrel and abuse, he wouUl not be bound to contradict the statement. Or if it "woidd be mdecorous and offensive to those present, or if it would disturb business, social en- joyment or religious exercises, it would be improper to make a denial. If maile in court, wdiere it would be a contempt to make the deni;il. it would be highly improjier. The ex- tent of the rule is, that it is a (|ues- tion for the jnry, in the light of all the circumstances, to say whether or not it amounts to .-in admission." .■i!).]ffssroxs. ?.s?< 4. Self-Serving- Statements. — statements of Acts in One's Own Interest Incompetent. — It has Ijccn shown above that statements against one's interest are in the nature of admissions and, therefore, compe- tent evidence against him. (hi the other hand, statements, declara- tions or acts of a party, in his own interest, or tending to establish his theory of the case, or any fact favoraljje to him, whether oral or in writing, are as a general rule, inadmissible as evidence in iiis own liehalf,''- except wlierc they are a part of the res gestae or 62. Statements in One's Own Interest Incompetent. — Stephens' Dig. of Ev. yj. linglaud. — Kicliards z\ Frankiiin. 9 Car. & P. 221, 38 Eng. C. L. 13S. Aliibaiiui. — Downing v. Wooil- stock Iron Co., 93 Ala. 262, 9 So. 177; Hunt z'. Johnson, 96 Ala. 1,30. II So. ,^87; Lawson v. The State 20 Ala. 65, 56 Am. Dec. 182. Arkansas. — Brown v. Wright. 17 Ark. g. Florida. — Snllivan i'. McMillan, 2(1 Fla. 54,3. 8 So. 450. Indiana. — Tobin t'. Yonng. 124 Ind. 507, 24 N. E. 121. Massachusclts. — Boston & Wor- cester R. R. Co. V. Dana, i Gray 8,; : Fearing r. Kimball, 4 .A.llen 125, 81 .\m. Dec. 690. Michigan. — Bronson v. Leach, 74 Mich. 713, 42 N. W. 174; Bnck'iig- ham I'. Tvlcr, 74 Mich. 101, 41 X. W. 8f.S. i\\-w J'ort.— Artcher iv McDnffic, 5 Barb. 147; Ogdeii f. Peters, It Rarb. 560. T.M-(7.f. — Poole V. State, 32 Tex. Crim. ."Xpp. 379. 23 S. \V. 891 ; Shiner v. Abbie, 77 Tex. 1, 13 S. W. 613; Moody V. Gardiner, 42 Tex. 411; Atwood V. Brooks, (Tex.) 16 S. W. 5,?.=;. ■When Not Admissible — Thns it is held that a conversation between a defendant and a stranger to the cause, which plaintiff did not near, and which did not form a part of the res gestae, is inadmissible. Hunt V. Johnson, 96 .Ma. 130, 11 So. 387. If statements of a party in wdiose favor they are offered are admissible in evidence it must be upon tlie ground that they formed a part of the res gestae, or statements made to the opposite parly under such circumstances as to call for a denial, and no such denial was made, in which case they became the ad- missions of the opposite party, and competent for that reason, and not ilu- mere statements or declarations 111 the party ofifering them. Tobin ;■. Young, 124 hid. 507, 24 N. E. 121. Not Competent to Relate State- ments Against Interest And even where declarations made by a party against his interest have been proved, it is not competent to in- troduce evidence of different declar- ations, subsequently made by the same person (who died before the trial) to others. boston & Wor- cester R. R. Co. I'. Dana, i Grav 83. ■Where There are a Series of Let- ters — In Fearing v. Kimble, 4 Allen 125, 81 Am. Dec. 6go, the question was as to the admissibility of a letter, written by one of the parties to the action, to another in reply to one received by him. It appeared that the plaintiffs in the action had written a letter to the defendant, to which he had replied, both of which letters were allowed in evidence. The plaintiffs were then allowed, under objection, lr> read a portion of the second letter written by them to the defendant, to which no reply was received. In holding the second letter of the plaintiff, or the third in the series, to have been inadmissible, the court said : " The first letter unanswered would seem to be obviously incom- petcTit evidence to prove the facts therein stated to be true, against the party to whotn it was addressed. Why does not the like objection apply to a second letter, reaffirming facts or stating additional ones, and to which there has been no reply? .'X party may introduce the letter of his adversary, and if need be, for the purpose of enabling the jury to \mderstand fully the letter thus in- lro iiwn favor, or tcntlinir to establish the truth of his contention, are never competent to be shown in his behalf. Un the contrar}-, they are often competent in his favor, in connection with other evidence. We have shown above that they may be proved when made in the presence of the adverse party, if not denied by him, as tending to show an admission of such party that they are true. Right to Prove Balance of Conversation or Writing When Part Offered by Opposite Party. — So where statements, oral or written, made against interest, are proved, other acts or declarations made at the time, and as a ]jart of the same conversation, or as a part of the same writing, favorable to the party making the declarations ])roved against him, and qualifying or explaining what has been so proved, are competent in his behalf.''^ 64. Exception — Pii.. Cessna, 6 Tex. Civ. App. 7, 24 S. W. 962 ; Robertson v. Ephraim, 18 Tex. 118. J'ernwnt. — Smith Z'. Holister, 32 Vt. 695- Wisconsin. — Klatt t'. Foster Lum- ber Co., 92 Wis. 622, 66 N. W. 791. 90. Not Necessary that it be Signed — 2 Wharton's Ev.. § 1 129, United Stales. — Kirk z'. Williams, 24 Fed. 437. Illinois. — Henkle v. Smith, 2! Til. 237. Indiana. — Cook 7'. Anderson, 20 Ind. i.S. lozca. — Snyder 7'. Reno, 3.8 low.T, 320. ;1/(7/»r-.— Bartlett 7'. ATavo, s^ iMe. .=;is. Vol. I ■>'»' .IDMISSIONS. Competency Subject to General Rules as to Admissibility of Admissions. Us competency is subject, liuwcvcr, to the rules heretofore stated relative to the admissibihty of statements or declarations of a party, and is adniissilile on the same principle.'" The fact that the state- ment or declaration is in writing in no way changes the general rules relating to the competency of such evidence. The rule that self-serving declarations can not be proved is applicable in all its force to book entries and other writings, subject to certain exceptions rendering such evidence competent under some circumstances which will be more fully considered when we come to treat of the com- petency, generally, of book entries and like evidence. ''- And so with respect to all other limitations as to the extent and admissibility of the admissions and the power and authority of one person to bind another by declarations or admissions made."'' Not Conclusive. — An admission in a writing is not, as a general rule, conclusive any more than if orally made. And therefore the party making it may prove the contrary, or show that the admission was made liy mistake.''"" 7. Oral Statements. — Oral statements may be either tlirect or incidental admissions, as above defined ; that is to say, they may be direct acknowledgments of the truth of the matter in dispute, or of some other fact indirectly involving an admission of the fact in issue. Whether they are the one or the other is immaterial in respect of their competency as evidence, but may be quite important as to the eflfect or weight to be given to them when proved, which will be considered further along. See " Dh;cl.\R.aTions." Admissible Against Party Making Them. — No extended notice of oral admissions is necessary in this connection. The general and well settled rule of law is that the admissions of a party in interest are always competent evidence against him."''' Upon 'What Grounds Admissible. — The authorities are not agreed as to the grounds upon which acts or statements of a i^arty amount- ing to admissions, are competent evidence. It is said that such evi- dence is more properly admissible as a substitute for the ordinary or legal proof either in virtue of the direct consent or waiver of th party, as in the case of explicit and solemn admissions: or 01 grounds of ]Hiblic policy and convenience, as in case of those iniplici e on Massachusetts.— Knowhonv. Most- 506; Tiirnipseed v. Gooilwin. 9 Ala. ly. 105 Mass. 136; Tripp v. New (N. S.) .372. Mctalfic Packing Co., 137 Mass. 4Q0. 93. Benford v. Sanncr. .40 Pa. O/i/o.— Mallcck V. State of Ohio, .St. g, 80 Am. Dec. 545. II Oliio 400. 9*- ^o* Conclusive. — Gradwolil r,-;i»,)»/— Hosford v. Footc, 3 Vt. r. Harris, .'9 Cal. 150. ,191 95. Oral Admissions. — i Grcenl. 91. Competency Subject to Gen- jTy 5^,.. i6g; Tciimy r. Evans. 14 eral Rules Affecting Proof of Ad- ^ h. .34,1. 40 .\ni. Dec. 194; Davis v missions — Cook v. P.arr, 44 N. \. Calvert. '5 Gill & Johns. (Md.) 269. 15^. 25 Am. Dec. 282; I Phil. Ev. .339: T 92. .Adams t. Fimk. 53 Til. 219: Am. & Eng. Enc. of Law, (2 Ey tlie force of truth ; and ihc declaration because it may give meaning and effect to the reply." Connnonwealth v. Ken- ney, 12 Met. (Mass.) 235, 237, 46 Am. Dec. 672, 673. " Whatever a party voluntarily ad- mits to be true, though the adniissio;i be contrary to his interest, may reasonably be taken for the truth. The same rule, it will be seen, applies to admissions by those who are so identified in situation and interest with a party that their declarations may be considered to have been made liy himself. As to such evidence, the ordinary tests of truth are properly dispensed with ; they are inapplicable : an oath is administered to a witness in order to impose an additional obligation on his conscience, and so to add weight to his testimony; and he is cross-examined to ascertain bis means of knowledge, as well as his intention to speak the truth. P.ul where a man vohmtarily admits a debt or confesses a crime, there is little occasion for confirmation ; the ordinary motives of human conduct are sufficient warrants for belief." Starkie Ev. (Sharswood's Notes) p. =0 98. Definitions. — .\nderson's Diet., Bouv. Diet. ; i Oreenl. Ev. §§27, 205. " Ks to the different kinds of self- harming statements. In tlie first place they are cither ' judicial ' or 'extra-judicial' — i)i judicio or extra judiciam — according as they are made in the course of a judicial pro- ceeding, or under any other circum- stances." Chamberlaviie's Best Ev.. §=22. " So plainly made in pleadings filed, or in the progress of a trial .as to Vol. I 398 ADMISSIONS. All admissions made in court, and as a part of the proceeding's in a cause pending, or made out of court but to be filed in the cause, as part of the proceedings therein, and express admissions in the pleadings as well as those resulting from a failure to deny the material allegations contained in the pleadings of the adversary party, are usually classed as juilicial admissions.'''' Rut the most important distinction between judicial and other admissions, is, as we shall see \vhen wc come to consider the effect of admissions, that strictly judicial admissions are conclusive ui)on the part}- making them, while other admissions are, as a rule and where the elements of estoppel are not present, disputable/ B. Made in Pleadings. — An admission in a pleading may be by an express acknowledgment of some fact or facts set forth in the pleading of the o])posite party, or by a failure to deny or other- wise controvert the truth of such fact or facts. a. Express Adinissions. — It is quite common practice in plead- ing to confess and avoid a fact or facts alleged by the adversary party, because the facts alleged cannot be truthfully denied but may be avoided by the allegation and ])roof of other facts. - This relieves the party having the burden of establishing the truth of stich facts, of the necessity of offering any evidence in their su])port." and casts u])on tlic other party the biu"den of proving the dispense with the stringency of some rule of practice." Anderson's Diet. 99. I Greenl. Ev.. §§ 27, 205 ; Cook 7'. Guirkin. iig N. C. 13. 25 S. E. 71.=;. "Judicial admissions, or tliose made in court by the party's altoruey. generally appear either of record, as in pleading, or in the solemn admis- sion of the attorney, made for the pm-pose of being used as a substitute for the regular legal evidence of the fact at the trial, or in a ease stated for the opinion^ of the court. There is still anollicr class of judicial ad- missions made by the paynneut of money into court." I Greenl, Ev.. §205. " .'\n admission in judicio niav be made by a party to an action either expressly by a notice or pleading, or impliedly by a failure to deliver a pleading or to traverse an allegation made by his opponent; sometimis th ■ parties agree to make admissions of facts or documents in order to save the expense of proving them." Rap. & T.aw Diet. 1. I'.arber -■. P.i-nnrtt. 60 \'t. 66j. i; .\ll. 4^8. I I,. R. A. 224. 2. \.v..ll :■. Ooty, 33 N. Y. 83; Vol. I Becker %•. Sweetzer, 15 Minn. 42"; Nash V. City of St. Paul, n Minn. 174; Lipscomb V. Lipscomb. 32 S. C. 243. 10 S. E. 929; Murray v. New York L. Tns. Co., S.s' N. Y. 236. 3. California. — Hellman v. How- ard, 44 Cal. too; Hanson v. Fricker, 79 Cal. 283. 21 Pac. 751. Connecticut. — Connecticut Hospital I'. Town of Bridgewater. 69 Conn. I. 36 .^tl. 1017. Indiana. — Bondurant r. Bladen, 19 Ind. 160, Missouri. — Hnunons v. Gordon (Mo.), 24 S. W, 146, New Fo)7,-, — Paige v. Willel. ?8 N. Y. 28; Murray v. New York L, Tns, Co,. 85 N, Y. 236: White v. Smith, 46 N, Y. 418. Oregon. — Bush iv Cartwright. 7 Or, 320, Admission Conclusive. — In Hell- man T. Howard. 44 Cal. too, it was admitted by the pleadings lliat the promissory note in suit was assigned by the ixiyee to the plaintiffs, and if was held that such admission being made, no rpieslion conl 1 be raised on I he trial whelher nr not (be assign- ment was made in such form as to p.Lss the interest of a married woman. .IDM/SSIONS. :•>')<) nialtcrs alleged in avoidance of them/ So it is not unusual for a party to admit, or fail to deny, the truth of a part of the facts alleged, and to traverse a part, which has the same eflfect as to the part confessed.^ Failure to Deny So, where the contention between the parties was with respect to the findings of the court, that the appellant paid for the property fifteen hundred dollars, and not five hundred dollars, as found by the court. It was said : " But no such defense was set up. or even hinted at in the answer. It cannot, therefore, be raised here for the first time. The case was properly tried upon the issues presented by tlie pleadings, and upon all of thoe issues there was ample evidence to justify the findings." Hanson z>. Pricker, 79 Cal. 283, 21 Pac. 751. Admission of One Fact From Which Another Inferred. — In Con- necticut Hospital V. Town of Bridge- water, 69 Conn. I. 36 Atl. 1017, the question was as to the effect of an admission in the answer, that the defendant, the Town of Bridgewater, had paid for one year's support of a pauper in the hospital. The action being one of the hospital against the town to complete payment for the support of the pauper, it was held that the answer not only amounted to an admission of the fact of the payment, but carried with it also an admission of liability, the court saying : *' It was. however, ad- mitted by the answer that^ this town had paid for the support of the pauper in question for more than a year after her commitment. An ad- mission in pleading dispenses with proof, and is equivalent to proof. The fact thus admitted had a proba- tive force in tending to show a further adtnission. Such payment by t!ie town was an act in the nature of an implied admission that it was imder an obligation to make it ; that is, that it was legally chargeable in favor of the plaintiff for the pauper's support, which was the sole matter put in issue under the pleadings." Not Permitted to Deny Explicit Admission. — And in Paige ;■. Willet, ,^8 N. Y. 28. it was held that the defendant, who explicitly admits by his pleading that which establishes the plaintiff's right, will not be per- mitted to deny its existence, or to prove any state of facts inconsistent with that admission, the court say- ing: " \\'hile the answer stood upon the record, the defendant was not at liberty to raise an issue which he had emphatically closed. He had sur- rendered his right to call upon the plaintiffs for proof of a levy, a col- lection, or to question his liability to pay interest, for all these had been expressly admitted by the answer and the proof furnished out of the mouth of the defendant. It is no answer to say tliat the plaintiffs had voluntarily gone beyond these ad- missions and opened up an inquiry which the defendant was at liberty to pursue, and by this means escape froin the effect of his own fore- closure. This may have been an unwise, as I think it was, a very unnecessary procedure on the part of the plaintiffs, but it does not help the defendant's case, nor enable him to avoid the effect of his own ad- tnissions. Such admissions are con- clusive upon the parties litigant, and upon the court, and no countervailing evidence can properly be received, or, if it is, either through inadvertence or by tacit consent, foisted into the case, it is entitled to no consider- ation." Admissions in the Complaint. .\n admission may occur in the com- plaint as well as in the answer. Thus where a complaint alleged the amount of the account to be $=;4i.90. and that there was a balance due, after de- ducting all payments, of $17.=;. 7=;, it was held that the plaintiff admitted the payment of $366.1 v and that the defendant was not precluded from insisting upon this admission, by dis- puting the correctness of the items of the account. White z: Smith, 46 N. Y. 418. 4. Newell v. Doty, 33 N. Y. 83. 5. Becker ?'. Sweetzer, 15 Minn. 427 : Griffin 7'. Long Island R. Co.. lor N. Y. 348. 4 N. E. 7'o; Hnrland Vol. I 400 IDMISSIONS. Express Admissions Not Necessary or Proper Under the Codes. — In equit\- pleading under the old system if any allegation of a pleading was not intended to be controverted, it was expressly admitted, and matters in avoidance, if any. stated in the same connection. liut this is not onlv unnecessary but improper under the code system of pleading which requires an answer to either deny the allegations of the complaint or to state new matter, the allegatinu being treated as admitted if not specially denied." The effect of this is to relieve the party alleging such facts of making anv proof in support of them, the result being the same, in tlie end, as if they had been fully established by evidence.' Only Material Allegations Admitted by Failure to Deny. — It is only the iiiatcrial averments of a pleading that are admitted by a failure to dcnv them.'* r. Howard, 3^ N. Y. St. 869. 10 N. Y, Supp. 449; Potter v. Frail. 67 How. Pr. (N. Y.) 445. Denial of Facts Not Admitted. Tims wliere, in an action for goods sold, the answer admits thai the de- fendant purchased the goods, but de- nies each and every other allegation in said complaint contained, not herein- after specifically admitted, contro- verted or denied, it was held that the answer put in issue the value or agreed price of the goods, together with the fact whether the assignment under which the plaintiff claimed, wasi ever executed as alleged. Raw- lings V. Alexander, 8 Misc. 514, 28 N. Y. Supp. 748. 6. Gould f. Williams, q How. Pr. (X. Y.) 51. 7. Blakcman v. Valleio. 15 Cal. 638. Failure to Deny. — In Powell i'. Oullahan. 14 Cal. 114, it was said: " L'nder the pleadings in this case no evidence was necessary on either of the points specified in the motion as a ground of non-suit. As to the first point, it is only necessary to say. that the title of the state is distinctly averred in the complaint, and it is not denied in the answer. In relation to the second point, the complaint alleges that the defendant is in possession and excludes the plaintifT: and tliis allegation is not only not denied, hut the answer shows affirmatively that he was in possession, claiming adversely to the plaintifif when the suit was com- m<'nr<'''. . Tf llic .-illegation is m.i- Vol. I terial. it is not denied, and musi he taken as true. If it is not material, the admission is relied on as estab- lishing an independent fact, not put in issue by the pleadings, aflfecting the whole case, but no special aver- ment or denial. ' When it appears from the whole conduct of a cause, that a particular fact is admitted be- tween the parties, the jury have the right to draw the same conclusion as to that fact, as if it had been proved in evidence, and to draw such conclusion as to all the issues on the record.' " 8. California. — Canfiekl v. Tobias, 21 Cal. 349: Doyle v. Franklin. 48 Cal. 537 ; Kidder v. Stevens, 60 Cal. 414. Missouri. — Wood t. Steamer Fleetwood, 19 Mo. 529; Field 7'. Barr, 27 Mo. 416: Sutter 7'. Streit, 21 Mo. 157- New York. — Sands 7'. St. John, 36 Barb. 628: King 7'. I'tica Ins. Co., 6 How. Pr. 485; Gilbert v. Rounds, 14 How. Pr. 46. Oregon. — Larsen 7'. Or. Ry. & Nav. Co., ig Or. 240. 23 Pac. 974. Failure to Deny Value of Prop- erty. — Thus it is held lliat the vahie of an article alleged in a complaint, where the value is not a material is- sue in the case, is not admitted by the failure to deny the same, the court saying : " In our opinion, the allegation, to be taken as admitted, must be a material one, and it must be so stated in the petition, as to bring to the mind of the defendant I he importance of il in the trial of ADMISSIONS. 401 b. By Failure to Deny Allegations in Pleadings in Action on Trial. In treating this branch of the subject it will be) necessary to distin- guish between the rules of pleading in actions at law under the common law practice and imder the codes of the several states, as well as statutor}- modifications of pre-existing rules, and the rules of pleading and evidence under the equity practice. What is said under this sub-head will be confined, as near as may be, to' plead- ings in actions at law, whether under the common law practice or code provisions. The cfliect of admissions in pleadings in suits in equity will be treated separately. Allegations Not Denied Are Admitted. • — The rule is general both at common law and xuider the codes that a material allegation well pleaded must be denied or it stands admitted." the cause; then, if the defendant fails to den}' it in his answer, it may he taken as confessed ; hut here, the sum of eight hundred and five dol- lars, as the worth of the malt, was not a material matter to the action ; the action could have been as well supported if the malt had been worth but four hundred dollars, or any other sum." Wood z'. Steamer Fleet- wood. 19 Mo. 529. Failure to Deny Immaterial Al- legations. — So in Canfield v. Tobias, 21 Cal. 349, it is held that allegations not material to the plaintiff's cause of action are not admitted by a failure on the part of the defendant to deny them ; that the only allega- tions essential to the complaint arc those required in staling the cause of action; and that allegations in- serted for the purpose of intercept- ing, cutting off and anticipating the defense are superfluous and imma- terial, and do not require an answer. Again in Kidder v. Stevens, 60 Cal. 414, it is held that the allegation of time, as to seisin or ouster, in the so called action of ejectment, in Cal- ifornia, is not material ; and that denial of it raises no material issue except when the profits arc in ques- tion. But in King v. Utica Ins. Co., 6 How. Pr. (N. Y.) 485-. it is held that if the party iriake distinct though immaterial allegations, and in a tra- versable form, he cannot have his adversary's pleading, taking issue thereon, struck out, the court saying : " And if a party will make a distinct though inmiaterial allegation, and in a traversable form, I am not aware 26 of any rule of pleading or practice by which he can prevent his opponent from denying its truth, or that re- quires the court to strike out that denial." Matters of Aggravation, — In Gilbert v. Rounds. 14 How. Pr. (K. Y.) 46, it was held that circumstances of aggravation in actions of assault and battery never were traversable, and that the defendant did not admit such matters by not pleading to the declaration prior to the code ; and ti'nt statements of new matter in an action for assault and battery, which consist entirely of circumstances of aggravation, do not constitute a de- fense to the action, nor a counter- claim. And the rule extends to mere legal conclusions. Larscn z' Or. Ry. & Nav. Co., 19 Or. 240, 23 Pac. 974. Instance of Immaterial Alle- gation. —In Sands V. St. John, 36 Barb. (N. Y.)' 628, an action by the receiver of a mutual insurance com- pany on a stock note, it was alleged in the complaint that the company and the receiver were restrained by injunction, for about five years, from bringing any action on the note in suit ; and it was held that the alle- gation's being immaterial could not be taken as true by reason of an omission of the defendant to deny it; and that it was therefore un- necessary for the defendant to ac- company the defense of the statute of limitations with a denial of the al- legation. 9. Allegations Not Denied Ad- mitted. — California. — De Ro v. Cordes, 4 Cal. ii"; Lee v. Figg. 37 Vol, I 402 ADMISSIONS. Manner and Form of Denial. — But the manner and form in which an allegation may be put in issue is not the same at common law Cal. 328, 99 Am. Dec. 271 ; Felch v. Beaudry, 40 Cal. 439. Kansas. — Rock Island Lumber etc. Co. V. Fairmont Town Co., 51 Kan. .^04, 32 Pac. 1 100. Missouri. — Moore v. Sauborin, 42 ^lo. 490; Gorman v. Dierkes, 37 Mo. ,S76. Neiv York. — Churchill v. Bennett, 8 How. Pr. 309; Ramsey v. Barnes, 35 N. Y. St. 43, 12 N. Y. Supp. 726; Paige V. Willet, 38 N. Y. 28; Tell v. Beyer, 38 N. Y. 161 ; Clark v. Dillon, 97 N. Y. 370. Oregon. — Larsen v. Or. Ry. & Nav. Co., 19 Or. 240, 23 Pac. 974. South Carolina.- — Charlotte, Colum- bia etc. Ry. Co. v. Gibbes, 23 S. C- 370; Lupo V. True, 16 S. C. 579. Te.xas. ■ — Edinbura; Am. L. etc. Co. V. Briggs (Tex.), 41 S. W. 1036. Failure to Deny Allegation of De- mand. —In De Ro ~: Cordes, 4 Cal. 117, it is said: "The last point we will notice is one urged by respond- ents to sustain the judgment. They say there was no proof of demand. Under the pleadings, no such proof was necessary. The declaration avers the demand ; the answer is not the general issue, but is only a specific denial of two allegations. It denies the collection of the money, and de- nies that the plaintiff was owner of the ship. Under our practice, and, indeed, under the practice at common l;.w, such an answer is held an ad- mission of all other allegations in the declaration, which arc well pleaded." When Answer Insufficient to Raise Issue. — So in Felch v. Beaudry, 40 Cal. 439, a question arose upon the right of tlie plaintiff to judgment on the pleadings. In passing upon the question, the court said : " If a com- plaint be itself sufficient, there is no question that the plaintiff may apply for judgment on the pleadings, if the defendant has filed an answer which expressly admits the material facts stated in the complaint ; and so when the answer filed leaves all the material allegations of the complaint undcnicd. This practice is constantly pursued, wdien denials in verified answers arc literal merely, or con- Vol. I junctive, evasive, or the like. If this be the practice as to answers which insufficiently deny the plaintiff's alle- gations, why should not answers, which merely set up new matter in defense, if found substantially insuffi- cient, be subjected to the same prac- tice? The ground upon which a motion, made by plaintiff for judg- ment on the pleadings, proceeds in any case, is that his complaint is sufficient to warrant it, and that the answer presents nothing, either by way of denial or of new matter, to bar or defeat the action." Defective Reply. — And this rule extends to allegations made in an answer and not denied in the repli- cation or repl}', in those states in which a pleading to the answer of the defendant is required. Thus in Moore v. Sauborin, 42 Mo. 490, it was held that under the pro- visions of the statute of Missouri, an allegation of new matter contained in an answer, not denied by the reply, stood confessed upon the record, and entitled the defendant to a judgment. In Ramsay v. Barnes, 35 N. Y. St. 43, 12 N. Y. Supp. 726, the complaint, after alleging the making by the de- fendant of a promissory note and its endorsement to the plaintiff, alleged that thereafter it was agreed between plaintiff and defendant that the mat- ter was not one of G, but a personal one of the defendant, and that the defendant owed plaintiff a certain sum, which was the true balance then due upon the certain note. The answer, while denying the other al- legations of the complaint, did not refer to the statement of the personal obligation of defendant, and it was held that the fact of such personal obligation was admitted. Pleading in Form an Answer When a Demurrer And a pleading in form an answer, going only to a question of law. has been held to be, not an answer but a demurrer, the court saying : " There is not a single material allegation of fact in the com- plaint which is controverted by the defendant in his pleadings, styled an ADMISSIONS. 403 and under the codes, nor is it the same in all the states where codes have been adopted. At common law the general issue was per- mitted. Under some of the codes a general denial similar in its effects to the general issue at common law is allowed," while in others a specific denial, separately, of each material allegation in the plead- ing of the opposite party is required to put that allegation in issue. But, as stated, both at common law and under the codes, a answer, but the sole issue presented is one of law, whether tfie act re- quiring this assessment was consti- tutional. It is true that, as we have seen, the proper mode of raising such an issue would be by demurrer, and the defendant has not seen fit so to style his pleading; but that can- not alter its legal effect. It does not controvert any material allega- tion of fact contained in the com- plaint, and therefore it does not raise any issue of fact. It simply contro- verts the legal positions taken in the complaint, and thereby raises only an issue of law. and can, therefore, be regarded only as a demurrer." Char- lotte. Columbia, etc. R. R. Co. v. Gibbs, 23 S. C. 370. 10. General Denial Allowed. Indiaiici. — Butler v. Edgerton. 15 Ind. 15: Day z'. Wamslcy. 2iZ Ind. 145 : Craig V. Frazier, 127 Ind. 286, 26 X. E. 842; Loeb V. Weis. 64 Ind. 285; Wilson V. Root, 43 Ind. 486; Board of Comrs. v. Hill, 122 Ind. 215, 23 N. E. 779; Hoosier Stone Co. V. McCain, 133 Ind. 231, 31 N. E. 956; Indianapolis & Cincinnati Ry. Co. V. Rutherford, 29 Ind. 82, 92 Am. Dec. 336. y[iiincsota. — Stone Z'. Quaalc, ^^6 Minn. 46, 29 X. W. 326. . Missouri. — Sargent v. St. Louis & S. F. Rv. Co., 114 Mo. '!48, 21 S. W. 823. 19 L. R. A. 460; Ellet V. St. Louis. Kansas City etc. Ry. Co.. 76 Mo. 518. NezK' York. — Otis v. Ross, 8 How. Pr. 193: Rost V. Harris, 12 .A.bb. Pr. 446; Benedict -■. Seymour, 6 How. Pr. 298. Ohio. — Dayton r. Kelly. 24 Ohio St. ,^45. ij Am. Rep. 612. Effect of General Denial. — Thus in Indiana, in an action of recovery for goods alleged to have been sold and delivered to the defendant, it was held that he might show, under an answer of general denial, that the goods were sold and delivered to his wife under such circumstances as not to bind him. Day v. Wams- ley, 33 Ind. 145. And in Stone v. Quaale, 36 Minn. 46, 29 N. W. 326, it was held that a general denial is the same in effect as a specific denial of the allegations in the whole or in a part of the pleading so denied, the court saying : " In effect it is precisely the same as if each of the allegations so de- nied was specifically and separately referred to and denied. It is of no greater and no less efTect ; is no better and no worse denial than such specific and separate denial would be. It puts in issue each allegation of fact to which it relates as fully as if each of such allegations were specifically denied." .\nd upon this theory as to the effect of the general denial, it is held improper to plead such matters as can be properly proved under the general denial, and upon motion such matter will be stricken out. Sargent V. St. Louis & S. F. Rv. Co, 114 Mo. 348. 21 S. W. 823, 19 L. R. A. 460. Thus in Ellet f. St. Louis. Kansas City etc. Ry. Co.. 76 Mo. 5:8, an action against a railway company for the death of a passenger, the neglect alleged was the want of care in the servants of the company and defects in its road. The defendant denied all of the allegations of the petition, and also filed a special plea, alleging that the railroad was well con- structed and servants skillful and careful, but that the casualty was caused by an extraordinary rain storm. It was held that this matter was such that it could be shown under the general denial, and the special pica was properly stricken out. Vol. I 404 ADMISSIONS. material allegation not denied in manner and form as reqnired by the law of the particnlar state in which the action is pending, is admitted.'^ Under the Codes Material Allegations Must Be Denied. — Whatever may have been the requirements of the old common law or the equity practice, in this respect, the codes usually, if not universally, require that all material allegations in the pleading of the opposite party intended to be controverted must l)e specifically denied in order to put such party to the proof of them.'- If Not Denied Taken to Be True. — And if no such denial is inter- posed the fact alleged is taken to be true and thus established as elifectually as if proved at the trial. '^ And the party cannot relieve 11. Calkins :■. Seabury etc. Miu. Co., 5 S. D. 299, 58 N. W. 797; Mor- rill x: Morrill, 26 Cal. .-:88; Wood- worth i>. Knowlton, 22 Cal. 164; Harden v. Atchison & Neb. Ry. Co., 4 Neb. 521. 12. Woodvvorth v. Knowlton, 22 Cal. 164; East River Elec. L. Co. i'. Clark, 43 N. Y. St. 971, '8 N. Y. Supp. 463- Effect of Codes on Failure to Deny The code usually requires that there be specific denial of each allegation of the complaint in order to raise an issue. In San Francisco Gas Co. T'. San Francisco, 9 Cal. 453, the answer was : " And this defendant further answering, saith, that this de- fendant has no knowledge or infor- mation in relation to the allegations of the second count of the said complaint, and, therefore, denies the same." It was held that the answer was defective in not denying any of the allegations of the second count of the complaint, either positively or as to information and belief, the only forms in which the allegations of a verified complaint can be contro- verted so as to raise an issue; and that any other form was unknown to the code of California, and could have no legal efTect. So it was held in Anderson 7'. Par- ker, 6 Cal. 197, that the allegation of the death of plaintifT's ancestor, in a verified complaint was not suffi- ciently controverted by the averment in the answer; "that defendant has not sufficient knowledge to form a belief, and therefore neither admits nor denies." In Newell z: Doly, 33 N. Y. 83, it Vol. I was said : " There is nothing in the plaintiff's point, that because the de- fendants did not deny the allegations in the complaint, of the making of the note, and delivering it to Brown Brothers, the payees who indorsed it to plaintifif, and because they made no general or specific denial of any allegation in the complaint, that this is such an admission of the cause of action, that a judgment contrary to the admission is erroneous. The 149th section of the code requires such a denial only, of the matters alleged, as the defendant means to controvert. The defendants could not truthfully controvert or deny those allegations ; and there is no such unreasonable provision in the code as to require the party to answer a pleading Avith a falsehood." 13. Facts Not Denied Taken to Be True.— U 11 i led States. — Rohevl- son V. Perkins, 129 U. S. 233, 9 Sup. Ct. 279- California. — Horn zi. Volcano Water Co., 13 Cal. 62 ; San Francisco Gas Co. v: Citv of San Francisco, 9 Cal. 453 ; Burke v. Table Mt. Water Co., 12 Cal. 403; Thompson z'. Lee, 8 Cal. 275; Feelcy z'. Shirley, 43 Cal. 369; Bradbury Z'. Cronise, 46 Cal. 287 ; San Francisco z'. Staude, 92 Cal. 560, 28 Pac. 778. Colorado. — Teller -■. Harlman, 16 Colo. 447, 27 Pac. 947. Dakota. — Dole v. Burleigh, i Dak. 227, 46 N. W. 692. Kansas. — Rock Island Lumber etc. Co. v. Fairmont Town Co., 51 Kan. 294, 32 Pac. 1 100. Kentucky. — Morton r. Waring, 18 B. Mon. 72. ADMISSIONS. 405 Missouri. — Moore v. Sauborin, 42 .\lo., 490; Marshall v. Thames Fire Ins. Co., 43 Mo. 586; Lee v. Casey, .59 Mo. 383. Nebraska. — Ma.xwell z: Higgins, 38 Neb. 671, 57 N. W. 388. Nezv FoWe. — Mar.\ v. Gross, 51 N. V. St. 88, 22 N. Y. Supp. 393; Gilbert V. Rounds, 14 How. Pr. 46 ; Coffin v. President etc. Grand Rapids H. Co., 46 X. V. St. 851, 18 N. Y. Siipp. 782; Fleischmann v. Stern, 90 N. Y. no; Tell z: Beyer, 38 N. Y. 161 ; Clark v. Dillon, 97 N. Y. 370; Walrod v. Ben- nett, 6 Barb. 144. 0/iit). — State z: Ilawes, 43 Ohio St. 16, I. N. E. I. Oregon. — Wallace v. Baisley, 22 Or. 572, 30 Pac. 432 ; Larsen v. Or. Ry. & Nav. Co., 19 Or. 240, 23 Pac. 974- South Ciiroliiia. — Charlotte, Col- umbia etc. Ry. Co. z'. Gibbes, 23 S. C. 370. Wisconsin. — Barstow Stove Co. z'. Bonnell, 36 Wis. 63; Marsh v. Pugh, 43 Wis. 597- Failure to Deny. — In an action brought against a collector of the Port of New York to recover duties illegally exacted on the importation ol Bessemer steel rail crop-ends from England, it was alleged that plaintiff "duly inade and filed due and timely protest in writing," and "duly ap- pealed to the Secretary of the Treas- ury," and "that ninety days had not elapsed since the decision of the sec- retary." These allegations were not denied in tiic answer, and it was held that the defendant could not move for the verdict on the ground that the protest was premature ; and that no proof was offered that there was any appeal to the secretary, or no decision on said appeal, or of the date of such decision to show that suit had been brought in time. Robertson v. Per- kins, 129, U. S. 233, 9 Sup. Ct. 279. Failure to Deny Under Oath. And where the statute requires an an- swer under oath to put in issue the genuineness and due execution of the note, where a copy of such note is at- tpched to and made a part of the com- plaint, a general denial, without veri- fication is insufficient and admits the genuineness and due execution of the note sued on. Horn z'. Volcano Water Co., 13 Cal. 62, 73 Am. Dec. 569- Failure to Deny Conclusive. — So in Burke ;■. Table Mt. Water Co., 12 Cal. 403, it is held that the failure to deny a material averment is an ad- mission of the facts contained in such averment ; and that such admission is conclusive against the pleader. In Putnam i'. Lyon, 3 Colo. App. 144, 32, Pac. 492, it is said ; "Ac- cording to the amended complaint and the amended answer, the plaintiff sufficiently averred his rights and ad- verse action by the defendants to en- title him to a decree in his favor in respect of these matters, if his allega- tions were admitted. The amended answer takes issue on none of these averments. What is said in the cross complaint on this subject need not be considered, since in no event can that be taken as a denial of the plaintiff's complaint. The admissions wh-( h follow from the failure to deny relieve the plaintiff of the necessity to make proof, and entirely justify the decree entered." So it is held in Teller v. Hartman, 16 Colo. 447, 27 Pac. 947, that a mate- rial allegation of the complaint, not denied in the answer, will be taken as confessed. Specific Denial Necessary — Un- der the Code of New York it is held that if a material allegation in a pleading, whether in the complaint or answer, setting up new matter, is not specifically controverted by the an- swer or reply, said allegation of new matter, for the purpose of the action must be taken as true. Walrod v. Bennett, 6 Barb. (N. Y.) 144- And the rule is held to extend to pleadings in mandamus, such pro- ceeding being construed as a civil action within the meaning of the statute, and that, therefore, a mate- rial allegation in the petition for the writ, not denied by the answer, must be treated as admitted the same as if admitted in express terms. State v. Hawes, 43 Ohio St. 16, i N. E. i. In Larsen z'. Or. Ry. & Nav. Co., 19 Or. 240, 23 Pac. 974, it is held that by failing to reply to new matter in an answer every material fact that is well pleaded therein, stands admitted, but legal conclusions need not be de- nied. Vol. I 406 ADMISSIONS. himself from this effect of a faihire to deny a fact by an allegation that he has no knowledge on the subject." Denial on Ground of Want of Knowledge. — But a denial for the reason, or on the ground that the party has no knowledge of the truth or falsity of the fact is allowed in practice in some of the states, and is eiTectual to put the fact in issue and call for proof of it.'^ In Fleischmann v. Stern, 90 N. Y. 110, it was held that as the code pro- vided that " each material allegation of the complaint, not controverted by the answer, must, for the purpose of the action, be taken as true," the de- fendant was not at liberty to deny, in his testimony, the existence of the facts constituting the cause of action stated in the complaint, or to prove any state of facts inconsistent there- with, where the answer did not deny such facts; and that the omission to deny was equivalent to the formal ad- mission of the truth of the averments, and was conclusive as such. In Moore v. Sauborin, 42 Mo. 490, the court say: "The provisions of the thirty-sixth section of the same chapter are equally explicit in direct- ing that 'every material allegation of new matter contained in the answer, not controverted by the reply, shall, for the purposes of the action, be taken as true.' We are not called upon to scrutinize very closely the averment of this new matter. There was no demurrer to it. The object evidently was to set up such a settle- ment or compromise of the whole matter, made between the parties at the time of their appearance before the justice, as amounted to a release of the defendant from all liability on account of the prosecution that had been instituted against the plaintiff. This, if true, was a defense to the action. Without a reply, it stood confessed upon the record and en- titled the defendant to a judgment. He was not bound to introduce any evidence upon that point, and we shall not look to the bill of excep- tions for the purpose of ascertaining whether it is sustained by the proof made or not." 14. It is held in Maxwell ?'. Hig- gins, 38 Neb. 671, 57 N. W. 388, that facts pleaded in a petition will be taken as admitted where not specific- Vol. I ally denied in the answer, and the answer for want of knowledge, neither admitted nor denied the aver- ments of the petition. In People v. Northern Ry. Co., 53 Barb. (N. Y.) 98, it is said: "But the code declares that every material allegation in the complaint, not con- troverted by the answer, as pre- scribed by section 149, is for the pur- pose of the action to be taken as true. None of the material allega- tions of the complaint are, in this case, so controverted. It therefore follows that they stand admitted, and being so admitted the plaintiff is en- titled to the judgment so demanded.'' 15. Denial for Want of Knowl- edge. — United 5Vi!/c-.f. — Maclay f. Sands, 94 U. S. 586. California. — San Francisco Gas Co. •;■. City of San Francisco, 9 Cal. 453 ; Thompson v. Lynch, 29 Cal. 189; People V. Board of Supervisors. 45 Cal. 395 ; Humphreys v. McCall, 9 Cal. 59, 70 Am. Dec. 621 ; Curtis v. Richards, 9 Cal. 33 ; Cunningham v. Skinner, 65 Cal. 385, 4 Pac. 375; 'Harnev v. ^IcLeran, 66 Cal. 34, 4 Pac. 884. Idalio. — People t'. Curtis, i Idaho 75.3. Nchraslia. — Harden v. Atchison & Neb. Ry. Co., 4 Neb. 521. New Yorl!. — Brown v. Ryckman, 12 How. Pr. 313; Sheldon 7: Heaton, 78 Hun 50, 29 N. Y. Supp. 275 : Humble 7'. McDonough, 5 Misc. 508, 25 N. Y. Supp. 965 ; Bennett -•. Leeds Mfg. Co., no N. Y. 150, 17 N. E. 669; Taylor v. Smith, 29 N. Y. St. 365, 8 N. Y. Supp. 519- . Oregon. — Sherman ?'. Osborn, 8 Or. 66. IVisconsin. — Stacy f. Bennett, ^9 Wis. 234, 18 N. W. 26. What Sufficient Denial. — In Humble J'. McDonough, 5 Misc. 508, 25 N. Y. Supp. g6$. it is held that the answer that "defendant savs that .-IDMISSIONS. 407 Denial on Information and Belief. — And a denial on information and belief is allowed in some of the states, and is as eft'ectual to raise an issue upon the facts alleg'ed as a positive answer/" Want of Knowledge or Information Sufficient to Form a Belief. And, in others, a defendant is permitted to alk\i;e that he has not knowledge or information on the subject sufficient to form a belief, and thus put the opposite party to the proof of the fact.^' upon information and belief he de- nies each and every allegation" is in substance a general denial on infor- mation and belief, and sufficient. The case also involved a question as to whether an absolute denial was necessary or not, because of the fact claimed that the defendant knew of his own personal knowledge the truth or falsity of the facts alleged in the complaint, and it was held that the facts disclosed did not establish the fact that the matters were within his own personal knowledge. Hypothetical Denial. — In Brown V. Ryckman, 12. How. Pr. 31,1. the court said : " The difficulty under which the defendant must rest as to the denial of what another did, which he cannot deny, being ignorant thereof, and which he cannot admit for the same reason, is not considered in any of the cases mentioned, except in the case of Ketcham ?'. Zerega. The code has introduced a system entirely new. It is not an alteration ; it is a radical change, and section 140 not only abolishes all the forms of plead- ing heretofore existing, but pro- vides that the rules by which the sufficiency of a pleading is to be de- termined, are prescribed by the act. This leads to the decision of the question, whether, under the code, the answer of a defendant under oath, may be hypothetical, and, in- deed, whether it can be otherwise in many cases which may arise. " The defendant in this case admits that he made the note sued, but he does not know whether it was en- dorsed or delivered to the plaintiff, and he denies any knowledge or in- formation on the subiect sufficient to form a belief, which puts that fact in issue. Unless he denies the alle- gation positively, there is no other mode of reply. He has no alterna- tive. The act prescribes the manner of his denial, and leaves him no choice. The denial is itself, in its own nature, hypothetical. He does not know whether the plaintifT is the owner or not, but if he is, then there is a defense, and so he tells his story." When Bound to Ascertain Facts. In People v. Curtis, i Idaho 753, it appeared that the facts could have been ascectained by the defendant by the examination of records possibly within his reach, but not such as he would be presumed to know the con- tents of, and the court held that, not- withstanding that he might have as- certained the facts by the examina- tion of such records, the denial of the material averments in the com- plaint, upon information and belief, was sufficient to raise an issue which should have been tried by the court. 16. Denial on Information and Belief Sufficient. — JMaclay v. Sands, 94 U. S. 586; Humphreys v. McCall, g Cal. 59, 70 Am. Dec. 621 ; Wood v. Raydure, 46 N. Y. Sup. Ct. 144; Meehan v. Harlem Sav. Bank. 12 N. Y. Sup. Ct. 499 ; Mutraz v. Persall, 5 Abb. N. C. 90; Kitchen -'. Wilson, 80 N. C. 191 ; Brotherton v. Downey, 28 N. Y. Sup. Ct. 436. But see Pratt INIfg. Co. V. Jordan Iron etc. Co., 40 N. Y. Sup. Ct. 143. It is held that the answer to the petition for a writ of mandate, pre- sented to the Supreme Court, may deny allegations of the petition upon information and belief. People v. Alameda Co., 45 Cal. 30;. 17. Want of Sufficient Knowl- edge to Form Belief. — Colorado. — James ?>. McPhee. 9 Colo. 486, 13 Pac. 535: Haney i'. People, 12 Colo. 345'. 21 Pac. 39. Florida. — Sharp v. Holland, 14 Fla. 384. Ion.'a. — Claflin v. Reese, 54 Iowa 544, 6 N. W. 729; Manney v. French, 23 Iowa 250; Carr v. Bosworth, 68 Vol. I 408 ADMISSIONS. This form of answer, being a concession to the party pleading it, must be complied with or the answer will be held to be insuffi- cient to raise an issue."* Where Party Knows or It Is His Duty to Know, Denial Must Be Positive. A denial on information or belief, or a failure to deny for want of knowledge or information, is insufficient where it is the duty of the party to know the fact or the circumstances are such that the fact is presumptively within his knowledge, or where he is aware before answering that he has the means of ascertaining whether the allegation is true. In such cases his denial must be positive or the fact will lie taken as admitted,'" unless the answer shows that Iowa 669, 27 N. W. 913 ; Beyre i'. Adams, yz Iowa 382, 35' N. W. 491 ; Ninde v. City of Oskaloosa, 55 Iowa 207, 2 N. W. 618, 7 N. W. sii ; :Mc- Farland v. Lester, 23 Iowa 260. Kentucky. — Morton v. Waring, 18 B. Mon. 72. Minnesota. — Ames v. First Div. St. Paul etc. R. R. Co., 12 Minn. 412; ,\lower V. Stickney, 5 Minn. 397. Missouri. — Walson 7'. Hawkins, 60 Mo. 550. Nezu York. — Flood v. Reynolds, 13 How. Pr. 112; Thorn 7'. 'N. Y. Cent. ^lills. 10 How. Pr. 19; Heye v. Holies, 33 How. Pr. 266; Collins v. North Side Pub. Co.. 49 N. Y. St. 37, 20 N. Y. Supp. 892 ; Snyder z\ White. 6 How. Pr. 321 ; Temple v. Murray, 6 How. Pr. 329 ; Davis v. Potter, 4 How. Pr. 15s; Bidwell v. Overton. 35 N. Y. St. 574, 13 N. Y. Supp. 274; Genesee Mut. Ins. Co. z'. Moynihen, 5 How. Pr. 321 ; Richter v. McMur- ray, 15 Abb. Pr. 346; Caswell v. Bushnell. 14 Barb. 393 ; Hagaborn v. Village of Edgewater, iy N. Y. St. 542, 13 N. Y. Supp. 687; Duncan v. Lawrence, 6 Abb. Pr. 304 ; Kellogg -c'. Baker. 15 Abb. Pr. 286; Zivi v. Einstein, 49 N. Y. St. 224, 20 N. Y. Supp. 893 : Warner v. U. S. L. & I. Co., 25 N. Y. St. 540. 6 N. Y. Supp. 411; Townsend v. Piatt, 3 Abb. Pr. 325; Harvey v. Walker, 3^ N. Y. St. 765, 13 N. Y. Supp. 170; Sherman v. Bushnell. 7 How. Pr. 171 ; Grocers' Bank y. O'Rorke. 13 N. Y. Sup. Ct. 18 ; Livingston f. Hammer, 7 Bos. 670. North Carolina. — Fagg v. South- ern B. & L. Assn., 113 N. C. 364, 18. S. E. 65s : Farmers & Mer. Bank V. Board of Aldermen etc.. 75 N. C. 45- Vol. I Oregon. — Wilson i\ Allen, 11 Or. 154, 2 Pac. 91 ; Colburn i'. Barrett, 21 Or. 27, 26 Pac. 1008; Robbins v. Baker, 2 Or. 52. Soiitli Daliota. — Cumins v. Law- rence Co., I S. D. 158, 46 N. W. 182. Wisconsin. — Hastings v. Gwynn, 12 Wis. 750 ; Goodell v. Blumer, 41 Wis. 436 ; Boorman z'. Am. Ex. Co., 21 Wis. 154; Witmann v. Watry, 37 Wis. 238; Smith v. City of Janesville, 26 Wis. 291 ; Davis v. Louk, 30 Wis. 308. 18. Savre v. Gushing, 7 Abb. Pr. 371 ; Collart v. Fisk, 38 Wis. 238. 19. When Denial Must Be Posi- tive. — United States. — Buller v. Sidell, 43 Fed. 116. California. — Humphreys z\ Mc- Call, 9 Cal. 59, 70 Am. Dec. 621; Walker v. Biififandeau, 63 Cal. 312; Mulcahy v. Buckley. 100 Cal. 484,3s Pac. 144: Brown ;■. Scott, 25 Cal. 189; Vassault z'. Austin, 32 Cal. 597; Gribble z: Columbus Brewing Co., 100 Cal. 67, 34 Pac. 527 ; San Fran- cisco Gas Co. Z'. San Francisco, 9 Cal. 4i3; Loveland z\ Garner, 74 Cal. 298, 15 Pac. 844. Idaho. — People z'. Curtis, i Idaho 7S3- Kentucky. — Ky. River Nav. Co. v. Com, 13 Bush 435; Nashville C. & St. L. Ry. Co. z: Carico, 95 Ky. 489, 26 S. W. 177; Wing z:. Dugan, 8 Bush 583; Hufifaker r. Nat. Bank, 12 Bush 287; Grindler 7'. Farmers & Drovers' Bank, 12 Bush 333 ; Barret 7'. Godshaw, 12 Bush 592. Minnesota. — Wheaton 7'. Briggs, 35 Minn. 47b, 29 N. W. 170. A'r7(' York. — Edwards 7'. Lent, 8 How. Pr. 28; Wessow z: Judd, I Ahb. Pr. 2^4; Shearman 7'. N. Y. Cent. Mills." I Abb. Pr. 187 ; Fallon 7'. Dur- .-IDMISSIONS. 409 the party could not have obtained the information.-" Substituted Parties Bound by Admissions. — An allegation of a de- fendant, brought in by supplemental complaint, of his ignorance of a fact admitted by the answer of the original defendant, to whose interests he has succeeded, is insufficient, as lie is bound Ijy the admitted knowledge of the original party.^^ Insufficiency of Answer, How Raised. — But again it is held that the insufficiency in this respect mtist be raised by motion to strike out the answer, and that the burden rests upon the party making the motion to show that the facts are within the knowledge of, or could be ascertained by the party answering, and that if the sufficiency of the pleading is not tested in this way. it will be held sufficient on the trial to raise the issue.'" But there are cases directly to the rant. 60 How. Pr. 178; Rofilin f. Long 60 How. Pr. 200. In People '•. Bonney, 98 Cal. 278, .■?3 Pac. 98, the conrt cites and ap- proves the decision in People '!'■ O'Brien, 96 Cal. 171, 31 Pac. 45. In U. S. V. Sykes, 58 Fed. 1000, which was a case for removing un- stamped whiskey, a witness intro- duced by the defendant confessed himself to be a confederate in the crime. The witness testified that his father (the defendant) had given him instructions to purchase tax paid whiskey, and that his father did not know tfiat the whisky had been put in unstamped casks. The court held that his testimony ought to be corroborated. Lewis V. Acker, 2 How. Pr. 163 ; Chapman v. Palmer, 12 How. Pr. 3'7; Beebe v. Marvin, 17 Abb. Pr. 194 ; Sherman v. Boehm, 13 Daly 42 : Ketcham i\ Zerega, i E. D. Smith 55.3- IVisconsin. — State v. McGarry, 21 Wis. 502 ; LTnion Lumbering Co. f. Board of Supervisors, 47 Wis. 245. 2 N. W. 281 ; Mills V. Town of Jeflferson, 20 Wis. 54; Hathaway v. Baldwin, 17 Wis. 635, 86 Am. Dec. 730; City of Milwaukee z: O'Sulli- van, 25' Wis. 666; Goodell ?■. Blumer, 41 Wis. 436 ; Brown v. La Crosse Gas L. & C. Co., 21 Wis. 51. 20. Jones -'. Perot, 19 Colo. 141, 34 Pac. 728; Haney v. People, 12 Colo. 345, 21 Pac. 39. What Answer Must Show " It is difficult to define with more ex- act precision when an answer should be positive in its denials, than to say that when tlie material facts alleged in the complaint are presumptively within the knowledge of the defend- ant he must traverse them, if he undertakes to do so at all, directly and positively, or he must show how it is that he is without knowl- edge of such facts. In the case un- der consideration, we are of opinion the presumption did not arise, that the defendants knew that a judg- ment had been recovered by Barker against Austin, or the contrary, and, consequently, that they might deny the recovery of such a judgment upon information and belief." Vas- sault f. Austin, 32 Cal. 597. ' The denials in the answer are as follows : The defendant ' denies any knowledge or information sufficient to form a belief as to each and every allegation in the complaint, except as hereinafter admitted." This form of denial is defective, in that it does not contain a statement to the effect that defendant cannot obtain suffi- cient knowledge or information upon which to base a belief. From aught that appears, information might have been obtained, upon the slightest in- quiry, which would have enabled the defendant to either have admitted or denied in positive form the allega- tions of the complaint. Civil Code, §56; Haney v. People, 12 Colo. 345, 21 Pac. 39." Jones v. Perot, 19 Colo. 141, 34 Pac. 728. 21. Forbes v. Waller, 25 N. Y. 430. 22. Smalley v- Isaacson, 40 Minn. 450, 42 N. W. 352. Vol. 1 410 JDMISSIONS. contrary, liolding that where the defendant alleges under oath a want of knowledge, the answer cannot be stricken out on a showing by affidavit that the facts were within his personal knowledge.--'' ' Answer on Belief. — Under some of the codes a verified answer on the belief of the partv is held to be suf^cient.^* General Rules As to Sufficiency of Answers Founded on Want of Knowl- edge or Information, or on Information and Belief. — The language of the several codes authorizing answers of this kind does not diiifer so materially as to call for separate discussion : the authorities above cited will sufficiently indicate the general rules as to the sufificiency of such answers."^ When Specific Denial Necessary. — In some of the states a specific denial is onlv required where the adverse pleading is verified. If not verified a general denial is sufficient."" In other states a gen- eral denial is permitted except as to certain specified allegations of fact ; for example, where a written instrument is the foundation of the action, its execution is deemed admitted tmless genuineness and due execution are denied under oath, and in case of allegations of the existence of corporations or of any appointment or authority.-' The requirement extends to judgments,-' and to the power of a municipal 23. Caswell Z'. Bushnell, 14 Barb. (N. Y.) 393- 24. " It will be observed that there are differences between our code and that of New York in other particu- lars connected with the verification of pleadings. Our code provides that every pleading of fact must be verified, but this verification is suffi- cient when it shows a belief that the facts stated are true, while the code of New York requires the verifica- tion to be to the eiTect that the plead- ing ' if true to the knowledge of the person making it, except as to mat- ters stated on information and belief, and as to those matters, he believes it to be true-' Our code contem- plates, for the sake of brevity and conciseness, a simple statement of facts, without reference to the man- ner, a knowledge of them, or a reason to believe them, may have been ob- tained, or may exist ; and, it is prob- able, with this view any reference to knowledge or information was omitted." Treadwell 7'. The Comrs. of Hancock Co., 11 Ohio St. 183. 25. A very interesting discussion of the subject will be found in the notes to Humphreys v. McCall, 70 Am. Dec. 621. 26. San Francisco Gas Co. r. City of San Francisco, 9 Cal. 453; Snell Vol. I f. Crowe. 3 I'tah, page 26 Pac. 522 ; Schenk ■;■. Evoy, 24 Cal. 104 ; Ran- dolph f. Harris. 28 Cal. 561, 87 Am. Dec. 139; Doll V. Good, 38 Cal. 287; Rock Springs Coal Co. v. Salt Lake Sanitarium Ass'n, 7 Utah 15S, 23 Pac. 742. 27. Alabama. — Rosenberg v. Claflin. 95 Ala. 249, 10 So. 5'2I. California. — Smith v. Eureka Flour Mill Co., 6 Cal. i. Colorado. — Watson v. Lemen, 9 Colo. 200, II Pac. 88. Iowa. — St\er v. City of Oskaloosa, 41 Iowa 353; Curry i<. District Town- ship etc., 62 Iowa 102, 17 N. W. 191 ; .\sIiworth V- Grubbs. 47 Iowa 3.S3 ; Brewer v. Crow, 4 Greene 520; Ed- monds J'. Montgomery, I Clarke 143 : Clark, z: City of Des Moines, 19 Iowa 199 ; Hall z'. Aetna Mfg Co., .30 Iowa 215 ; Templin v. Rothweiler, 56 Iowa 259, 9 N. W. 207. Kansas — Rock Island Lumber Co. z'. Fairmount Town Co., 51. Kan. 394, 32 Pac. 1 100. Nezv York. — East River Elec. L. Co. z: Clark, 45 N. Y. St. 63.;. 18 N. Y. Supp. 463. Jl'isconsiu. — Crane v. Morse, 40 Wis. 368, 5 N. W. 8is. 28. Edmonds z\ Montgomery, i Clarke (Iowa) 143. ADMISSIONS. 411 corporation to make the contract sued on.-" But is limited to such instruments as are the foundation of the cause of action or defense and made part of the pleading.^" And in some of the states the denial must go to the signature to the note and not to its execution. ^^ 29. Clark r. City of Des Moines, 19 Iowa 199, 87 Am. Dec. 423. 30. Hay v. Prazier, 49 Iowa 454. 31. Effect of Denial of Execution. It has been held under ihc law of Iowa that where an answer did not deny the signature to the note sued on, but did deny the execution of tlie note, the denial did not cast on the plaintiff the bnrden of proving the signature, but permitted the defend- ant to prove that it was not his gen- uine signature. Sully v. Goldsmith. 49 Iowa 690; Loomis j'. Metcalf, 30 Iowa 382, And that in order to put the plain- tiflf to the proof the genuineness of the signature must be specifically and positively denied under oath. Douglass I'. Alatheny, 35 Iowa 112; Carle 7'. Cornell, 11 Iowa 374. "Appellant's counsel insists that under the statute, the signature of George Trump, Jr., not being denied by him under oath, ' it is to be deemed genuine and admitted,' and cannot be contradicted, and he cites Loomis & Leroy v. Metcalf & Fuller, 30 Iowa 382. The question there was as to the sufficiency of the denial to put the plaintiff on proof of the signature, and it was held that, in order to cast the burden of proving the genuineness of the signature on the plaintiff, it must be denied under oath by the party whose signature it purports to be. See, also, holding the same view, Douglass v. Alatheny, ante, 112, and cases cited. It was held, in the language of the statute, that unless the signature be thus denied, ' it is to be deemed genuine and admitted.' It was not, however, held, nor do we believe the true meaning of the language of the stat- ute to be, that the defendant is estopped from controverting the ex- ecution of the instrument or of his signature thereto by proof, where he has denied the execution in his an- swer." Sankey v. Trump, 35' Iowa 267. See on this subject Ludlow v- Berry. 62 Wis. 78, 29 N. W. 140; Concordia Sav. & Aid Ass'n. v. Read, 93 N. Y. 474. In Iowa it is directly held that the only effect of the statute is to shift the burden of proof in' case of a denial of the gen- uineness of the signatures under oath that the failure to so deny is not an admission of the genuineness of the signature, but leaves it open to the defendant to prove that the signature is not genuine. Sankey v. "Trump, 35 Iowa 267 ; Fannin v. Robinson, 10 Iowa 272. Brayley v. Hedges, 52 Iowa 623, 3 N. W. 652 ; Farmers & Mer. Bank v. Young, 36 Iowa 44. Requirement Applies to Signature Only. — So it is held that the re- quirement of a verified denial applies to the signature only, and that an alteration of the instrument may be put in issue by an unverified plea of Hon est factum. Lake v. Cruik- shank, 31 Iowa 395. And that the denial must be by the party whose signature it purports to he. Therefore the maker of a note cannot deny the genuineness of the signature of the endorser. Robinson V. Lair, 31 Iowa 9; Walker v. Sleight, 30 Iowa 310. Denial of Corporate Existence. So it is held, under certain statutory provisions in Iowa, that the bare de- nial of an allegation that it is a cor- poration is not sufficient to put in issue the alleged corporate character of a defendant. Stier v. City of Oskaloosa, 41 Iowa 353 ; Coates v. Galena & C- U. Ry. Co., 18 Iowa 277; Blackshire v. Iowa Homestead Co., 39 Iowa 624. So with respect to the allegation that a guardian or administrator was duly appointed. Gates v. Car- penter, 43 Iowa 152; Mayes v. Tur- ley. 60 Iowa 407, 14 N. W. 73 r. And that the party duly performed all the conditions of a contract on his part. Halferty v. Wilmering, 112 U. S. 713. 5 Sup. Ct. 364. And where a promissory note sued Vol. I 412 ADMISSIONS. And in some cases the failure to deny under oath has been held to have the effect to relieve the plaintiff from proving the execution or assignment of the instrument in the first instance only, thus shifting the burden of proof. ^- But it is held also that a failure to deny under oath confesses the execution of the instrument.''-' In some of the states it is held that a general denial is not authorized, but the denials must be specific as to each fact intended to be controverted.''^ That Instrument Was Procured by Fraud May Be Proved Under Non Est Factum. — It is held that where the execution of an instrument was procured by fraud, the fact may be proved under the answer of non est factum which, under the codes of some of the states, may be in the form of a general denial verified, and that it is not necessary to admit the execution of the instrument and plead the fraud in avoidance. '^^ Rule Requiring Verified Denial Applies to Signing of Instrument. Not to Delivery. — There are authorities to the effect that the requirement that the execution of an instrument can be put in issue only by a verified answer, applies only to the manual signing of the instru- ment, and not to its delivery, and therefore a denial unverified does not confess the delivery of the instrument."" Denial Must Be Specific As to Each Fact Intended to Be Controverted, and Without Evasion. — Under the statutory provisions requiring specific denials of each material allegation of the adverse pleading, the denial must be direct and positive as to each fact alleged, and without evasion."' Therefore, if the several facts are stated conjinictivcly on is e.xecuted by an agent, or pur- fraudulent practices, could not prop- ports to have been so executed, a erly be admitted under such an an- sworn denial is not necessary to put swer; that in order to admit such the plaintiff to the proof, but the evidence, the defendant should have question is properly raised by an un- admitted the execution of the note verified plea of non assuin/'sit. and set up the fraud in avoidance of Pope v. Risley, 23 Mo. 185. a recovery thereon. This position I 32. Lyon v. Bunn, 6 Iowa 48 ; think is untenable. The general rule Seachrist v. Griffeth, 6 Iowa, 390; is, that when a deed is void ab initio, Partridge v. Patterson, 6 Iowa, 514; and not merely voidable, the plea of Terhune v. Henry 13 Iowa gg; Klein non est factum is proper; and the V. Keyes, 17 AIo. 326; i\larlin v. facts showing the instrument to be Lamb, 77 Ga. 252, 3 S. E. 10. void, may be given in evidence to 33. State v. Chamberlain, 54 Mo. sustain such plea." Corbey v. 338. Weddlc. 57 Mo. 452. 34. Gwynn v. i\IcCaulcv, 32 Ark. 36, Hammerslough v- Cheatham, 97. ' ' 84 Mo, 13. 35. What May Be Proved Under 37, Denial Must Be Specific, Non Est Factum, — "It is also con- Pomeroy's Rem. & Rem. Rights, tended by the plaintiff that the de- § 633. fense of the defendant, as shown by Arleansas. — Fain v. Goodwin, 35 the evidence, was improperly ad- Ark. log; Lawrence v. Meyer, 35 mitted under the pleadings; that the Ark. 104; Guynn v. McCauley, 32 answer only denied the execution of Ark. 97 ; Moore v. Nichols, 39 Ark. the note, and that evidence to show 145. thtt his name had been procured to California. — Thompson ?'. Lee, 8 the note, without his consent, by Cal. 275 ; Feeley 7'. Shirley, 43 Cal. Vol. I .-iDMISSIONS. 41?. in the complaint, a denial of them as a whole and not separately, is insufficient and admits them .all."* But it is held that a part\' is not bound to deny, in terms, the allegations of the adverse pleading, but may allege a state of facts inconsistent with those intended to be controverted, which is a denial in effect.'"' A different conclu- 369 ; Bradbury ?■. Cronise, 46 Cal. 287; Fitch -■. Bunch. 30 Cal, 208; Marsters v. Lash, 61 Cal- 622; Mor- rill V. Morrill. 26 Cal. 288; Landers Z'. Bolton, 26 Cal. 393 ; Mathewson z'. Fitch, 22 Cal. 86; Levinson t'. Schwartz, 22 Cal- 229; Nelson r. Murray, 23 Cal. 338; Blood z: Light. 31 Cal. 115; Hensley v. Tartar, 14 Cal. 508; Busenius z\ Coffee, 14 Cal. 91; De Godey i'. Godey, 39 Cal. 157; Doll V. Good, 38 Cal. 287; Fuhn v. Weber, 38 Cal. 636; Randolph z: Harris, 28 Cal. 561, 87 Am. Dec 139; Hunter v. Jilartin, 57 Cal. 365 ; Pat- terson V. Ely, 19 Cal. 28 ; Burke z: Table Mt. Water Co., 12 Cal. 403; Ord Z'. Steamer L'ncle Sam, 13 Cal. 369. Colorado. — Watson v. Lcmen, 9 Colo. 200. II Pac. 88. Dakota. — Dole-'. Burleigh, i Dak. 227J 46 N. W. 692. Georgia — Martin z'. I.aniD, 7; Ga. 252, 3 S. E. 10. Idaho. — Norris :■. Glenn, i Idaho 590- Iowa. — Wright z\ Schmidt, 47 Iowa 233. Kentuckv. — Mur^an ;■. Booth, 15 Bush 480;" Clarke V. Finnell, 16 B. Mon. 329; Francis v. Francis, 18 B. Mon. 57 ; Stevenson v. Flournoy, 89 Ky. 561, 13 S. W. 210. Minnesota. — Minor z\ Willoughbj', 3 Minn. 225 ; Starbuck v. Dunklee, lb ilinn. 168, 88 .\m. Dec. 68. Missouri. — Breckinridge v. \m. Cent. Ins. Co., 87 Mo. 62 ; Kinman v. Cannefa.x, 34 Mo. 147 ; Emory !■. Phillips, I Jones 499; Dare i'. Pacific Ry., 31 Mo. 480; Bredell r. Alex- ander, 8 Mo. App. no. Nebraska — Hardin v. .Atchison, Neb. Ry. Co., 4 Neb. 521. Nezu York. — Seward v. Miller, 6 How. Pr. 312; Thorn v. N. Y. Cent. Mills, 10 How. Pr. 19; Salinger v. Lusk, 7 How. Pr. 4TO ; opiegel v. Thompson, i How. Pr. (N. S.) 129; •■Newell V. Doty, a N. Y. 83; Mal- colm v. Lyon, 46 N. Y. St. 921, 19 N. Y. Supp. 210; Conkling z'- .Man- hattan Ry. Co., 58 Hun 611, 12 N. Y. Supp. 846 ; Lewis v. Acker, 2 How- Pr. 163; Young v. Catlett. 6 Duer 437 ; Miller v. Miller, i Abb. N. C. 30; Powers i\ Rome, etc. Ry. Co.. 10 N. Y. Sup. Ct. 285 ; Storer v. Coe, 2 Bos. 661 ; Judd z'. Gushing, 22 Abb. N. C. 358; Sheldon v. Sabin, 12 Daly. 184. Xortli Carolina — TBonds z-. Smith. 106 N. C. 553, II S. E. 322; Deloatch z'. Vinson. 108 \. C. 147. 12 S. E. 895. South Carolina. — Lupo z\ True. 16 S. C. 579- I'enncssce. — -Miller z'. Am. Mut. Ace. Ins. Co., 92 Tcnn. 167, 21 S. W. 39, 20 L. R. A. 765. iVisconsin. — Schaetzel v. German- town F. M. Ins. Co., 22 Wis. 412 ; Elliott V. Espenhain, 54 Wis. 231, 11 N. W. 513; Robbins v. Lincoln, 12 Wis. I ; Cuthbert v. City of Ap- pleton, 24 Wis. 383 ; Crane v. Morse. 49 Wis. 368, 5 X. W. 815. 38. Denial of Facts Conjunctively Alleged. — California. — Blo.ul ■:•. Light, 31 Cal. 115; Fish z\ Reding- ton, 31 Cal. 185; Burke z\ Carrulh- ers, 31 Cal. 467; Kuhland z'. Sedg- wick, 17 Cal. 123; Doll V. Good, 38 Cal. 287 ; Reed z: Calderwood, 32 Cal. 109 ; Richardson z'. Smith, 29 Cal. 529; More v. Del Valle, 28 Cal. 170; Lerou.x z: Murdock, 51 Cal. 541 ; Wordworth z\ Knowlton, 22 Cal. 164 ; Randolph z'. Harris, 28 Cal. 561, 87 Am. Dec. 139; Jones z\ Eddy, 90 Cal. 147, 27 Pac. 190. Kentucky. — Morgan v. Bouth, 13 Bush 480. Minnesota. — Pullen v. Wright, 34 Minn. 314, 26 N. W. 394. Nezv York. — Hopkins z'. Everett, 6 How. Pr. 159; Shearman z\ New York Cent. Mills, i Abb. Pr. 187. Oregon. — Moser z\ Jenkin~. 5 Or. 447- 39. Statement of Inconsistent Facts. — Hill -■. Smith, 27 Cal. 476: Kinney z: Dodge. loi Ind. 573 : Sohn Vol. I 414 ADMISSIONS. sion is reached in some of the cases/" Denial As Broad As the Allegation, Sufficient. — The requirement is that the denial shall traverse fully and without evasion or equivoca- tion the allegation of the adverse pleading. It follows that if the allegation is general in terms when it should be specific, the denial may be equally general. In other words, if the denial is as broad and specific as the allegation, it is a sufficient denial. '"^ When Verification Need Not Be Positive. — While the requirement that the pleading shall be direct and positive is uniform in those states in which a party is compelled to plead under oath, and is allowed to allege or deny on information and belief, it is sufficient if his verification is that he is informed and believes the allegation of the pleading to be true.''- Denial of Every "Material" Allegation. — It has been held that an answer denying every " material " allegation of a complaint is suffi- ciently specific and amounts to a general denial.'"' So it has been held to be a good general denial to deny " each and every allegation of the complaint not herein admitted or controverted," or " not explained. "■'■' But to render such an answer a sufficient denial, the V. Jervis, loi Ind. 578; Clauser v. Jones, 100 Intl. 123; Mays t. Hedges, 7g Ind. 28S: Nicholson -'. Caress, 76 Ind. 24; McDonald v. American Mortgage Co., 17 Or. 626, 21 Pac. 883. 40. Must Be Direct and Unequiv- ocal 'A denial may be general or specific, at the option of the pleader, but in cither case it must 1)e direct and unequivocal. If it merely ivipUcs that the allegation is con- troverted, or justifies an inference that such is or will be claimed to be its cflfect, it will not be construed as a denial." West v. Am. Bank, 44 Barb. (N. Y.) ^7S■ 41. Denial as Broad as Allega- tion, Sufficient. — "The denial is as broad as the allegation. If under the allegation that ihe demand was duly made on the premises — wdiich amounts to no more than that the demand was made on the premises — the appellants were authorized to prove that the demand was made at a particular place on the prem- ises ; then under the denial in the answer the respondents might prove that such place was not the most notorious place on the prem- ises. A demand, to be of any avail to work a forfeiture at common law, must be made at the proper time and place, and for the precise sum Vol. I then falling due, and a denial of the demand puts the lessor upon proof of all the essentials of the demand ; and if the lessor is au- thorized to allege generally, in any respect, the fact of the demand, the lessee would be authorized to make his denial in as general terms." McGlynn v. Moore, 25 Cal. 384. 42. Hardin v. Atchison & Neb. Ry. Co., 4 Neb. 521. 43. Miller v. Brumbaugh, 7 Kan. 343. But see Dole v. Burleigh, i Dak. 227, 46 N. W. 692. 44. Griffin v. Long Island R. Co., loi N. Y. 348, 4 K. E. 740: Raw- lings V, Alexander, 59 N. Y. St. 409, 28 N. Y. Supp. 748; Owens v. Hud- nut, 35 N. Y. St. 567, 12 N. Y. Supp. 700; Kingsley v. Oilman, 12 Minn. 515; Leyd V. Martin, 16 Minn. 38; Smith V. Gratz, 59 How. Pr. 274; Ingle V. Jones, 43 Iowa 286; Crane V. Crane. 5 N. Y. Sup. Ct. 209; Tracy v. Baker, 45 N. Y. Sup. Ct. 263 ; Calhoun v. Hallen, 32 N. Y. Sup. Ct. 155. But see to the contrary : Pomeroy's Rem. & Rem. Rights, §§633-636; McEncroe v. Decker, 58 Plow. Pr. 250; Potter V. Frail, 67 How. Pr. 445 ; Callanan v. Oilman, 67 How. Pr. 464 ; Long v. Long, 79 Mo. 644 ;* Thierry v. Crawford, 40 N. V. Sup. ADMISSIONS. 415 matters in the complaint admitted, avoided or explained, must be clearly shown by other allegations in the answer, so that there can be no uncertainty as to the matters denied." Denial of Fraud. — The denial of fraud or fraudulent intent is of no avail and presents no issue of fact as against an admission in the same pleading of facts establishing the fraud.*" But if fraud is alleged as a fact, a denial of the allegation has the same etfect as the denial of any other fact. Facts Admitted in One Count and Denied in Another. — The general rule is that a failure to deny, or an admission, in one count or paragraph of a pleading, is not conclusive on the party if the same fact is put in issue in another count or paragraph.*" But there are authorities to the contrary.*^ And where the new matter set up is merely inconsistent with the fact alleged in the adverse plead- ing, and not in avoidance of it, the admission of the fact in one count should undoubtedly be held to be conclusive, as the setting up of the inconsistent new matter is no more than an indirect denial of a fact already* admitted."*" But if the admission in one count or paragraph is for the purpose of pleading a separate defense, the Ct. .^66; Hammond z>. Earle, 5' Abb. N. C. 105; Alillville Mfg. Co. v. Salter, i. Abb. N. C. 305; Waters V. Curtis, 13 Daly (N. Y.) 179. 45. :\Iiller v. McCloskey, g Abb. X. C. 303; Tracy v. Baker, 45 N. Y. Sup. Ct. 263. 46. Robinson ;■. Stewart, 10 N. Y. 189; Litchfield V. Helton, 6 Barb. 1S7. 47. Denial in One Count of Mat- ter Admitted in Another. — United States. — Whitakcr v. Freeman, I Dev. fX. C. 271) 29 Fed. Cas. No. 17,527a ; Glenn v. Sumner, 132 U. S. 152. 10 Sup. Ct. 41. California. — Siter v. Jewett, 33 Cal. 92: McDonald z'. Davidson, 30 Cal. 174. Kansas. — McGrcw v. Armstrong, 5 Kan. 284. Massaelntsctts. — Blackington i'. Johnson. 126 Mass. 21. -Wri' Hampshire. — Larrv "'. Her- rick. 58 N. H. 40. Neii} York. — Young v. Katz, 22 App. Div. 542, 48 N. Y. Supp. 187. Te.ras. — Hart z'. Blackburn, 20 Tex. 601. JVisconsin. — McWilliams t. Ban- nister, 40 Wis. 489. 48. Dole Z'. Burleigh, i Dak. 227, 46 X. W. 692 ; Beard v. Tilghman, 49 X. Y. St. 508, 20 N. Y. Supp. 736; Fleischmann z'. Stern, 90 N. Y. no; Wood zi. Whiting, 21 Barb. 190. 49. Repugnant Allegations in Different Counts. — West z'. Am. Bank, 44 Barb. 175 ; Hartwell v. Paige, 14 Wis. 49. '' Under the code a party may set up as many defenses as he chooses, but he cannot, by making repugnant allegations, com- pel the plaintiff, in order to avoid a denial in one part of the answer, prove a fact adinitted in another. The object of the code was to com- pel the defendant to admit every part of the plaintiff's complaint which he could not conscientiously deny. Therefore, any fact sustain- ing the plaintiff's case admitted in one part of the answer is to be taken as true for all purposes in, the case, and the plaintiff is not bound to prove it. In this case the answer is a general denial; second, a justi- fication, and it is held not well pleaded. (Hartwell Z'. Paige, 14 Wis. 49.) Viewed in the light of these authorities, there was no error in rejecting the evidence of the plain- tiff of the copy of the note declared on, or its contents." Dole Z'. Bur- leigh, I Dak. 227, 234, 4.6 N. W. 692. See as bearing on this subject, Lipscomb V. Lipscomb, 32 S. C. 243, 10 S. E. 929. Vol. I 416 ADMISSIONS. admission made for such purpose does not destroy the effect of a denial in another count of the same pleading'.-'" Ai;d there are authorities holding that inconsistent statements of facts in different counts of a pleading are not competent evidence to contradict the testimony of the party, at the trial, as to the facts. ^^ Denial "In Manner and Form As Alleged" Insufficient. — L nder the rule that a denial must be direct and positive, it is held to be insufficient to deny that the allegation is true " in manner and form as alleged " for the reason that such a denial goes to the form and not the substance of the adverse pleading.°- Negatives Pregnant. — A negative pregnant is " the statement of a negative proposition in such a form as may imply or carry with it the admission of an affirmative."^^ Such a denial admits the affirm- ative fact thus implied.'^' 50. Siter v. Jewelt, 31 Cal. g2 ; Hart T. Blackburn, 20 Tex. 601 ; Young T'. Katz, 22 App. Div. 542, 48 N. Y. Supp. 187; Kimball v. Bel- lows, 13 N. H. 58; Larry v. Herrick, 58 N. H. 40. 51. Larry v. Herrick, 58 N. H. 40. 52. Crane v. Morse, 49 Wis. 368, S N. W. 815 ; Dole v. Burleigh, i Dak. 227, 46 N. W. 692. 53. Anderson's Diet. 54. Negative Pregnant Admits the Facts. —Ci7///or«;a. — Landers v. Bolton, 26 Cal. 393; Bradbury v. Cronise, 46 Cal. 287 ; Larney v. Mooney, 50 Cal. 610; Lay v. Neville, 25' Cal. 545 ; Castro v. Wetmore, 16 Cal. 379; Leffingwell v. Griffing, 31 Cal. 231. Colorado. — James v. McPhee, 9 Colo. 486, 13 Pac. 535. Dakota. — Dole v. Burleigh, i Dak. 227, 46 N. W. 692. lo'ica. — But see to the contrary, Doolittle V. Greene, 32 Iowa 123. Minnesota. — Pullen 7'. Wright, 34 Minn. 314, 26 N. W. 394; Lynd v. Picket, 7 Minn. 184, 82 Am. Dec. 79; Dean zk Leonard, 9 Minn. 190 ; Steele 7'. Thayer, 36 Rlinn. 174, 30 N. W. 758; Frasier j'. Williafiis, 15 Minn. 288; Burt v. McKinstrv, 4 Minn. 204: McMurphy r. Wa'lker, 20 Minn. 382. Missouri. — Garth v. Caldwell, 72 Mo. 622; Emory v. Phillips, 22 Mo. 499- Montana. — Harris v. Shoutz. i Mont. 212; Toombs v. Hornbuckle, I Mont. 286. Vol. I New York. — Baker v. Bailey. 16 Barb. 54; Moody v. Belden, 38 N. Y. St.' 722, 15 TST. Y. Supp. 119; Davidson v. Powell, 16 How. Pr. 467 ; Pfaudler Process etc. Co. v. McPherson, 20 N. Y. St. 473, 3 N. Y. Supp. 609; Elton V. MarkhaiTi, 2 Barb. 343. Utah. — Rock Springs Coal Co. v. Salt Lake Sanitarium Ass'n. 7 Utah 158, 25 Pac. 742. Washington. — Gannon v. Dvke, 2 Wash. Ter. 266, 5' Pac. 845; Seattle Nat. Bank v. Meerwaldt, 8 Wash. 630, 36 Pac. 763. Wisconsin. — Schaetzel v. Ger- mantown F. M. Ins. Co., 22 Wis. 412; State V. McGarry, 21 Wis. 502. Negative Pregnant " The fact that the building was burned is charged in the petition as having occurred November 28 1879, and the answer first ' denies the destruc- tion of the property as alleged;' this admits the destruction of the house by fire, if the ordinary rules of pleading applicable to negatives pregnant are to prevail. It is tantamount to saying, " the house was destroyed by fire, but not on the day, or in the way you say it was.' Schaetsell 7'. Ins. Co., 22 Wis. 413, and cases cited ; Soeding 7'. Bartlett, 35 Mo. 90, and cases infra. And the answer then states that ' defend- ant avers that before saiii building was burned, as alleged,' and by further stating ' that at, and imme- diately before the time when said building was burned, mechanics were at work,' etc., thereby makes APMISSIOXS. 417 Can Not Be a Negative Pregnant in a General Denial. — The rule that a negative pregnant admits the fact alleged has heen held to apply to a general denial in case of an allegation of the value of property in controversy. ■■''■"■ But the better rule is the other way.'^" It is correctly held that a general denial is a negative pregnant only when a specific denial would be."*^ Insufficiency of Denial, How Waived and Its Effect. — While the authorities are agreed that a pleading must be direct and positive, it is not always that a failure to plead in the niamier required will have the effect to admit the truth of the fact intended and attempted to be controverted. In some of the cases it is held that a failure to traverse a fact b>' a direct and positive denial must be taken advantage of by an objection to the form of the denial, or it will be held at the trial to be sufficient to raise an issue.'*' admission of the destruction of the building as charged in the petition. Hyeroninius "'. Allison, 52 Mo. 103 ; Garth <■. Caldwell, 72 Mo. 622." Breckinridge "'. Am. Cent. Ins. Co., 87 Mo. 62. But see to the contrary, Mer- chant's Nat. Bank i'. Richards, 74 Mo. 77 ; Wynn v. Cory, 43 Mo. 301 ; First Nat. Bank r. Hogan, 47 Mo. 472; Ells r. Pacific Ry. Co., 55 Mo. 278. It is said that the doctrine of a negative pregnant is not recognized in Missouri. Merchant's Nat. Bank V. Richards, 74 Mo. 77. 55. Dean v. Leonard, Q ^.linn. 190; Heckhn r. Ess, 16 Minn. 51; Pottgieser i'. Dorn, 16 Minn. 204; Moulton V. Thomson, 26 Mimi. 120, I N. W. 836; Coleman t. Pearce, 26 Minn. 123, i N. W. 846; Peck v. McLean, 36 Minn. 228, 30 N. W. 759- 56. Cerman .\m. Bank r'. White, 38 Minn. 471, 38 N. W. 361 ; Stone V. Quaale, 36 Minn. 46, 29 N. W. 326. 57. When General Denial a Neg- ative Pregnant. — " The court below erred in holding the denial in the answer to be a negative pregnant, and therefore an admission of the allegations in the complaint. The statute provides that the answer shall contain ' a denial of each alle- gation of the complaint contro- verted by the defendant, or of any knowledge or information thereof sufficient to form a belief.' Under this, what is termed the 'general 27 denial ' has from the beginning been practiced and been sanctioned by this court. As usually expressed, this denial is of ' each and every allegation ' of the whole, or of some clearly-indicated portion, of the pleading to which the denial is in answer, or of the whole or part of such pleading, with clearly and de- finitely expressed exceptions. How- ever expressed it is sufficient if it clearly shows that the pleader intends to deny ' each and every ' of the allegations in the whole or of the part of ihe opposite pleading referred to. This form of denying, instead of specific denials, was adopted from motives of convenience, and it has considerations of convenience to commend it. In effect, it is pre- cisely the same as if each of the allegations so denied were specific- ally and separately referred to and denied. It is of no greater and no less effect. Is no better and no worse denial than such specific and separate denial would be. It puts in issue each allegation of fact to which it relates as fully as though each of such allegations were specif- ically denied." Stone v. Quaale, 36 Minn. 46, 29 N. W. 326. 58. How Insufficient Denial Waived — L'nilcd States. — Burley I'. German Am. Bank, in U. S. 216, 4 Sup. Ct. 341. California. — Perkins v. Brock. 80 Cal. 320, 22 Pac. 194. Minnesota. — Schroeder t'. Cape- hart, 49 Minn. 525, 52 N. W. 140. Ne7V York. — Elton v. Markham, Vol. I 418 ADMISSIONS. Denial of Conclusion of law. — The dcMiial Uj be effective must be a denial of the fcicts alleged, and not the conclusion of law to be drawn from them. .And if the conclusion alone is denied, the facts are admitted, but the conclusion is not.''" Denial of Indebtedness. — To deny that the defendant is indebted to the i>laintitt is a denial of a legal conclusion resulting from the facts alleged showing such indeljtcdness, and is insufficient to raise an issue, and admits the facts which are alone material."" There are 20 Barb. 343 ; Wall v. Biiflfalo Water Works Co., i8 N. Y. iig; Pfaudler Process etc. Co, v. McPherson, 20 N. Y. St. 473, 3 N. Y. Supp. 609; Greenfield v. Mass. Mut. F. Ins. Co., 47 N. Y. 4;o; Dovan v. Dinsniore, 33 Barb. 86. Ohio. — Woodward v. Sloan, 27 Ohio St. 592; Trnstees of School Section 7'. Odiin. S Ohio St. 293. 59. Denial of Conclusion of Law. Ponieroy's Rem. & Rem. Riglits, §637. United States. — Mills v. Duryee, 7 Cranch 481 ; P.uller v. Sidell. 43 Fed. 116. Arkansas. — Lawrence v. Meyer, 35 Ark. 104; Fain v. Goodwin, 3s Ark. 109; Moore v. Nichols, 39 .Ark. 145- California. — Nelson v. Murray, 23 Cal. 338; Kuhland v. Sedwick, 17 Cal. 123 ; Scott V. Umbarger. 41 Cal. 410; Lee v. Figg, 37 Cal. 328; Lightner r. i\Ienzel, 35 Cal. 452; Bradbury z'. Cronise, 46 Cal. 287; Wells V. McPike, 21 Cal. 216; Young V. Miller, 63 Cal. 302; Higgins j'. Wortell, 18 Cal. 330; Curtis v. Richards, 9 Cal. 33; Kinney v. Os- borne, 14 Cal. 112; People v. Hastings, 29 Cal. 449; People v. Board of Supervisors, 27 Cal. 655. Colorado. — Watson v. Lenien. g Colo. 20b, II Pac. 88. Idaho. — Swanholm 7'. Reeser, 2 Idaho 1 167, 31 Pac. 804. Indiana. — Indianapolis etc. Ry. Co. T. Risley, 50 Ind. 60; Nicho!so:i V. Caress, 76 Ind. 24. /oTC'O. — Cottle V. Cole, 20 Iowa 481. Kentucky. — ?Iaggard j'. lla\-, 13 B. Men. 175 ; Francis ?'. Francis, 18 B. Mon. 5'7; Templeton v. Sharp, 10 Ky. Law 499. 9 S. W. 507 ; Greer 7'. City of Covington, 83 Ky. 410. .Miiiursnta. — l")i)wncr 7'. Read, 17 Vol. I .Minn. 493 ; Freeman v. Curran, i Minn. 169. Montana. — Higgins v. Germaine, I Mont. 230. Nevada. — Skinner v. Clute, 9 Nev. 342. New York. — Emery v. Baltz, 94 N. Y. 408; Edson V. Dillage, 8 How. Pr. 273; Seeley v. Enzcll, 17 Barb. 530; McAIurray -'. GifFord, 5 How. Pr. 14; Kay v. Churchill 10 Abb. N. C. 83. Ohio. — V. S. Rolling Stock Co. 7'. .\tlantic etc. Ry. Co., 34 Ohio St. 450; Larimore v. Wells, 29 Ohio 13 ; Pennsylvania Co. z'. Piatt, 47 Ohio St. 366, 25 N. E. 1028. Oregon. — Larsen 7'. Oregon Ry. & Nav. Co., ig Or. 240, 23 Pac. 974: Boydston 7'. Giltner, 3 Or. 118; Simpson v. Pralher, 5 Or. 86 ; Or. Cent. Ry. Co. v. Scoggin, 3 Or. 161. C/to/j. — Dickert t. Weise, 2 Utah 350- IVashingtou. — Carpenter 7'. Ritchie (Wash.), 28 Pac. 380. JJ'isconsin. — State v. McGarry, 21 Wis. 502. 60. Denial of Indebtedness Is a Denial of a Conclusion Californa. Kinncv '■• Oshorno, 14 Cal. 112; Wells'-.'. McPike, 21 Cal. 216. Colorado. — Gale v. James, 11 Colo. 540, 19 Pac. 446. loii'a. — Morton 7'. Coffin. 29 Iowa 235; Callanan 7'. Williams. 71 Iowa ,363, 32 N. W. 383 ; Stuckslager v. Smith, 227 Iowa 286; Mann 7'. Howe, 9 Iowa 546. Kentucky. — Francis 7'. Francis. 18 B. Mon. 57. Minnesota. — Freeman 7'. Curran, I Minn. 169. Missouri. — Engler v. Bates, 19 Mo. 54'?; Sapington v. Jeffries, is Mo. 628. New York. — Edson v. Dillage. 8 How. Pr. 271; Fordick v. Groff, 22 How. Pr. 158; Hand v. Belcher ADMISSIONS. 41'i cases to the effect that a denial of a dcfeinlanl tliat he nues the plaintiff the amount sued for, or an)- other sum, is a sufficient denial/" Denial of Evidence. — It is a violation of the rules of pleading to set out the evitlence of a fact or facts. It is the fact and not the evidence of it that is required to be stated. Therefore, if the evi- dence is pleaded, it is not necessar}- to deny it, and no admission material to the issues can result from a failure to make such denial. '■- Denial of Non-Essential or Immaterial Averments Admits Such As Are Essential. — If the denial yoes only to such allegations as are not essential to a recovery, merely, it is an admission' of all the essential facts. '^^' Under the Codes, Form and Effect of Denials the Same in Actions at Law and in Equity. — L'nder the codes of the several states the distinc- tion in practice and pleading, so far as they affect thd question here under consideration, is abolished. Therefore, the form of the denial and its effect is the same whether the action would formerly have been one at law or in equity."* What Sufficient Denial of Allegation of Damages. — Where damages, or an indebtedness, are alleged, a denial that the plaintiff suff'ered the amount of damages stated in the complaint is only a denial that the damages amount to the specific sum named, and is an admission of damages, and that he is entitled to recover any amount less than the sum specifically alleged and denied.'''' Mosaic Glass Co.. ^o N. Y. St. 389, 9 N. Y. Supp. 7.58; Drake v. Cock- roft, 4 E. D. Smith 34. 0/110. — Lariniore v. Wells, ag Ohio 13 ; Knox Co, Bank v. Lloyd's Adnir's, 18 Ohio St. 353. 61. Westlake v. Moore, 19 Mo, 556; Godfrey v. Cruise, i Iowa 92; Heath, 7'. White, 3 Utah 474. 24 Pac. 762; Dallas V. Ferncau, 2t Ohio St. 63.V Allegation of Indebtedness as a Fact, Denial of. Sufficient "The complaint alleges that defendants ' are indebted to the said plaintiffs for the work, labor, and services,' etc. ;' and the answer denies ' that they, or either of them, are in- debted to the said plaintiffs, or either of them, for work, labor, and ser- vices,' etc. If plaintiffs had pleaded the facts out of which the indebted- ness resulted as a conclusion, a de- nial of such conclusion would have been insufficient to make an issue, but, having alleged the indebtedness as a fact, we think the defendants might so treat and so deny it in their answer. The substantial alle- gation of tlie complaint is that ' de- fendants are indebted,' and, if the answer had been in terms a general denial, it would have simply denied the indebtedness, and tendered the same issue as this answer does. Morrow v. Cougan, 3 Abb. Pr. 328; Quin V. Lloyd, 41 N. Y. 349." Mc- Lauehlin v. Wheeler, I S. D. 497, 47 X. W. 816. 62. Racouillat v. Rene, 32 Cal. 4=;o; Moore v. Murdock, 26 Cal. qi=;. 63. Effect of Denial of Immate- rial Fact. — Leftingwcll ''. Griffing, 31 Cal. 231 ; Castro v. Wetmore, 16 Cal. 379 ; Larimore v. Wells. 29 Ohio 13; Hunter v. Martin. 57 Cal. 365; Kamlali v. Salter, 6 .A-bb. Pr. (N. Y.) 226; Freeman v. Curran, I Minn. 169; Jones v. City of Peta- luma, 36 Cal. 230; Manufacturers Nat. Hank v. Russell, 13 N. Y. Sup. Ct. 375- 64. Pomeroy's Rem. & Rem. Rights. § 35 et scq. 65. Effect of Denial of Damages. Huston V. Twin City etc. Tp. Co., 45 Cal. 550; Higgins v. Wortell, 18 Cal. 330; Scovill V. Barney, 4 Or. Vol. I 42n ADMISSIONS. Rule As to Allegations of Value. — J he ruk' lliat a denial ul Uic spe- cific amount alleged admits the right to recover all but the full amount, has been held to apply to an allegation of the value of the property in controversy.''" And this rule has been held to apply to a general denial."' But the better rule is certainly to the contrary."'* But; in some of the states, in actions of trover, trespass or replevin, it is not necessary for the defendant to deny the value or the amount of damages alleged."'' So in other cases where the amount in value of property in controversy is not material.^" What Put in Issue by General Denial.— Independently of any statu- tory provision limiting its effect, a general denial puts in issue every material allegatiim of the pleading to which it is directed, and puts 288; Marsters v. Lash, 61 Cal. 622; Conway v. Clinton, i Utah 215; Dil- lon V. Spokane County, ? Wash. Ter. 498. 17 Pac. 889. 66. Form of Denial of 'Value. Towdy V. Elhs, 22 Cal. 650; Lynd v. Picket, 7 JMinn. 184, 82 Am. Dec. 79. '' The denial, in this form, we think insufficient to put in issue the value of the property at the time of the assignment, and, where the value becomes a material question, must he held as an admission of the allegation in the complaint. It is a negative pregnant, as it in- volves an affirmative implication favorable to the plaintiff. (Gould PI. 320, §29.) For though the de- fendant denies that the property was worth seventy-tive thousand dollars, it fails to stale how much less, or what it was worth, and hence, though it should be worth only a dollar less, ihe answer iiiight be held as literally true, while adniit- ling the whole substance of the al- legalion of the complaint." Burt v. .McKinslry. 4 Minn. 204. 67. Rule Applies to General De- lial Dean i'. I^eonard, 9 .Minn. 19b; Hecklin v. Ess, 16 .Minn. 51; Potlgieser v. Dorn, 16 Minn. 204; .Moullon f. Thomson, 26 Minn. 120, 1 N. VV. 836; Coleman v. Pearce, 26 Minn. 123, 1 N. W. 846; Lynd 7: Picket. 7 .Minn. 184. 82 .-Xm. Dec. 79 68. General Denial of Value Suffi- cient — "A general denial has as wide a scope as the allegaiions of the plead- ing which it denies, and puts in issue every fact alleged in it. Bliss, Code PI. ^x\2; 2 Wait. Pr. 419, 420, and Vol. I Cases cited. If such a denial is to be held a negative pregnant as to an allegation of value, on principle it should be also so held as to allega- tions of time, quantity, and the like. Secondly, any such rule of ple.iding puts us out of harmony with that which obtains in every other juris- diction. In every other state, so far as we can ascertain, in which the code system of pleading prevails, a general denial is held a good traverse of every allegation of the pleading to which it is interposed. And, lastly, our rule works badly in practice. It has compelled attor- neys, for greater safety, to resort to a proli.x system of special denials, when a general one would, in briefer form, answer the same purpose; ant, while it is now many years since this rule was laid own by this court, yet so in conflict is it with the gen- erally understood principles of pleading, and with the rnlo which obtains elsewhere, that even at this late date, hardly a term of this court passes in which spme case does not arise in which the pleated has fallen into a trap by reason of hav- ing overlooked our decisions on this question. Inasmuch as it a not a rule of property, but merel> one of practice, a change in which will not affect any vested rights, we are. for the reasons already given, of opinion that it should no longer be adhered to." Cierman-.'\m. Bank 7'. White, .38 Minn. 471, 38 N.W. 361, 69. Jenkins v. Steanka, ly Wis. 126. 70. Wood V. Steamboat Fleet- wood, 19 Mo. 529 ; Field r, Rarr. 27 Mo. 416. ADMISSIONS. 421 tlie adverse party io the proof of all such allcc^'ations.'' And under the codes, as sliown aliove. wliere specific denials are required, of 71 What Put in Issue by Gen- eral Denial — Ponieroy's Rein. & Rem. Riglits, §§ 6J2-682. Ahihawa. — Mobile & M. Ry. Co. T. Gilmer. 85 Ala. 422, 5 So. l,-58: Equitable Ace. In.-;. Co. 7'. Osborn, go Ala. 201, Sn. 8615, 13 L. R. A. 267. California. — Elder v. Spinks. 53 Cal. 203 : Brtick ?■. Tucker, 42 Cal. ^46: Clink V. Thurston, 47 Cal. 21; Woodworth i'. Knowlton, 22 Cal. 164; Coles V. Soulsby, 21 Cal. 47; Hawkins v. Borland, 14 Cal. 413 ; Brown v. KentfieUl, 50 Cal. 129 Colorado. — Colorado Cent. Ry. Co. v. Blake, 3 Colo. 417 ; Colorado Cent. Ry. Co. v. Mollandin, 4 Colo. XS4. Connecticut. — Page v. Alerwin, 54 Conn. 426, 8 .MI. 67;. Georgia. — Causey v. Cooper, 41 Ga. 409 ; Dickson v. Saloshin, 54 Ga. 117; Woolfolk V. Beach, 61 Ga. 67. Indiana. — City of Lafayette ?'. Mortman, 107 Ind. 404, 8 N. E. 277: Baker i'. Kistler, 13 Ind. 6.^ : Adams Exchange Co. -c'. Darnell, 31 Tnd. 20, 99 .^ni. Dec. 582 : Loeb v. Weis, 64 Ind. 285 ; Wilson z: Root, 43 Ind. 486; Board of Comrs. 7: Hill, 122 Ind. 215, 23 N. E. 779; Hoosier Stone Co. V. McCain, 133 Ind. 231, 31 N. E. 956: Indianapolis & Cincinnati Ry. Co. V. Rutherford, 29 Ind. 82, 92 .\m. Dec. 336: Ferguson -■. Ram- sey, 41 Ind. 511; Widener v. State, 45 Ind. 244: Radabaugh v. Silvers, 135 Ind. 60s, 35 N. E. 104; Pootlit- zer 1: Wesson, 8 Ind. .^pp. 472, 35 N. E. 1030; Day 7'. Wanisley ^.^ Ind. 145'; Garrison v. Clark, 11 Ind. ,369: Westcott I'. Brown, 13 Ind. 83; Rhode 7'. Green, 26 Ind. 83; Brad- ley 7'. Bradley, 45 Ind. 67 ; Chicago C. & L. R. Co. 7'. West, 37 Ind. 211; Urton 7'. State, 37 Ind. 339; Port 7'. Russell, 36 Ind. 60, 10 Am. Rep. 5 ; Tewksbury 7'. Howard, 138 Ind. 103, 37 N. E. 355; Root 7'. Hibbcn, 66 Ind. 247; Trogden v. Deckard, 45 Ind. 572; Vanduyn v. Hepner, 45 Ind. 589 ; Wallace t. E.vcliange Bank, T26 Ind. 265, 26 N. E. 175; Clodfeller 7'. Lucas, 7 Ind. App. 379, 34 N. E. 828: Bash V. Young, 2 Tnd. .\pp. 297. 28 N. E. 344; Wickwirc v. Town of Angola. 4 Ind. App. 2=;3. 30 N. E. 917; Cain z: Hunt, 41 Ind. 466; Stuyter 7'. LTnion Cent. L. Ins. Co.. 3 Ind. .A.np. 312, 29 N. E. 60S: Lafayette S: Indianapolis R. Co. v Ehnian, 30 Iml. 83: Watkins 7'. Jo'ies. 28 Ind. 12; Bate v. Sheets, 50 Ind. 329: Morgan 7'. Wattles, 69 Tnd. 260: Wood 7'. Ostrani. 20 Ind. 177. lo'tva. — ScntI 7'. Morse, si Iowa 7,;2, 6 N._W. 68, 7 N. W. !•;: Walters 7'. Washington Ins. Co., I Iowa 40J, 63 .\m. Dec. 4tI : Dyson 7'. Ream, 9 Iowa m : Johnson v. Pennell, 67 Iowa 669, 25 N. W. 874. Kansas — Perkins 7'. Ermcl, 2 Kau. 32t,'. Minnesota. — German .\m. Bank 7'. White, .^8 Minn. 471. 38 N. W. 361 ; Caldwell 7'. Bruggerman. 4 Minn. 270; Finley 7'. Quirk g Minn. 194. 86 .\m. Dec. 93; Nash v. City of St. -Paul. Tt Minn. 174; Stone 7'. Ouaale, 36 Minn. 46, 20 N. W. 32S; Bond 7'. Corbett, 2 Minn. 2j8. }fissonri. — Sargent 7'. St. Louis & S. F. Ry. Co., 144 Mo. 348, 21 S. W. 823, 19 L. R. A. 460: Ellet 7'. St. Louis etc. Ry. Co., 76 Mo. 518; Northrup 7'. Miss. Valley Ins. Co., 47 Mo. 435, 4 .\m. Rep. 337: Farm- ers & Drovers Bank v. Williams, 61 Mo. 259: Girls Industrial Home 7'. Fritchey, 10 Mo. App. 344. Mebraska. — .Quitman 7'. Stichler, 21 Neb. 72, 31 N. W. 241; Donovan 7'. Fowler, 17 Neb. 247, 22 N. W. 424; Coole 7'. Roche, 15 Neb. 24, 17 N. W. 119; Jones 7'. Fruin, 26 Neb. 82, 42 N. W. 283, 18 .Am. St. Rep. 766; School District v. Slioemaker, 5 Neb. 36; Richardson Z'. Steele, 9 Neb. 483. 4 N. W. 83 ; City of South Omaha 7'. Cunningham, 31 Neb. 316, 47 N. W. 930 ; Burlington & M. R. R. Co. 7'. Lancaster Co., 7 Neb. 33 ; Jones 7'. Seward Co., 10 Neb. 154, 4 N. W. 946: Broadwater 7'. Jacoby, ig Neb. 77, 26 N. W. 629. A''c7C' York'. — Rost 7'. Llarris, 12 Abb. Pr. 446; Benedict 7'. Seymour, 6 How. Pr. 298; Newton 7'. Lee, 139 N. Y. 332, 34 N. E. 905; Wheeler ZK Billings, 38 N. Y. 26': Gritfm 7'. Vol. I 422 tPMrSSIONS. course a trciicral denial raises no issue but admits the nlat^■rial facts pleaded. '- Filing Wrong Pleading to Raise Certain Issues, Admits Them. — A partN- may admit a fact h}- a mistake made in filing the wrong: pleadins;-. For exami^le, where a general denial or general issue is pleaded, such plea admits that the plaintiff has ca]:)acity to sue.'-' And it may be stated generally that where such a pleading only, is filed, as will put in issue a part of the matters alleged, all other facts well ])leaded are admitted. Withdrawal of Answer. — The withdrawal of an answer is an ad- mission of the traversable allegations of the comi)laint or petition.'^ Answer Stricken Out. — The effect is the same if the an.swer is stricken out. It leaxes the case as if a default had been taken.'" Is a Pleading Competent Evidence in the Cause in Which it Is Filed. \Miat has been said relates to the effect of the pleading, as a plead- ing in the cause, and not as evidence offered at the trial. Tt does not follow from the fact that a jileading contains express admissions or omits to deny an allegation, which amounts to the same thing, that it is necessary or even proner to admit it as evidence at the trial. Tt is before the court without being received in evidence, and may, bv its admissions, render it unnecessary to ofifer any evi- dence on a given allegation. T.ut this is its effect as a pleading and not as evidence. Tt seems_to be entirely unnecessary and improper to receive as evidence a pleading in the cause, and it is not generally done.'" Long Island R. Co., loi N. Y. 349. 4 N. E. 740: Weaver v. Barden, 40 N. Y. 286; Duncan v. Lawrence. 6 AM). Pr. 304 ; Winne 7'. hickles. g How. Pr. 217; Andrews t. Bond, 16 Barb. 633 ; Woolley t. Newcombc. 87 N. Y. 605: Scliaus r. Alanhattan Gas L. Co., 14 .M>1). Pr. 371 : Bealy f. Swarthout, 32 Barb. 293 ; Green- field V. Mass. Mut. L. In.s. Co., 47 N. Y. 430; Sawyer v. Warner, 15 Barb. 282; Scbwa'rtz v. Oppold, 74 N. Y. 307; O'Brien v. McCann, 58 Y. 37.3; McKyriiig z: Bnll, 16 N. Y. 297, 69 Am. Dec. 396 ; Boomer V. Keen, 13 N. Y. Sup. Ct.' 64.';. Texas. — Winns 7\ Mitchell, i Te.x. 443; McKaughan r. Harrison, 25 Tex. 461 ; Powder v. Davenport. 21 Tex. 626; Guess 7'. Lubbock, 5 Tex. .S3.S: Towner v. Sayre, j Tex. 28; Robinson v. Brinson, 20 Tex. 438. IVisconsin. — Dutcher v. Dutcber, 39 Wis. 6.SI ; McWilliams j'. Ban- nister. 40 Wis. 489. 72. Pico V. Colimas, 32 Cal. .S78 ; Snell -'. Crowe, 3 Utali 26, 5 Fac. 522. Vol. I 73. Filing Wrong Pleading. T^ouisville & N. R. Co. v. Tram- mcll, 93 Ala. 350, 9 So. 870. 74. Price v. Page, 24 Mo. 6S- 75. Robinson r. Lawson, 26 Mo. 60. 76. Pleading in Action on Trial Competent Evidence. — Colter r. Calloway, f)8 Tiid. 2ig. " The pleadings in a cause are before tlic court and constitute a part of its proceedings without being introduced in evidence. .\d- missions made in a pleading are denominated solemn admissions, or admissions in judicio. and arc not required to be supported by evidence. Such admissions are taken as true against the party making them without further controversy. I Greenleaf Lvidence, §§ 27. 205. "In fact admissions in the pleadings cannot be either proved or disproved on the trial, but must be accepted fur whatever they amount to in legal ef- fect, without reference to any other evidence that may be adduced. I ADMlSSfONS. 42.^ The rii;;ht tn liavc the a(hiiissiut this rule should be confined to so much of the pleading as relates to the particular fact sought to be established. That is to say, if one party offers so much of a pleading as goes to admit a fact he desires to establish, the opposite partv may offer anv further part of the same pleading which will tend to counteract or explain the admission and no more.'^ ;\ny other rule would permit the use of Phillipps Evidence C4th Am. ed.,) p. "This doctrine is, in general term<;, fiillv recoeni7ed bv onr code. "In 2 R. S. 1876, p. 186, §.^72, it is provided that. ' where noon the statements in the pleadings o-e pnrtv is entitled by law to indgnient in his favor, judgment shall be so r-ndered bv the conrt. though a verdict has been fonnd against such party.' "As the defendant's answer was already before the court as a portion of the pleadings in the cause, it nec- essarily follows that no error was committed in the refusal of the court to permit such answer to be formally read in evidence." New Albauy etc. Plank Co. 7'. Stallcup, 62 Ind. 345. 77. Smith v. Pelott, 6^ Hun 6^2, 18 N. Y. Supp. 301. 78. Walcott V. Kimball, i ? .Mien (Mass.) 460; Brooks v. Wright, 13 Allen (Mass.) 72; Phillips z\ Smitli. no Mass. 61. 79. Cook z: Huges, 37 Tex. 343; Pence v. Sweeney. 2 Idaho 914 ; 28 Pac. 413; Young v. Katz, 22 .\pp. Div. 542, 48 N .Y. Supp. 87. 80. Must Be Offered in Evidence. Gossler I'. Wood, 120 N. C. 6g, 27 S. E. :^T, ; Smith t'. Nimocks, 04, N. C. 24 r In the case of Pence 7'. Sweenev, 2 Idaho 014, 28 Pac. 413. an answer denying the allegations of the coni- nlaint had been filed by the attnrnevs of the defendant and subsequently the defendant himself made a verified .nn- swer admitting the alleeations of the complaint. It does not appf^nr th.nt the answer had in fact been filed. Tf not it was not a pleading and stood upon the footing of any ordinary sworn admission. 81. Young 7'. Katz, 22 .A-pp. Diy. 542. 48 N. Y. Sunn. 187. 82. How Much of Pleading Must Be Offered. — Shradv v. Shra^ly. 42 ApD. Div. 9. 58 N. 'Y. Snpn. 546. 83. Effect of Admissions in An- swer "A brings an action against B, the maker of a promissory note. B admits making the note, and pleads accor that the court erred in admitting in evidence the papers and decree in an injunc- tion proceeding instituted and prose- cuted by Holland against the town of New Castle and Daniel Harvey, its then marshal. That proceeding was to enioin the entry of Holland's tract for the extension of said Vine street in 1884. One answer in that case was the condenniation proceedings and the payment to Holland of the $50. Holland replied, among other facts, that it was agreed between himself and the treasurer, who paid him the $50. that he would accept the same, 'and open said street, and give possession thereof, when the board of trustees procured the right of way ADMISSIONS. 42^ d. /;; Other Actions li'here Parties Not the Same. — It is not necessary to the competency of a pleading', as an admission against tlie party, that it be one filed in an action between the same parties. A pleading filed in any action is competent against the party if he signed it or otherwise acquiesced in the statements contained in it if such statements are material and otherwise competent as' evidence in the cause on trial, not by way of estoppel, but as evidence, open lo rebuttal, that he admitted such facts.*" The fact that the party ami opeiifd said street through the lands . . . adjoining on the east,' and alleging that the condition had not been comolied with on the part of the town. The decree enjoined the opening of the street, upon the theory of this reply, ' until said defendant shall have first ob- tained a right of way through and across the lands adjoining,' etc. These papers were admissible, not as a for- mer adjudication, but as Holland's solemn admission of the receipt of said money, and of the condition upon which he held it, and at the same time why he denied the right to oc- cupy his land for the street. Tt was not mere hearsay evidence ; it was the admission of the party, and one upon which he procured a decree in the court in which he now asks re- lief upon an inconsistent ground." Holland -'. Spell, 144 Ind. 561, 42 N. E. 1014. 86. For What Purpose Pleading Competent. — I Whart. Ev., §838; i Greenl. Ev., § 193. United States. — Hyman v. Wheel- er, 29 Fed. 347; Pope v. Allis, 115 U. S. 363, 6 Sup. Ct. 69. .-ilabama. — McLcmore '■. Nuck- olls, 37 Ala. 662; Royalls v. McKen- zie. 25 Ala. 363. California. — Shaffer v. Richards, 14 Cal. 125'. Connecticut. — Fengar v. Brown, 57 Conn. 60, 17 Atl. 321. Georgia. — Pantup v. Patton, 91 Ga. 422, 18 S. E. 311: Lamar v. Pearre, go Ga. 377, 17 S. E. 92. Illinois. — Robins v. Butler, 24 111. 387. Indiana. — Cox v. Ralcliffe, 105 Ind. 374, s N. E. 5. Iowa. — Ayres z'. Hartford F. Ins. Co., 17 Iowa 176. 85 .^m. Dec. 533. Kansas. — Hob-on ,■. Oyileii. 16 Kan. 388 : Solomon R. R. Co. v. Jones, 30 Kan. 601, 2 Pac. 6.=;7. Kcntuckw — Clarke v. Robinson, 1; R. Mon. 55 : Roberts v. Tennell, 3 T. R. Mon.. 247 ; Eldridgc v. Duncan, i B. Mon. lOi : Ring v. Gray, 6 B. Mon. 368. Louisiana. — Bore v. Quierry, 4 Mart. 545 6 Am. Dec. 713. Maine. — Dunbar v. Dunbar. 80 Afe. i<;2, 13 Atl. 1:78. 6 ,A.m. St. Rep. 166 : Parsons v. Copeland, ;^7, Me. 370. 54 .Am, Dec. 628. Maryland. — Garey r. Sangston, 64 Md. 31, 20 .Atl. 1034. Mas.uicln. St. Paul F. & M. Ins. Co., 5 N. D. 64, 64 N. W. 943. Ohio. — Earl v. Shoulder, 6 Ohio 409; Broadrup ?'. Woodman, 27 Ohio St. 55,^- Oregon. — Feldman v. McGuire, 34 Or. 309, 55 Pac. 872. Vol. I 42f) .iPMISSIONS. is a feme covert suino- by next friend does not vary the principle on wliicli such evidence is adniissi1)!e.'' Must Be Signed, Sworn to, or Otherwise Authorized or Acquiesced in by the Party, — Tine pleadinsj to be competent against a party in another action must contain an admission made by him. The mere fact that a pleading is filed as his pleading is not enough to bind him as an admission in another action. He must either have signed or sworn to it,** or authorized it to be signed as his plead- Peniisvlvaniii. — Rice. f. Bixler, i Watts & S. 445; Kline v. First Nat. Bank (Pa. St..> 15 Atl. 433; Limbert T'. Jones, 136 Pa. St. 31, 19 Atl. 956; Trnliy 7'. Seybert, 12 Pa. St. lOl. Texas. — Bnzard v. McAnnltv, 7" Tex. 438, 14 S. W. 1.^8 ; Hamilton v. Van Hook, 26 Tex. 302 ; Wliceler 7'. Styles, 28 Tex. 240. Bill in Equity in Another Suit. " The rnle upon this subject is stated as follows in i Whart. Ev. § 838. ' The pleadings of a party in one suit may be used in evidence against him in another, not as estop- pel, but as proof, open to rebuttal and explanation, that he admitted certain facts. But, in order to bring such admission home to him, the pleading must be either signed by him, or it must appear that it was within tlie scope) of the attorney's authority to admit such facts. Yet, even if such admissions are thus broueht home to the parly, they are entitled to little weight.' And see Cook t'. Barr, .44 N. Y. 156; Siebert t. T^eonard, 21 Minn. 442; Meade 7'. Black, 22 Wis. 244: Tabb 7'. Cabell, 17 Orat. t6o : Cordon 7'. Parmelec, 2 Allen 215; Brown 7'. Tewett, 120 ATass. 215;; Hobson 7'. Ogden, 16 Kan. )88 : Bliss 7'. Nichols, 12 Allen. 443: Wheeler 7'. Styles, 28 Tex. 2jfi. While we are not prepared to hold that a pleading not signed or sworn to by a party can be admitted as evidence against him in another suit, we think that, when it is so signed or sworn to, it may be. We can see no difference in this respect between a bill in eouitv and any other pleading. Such plead- ing, when introduced, cannot be hold conclusive, and is open to explana- tion bv the narty." Bnzard t. Mc- Anulty, 77 Tex. 4.38, T4 S. W. i ^8. Wiscniishi. — Norris 7'. Careill, 52 Wis. 251, Ti; N. W. 251; Mead 7'. Black, 22 Wis. 241. Vol. I 87. McLemore v. Nuckolls, 37 Ala. 662. 88. Must Be Signed or Authorized By Party. — United States. — Board of Com'rs. V. Diebold Safe etc. Co., 133 U. S. 473, 10 Sup. Ct. 399; Combs 7'. Hodge, 21 How. 397. Alabama. — Tennessee Coal etc. Co. 7'. Linn, 123 Ala. 112, 26 So. 245'. California. — Coward 7'. Clanton, 79 Cal. 23, 21 Pac. 3';9. Kenttickv. — Rankin 7'. Maxwell, 2 A. K. Marsh 828. Massachusetts. — Johnson 7'. Rus- sell, 144 Mass. 409, II N. E. 670: Brown 7'. Jewett, 120 Mass. 215; Denie 7'. Williams, 13S Mass. 28; Fare 7'. Bouillard, 172, Mass. 30?. 52 N. E. 443. Minnesota. — Burns 7'. Maltby, 43 Minn. 161, 4.^ N. W. 3. Mississif'l'i. — 'Meyer 7'. Blacke- more. 54 Miss. 570; Crump v. Gerock, 40 IMiss. 765 ; Co-operative h. Ins. Co. 7'. Leflore, 53 Miss. i. Missouri. — .\nderson 7'. McPike, 86 Mo. 293. Nezv York. — Cook 7'. Barr, 44 N. Y. 156. South Carolina. — Cooper 7'. Day, I Rich. Ec|. 26. Texas. — Buzard 7'. Mc.Anultv, 77 Tex. 4.38, 14 S. W. 138; Dillon 7'. State, 6 Tex. ss'; Tnternationa! & G. N. R. Co. V. Mulliken, 10 Tex. Civ. ,^pr). 663. 32 S. W. 152. When Bill in Chancery Competent. ".Answers in chancery, which are con- fessions, are strong evidence against the party who makes them. But a bill in chancery, wherein many of the facts are the mere suggestions of coimsel, made for the purpose of ex- torting an answer from the defend- ant, will not be in evidence, except to show that such a bill did exist, and that certain facts were in issue be- tween the parlies in order to intro- duce the answer, or the deposition of ADMISSIONS. 427 ing f' or in some other way acknowledged it as his ;"" or acquiesced in the statements contained in it.°^ But the equity rule that facts stated in a bill in equity signed by the attorney only are not the statements of the party, but mere suggestions of counsel, is not ajiplicable under the codes; and therefore such pleadings signed by attorncvs are competent evidence as admissions of the party."- And witnesses. It is not admiUed in courts of law as evidence to know any fact either alleged or denied in tlie bill. Lord Kenyon is reported to Iiave admitted a bill in chancery, filed hy an ancestor, to be evidence of a pedigree there stated, as a declara- tion in the family. But it was re- solved by the judges, in the Banbury Peerasrc case, on a question put to them by the House of Lords, t'lat :i bill in equity or depositions, ca''n ^t b ' received in evidence in the courts of common law, on the trial of an eject- ment against a party not claimine or deriving title in anv manner under the plaintiff or defendant in the chan- cery suit, either as evidence of the facts therein deposed, or as ''cclara- tions respecting pedigree. The law seems, therefore, to be now settled that a bill in chancery cannot be given in evidence as an admission of facts against the complainant himself, except in the case of pedigree, and not even then, except as a parly who claims or derives title in some man- ner under the plaintiff or defendant in the chancery suit." Owens f. Dawson, i Watts 149, 26 Am. Dec. 49- Must Be Signed or Authorized by the Party, —"Tlie liill in enuityfil-d by the plaintiffs against the defendant, was verified by affidavit, ft is true, that a bill in equity, not verifieMJSSWi\S. the rule is the same as to the competency of a pleading withdrawn u\ the party by whom it is filed.' But of course, like other writings offered to prove declarations against interest, if a part of the pleading is offered the party filing it is entitled to have all of it bearing on the question read in evidence." Any statement made in the pleading tending to explain or nullify the admission relied upon may be disproved by the party offering the pleading.'-' Explanatory Parts of Other Pleadings Competent. — And SO much of the other pleadings in the same case as ma)' be necessary to explain and give eft'ect to or limit the statements made in the pleading offered, and no more, is comix'tent evidence in connection with it.'" Pleading Filed or Admissions Made Therein by Mistake. — The admis- sions contained in a pleading in another action are not conclusive. And the party may show that thej facts were stated or the pleading filed by mistake. And it has been held that if an admission, made in a pleading, was decreed in the action in which the pleading was filed to have been made by mistake, it is not competent evidence." In Criminal Cases and Actions to Recover Penalties, Not Admissible. By statute of the L'nited States no pleading of a party obtained by means of a judicial proceeding in this or any foreign coimtry can lie given in evidence or in any manner used against him or his property or estate in any court of the United States in any criminal proceeding, or for the enforcement of any penalty or forfeiture. '- 466; Ellzey V. Lane, 4 Miinf. (Va.) 66. 7 Sweetzer v. Clafliii, 74 Tex. 667, 12 S. W. 395. 8. McNutt V. Dare, 8. Rlackf. (Ind.) 35 ; Roberts v. Tcnnell, 3 T. B. Moil. (Ky.) 247; Giklcrsleevc 7'. Landoii, 73 N. Y. 609; Bompart v. I.ucas, 32 Mo. 123; McDonald <■. McDonald. 16 Vt. 630. 9. Different Statements Must Be Construed Together. — Gildcrsleeve I'. Landon, 73 N. Y. 609. was an action to recover certain personal property, which plaintiiT claimed to have purchased in good faith from his son. The dcfcndanl admilled in his answer tliat plaintiff purcliascd, hut alleged that he did so with knowl- edge of defendant's prior mortgage. It was held that the statements must he taken and construed together; and if relied on to establish the purchase, it must also be held as establishing that it was made by plaintifT with knowl- edge of the mortgage;- but that plain- tiff, if he i-elied on the admission, could, and it was incumbent upon him, to disprove the allegation of knowledge. Vol. I 10. Roberts v. Tennell, 3 T. B. Mon. (Ky.) 247; Eldridge ?■. Dun- can, I B. Mon. (Ky.) lOi ; Wheeler V. Styles, 28 Te.x. 240; Clark v. Spears, 7 Blackf. (Ind.) 96. How Much of Other Pleadings Competent. — Thus it was said in Clarke v. Robinson, 5 B. Mon. (Ky.) 35 : " We are also of opinion that the court erred in permitting the plaintiff to read the record of the chancery suit above mentioned, as evidence to the jury, the same hav- ing been objected to by the defend- ant. The answer of the defendant was undoubtedly admissible against him ; but the bill was only admissible so far as was necessary to explain the answer, and could not be made evidence by the plaintiff, who had filed it. even to disprove the answer read by him, and much less to prove its own statements; and the answer of the assignee could not he evidence against the assignor." 11. Currier v. Esty, 116 Mass. 577. 12. U. S. Rev. Stat. §860; Johnson v. Donaldson, ^ Fed. 22 ; Daly V. Brady, 69 Fed. 285. AVMISSJUAS. 433 And it may be doubted whether, independently of such a prohibi- tory statute, such use of a pleading as evidence would be permitted.'" Lost Pleadings. — If a pleading containing an admission be lost, seconilary evidence of its contents, by copy or otherwise, may be made." Judgment Founded on Pleading Held Void, or Action Dismissed, Pleading Still Competent Evidence. — The competency of a pleading as evidence of an admission does not depend upon the result of the action in which it was filed. Therefore, although the judgment or proceed- ing founded upon such pleading is decreed to be void, or the action is dismissed before reaching a judgment, still the pleading is com- petent to prove any admission contained in it.'^ Equity Pleadings As Evidence in Actions at law. — The effect of equity pleadings in suits in equity will be considered separately. Rut pleadings in suits in equity may be ofifered as evidence in an action at law. When they are they are usually held to be admissible on the same principle and under the same conditions, that pleadings in other actions at law are admitted." But the authorities are not uniform on the subject. There are cases holding, for example, that a bill in equity is not admissible as evidence against the complainant in an action at law to prove any fact alleged or denied in it, but only to show that such a bill did exist, and that certain facts were in issue between the parties.^^ 13. Johnson v. Donaldson, 3 Fed. 22. 14. Ponder v. Cheaves, 104 Ala. 307, 16 So. 145'. 15. Starns v. Hadnot, 45 La. Aim. 318, 12 So. 561 ; Bore i'. Quierry, 4 Marl. (La.) 545, 6 Am. Dec. 713. 16. Equity Pleadings Competent in Action at Law. — Georgia. — La- mar z: Pcarre. 90 Ga. 377, 17 S. E. 92- Illinois. — Kankakee & S. R. Co. v. Horan, 131 111. 288, 23 N. E. 621; Fairbanks v. Badger, 46 111. App. 644; VVadsworth -'. Duncan, 164 III. 360, 45 N. E. 132- Indiana. — Boots v. Canine, 94 Ind. 408. New York. — Ford v. Belmont, 7 Rob. 97. North Carolina. — Kiddie v. De- brntz, r HajTv. 420. Pennsylvania. — Kline z'. First Nat. Bank, (Pa. St.,) 15 Atl. 433. Tc.vas. — Buzard v. McAnnlty, 77 Tex. 438, 14 S. W. 138. IVest Virginia. — Wilson v. Phoe- nix etc. Mfg. Co.. 40 \\'. Va. 413, 21 S. E. 1035, $2 Am. St. Rep. 8go. 17. Cases Holding Same Incompe tent to Prove Admissions. — Doe v. Sybourn, 7 T. R. 2: Page v. Page. 15 Pick. (Mass.) 368: .A.dams v. Mc- Millan, 7 Port. (.Ala.) 73; Duff v. Duff, 71 Cal. 513, 12 Pac. .=;7o; Mc- Cormick v. Wilcox. 25 111. 247; Cooler V. State, 5.1; Ala. 162; Stetson 7'. Goldsmith, 30 Ala. 602 : Meyer z'. Blackemore, 54 Miss. 570; Rees z'. Lawless, 4 Lift. (Ky.) 218. " The question whether a bill in equity, or a libel in the admiralty, can be used in evidence as a confession by the party filing it. of the particu- lar facts stated therein, has been the subject of much doubt. ]\Ir. Phil- lips, though he admits there is a conflict of decisions, inclines to the opinion the evidence ought to be re- ceived. I Phil. Ev. 371 ; 2 Phil. Ev. 28. Mr. Greenleaf says it is admissi- ble, though very feeble evidence, so far as it may be taken as the sugges- tion of caunsel. i Greenl. Ev. 225 ; 3 Greenl. Ev. 263. Mr. Daniell, though he does not consider it evi- dence at law, declares it is so in equity. 2 Daniell, Ch. Pr. 976. On the citlier hand. Mr. Gurley (Kq. Ev.. 2(1 Ed- 426,) denies that the state- ments of fact in a bill can be used 28 Vol. I 434 .IDMJS.SIONS. Only Competent As Evidence of a Disputable Admission. — A pleading filed in another suit is not a judicial a. Matting- ly, 21 Ky. Law 1045, 53 S. W. 1032. Minnesota. — Vogel v. Oshorne, 32 Minn. 167, 20 N. W. 129; Reeves v. Cress, 80 Minn. 466, 83 N. W. 443. Missouri. — Spurlock v. Missouri Pac. Ry. Co.,i 125 Mo. 404, 28 S. W. 634; Schad 7'. Sharp, 95 Mo. 573, 8 S. W. 549; Walser v. Wear, 141 Mo. 443. 42 S. W. 928 ; Bailey v. O'Ban- non, 28 Mo. App. 39. Nebraska. — Miller v. Nicodcmus, 58 Neb. 35'2, 78 N. W. 518. Nc'cs.' York. — Strong v. Jwight, 1 1 Abb. Pr. 319: Mott 7: Consumers Ice Co., 7T, N. Y. 543 ; Meyer ?■. Campbell, i Misc. 283, 20 N. Y. Supp. 705; Herzfeld v. Reinach, 44 App. Div. 326, 60 N. Y. Supp. 658 ; New York etc. Trans. Co. v. Hurd, 51 N. Y. Sup. Ct. 17; Fogg V. Edwards, 27 N. Y. Sup. Ct. 90. North Carolina. — Adams v. Utley, 87 N. C. 3S6. South Carolina. — Willis v. Tozer, 44, S. C. I. 21 S. E. 617. Texas. — Barrett v. Fcatherston (Tex. Civ. .'N.pp.), 35 S. W. 11, 36 S. W. 245 ; Goodbar Shoe Co. v. Sims (Tex. Civ. App.), 43 S. W. 1065; Jordan v. Young (Tex. Civ. App.), 56 S. W. 762; Southern Pac. Co. J'. Wellington (Tex. Civ. App.), 57 S. W. 856. Vol. I Utah. — Brown v. Pickard, 4 Utah 292, 9 Pac. 573; Kilpatrick etc. Co. V. Box, 13 Utah 494, 45 Pac. 628. Washington. — Oregon Ry. & Nav. Co. 1'. Dacres, i Wash. 195, 23 Pac. 415- Wisconsin. — Norris 7'. Carsjill, ^7 Wis. 251, IS N. W. 148. Reasons for the Rule A full exposition of the law on this subject and the reason for the rule will be found in Boots 7'. Canine, 94 Ind. 408. 34. Cases Holding Superseded Pleading Incompetent. — " But we think the court erred in admitting in evidence, against the objections of the defendants, the original answers filed by them in this action, and which had been superseded by the amended answers. The original answers were offered in evidence by the plaintiff as an admission by the defendants of their possession and occupation of the room in con- test. Whilst it is true that pleadings in a cause containing admissions of facts dispense with the necessity of proving the facts admitted, the rule applies only to the subsisting plead- ings on which the cause is tried, and not to defunct pleadings, for which other and amended pleadings have been substituted. It has doubt- less often happened that a pleading contains admissions made under a misapprehension of the facts. In such case, if the party amends his pleading, stating the facts differently, he would reap no benctil from his amendment, if the adverse party were at liberty to use the first plead- ing as an admission to overthrow the amended pleading. It cannot be a sound rule of evidence which works such results and practically puts it out of the power of a party to avoid the effect of a mistake in the original pleading. "The pleading on which a party goes to trial is the one on which he places AUAJJSSJONS. 439 are not in harmony with the weight of authority, nor do they seem to be supported by sound reason. Of course the pleading ceases to be conchisive upon the party when it is superseded by an amended pleading, as above stated, but it is none the less competent as an admission if it contains a material admission, leaving it open to the party filing the pleading to disprove the fact admitted by any other competent evidence. And to that end he may show undoubtedly, that the admission was made by mistake or explain away the force of it in any legitimate way. Some of the cases are based upon the right given by statute to set up inconsistent causes of action or defenses. But a pleading superseded by an amended one, not being a pleading, cannot fall within the rule, if indeed an admission can be held, in any case, or for any reason, to be incompetent because another declaration by the party, incon- sistent with it, has been subsequently made.^° his defense or cause of action, and he is bound by its admissions. But in many cases it would operate as a gross injustice to hold him to be bound ]iy the admissions of a former pleading, made, perliaps, under a mis- take of the facts, and which lias be- come functus officio by the sub- stitution of an amended pleading." Mecham v. McKay, ^y Cal 154; Pfister V. Wade, 69 Cal. 133, 10 Pac. 369; Smith V. Davidson, 41 Fed. 172; Stern v. Loewenthal, 77 Cal. 340, 19 Pac. 579: Ponce v. McElvy, 51 Cal. 222: Holland v. Rogers, },i Ark. 251; Little Rock & Ft. S. Ry. Co. V. Clark, 58 Ark. 490, 25 S. W. 504; Miles V. Woodward, 115 Cal. 308, 46 Pac. 1076; Southern Pac. Co. V. Wellington (Te.x. Civ. App.). 36 S. W. 1 1 14; McGregor v. Sima (Tex. Civ. App.), 44 S. W. 102 1 ; Corley v. McKeag, 9 Mo. App. 38; Kimball v. Bellows, 13 N. H. 58. 35. Such Pleading Competent. In a later case in California il was held that such a pleading was com- petent for the purpose of contradict- ing the party as a witness in the cause. Johnson v. Powers, 65 Cal. 179. 3 Pac. 625. So it has been held that a pleading superseded by an amended pleading is competent for the purpose of proving an independent fact in the case for example, that a tender and payment into court was made. Pfister V. Wade, 69 Cal. 133, 10 Pac. 369. And in a still later case it was said : " The appellant offered in evi- dence an answer of the respondent in another action between the parties here, in whiirh he alleged an indebted- ness from the appellant to him for commissions for the sale of a part of this tract of land as apf>cllaitt's agent. As the appellant was con- tending in this case that these sales were made by respondent as his agent, and not as a partner, it will be seen that the answer contained a material admission. But the re- spondent objected to the admission of the answer, on the ground that it was superseded by the filing of another answer in the case. This was no reason for excluding it as evidence. No matter if it had ceased to exist as a pleading in the cause, it was still binding upon the respondent as an admission. Coward t'. Clanton, 79 Cal. 23, 21 Pac. 359. Is Original Pleading Conclusive. Again it has been held that an original pleading filed by a party con- taining a material admission is con- clusive upon the parly unless it is shown that the admission was made by mistake. Oregon Ry. & Nav. Co. V. Dacres, i Wash. 195, 23 Pac. 415. But this case has no support in prin- ciple or on authority. It is also held that an original pleading superseded by an amended one may be considered by the court without being formally read in evi- dence. Smith V. Pelott, 63 Hun 632, 18 N. Y. Supp. 301. But this is cer- tainly open to grave question. Vol. I 440 AD MISS IONS. It has hocn held also that wlicre the original pleading containing the admission was signed and verified hy the attorne)', and the amended one, verified hy the ])arty. denied and pnt in issue the fact admitted in the first ])leading, the original, in the absence of any evidence that the first ])leading was filed with the knowledge or under the direction of the party, was not competent as evidence.^" It may properly be suggested that the denial in the amended plead- ing of the fact admitted in the original, went to the weight to be given to the admission rather than to the competenc\- of the plead- ing as evidence. And this must be so, under the cases cited above, unless the fact of the denial in the last pleading was of itself evidence sufficient to show a want of authority on the part of the attorney to make the admission. Competent Against Successors. — Such admissions are not only com- petent evidence as against the party filing the pleading, but against those who subsequently come into the suit as his successors in interest to the matter in litigation.-" But unless the relations of the parties are such that one is hound by the admissions of another, as hereinafter shown, the pleading of one party is not competent evidence as against his co-plaintiflf or defendant.^* 36. '■ Of covn-se it is elementary that an amended pleading entirely supersedes the original, which ceases to he a part of ihe record. The original has no longer any existence as a pleading: hut this is not the question here, .\lthough superseded as a pleading, may it still be intro- duced in evidence as an admission against the party who interposed it ? If it was signed or verified by the party, or if it otherwise affirmatively appears that the facts stated therein were inserted with his knowledge or by his direction, we can see no reason why it is not as competent as any other admission made by him, although it has ceased to be a plead- ing in the case — not, of course, con- clusive, but subject to explanation. To introduce such evidence when a party has thus changed front is a common practice, and we have no doubt a correct one. And even when the pleading is signed or verified only by the attorney, if the party stands by it by allowing it to remain the pleading in the case, so that it contains a solemn admission of record, it would perhaps be presumed that its allegations of fact were in- serted by his authority, and hence admissible against him in other ac- tions. Tlie weight of authnritv seems Vol. I to go that far. Gordon i'. Parmelee, 2 Allen 212; Bliss v. Nichols, 12 Allen 44J ; Brown v. Jewett, I20 Mass. 215; Ayres i: Hartford F. Ins. Co., 17 Iowa 176; Truby f. Seybert. 12 Pa. St. lOi. There is the greater reason for such a rule, under the present system, where technical forms are abolished, and pleadings are required to state the facts. There is no longer any reason for considering the allegations of a pleading as the mere suggestions of counsel. But where the party has substituted an amended pleading, thereby impli(.dly saying that the original was interposed under a mis- take as to the facts, we think it would be going too far to admit in evidence against him the original, when not verified by him, or when it does nol otherwise appear that its contents were inserted with his knowledge or sanction." Vogel i'. Osborne, .32 Miiui, 167, 20 N. W. 129. 37. Miller z: Nicodemus, s8 Neb. 352, 78 N. VV. 618; I Greenl. Ev., §178; Townsend v. Mcintosh, 14 Ind. 57; Rust T'. Mansfield, 25 III. 297. 38. Rust V. Mansfield, 25 111. 297: Townsend v. Mcintosh, 14 Ind. 57; Penseiieau 7'. Pulliam, 47 III. 58. .'IDMfSSfOXS. 441 Original Pleading Verified by Guardian ad Litem. — It has been held that a complaint verified by a guardian ad litem who had no personal knowledge of the facts, and who was not a witness in the case, was incompetent where an amended complaint denying a material fact admitted in the ori!j;inal, had been filed."'' Fact Omitted in Original and Alleged in Amended Pleading. — The original pleading is not material as evidence merely because a fact alleged in the amended pleading is omitted from the original.^" h. Pleadings Stricken Otit. — If a pleading is stricken out by the court it ceases to be a pleading in the case, and admissions contained in it are not conclusively binding upon the party pleading it. Like a pleading superseded by an amended one, it may be introduced in evidence to ])rovc any admission made in it, but such admissions are not conclusive. '•^ 39. Pleading Verified by Guar- dian Ad Litem. — " The origin.il com- plaint contained a verified statement of the guardian ad litem. It did not contain any statement of the plain- tiff herself. It could not be used to contradict the plaintiff's testimony, because she had not verified it, and there was nothing to show that she was in any way responsible for it. It was not material to contradict the guardian ad litem, because he was not sworn as a witness, and there was no pretense that he had any personal knowledge as to how the accident occurred. It was. therefore, entirely immaterial for any purpose so far as it might affect the evidence given upon the trial. Having been replaced by the amended complaint, it had ceased to be of any effect for any other purpose than as a declara- tion which might lie used to contra- dict the person who had sworn to it if the occasion arose. As that occa- sion did not arise, it was not ma- terial, and the charge of the court was correct." Geraty 7'. National Ice Co., i6 App. Div. 174, 44 N. Y. Supp 659. 40. San Antonio & A. P. Ry. Co. I'. Belt (Te.x. Civ. App.), 46 S. "W. 374- 41. hi re Oregon B. P. Pub. Co., 18 Fed. Cas. No. 10,550. But see Dunson v. Nacogdoches Co., 15 Tex. Civ. App. 9. 37 S. W. 978. Eifect of Plea in Abatement. In Waters v. Parker (Tex.), 19 S. W. 1022, the question was as to. the effect of a plea in abatement, and it was held that the admission of a de- fendant in a plea in abatement could not be relied upon where the plea was overruled, and he went to trial on his general denial. Matters Stricken Out Again it is said: "In addition to this tes- timony, there were the written ad- missions of the defendants in their original answer, when they under- take to explain the condition of the goods on arrival l)y saying ' that it v^as owing to the inclemency of the weather, the bad condition of the roads, the necessity of unloading the goods, and their consequent ex- posure.' It will not do to say that these matters of excuse or discharge were struck out of the answer, and should not have been considered'. They were still admissions tending to establish that the goods were re- ceived in good order and were damaged in transitu, and were as much evidence to be considered as any other admissions. It is true that the fact they were repudiated by the defendants striking them out in;.y show that they were made under a misapprehension; but as the fact of that repudiation, like any other correction of an error in statement, was as fully before the court as ihe original admission itself, it was a proper matter for the consideration of the judge, and he no doubt reached ihe light conclusion." Bloomingdale r. DuRell, i Idaho 33. So it has been held that the ex- istence of a corporation may be proved by admissions contained in a Vol. I 442 ADMISSJONS. i. ]\'ithdraii'n or Abandoned Pleadings. — The rule is the sanle where a party vohiiitarily withdraws or abandons a pleacHng, but not as an item of evidence against him.''-' But there are cases holding- that a pleading withdrawn cannot be used as evidence.''^ Pleadings Unauthorized by Law. — \\ here a pleading, or a docu- ment intended as and in the form of a pleading, is offered as evidence of an admission, it makes no difference that it is not a pleading authorized b}- law. Its competency does not depend upon its validity as a pleading. It is the declaration of the party, and for that reason competent evidence against him.** j. Averments on Information and Belief. — Pleadings in other actions are admitted like non-judicial admissions on the ground that they are declarations against interest of facts within the knowledge pleading, and stricken out; the court saying: "It is a well-settled rule, that parties are bound by their written admissions made in the progress of a cause as a substitute for proof of any material fact, and cai not repudiate them at pleasure. The admission of the existence of a corporation by pleading and setting forth the fact, comes within the rule, and is binding as between parties to the suit and in the same suit in which such admission is made. Car- radine v. Carradine, T,i Miss. 69S ; Eiwood V. Lannon's Lessee, 27 Md. 200. Harper & Co. in their original answer, alleged and admitted under oath the incorporation of the Peck- ham Iron Company. And the same admission was made in their amended answer. True, it was in both instances, from its juxtaposition, stricken out with other matter, on motion, a.^ redundant. But though stricken out, the fact that the admis- sion had been made under oath, was not thereby annulled." Peckham Iron Co. V. Harper, 41 Ohio St. 100. Original Pleading Competent. So in Sayer v. Mohney, ,^5 Or. 141, 56 Pac. 526, it is said: " In Mecham V. McKay, iy Cal. 154, it is held that admissions in an original answer cannot be used against the defendant after the filing of an amended answer omitting tliem ; the court saying, 'if the party amends his pleading, stating the facts differently, he would reap no benefit from his amendment, if tlie adverse party were at liberty to use the first pleading as an admission to overthrow the amended pleading.' Vol. I The rule thus announced has been constantly followed by the supreme court of California, but the great weight of judicial authority, in the absence of a statute on the subject, is the other way; and the correct rule, in our judgment, is stated as follows: '.Admissions made in pleadings will bind the party in the suit in which they are filed, thougli such pleadings have been stricken out or withdrawn.' " 42. Withdrawn or Abandoned Pleading. ~ Colorado. — Barton v. Laws, 4 Colo. App. 217, 35 Pac. 284. Illinois. — Byrne v. Byrne, 47 111. 507; Daub V. Englebach, 109 III. 267. Indiana. — Baltimore O. & C. R. Co. V. Evarts, 112 Ind. 533, 14 N. E. Louisiana. — Byrne v. Hibernia Nat. Bank, 31 La. Ann. 81. Missouri. — Murphy v. St. Louis Type F., 29 Mo. App. 541. North Carolina. — Brooks v. Brooks, go N. C. 142. Tc.ras. — Rvan r. Dutton (Tex. Civ. App.). 38 S. W. 546;' "Wright v. U. S. Mortg. Co. (Tex. Civ. App.), 54 S. W. 368; Jordan ?'. Young (Tex. Civ. App.), 56 S. W. 762. Wisconsin. — Lindner v. St. Paul F. & M. Ins. Co., 93 Wis. S26, 67 N. W. ii2> 43. Little Rock & Ft. S. Rv. Co. 7'. Clark, 58 Ark. 490, 25 S. W. 504; Gilmore T. Borders. 2 How. (.Miss.) 824; Medlin v. Wilkins, I Tex. Civ. App. 465, 20 S. W. 1026. 44. Warder v. Willyard, 46 Minn. 531, 49 N. W. .300, 24 Am. St. Rep. 250. APMISSIOXS. 44:^ of the partv makins;' tlit-'in. 'riKTofuro, it is held that a declaration made in a pleading in anuther action on information and belief merely, is not competent evidence. ^^ k. Coiniiion Lo'i' Pleadings. — There is quite a material differ- ence between common law and code pleadings which is pointed ont in many of the decided cases, viz., that the former are to a great extent fictitious and do not contain or profess to contain statements of facts, while the latter are required by the express terms of the codes to contain a plain and concise statement of the facts consti- tuting the cause of action or defense. Nevertheless, although the code pleading mav be more satisfactory and effective evidence, the common law pleading is competent as against the party pleading it for what it is worth.'"' C. Ple.vdings in Suits ix Equity. — a Generally. — In this article the effect of pleadings as evidence is considered only so far as thev are or have been held to be or not be admissions. The answer in equitv, being comjjetent, as original evidence, in favor of the defenclant, will be considered separately.''' b. Tlie bill. — (1.) Sig-ned by Attorney, Not Evidence of Admission. 45. On Information and Belief Not Competent in Another Action. Wood z\ Bc-iiley. 144 Mas?. ,^65, 11 N. E. 567, 59 Am. Rep. 95. " It i.^ true that adtnissions in pleadings in an action between other and different parties have been re- ceived in evidence by the courts. The ground upon which these ad- missions have been received has been because they were admissions against the interest of the party mak- ing them, and liecause of the great probabiHty that a party would not admit or state anything against him- self or against his own interest imless it was true. .'Xnd, furthermore, these admissions have been confined to those cases where the admissions contained the assertion of facts which from the nature of the case, if true, must have been within the knowledge of the party making the admission, and the pleading is verified by him. These rules are laid down in the case of Cook v. Barr, 44 X. Y. 157. and their appli- cation is apparent. Therefore an ad- mission contained in pleadings Iie- tween other parties, simply founded upon information and belief, where there is no presumption that the facts alleged or denied must have been within the knowledge of the party making the allegation or denial, and where the allegation or denial is not against the interest of the party making the same, cannot be received in evidence as establishing any fact. In the case at bar the alleged admission was not against the interest of the defendant, who was asserting a right in respect to a fact as to which there is no presump- tion that she had any personal knowl- edge whatever. Therefore the two elements which are necessary to exist in order to justify the admis- sion of this allegation of the plead- ings arc conspicuously absent, and under no rule of evidence could it be admitted." Mayor etc. v. Fay. 5,^ Hun Ss.^. 6 N. Y. "Supp. 400. 23 .\bb. Pr. (N. S.) yv. Competent, Only Affects Weight. " When an averment is made on in- formation and belief, it is neverthe- less admissible as evidence, though not conclusive. Lord Ellenborough. in Doe t'. Steel. .3 Camp. 115. The authority cited sustains the proposi- tion that the fact that the averment is made on information and belief merely detracts from the weight of the testimony; it does not render it inadmissible." Pope t'. .\llis, iIt V. S. 363, 6 Sup. Ct. 69. 46. Soaps 7'. Eichberg, 42 111. App. 375. But see Whart. Ev.. §838. 47. See article, " Answers." Vol. I 444 ADMISSIONS. There are authorities holding that a bill in e()uity, signed hy the attorney only, and not verified, is not an admission of the party, but the mere suggestion of the attorney ;''* that it is competent to prove that a suit was commenced, and the like,^" but that it is not com- petent evidence of an admission of the complainant.^" (2.) Otherwise if Signed or Verified by Party. — But, if the l^ill is signed or verified liy the partv, it then lieconies his statement and is competent evidence against him as such.''' (3.) Where Matter Directed by Him to Be Inserted. — So where it is shown that the matter relied upon was directed by the plaintif? to be inserted in the bill, or that he acquiesced in the statement of fact made, the statement becomes his statement and the bill is com- petent evidence. "- (4) Authorities Holding it Competent. — Other cases are to the effect that a bill, whether signed or verified by the party or not, is competent evidence against the party filing it, like any other plead- ing."'* Not Competent in Favor of the Plaintiff. — The bill is not competent evidence in favor of the plaintifif,'"'^ except to show that such a bill 48. When Bill Not Competent. 1 Taylor Ev.. §784. England. — Doe i'. Svliourn, 7 T. R. 2. United States. — Clnircli v. Slieltoii, 2 Curt. 271, 5 Fed. Cas. No. 2714. Alabama. — Adams v. I\IcMillaii, 7 Port. 73; Cooley v. State, 55 Ala. 162 ; Stetson z'. Goldsmith, 30 Ala. 602. California. — Duff v. Dufif 71 Cal. S13. 12 Pac. 570. Illinois. — McCormack v. Wilcox, 25 111. 247. Kentucky. — Rces 7'. Lawless, 4 Litt. 219. Massachusetts. — Page v. Page, 15 Pick. 368. Mississippi. — Meyer v. Blacke- more, 54 Miss. 570. Pennsylvania. — Macley v. Work, 10 Serg. & R. 194. When Bill Competent. — In Callan V. McDauicl, 72 .\la. 96. it is said: " The bill in equity filed by the plaintififs against the defendant, was verified by affidavit. It is true, that a bill in equity, not verified, is re- garded as containing rather the sug- gestions of counsel, than the deliber- ate statements of the complainant, and is not, in a collateral suit, ad- missible evidence against him of the facts stated in it. i Brick. Dig. 829, § 353. But. when it is verified, because of the solemnity and deliber- atcness attached to an oath taken in tlie course of judicial proceedings, a different rule obtains. The bill is then treated as a statement of facts admitted hy the complainant, and becomes evidence against him in collateral suits. McRea v. Ins. Bank of Columbus, 16 Ala. 755'; McLemore I'. Nuckolls. ^7 Ah. 662." 49. Daniels Chan. PI. & Pr. 838. 50. Bill When Not Evidence of Admission. — Daniels Chan. PI. & Pr. 838; Rees v. Lawless, 4 Litt. CKy.) 219; Maclay t'. Work. 10 Serg. & R. (Pa.) 194; Owens v. Dawson, T Watts (Pa.) 149; Callan v. Mc- Daniel, 72 .\la. q6. 51. Competent if Signed or Veri- fied by Party. — Robbins v. Butler, 24 III. -^87; Callan v. McDaniel. 72 Ala. 96. 52. Daniels Chan. PI. & Pr. 839. 53. Competent Whether Signed by Party or Not — Soaps v. Eicb- berg, 42 111. App. 37s; Robbins v. Butler, 24 111. 387. 54. Not Competent for Plaintiff. Daniels Chan, PI. & Pr. 838; Lan- caster 7'. Arendcll, 2 Heisk. (Tenn.) 434; Pcarce v. Petit, 85 Tenn. 724, 4 S. W. 526; Roberts t. .Miles, 12 Mich. 297. Vol. I ADMISSIONS. 445 was filed r''^ or in support of an ap|)lication for a temporary injunc- tion,^'' or to prove pedigree. ^''^ c. Ansxccr. — (1.) Generally. — The law of evidence relating to the answer differs most materially from that relating to answers under the common law and code systems of pleading."'' The differ- ence consists, mainly, in the fact that the jjlaintift' may, as a part of his bill, require the same or parts thereof, to be answered by the defendant, under oath, and that when he does, the answer becomes evidence against the plaintiff' and in favor of the defendant making the answer required.-'* This i)hase of the subject is considered under " Answers."^" (2.) Is Competent Evidence Against the Defendant. — An answer in chancery is admissible as e\idcnce against the party pleading it, either in the suit in which it is filed or another action, and whether the parlies are the same or not."" 55. Lancaster v. ArendcU, 2 Heisk. (Tenn.) 434. 56. " A bill in chancery is never evidence in favor of complainant, whether sworn or unsworn. The oath of complainant verifying it is only needed where required by some statute or rule of practice, and can then only avail in obtaining an in- junction or other preliminary relief. It is no evidence on the hearinp', unless confessed or admitted," Roberts z: Miles, 12 Mich. 297. 56a. Owens i'. Dawson, i Watts (Pa.) 149- 57. Mev I'. Gnllinian, 105 111. 272. 58. Beadi Mod. Eq., §366; Story's Eq. PI., §849a. 59. Sre article, '" Answkrs." 60. Is Competent Against the De- fendant. — Aliihaiiia. — Julian t'. Rev- nolds, 8 Ala. (N. S.) 680; Royall V. McKenzie, 25 Ala. 363. Florida. — Randall f. Parranifire. I Fla. 458. Georgia. — Gordon i'. Green. 10 Oa. 534. llliiiiiis. — R(>1)lMns T'. Buller. 24 111. 187. 427; Daub I'. Engleliach. 109 111. 267. Indiaiui. — McNutt v. Dare. 8 Rlackf. 35. Kcnttukx. — Clarke f. Ruliinson, ^ B. Alon. 55. Michigan. — Dnrfee j'. .McClurg. (1 Mich. 223. Mississil't'i. — Greenleaf ?'. Ili.uh- land, I .Miss. (Walker) 373. .V(-Ti' Jersey. — .Manley !■. Mickle. 5.S N. J. Eq. sf'.V 37 Atl. 7.5S. A'orth Carolina. — Kiddie T'. De- brutz. I Hayw. 420. Pennsylvania. — Maclay f. Work. 10 Serg. & R. 194; Hengst's .Appeal. 24 Pa. St. 413. Tennessee. — WaWen v. Huff, 5 Humph. 90, ■]'irg,inia. — Hunter v. Jones, 6 Rand. 54 t. Admission of Execution of Deed. In Adams :■. Shelby, 10 Ala. (N. S.) 478, it was held that the answer in ciiancery, admitting the correctness of a copy of a deed, made by another person, and to wdiich there was no subscribing witness, is evidence both of the contents and execution of the deed, against the person making such admission, the court saying; "The iibjection to the answer in chancery is understood to be, that the execu- tion of a deed cannot be proved by the admissions of the obligou. The deed in this case was made by one Holly, and the answer of the de- fendant admits that the copy exhib- ited with the bill was correct. If it had been his own deed, his answer would have been sufficient to prove its contents, the original being lost, and there being no subscribing wit- ness to it. But being the deed of another person, as against himself, in such case as this, he certainly could admit both the contents and I be execution of the deed, and this was llie effect of his answer." Answer in Chancery Oilered in Action at Law The case of Rees J'. Lawless. 4 Litt. (Ky.) 219. was an Vol. I 44(, JI'MISSIUXS. (3.) And Against His Successors. — And against the successors in interest of the defendant, or one who claims under him.'" (4.) Bill Need Not Be Offered Exception. — It is not necessar\- to offer tlie bill in connection with the answer where the answer is not responsive, but in avoidance, and the bill is not necessary to explain the answer."' l!ut it may be oiYered in connection with the answer where it is necessary to explain it, and no further.'''' (5.) Evidence of Verbal Admissions, When SuiBcient to Overcome. — It is held that the effect of the answer as evidence may be overcome by proof of contradictory verbal admissions made by the defendant, if made deliberately and considerately and established with reliable ccrtaintv, but not otherwise.''"' action of ejectment. Rccs offered in evidence a record of a suit in chan- cery, lirought by Lawless against one Croghan. to obtain a conveyance of the land in controversy, which was rejected hy the trial court. Tn speak- ing of this question, the court said : " The first question which occurs is, whether the circuit court erred in rejecting the record of the suit in chancery, as evidence. The record consists of the bill filed hy I. Miller, 17 Gratt. (Va.) 187, it is held that where an answer lo a pure bill of discovery is offered as evidence in an action at law, it stands the same as the testi- mony of a witness and subject to be disproved by odier evidence. Would Avail Nothing if Not Bind- ing. — ''Pleadings would avail liUlc or nothing if parties were not bound by them. They would be worse than useless, if parties were permitted to allege one thing in them and to prove another on the trial, or at the hear- ing. Instead of aiding the court and parties in the subsequent investiga- tion, by narrowing the field of con- trove r^\', thi\ would serve as a lure Vol. I to mislead and entrap an adversary. That the evidence must be confined to the issue between the parties, is a rule so well settled as to admit of no controversy. An attempt was made on the argument to take the present case out of this rule. It was said that if Atwater chose to rest the question of mortgage or no mort- gage on a statement of indebtedness less in amount than what was due him in fact, he was not bound by such statement in a subsequent ref- erence after the question had been decided against him. I do not think the a;"gument a sound one. I cannot admit that a fact material to the de- cision of a question in one stage of a cause, can afterwards be changed or proved to be different when used by the same party in a subsequent stage of the same cause." Emerson v. ."Xtwater. 12 Mich. 314. No Evidence Against Will Be Received. _ It is said in Weider r, Clark, 27 III. 2Si: "The defendant, in his cross-bill, alleged that he was a householder, the bead of a family, and resided on the premises in con- troversy, at the time when the notes and mortgage were executed. This was admitted by complainant's answer, and such portion of the evi- dence as shows, that he was not oc- cupying the premises at the time can- not be considered, in opposition to that admission, so long as it remains. In determining the case, the admis- -.inu nuist be reeardcd as true." Immaterial Whether 'Verified or Not. — It makes no difTerence whfthor an answer under oath is called for. or whether the answer is actually sworn to or not, the admis- sions in the answer are conclusive unon tlie defendant in either case, liver z'. Little, 20 N. J. Eq. 443. 67. McGee 7'. Smith." t6 N. J. Eq, 4'i2. But sec Morse j'. Slason. 16 Vt. 310. ADMISSIONS. 44") (8.) Need Not Be Sworn To to Render Competent A|:ainst Pleader. It is not necessary to the competency of the answer, as against the party pleading it, that it be sworn to by him. It is his declaration and competent as an admission whether verified or hot."* (9.) On Information and Belief. — And an answer on information and belief may be good as evidence against the defendant as an admission."" (10.) Withdrawn or Otherwise Superseded Competent As Admission. The competency of an answer as evidence does not depend upon its being a valid and subsisting pleading. It is competent as a decJa- ration of the party against interest, although it has never been filed. or where it has been withdrawn, or superseded by an amended answer.'" But this may depend upon the reasons for withdrawing the answer.'' (11.) Not Filed Competent Against Defendant. — The filing of the answer is not necessary to its competency against the defendant. It is his declaration whether filed or not, and may be used against him.^- (12.) May Amount to Declaration of Trust. — It is held that an answer in a suit in equity may be so far an admission of a trust as to amount in itself to a declaration of the trust. '•• 68. Need Not Be Sworn To. United Stales. — Whilteniore t'. Pat- ten, 8i Fed. 527. Alabama. — Julian f. Reynolds, 8 Ala. (N. S.) 680. Georgia. — Sims r. Fcrrill, 45 Ga. Illinois. — Daub v. Englebach. 109 111. 267. Michigan. — Durfee v. McClurg, 6 Mich. 22 J. AVit' Jersey. — Manley v. Mickle, (N. J. Eq.,) 37 Atl. 738; Synimes z: Strong, 28 N. J. Eq. 131 ; Hyer v. Little, 20 N. J. Eq. 443; Craft z: Schlag, (N. J. Eq..) 49 Atl. 431. Unverified Admissible So il is said in Morris i'. Hoyt, 11 Mich. 9: " The merits of the case depend mainly upon the facts admitted by the pleadings, no proofs having been taken except upon the reference after the preliminary decree. The answer, being without oath, is but a pleading, and of no effect as mere evidence. So far as it admits the case made by the bill, as an admis- sion in pleading, it relieves the com- plainant from proof ; so far as it de- nies the facts, or controverts the case made by the bill, it puts the complainant to bis proof. But so far as il alleges any new matter of avoid- 29 ance, or any fact, the burden of prov- ing which would naturally rest upon the defendants, it is of no effect with- out proof." 69. I Daniel's Ch. PI. & Pr.. 840. 70. Daub V. Englebach, 109 111.. 267. 71. Withdrawn or Superseded Competent. — " On the hearing, the chancellor, over the objection of the defendants, allowed complainants to read the answers of the defendants first filed. As these answers had been for satisfactory reasons sub- stantially declared by the chancellor to have been filed by counsel without the concurrence of defendants, and they were allowed to file other answers showing the facts in regard to the sale and transfer of said goods, we think they ought not to have been read as the admissions of parties when other answers were allowed to be filed upon the ground that the first filed were not, in fact, the statements of the parties themselves." Hurst !■. Jones, 10 Lea 8. 72. Worth z: .McConnell, 42 Mich. 477- 73. May Create a Trust. Hutchinson z\ Tindall, 3 N. J. Eq. 357- " It is sought in this case to cstali- Vol. I 450 ADMISSIONS. (13.) Not Competent Against Co-Defendant. — Exceptions. — The answer of one defendant cannot be used as evidence against his co-defendant unless the co-defendant claims through him, or they are jointly interested, or their relations are such that for some other reason the admission of one is bindins: on the other. '^ lish and define the trust, by the answer of the defendant. In that, as has been seen, he states what he al- leges to be the true consideration of the conveyance; and proffers his wil- Hngness to execute a declaration of trust, or secure the interest of the wife and children in any way the court may direct. Can lliis answer of the defendant be recognized as competent and sufficient evidence to establish the trust? A declaration of trust requires no formality, so that it be in writing, and have sufficient certainty to be ascertained and exe- cuted. It may be in a letter, or upon a memorandum ; and it is not male- rial whether the writing be made as evidence of the trust or not. The recital in a deed has been held to be a .sufficient disclosure. Bellamv v. Burrow, Ca. Tern. Talb., 97; Deg v. Deg, 2 P. W.. 412; Kirk v. Webb, Prec. Ch. 84; Jeremy's Eq., 22. 74. Not Competent as Against Co-defendant, When. — i Grecnl Ev., § 178. England. — Jones v. Turberville, 2 Ves. Jr. 11; Morse r. Royal, 12 Ves. 355 ; Anonymous, i P. Wms. 300; Hoare v. Johnstone, 2 Keen 553; Green v. Pledger. 3 Hare 165 ; Cher- vet V. Jones. 6 Madd. 267. United States. — Clark v. Van Riemsdyk, 9 Cranch 153; Leeds v. Marine Ins. Co., 2 Wheat. 380; Field V. Holland, 6 Cranch 8 ; Lenox v. Notrebe. Hempst. 251, i. Fed. Cas. No. 8246c. Alabama. — May t. Barnard, 20 .\la. 200; Julian r. Reynolds, 8 Ala. (N. S.) 680; Morre 7'. Hubbard, 4 .A.la. 187; Taylor 7: Roberts, 3 Ala. 83 ; Singleton v. Gayle, 8 Port. 270 ; Collier v. Chapman, 2 Stew. 163 ; Cockerham i'. Davis, 5 Port. 220; Banner L. & L. Co. v. Stonewall Ins. Co., 77 Ala. 184; Pearson v. Dar- rington. 32 Ab. 227; Halstead v. Shepard, 23 Ala. 558. Arkansas. — Whiting 7'. Beebe, 12 Ark. 421 ; Dunn 7'. Graham, 17 Ark. 60; Baraque 7'. Siter, 9 Ark. 545; Vol. I Blakcney 7'. Ferguson, 14 Ark. 640. Dclazivrc. — Pleasanton 7'. Raugh- ley. 3 Del. Ch. 124. Florida. — Stackpolc v. Hancock (Fla.), 24 So. 914. Georgia. — Lunday 7'. Thomas, 26 ('^' 537; Adkins 7'. Paul, 32 Ga. 219; Allen 7'. Holden, 32 Ga. 418; Clay- ton 7'. Thompson, 13 Ga. g02 ; Carith- ers 7'. JarrelL 20 Ga. 842. Illinois. — Rector v. Rector, 3 Gilm. 105: Martin 7'. Dryden, 6 111", (i Gilm.) 187; Rust V. Mansfield, 25 111. 297; Personeau V: Pulliam, 47 111. 58; Hill V. Ormsbee, 12 111. 166. Indiana. — McClure 7'. McCor- mick, 5 Blackf. 129; Townsend v. Mcintosh, 14 Ind. 57. /o7ca. — Jones 7'. Jones. 13 Iowa 277 ; De France 7'. Howard, 4 Clarke 524; Williamson v. Haycock, 11 Iowa 40; Mobley 7'. Dubuque Gas L. Co., II Iowa 71. Kentucky. — Rees i>. Lawless, 4 Litt. 219 ; Winters 7'. January, Litt. Sel. Cas. 13 ; Moseley 7'. Armstrong, 3 Mon. 287; Harrison 7'. Edwards, 3 Litt. 340; Harrison 7'. Johnson, 3 Litt. 286; Hardin 7'. Baird, i Litt. Sel. Cas. 341 ; Turner 7'. Holman, 5 Mon. 410; Jones 7'. Bullock, 3 Bibb 467; Fanning 7'. Prilchctt, 6 Mon. 79; Blight 7'. Banks, 6 Mon. 192; White r. Robinson, I A. K. Marsh. 423; Hunt 7'. Stephenson, i A. K. Marsh. 424; Davis 7'. Harrison, 2 J. J. Marsh. 190; Graham v. Sublett, 6 J. J. Marsh. 44; Bartlett 7'. Marshall, 3 Bibb 467. Maine. — Gilniorc 7'. Patterson, 36 Mc. 544 ; Robinson v. Sampson, 23 Me. 388; Felch 7'. Hooper, 20 Me. 159- Maryland. — Winn 7'. Albert, 2 Md. Ch. 169; Glenn 7'. Grover, 3 Md. 212; Stewart v. Stone, 3 Gill & J. 510; Glenn v. Baker, i Md. Ch. 73; Hay- wood 7'. Carroll, 4 Har. & J. 518; Powles 7'. Dilley, 9 Gill 222: Calwell 7'. Boyer, 8 Gill & J. 136: Harwood T. Jones, 10 Gill & J. 404 ; McKim v. Thompson, i Bland 150; Lingan 7'. Henderson, I Bland 236; Bcvans v. ADMISSIONS. 451 (14.) Not Competent in Another Action Against Representative. — So it is held that an answer of a defendant is not competent evidence in another action, relative to the same transactions, against his representatives." And this is true whether the answer is one filed in the same action in which it is offered in evidence, or in a different action.^'' Btit an admission in an answer b)' one defendant mav be sufficient to establish the facts as against other defendants." And a party may so acquiesce in an answer, verified by another, as to render it a binding admission against him." (15.) Failure of One Defendant to Answer Not Competent Against Sullivan. 4 (^.ill 383; Reese v. Reese, 41 Md. 554. Massachusetts. — Cliapin >'. Cole- man. II Pick. 330. Michigan. — Emerson z\ Atwater. 12 Mich. 314. Mississippi. — Lockman v. Miller (Miss.), 22 So. 822; Hanover Nat. Bank '■. Klein, 64 Miss. 141 ; Hol- loway 7'. Moore, 4 Smed. & M. 594. .Vc'Ti' Jersey. — Vanderveer v. Hol- comb, 17 N. J. Eq. 54"; Hoff t'. Burd. 17 N. J. Eq. 201 ; AIcElroy v. Liid- kmi. 32 N. J. Eq. 828. Neu' 3'oW>-.— Webb z: Pell, 3 Paige Ch. 368; Phoenix -•. Dey, 5 Johns. 412: Jndd z'. Scaver. 8 Paige Ch. 548. Pennsylvania. — Eckman z: Eck- man, 55 Pa. St. 269. Tennessee. — Tnrner z\ Collier. 4 Heisk. 89. I'ernwnt. — Connor f. Chase. 15 Vt. 764; Porter z: Bank of Rntland. 19 Vt. 410. I'irginia. — Pettit v. Jennings, 2 Rob. 676 ; Dade t'. Madison, 5 Leigh 401. 75. Drnrv ;•. Conner, 6 Har. & J. (Md.) 288. 76. Wells z: Stratton, i Tenn. Ch. 328; Dexter v. Arnold, 3 Sum. 152, 7 Fed. Cas. No. 3859. 77. Fergus f. Tinkham, 38 III. 407; Xix z'. Winter, 35 Ala. 309. Exception to Rule That Answer of One Not Good Against Another. In passing upon this question of the eiifect of an answer of one defendant upon his co-defendant, it was said in McLane v. Riddle, 19 Ala. 180 : " It is a general rule with hut few ex- ceptions, that the answer of one de- fendant is not evidence against another. Yet when the right of the complainant as against one defend- ant is only prevented from being complete by some question between the plaintiff and the second defend- ant, the answer of the second de- fendant may be read as evidence. Thus, if a mortgage is assigned, and the assignee files a bill against both the mortgagor and the assignor, and the mortgage is proved and the assignor admits the assignment, the complainant will be entitled to a decree notwithstanding the mort- gagor may deny all knowledge of the assignment. See 2 Dan. Ch. Pr. 982; 3 Hare 165. The reason of this is, that the mortgagor has no interest in the assignment, and as the answer of the assignor estops him, the equity of the assignee is complete. If the answer of the assignor is evidence to prove the assignment, his admissions made before the bill is filed must be evidence of the same fact. I admit that this view is inconsistent with the case of Moore et al v. Hubbard, 4 Ala. 187, but I am entirely satisfied that the decision in that case cannot be sustained." So it is said in Whiting Z'. Beebe, 12 Ark. 421 : " As a general rule, it is true that the answer of one de- fendant cannot be used against another. To this rule there are ex- ceptions : one of which is thus laid Iiller I'. Payne. 4 III. .\pp. 112: Chickering !■. Fullcrton. 90 111. 520; McNail V. Welch. 26 III. .App. 482; Higgins V. Curliss. 82 111. 28; Wick I'. Weber, 64 III. 167. AV»/i«-/o'. — Elliot J'. Whaley, I \. K. Marsh. 460; Atwood i'. Har- rison, 5 J. J. Marsh. 329. Michigan. — Morris v. Iloyt. ri .Mich. 9. Mississippi. — Taylor z: Webb, 54 .Miss. 36. , .Vcjf Hampshire. — Hollistcr i: P.arkley. 11 N. H. 500. Xc'a' Jersey. ~ Tate 7: Field (N. J. Eq.), 37 .\t\. 440; Lippencott r. Ridgway. 11 N. J. Eq. 526; Hyer v. Little. 20 N. J. Eq. 44.^. iVi'ii' ]'orh. — Balchen t'. Crawford. I Saiidf. 380, 7 N. Y. Ch. 366. Te)inessec. — Yost z: Hudiburg. .2 Lea 627; Brown r'. Brown, 10 Yerg. 84. I'ernuint. — McDonald t'. McDon- ald. 16 Vt. 630; Sanborn v. Kittredge. 20 Vt. 632, 50 .■\ni. Dec. 58. ll'est i'irginia. — Jones v. Cunning- ham, 7 W. Va. 707. 81. Where the Bill Waives Dis- covery. — Iniboden v. Etowah etc. Min. Co., 70 Ga. »i. ADMISSIOXS. 453 admitted.**" And this effect has been given to the ungnial answer where a supplemental answer has been tiled. '"■■ lUit it must be lim- ited to the e.xact admissions made.''* .\nd it is held that nothing will be regarded as admitted unless it is c.vl^rcssly admitted."'' But 82. Defendant Cannot Dispute. Robinson z\ Pliiladelpliia Rv. Co., -'8 Fed. 577; Wcider f. Clark.' 27 III. J5I ; Evans !■. Huffman, 5 N. J. Eq. 354 ; Pilaris v. Leachman, 20 .•\la. 662; Hyer v. Little, 20 N. J. Eq. 443 ; Shirley '•. Long, 6 Rand. (Va.) 764. Admission Precludes Ah Inquiry. The case of Van Hook t. Sonierville .Mfg. Co., 5 N. J. Eq. 633, 45 .\ni. Dec. 401, involved the execution of a mortgage. In speaking to this ques- tion, the court said : " The first question for the consideration of the court is, whether the mortgage set forth in the bill of complaint is the deed of the company. So far as regards these parties, and under the pleadings in the cause, this can not be an open question. The answer of the defendants distinctly admits that the company executed the bond and mortgage in the manner set forth in the bill of complaint. This admission precludes all inquiry into the fact or the manner of the execution." 83. Effect of Original Where Supplemental Answer Filed. — " The original answer, until il is otherwise ordered, always remains a part of the record, and, while it so remains, the defendant is bound by its ad- missions, and a retraction of them in a supplemental answer is of no more use than so much waste paper. The court never allows its records to be iiicuiubered with useless papers. If an admission has been made in an answer iinprovidently and by mis- take, the court will relieve the party making it from its effect, by an order directing so much of the answer as contains the admission to be treated as no part of the record, but, before such an order will be made, the court must be satisfied by affidavit that the admission was made under a misapprehension or by mistake. Courts e.xercise a liberal discretion in relieving from the effect of ad- missions in answers not under oath, which are mere pleadings and are frequently signed by counsel ; but wlierc an answer is under oatli, great caution is observed. If the relief sought is from an admission of law, it may be sufficient to show that he was erroneously advised by his solicitor in that regard ; but where the relief sought is from an admis- sion of fact, it should be shown that the answer was drawn with care and attention, stating upon informa- tion and belief such facts as were not within the defendant's own knowl- edge. No court ought to relieve a party from the consequences of a reckless misstatement under oath. It should also be shown that the fact misstated was not one within the defendant's own knowledge, and that he was erroneously informed in regard to it, and made oath to the answer, honestly believing such er- roneous information." Maher v. Bull. 39 111. 530. 84. Limited to Exact Admissions. " At this stage, it will be convenient to dispose of a point made and in- sisted upon by the complainant, that inasmuch as the bill alleges that the deed was given for security, and the answers all admit that the grantors. Hunter, Leeds and Thorn, and their wives, ' made and executed a certain deed, or instrument in writing, of such date and of such purport and effect, as ii< the complainant's bill is mentioned and set forth,' this is an admission of the fact that the deed was made merely as and for a mort- gage, and precludes all inquiry on the subject. But that position can not be luaintained. The bill sets forth the deed verbatim, and the admission under consideration is merely that the instrniuent was given, and without admitting or denying that it was exactly as stated in the bill, conceded that it was in- deed substantially so." Brown v. Balen, t,3 N. J. Eq. 469- 85. Must Be Expressly Admitted. Morris i'. Morris, 5 Mich. 171 ; Schwarz v. Sears, Walk. Ch. (Mich.) 19; White r. Wiggins, 32 Ala. 424; Cushman '■. Bonfield, 139 111. 219, 28 x\. E. 937- Vol. I 454 ADMISSIONS. as to this the cases are not agreed.'*'' The admission of facts in an answer may be sufficient to overcome its positive denials.*' And where the facts alleged in the bill are admitted, and matter in avoidance alleged, the complainant need not prove the facts thus admitted, but the defendant must prove the matter in avoidance.** But the answer may admit the facts alleged in the bill and the complainant not be entitled to recover. This will be so where the bill fails to state facts sufficient to entitle the complainant to any relief.*'' And an admission of a fact by the answer will not avail the complainant unless put in issue bv the bill."" (17.) Where the Answer Neither Admits Nor Denies. — It is held 86. lliggins V. Curtiss, 82 111. 28; Taylor v. Webb, 54 Miss. 36; Lewis v. Knoxville F. Ins. Co., 85 Tenn. 117, 2 S. W. 17. Modifications Result From Stat- utes But It should not be over- looked that in some cases the modi- fication of the rule results in other statutory provisions. McAllister v. Clopton, 51 Miss. 257. 87. Thus it is said in Yost v. Hudiburg, 2 Lea (Tenn.) 627 : " Had the answer stopped with a simple denial of the allegation that the money or means of A. S. Hudiburg paid for the property purchased from Coffman, the onus would have been upon the complainant to prove the allegation ; but the answer having gone further, the complainant is en- titled to the benefit of all the admis- sions ; and while in the present atti- tude we must take the history of the transaction as stated in the an- swer, yet he is at liberty to draw any legitimate inference from those statements, even though it be to es- tablish the existence of fraud in the face of the general denials of the answer." 88. Defendant Must Prove Mat- ters in Avoidance Clarke v. White, 12 Pet. 178; Tilghman v. Tilghman, I. Baldw. 464, 23 Fed. Cas. No. 14,- 045; Randall v. Phillips, 3 Mason 378, 20 Fed. Cas. No. n,5==. 89. Bill Must State Cause of Action or Admission Not Effective. In Belew v. Jones, 56 Miss. 342, it was held that, notwithstanding the facts alleged in the bill were admit- ted by the answer, the cause might be reversed on appeal, and the bill dismissed, where by the bill itself complainant was not entitled to any relief, the court saying : " In West Feliciana Railroad Company v. Stockett et al., 27 iMiss. 743, 744, it was held that a decree founded on a pro confesso of the bill must stand or fall on its allegations; that if the complainant did not state a case for relief, the confession of it, by a failure to contest it, did not impart to it any new or additional virtue, and the decree must be reversed. The analogy between that case and one where the answer merely form- ally admits the truth of the mat- ters alleged in the bill is complete. In the one case, the pro confesso operates as a conclusive admission by the defendant ; in the other, the defendant appears, and, by his plead- ing, makes the formal admission. In either case, when the chancellor comes to make his decree, he looks to the record, and grants relief, or not, on the case which it presents. The question before him is like that of ' agreed facts,' or ' a special ver- dict,' before the common-law judge. The facts are conclusively ascer- tained, and the judge pronounces the sentence of the law upon them. So, when the chancellor comes to make up his decree on a bill, and an an- swer which admits the matters of fact alleged in the bill to be true, he finds the facts conclusively ascer- tained, and the function which he performs is to declare whether the complainant is entitled to relief nr not." 90. Hnff j'^ r.unl, t7 N. J. Eq.. 201. Vol. I ADMISSIONS. 455 that where the answer neither admits nor denies the facts alleged in the bill, they must be proved.'" But again it is held that a material fact clearly and fully averred in the bill, and not denied or alluded to in the answer, must be taken as confessed. "- 91. Where Answex- Neither Ad- mits Nor Denies. — L'//;7<'d States. Young :■. Grundy, 6 Cranch 51 ; Com. T. I. & T. Co. V. Cnmmings, 83 Fed. 767. 1 .-ilabaina. — Bank of Mobile v. Planters and Merchants' Bank, 8 Ala. 772. .4rkaiisiis. — Hardy v. Heard, 15 Ark. 184; Bonnell f. Roane, 20 Ark. 114. Florida. — Stackpole v. Hancock, 40 Fla. 362, 24 So. 914. Georgia. — Keaton v. McGwier, 24 Ga. 217. Illinois. — Kitchell ?'. Burgwin, 21 III. 40; De Wolf v. Long, 2 Gilm. 679; Stacey r. Randall, 17 111. 467; Wilson V. Kinney, 14 111. 27; Nelson V. Pinegar, 30 111. 473; Trenchard r. Warner, 18 111. 142 ; Thomas v. Adams, 59 111. 223 ; Dooley v. Stipp, 26 111. 86; Cushman z\ Bonfield, 139 111. 219, 28 N. E. 937. Kentucky. — Kennedy v. Meredith, 3 Bibb 465 ; Owings v. Patterson, i A. K. Marsh. 325. Maryland. — Briesch v. McCauley, 7 Gill 189. Michigan. — Hardwick z\ Bassett, 25 Mich. 149. Mississi/tpi. — Gartman v. Pendle- ton, 24 Miss. 234. Missouri. — Gamble v. Johnson, 9 Mo. 605. Neiv York. — Brockway z: Copp, 3 Paige Ch. 539. Tennessee. — Hill v. Walker, 6 Cold. 424, 98 Am. Dec. 465; Tell r-. Roberts, 3 Hayvv. 138 ; Wilson v. Carver, 4 Hayw. 90; Smith v. St. Louis Mut. L. Ins. Co., 2 Tenn. Ch. 599.. Virginia. — Cropper t. Brerton, 5 Leigh 426; Coleman 7'. Lyne, 4 Rand. 454- Affect of Allegation of Want of Knowledge " No answer, from any knowledge possessed by the respond- ent, is made to the allegation that the complainant acquired complete title to the land under the pre-emption laws of the United States, nor to the charge contained in the bill of com- plaint, that the deed was procured by threats of personal violence amounting to actual duress. On the contrary, the answer alleeed that the respondent before the court was an utter stranger to all those matters) and things, and that he could not answer concerning the same, because he had no information or belief upon the subject.: " Authorities arc not wanting to the effect, that all matters well al- leged in the bill of complaint, which the answer neither denies nor avoids, are admitted ; but the better opinion is the other way, as the sixly-first rule adopted by this court provides that if no exception thereto shall be filed within the period therein pre- scribed, the answer shall be deemed and taken to be sufficient. " Material allegations in the bill of complaint ought to be answered and admitted, or denied, if the facts are within the knowledge of the re- spondent ; and if not, he ought to state what his belief is upon the subject, if he has any, and if he has none, and cannot form any, he ought to say so, and call on the complainant for proof of the alleged facts, or waive that branch of the controversy; but the clear weight of authority is, that a mere statement by the re- spondent in his answer, as in this case, that he has no knowledge that the fact is as stated, without any an- swer as to his belief concerning it, is not such an adinission as is to be received as full evidence of the fact." Brown i'. Pierce, 7 Wall. 205. 92. Alleging Want of Knowl- edge Sanborn ;•. Adair, 29 N. J. Efl- 338; Jones v. Knauss, 31 N. J. Eq. 609; Pinnell v. Boyd, 33 N. J. Eq. 190; Neale v. Hagthrope, 3 Bland (Md.) 551; Page -■. Winston. 2 Munf. (Va.) 298. See also Mickle V. JNIaxfield, 42 Mich. 304; ;McAI- lister f. Clopton, 51 Miss. 257. Failure to Deny Fact Clearly Alleged. — In Lee :■. Stiger, 30 N. J. Vol. I 456 ADMISSIOXS. (18.) Alleging Want of Knowledge. — .\nd an answer professing a want of knowledge of the facts of the bill cannot be considered as evidence, but is sufficient to compel the complainant to establish them by proof."" In this the equity practice differs from the rule under the codes that all matters alleged in the complaint, and not denied in the answer, are admitted."^ And the rule has been changed bv statute in sc)me of the states."^ (19.) Need Not Be Specific. — It is not necessary that the answer lie specific as to each fact alleged in the bill : a general denial of matters not admitted is sufficient if not objected to."" (20.) Matters Charged to Be Within Defendant's Knowledge. — Where there is a distinct charge in the bill that the matters are within the personal knowdedge of the defendant, and he is asked to answer it, ins failure to do so is an admission of its truth."' So it is held Eq. 6io, the court said : " The an- swer neither admits nor denies the averment of the bill that the mort- gaged premises were conveyed to her subject to the lien of the mort- gagee ; nor does it contain any al- lusion to that fact. The bill on this point is unanswered and undisputed. A material and controlling fact, which is clearly and fully averred in the bill, and not denied or alluded to in the answer, must be taken as confessed. Sanborn i\ Adair, 2 Stew. 338. As the pleadings now stand, it must be taken as an ad- mitted fact that both the mortgagor and the defendant have recognized the mortgage in question as a valid lien." Again it is said : " The bill dis-- tiuctly charges ihat he took the mort- gage with full notice of the trust. To this he has made no response whatever. He has even omitted to say whether or not an assignment was made to him, or whether or not he claims any right to, or interest in, the mortgage. He has not offered himself as a witness. That he is not an iimocent purchaser, must be con- sidered as admitted. A material and controlling fact, which is clearly and fully averred in the bill, and not denied or alluded to in the answer, must be taken as confessed." Jones ;■. Knauss, 31 N. J. Eq. (Sop. 93. Dntrv ;■. Conner, 6 Har. & J. (Md.) 288. 94. Colbert Henley, 64 Miss. 95. 96. Mead r. Day, 54 .Miss. 58. Stackpole 7'. Hancock. 40 Vol. I Fla. 362, 24 So. 914; Core v. Bell, 20 W. Va. 169. 97. Where Bill Charges Matters To Be Within Defendant's Knowl- edge. —Tate V. Field, 56 N. J. Eq. 35'. .!7 Atl. 440; Smilley r. Siler, 35 Ala. 88; Ross v. Shurtleff, 55 Vt. 177; Lyon V. Boiling, 14 Ala. (N. S. ) 75.V Facts Charged To Be Within De- fendant's Knowledge It was held in Mead r. Day, 54 Miss. 58, that independently of the statute of that state, whenever the facts iare charged in a bill in equity as being within the personal knowledge of the respondent, he must explicitly admit or deny them; and, if he fails to do so, they will be taken as admitted. > But, if the allegations of the bill are not of that character, a failure to deny them is ground only of ex- ception to his answer, and will not justify the complainant in treating them as admitted. 'With respect to the affect of the statute upon the question, the court said : " Let us see what change has been wrought in these principles by our statute. Sec. 1016, Code 1871, provides that 'the answer shall be responsive to all the material allegations of the bill ;' and § 1024 declares that ' facts averred in the bill, and not denied by the answer, otherwise than by the general traverse, may be taken at the hearing as admitted.' These provisions are brought forward into our present code from the code of 1857, 547, arts. 44 and 45. They have been three times the subject of connncnt in this court. In Rey- ADMISSIONS. 457 that where the facts are actually or prima facie within the knowl- cdare, information or belief of the defendant, if in his answer he Holds I'. Nelson, 41 Miss. 83, it was said that the complainant might well have set down the case on bill and answer, ' for the answer does not deny a single allegation of the bill, bnt only alleges that the defendant has no knowledge of any of the facts stated in the bill, and demands strict proof.' In Cowen !■. Alsop, 51 Miss. 158, the answer only declared that ■ defendant does not admit ' the charges made. The charges were not as to matters within the per- sonal knowledge of the respondent. Peyton, C. J., thought that the facts could not be taken as admitted, but that exception should have been taken to the answer. Tarbell, J., thought, that under the statute they were admitted. Simrall, J., having been of counsel, took no part. In McAllister v. Clopton, 51 Miss. 259, ihe respondent answered that he had no personal knowledge, and required strict proof: and it was held that this was equivalent to an admission un- der the statute. "We think that the statute intended to some extent to obviate the neces- sity of exceptions to answers, and to compel the respondent, at the risk of having the allegations of the bill taken for confessed, fairly to meet and join issue on the issues tendered by the bill. In doing so, he is compelled to do something more than disclaim personal knowl- edge of the fact charged. A man's personal knowledge is frequently limited within a very narrow range, and we all act every dav w'ith the utmost confidence, and in the most important concerns of life, upon the informations of others, and the belief thereby engendered in ourselves. To this sort of information and belief, upon the part of the respondent, the complainant is entitled, when he puts him upon his corporal oath touching the matters in dispute between them; and the respondent cannot avoid a disclosure by a mere declaration that he knows nothing about the alle- gations made. Independently of our statute, such an answer would be liable to exception for insufficiency. Under the statute, the charges may be treated as having been admitted. Under no system is the vicious and too common habit of neither admit- ting nor denying anything, but call- ing for strict proof of everything, admissiljle." Facts Presumed To Be Within De- fendant's Knowledge The saine rule is declared in Hardv v. Heard, 15 Ark. 184, in which it is said: " .As a defendant in chancery, sub- mitting to answer, must answer fully and fairly, he has no right to say he is not willing to admit any particular fact or facts, and rest his defense there ; nor can he take shelter behind sweeping and broad denials, or vague generalities. (3 B. Mon. 17, 18.) Such a practice would thwart the end to be attained by courts of equity, wdiich is to arrive at the real justice of the case by ap- pealing to the conscience of the de- fendant. And this brings us to the question as to the consequences of a failure to answer a fact charged, and presumed to be within the knowledge of the defendant. The general rule as to answering in chancery, was elaborately discussed by this court in Blakeney z'. Ferguson, decided at January term, 1854. The fact in that case was, that the complainants al- leged themselves to be, and claimed as widow and heirs at law of Joseph Ferguson, deceased. Blakenev. in answering, entirely omitted to notice or answer that statement, and there wa's no proof of it at the hearing. It was neither charged, nor could it be presumed, to be within his knowl- edge. On this state of case, quite different from the one now involved, the court very correctly and properly applied the general rule, that the failure of Blakeney to answer that statement could not amount to an implied admission of its truth, and as the complainants had omitted to prove it, the decree could not be sustained. That rule is well sup- ported by authority, and with it we are entirely satisfied: and think it should govern in all cases, where the fact is neither charged, nor could be presumed within the knowledge of the defendant. Vol. I 458 AD.MISSIONS. fails to deny them, or express his belief of their falsity, and does not state that he cannot form any belief respecting their trnth, they must be considered as admitted.'''* " But, it has now become to be a clear exception to that rule, which we feel disposed to recognize and enforce, that where the bill charges the fact to be within the knowledge of the defendant, and which inaj fairly be presumed to be so ; or with- out so charging, the fact may rea- sonably be said to be within the de- fendant's knowledge, if the answer is silent as to that fact, or it is answered evasively, it amounts to an iDiflied admission of the facts thus stated ; and no further proof is neces- sary to warrant a decree against the defendant upon il. (Scott v. Huine, Lit. Sel. Cas. 379; Lewis v. Stafford, 4 Bibb. 318; Moore v. Lockctt. 2 Bibb. 69; McCampbell v. Gill, 4 J- J- Marsh. 90; Price adm. z'. Boswell, 3 B. Mon. 17, 18; Mitchell z: Mau- pin, 3 Mon. 187; Bright i'. Wagle, 3 Dana 256; Armitage v. Wickliffe, 12 B. Mon. 488; Neale v. Haythorp, 3 Bland 551.) Evasion is worse than silence ; because the former may be the result of carelessness or inat- tention, while the latter springs from design, and is entitled to no favor whatever. " This e.xception and qualification of the general rule are only applic- able in cases of knowledge, either charged or presumed; and if a fact should be charged to be within the knowledge of the defendant, which in the very nature of things could not be, or it was extremely improbable it should be so, there could of course be no implied admission aris- ing from either silence or evasion. Before the complainant can have the benefit of the implied admission, it must appear reasonable that the fact is within the knowledge of the de- fendant." Where Knowledge Cannot Be Presumed. — And again : ' The fail- ure of T. T. Boiling to answer as to the indebtedness of his father to the complainant, cannot be regarded as an admission of the fact. It is not alleged in the bill that this de- fendant was informed of the pay- ments made by the complainant to Vol. I .McVoy, and it cannot be presumed that he possessed other knowledge or information in respect to them than the bill affords. The rule then, ' that whatever is specifically averred in a bill, and not denied in the an- swer, must be taken as admitted,' does not apply." Lvon v. Boiling, 14 Ala. (N. S.) 7S3- 98. Where in Fact Within His Knowledge Smilley v. Siler, 35 Ala. 88; Moseley v. Garrett, i J. J. Marsh. (Ky.) 212; Thorington v. Carson, I Port. (Ala.) 257; Clark v. Jones, 41 Ala. 349; Kirkman v. Vaii- lier, 7 Ala. 217; Kennedy v. Mere- dith, 3 Bibb (Ky.) 465; Cowan v. Price, I Bibb (Ky.) 172. Facts Prima Facie Within De- fendant's Knowledge. — In Grady z'. Robinson, 28 Ala. 289, it is said: " Where material matters are stated in the bill, which, prima facie, are within the knowledge, information, or belief of the defendant, if in his answer he fails to deny them, or to express his belief of their falsity, and does not state that he cannot form any belief respecting their truth, they must be considered as admitted, without any order taking them for confessed. McClain z'. Waters, 9 Dana 55 ; Bailey v. Wilson. I Dev. & Batt. Eq. Rep. 187. A vague manner of denial of such mat- ters is always received unfavorably. i.\ defendant is not at liberty thus to put in issue allegations, which he may knozi.' or fully believe, to be true. If he expresses himself ob- scurely, and leaves to the court the task of divining his meaning, the court adopts that construction of his language which is strongest against him. lie cannot be allowed to .shelter himself behind equivocal, evasive, or doubtful terms, and thus mislead the complainant ; nor behind a literal denial which amounts to no more than a negative pregnant, or an evasion of the point of sub- stance." Effect of Equivocal Answer. So it is held that where a bill makes an allegation of a fact, which, if true. ADMISSIONS. 459 (21.) By Failure to Answer. — If a defendant is duly served with the sub]joena and fails to answer, he thereby admits the allegations of the bill, but no more."" (A.) By Failure to Filk Rki'mcation. — In order to put in issue the allegations of the answer, the plaintiff must file a replication thereto. If he does not, his failure amounts to an admission of the truth of the facts allesred in the answer.^"" must be within the knowledge of the defendanl, he should respond to it positively. If tlie answer is equivo- cal, the hill will be taken as true. Pierson z'. Meaux. i, A. K. Marsh. (Ky.) 4. Charged or Presumed To Be Within Defendant's Knowledge. In Moore v. Lockett, 2 Piibb (Ky.) 67, it is further said: " If an answer is silent as to a matter charged in the bill to be within the defendant's knowledge, or which may be fairly presumed so to be, the matter ought to be considered as admitted ; but ought not, where the matter is not so charged, or cannot reasonabb' be presumed to be within his knowledge. This appears to us the most equitable rule upon the subject; for if the de- fendant files an insufficient answer, the complainant can except, and com- pel a better one. But were he per- mitted to consider as admitted every fact not particularly denied by the answer, it would frequently produce surprise on the defendant ; and more- over, oftentimes occasion decrees contrary to the real justice of the cause, upon implied admissions, false in fact." 99. Effect of Failure to Answer. Atwood I'. Harrison, 5 J. J. Marsh. (Ky.) 32g; Robinson t'. Townshend, 3 Gill. & J. (Md.) 41.3; Blakency v. Ferguson. 14 Ark. 640. 100. By Failure to Reply. United States. — Reynolds v. Craw- fordsville Nat. Bank, 112 U. S. 405; Gcttings Z'. Burch, 9 Cranch 372. Alabama. — McGowan z: Young, 2 Stew. 276; Lucas v. Bank of Darien, 2 Stew. 280. Illinois. — Trout z'. Emmons. 20 111. 433, 81 Am. Dec. 'J26 ; Buntain z: Wood, 29 111. 504; Prettyman v. Barnard, 37 111. 105 ; De Wolf i'. Long, 2 Gilm. 679. Indiana. — Hale z'. Plunimer, 6 Ind. 121. Kentucky. — Mason v. Peck, 7 J. J. Marsh. 301. Michigan. — Hardwick z'. Bassctt, 25 Mich. 149. Nezc Jersey. — Thomas z\ De Baum, 14 N. J. Eq. 37; Bunker v. Anderson, 32 N. J. Eq. 35. North Carolina. — Fleming v. Mnrph, 6 Jones Eq. 59. I'crmont. — Wright z'. Bates, 13 Vt. 341 ; Doolittle v. Gookin, 10 \'t. 265. I'irginia. — Pickett v. Chilton, 5 Munf. 467. Effect of Failure to File Replica- tion In Snccd '•. Tuwn. 9 Ark. 53;, in passing upon the effect of the failure to file a replication, the court said: "That objection is, that, inas- much as the record presents upon its face, no replication to the answers, the law confines the hearing to the bill, answers and exhibits, and thus the depositions will be excluded. And such is undoubtedly the law of which our statute, referred to by the appellants, is but a declaration or affirmance : and in such case the an- swer must be taken as true in all things, whether the matter contained in it be responsive or not, or whether it be negative or affirmative, for the reason, not only that the complainant in the bill thereby intimates his ad- mission of all these facts, but also that by his omission he prevents the respondents from proving such of them as he would otherwise have to establish by evidence, by paralyzing his authority to sue out a commission to examine witnesses, which neither party can do until after an issue shall have been formed by the pleadings, unless for aged and infirm witnesses, and in other cases which are within the range of the exception to this rule." Vol. I 460 ADMISSIONS. But the filing of tlic replication may be waived, or its filing allowed bv the court nunc pro tunc} (B. ) The Filing of Necessary Pleading May Be Waived. — If the ]«rties go to trial without the filing of a pleading necessary to form an issue, and thereby treat the case as at issue, the failure to file the pleading will not amount to an admission. - (C.) Refusal to Answer. — It is held that the refusal to answer by the defendant is not to be taken as an admission of the allegations of the bill that have not been answered.^ (D.) Admissions Against Infants. — The rule is that no admission, binding upon him. can be made by an infant, but that, notwith- standing such admission on his part, the complainant must prove his case.* (22.) Guardian Ad Litem Cannot Bind By. — And that no binding admission can be made for an infant by a guardian ad litem.-' 1. Filing Replication May Be Waived.— United States. — Reynolds I'. Crawfordsville F. Nat. Bank, II2 U. S. 405; Brown v. Pierce, 7 Wall. 205'. Aii;ansas. — Jordan t. Bronougli, 1 1 .\rk. 702. Illinois. — Marple r. Scott, 41 111. 50; Jones V. Neely, 72 111. J49. Kentucky. — Scott v. Clarkson. i Bibb 2-7. " Maryland. — Glenn r. Hebb. 12 Gill. & J. 271. Michigan. — Harrhvick v. Bassett. 25 Mich. 149. ' Xnc Jersey. — Ca'.kW] 1: Sine, i,? N. J. Eq. 136. Xortli Carolina. — Flenimg r. Mnrph, 6 Jones Eq. jq. 2. Waiver of Necessary Plead- ing. — Stark i: Hilliljcrt. 19 111. 344; Webb V. Alton M. & F. Ins. Co., 5 Gilm. (111.) 223; Jameson v. Con- way, 5 Gilm. (111.) 227; Marple v. Scott, 41 111. 50; Scott V. Clarkson, I Bibb (Ky.) 277; Gaskill r. Sine, n N. J. Eq. 1.30, 3. McDowell r. Goldsmith. 2 Md. Ch. 370- 4. Admissions in Pleadings of Infants McClay v. Norris, 4 Gilm (111.) 370; Hitt V. Ornisbee, 12 111. 166; Tompkins v. Tompkins, 18 N. J. Eq. ,303; Masterson v. Wiswould, 18 111. 48; Tuttle V. Garrett, 16 HI. 3t;4: Kent v. Taneyhill, 6 Gill. & J. ■(Md.) i; Harris v. Harris, 6 Gill. & T. (Md.) in; Watson v. Godwin. 4 Md. Ch. 25; Benson i'. Wright. 4 Md. Ch. 278; Wrottcrfly v. Bendish. 3 P. Wniv 235. Vol. I 5. Guardian Ad Litem Cannot Admit. — {,/)ii7f(i States. — Lenox v. Notrebe, Hempst. 251, 15 Fed. Cas. No. 8246c. Illinois. — Cochran v. McDowell, 15 111. 10. Maryland. — Kent -•. Tanovhill, 6 Gill. & J. I. / 'irginia. — Bank of Alexandria v. Patton. I Rob. 528. Admission by Guardian Ad Litem. In Carr v. Fielden. 18 HI. 77, a gnar- dian ad litem put in an answer sub- stantially admitting the allegations of the bill, and no proof in support of certain material allegations of the bill was made. The court held that full proof was necessary in equity proceedings against an infant no matter what answer might be made by his guardian ad litem. ' Bill Against Infant Not Taken as Confessed. — "It has been held in Virginia, and in this state, that it was error to proceed to decree against infant defendants until they shall have answered by guardian ad litem. The policy of the law, and the rules and principles governing courts of chancery, has never been to take bills for confessed by infants for the want of an answer. Infants are deemed and taken to be incapable of making contracts or admissions \\i civil tran- sactions, ordinarily, that are binding upon them. And it is because of the legally supposed want of proper un- derstanding and discretion of the in- fant that he is not permitted to sue in his own name; and when he is sued in civil proceedings, that he is .IPMISSIOXS. 461 D. In UivoRCK Casks. — a. i'asc Xot Made Out by .-Ittiiiissioiis in Pleadings. — The rule as to admissions by the pleadings, either expressly, or by a failure to deny the facts alleged in the adverse pleading is entirely different in divorce cases from that prevailing in ordinary civil actions. The case of the plaintiff can- not be made by such admissions by the defendant. Every fact necessary to make out a cause of action must be proved, no matter required to defend or answer by guardian ad litem. Generally, the appointment of a guardian ad litem has been regarded as a mere matter of form, and the answer to be filed 1)y Iiim is also almost universally merely formal, asking the court to protect the interest of the infant. Generally, the guardian ad litem has no personal knowledge of material matters alleged in the bill, and he can neither admit nor deny the alle- gations in relation thereto. Infants are regarded as the wards of the court, and this is peculiarly so with respect to a court of equity in causes before it involving their interests, to which they are parties. The mere omission or neglect of a guardian ad litem to tile a proper answer cannot be allowed to prejudice the infant. .\r\A I apprehend that ordinarily the admissions of the guardian ad litem. made in the answer, would not have the force of evidence against the in- fant. It would certainly be destruc- tive and ruinous to infants and their rights and estates to take material allegations of a plaintiff's bill as con- fessed by them for the purposes of the suit, which are not expressly de- nied or controverted in the answer made for them bv their guardian ad litem." Laidlev v. Kline, 8 W. \'a. 218. Admission Does Not Affect Infant. In McClay v. Norris, 4 Gilm. (111.) 370, the court say: "It is entirely clear that the answer of a guardian ad litem, even if it shall admit the truth of the charges in the complain- ant's bill, can in no case affect the infant's rights ; and with respect to him, all allegations must be proved with the same strictness, as if the answer had interposed a direct and positive denial of their truth. No default or decree /rn eonfesso can be entered against him." Full Proof Must Be Made. .■\gain it is said: " It is a well set- tled principle often recognized by this court, that before a decree can pass against an infant defendant in chancery, full proof must be made against him, and that proof preserved in the record or decree. No pre- sumption can be indulged, that proof was made against the infant defend- ant, unless it is shown by the record. The answer of a guardian ad litem. admitting the truth of the charges in the bill, cannot affect the infant's rights, but with respect to him all the allegations must be proved with the same strictness as if the answer had interposed a direct and positive denial of their truth, nor can a de- fault or a decree pro eonfesso l)e en- tered against an infant." Chaffin i'. Kimball, 23 111. 33. Infant Not Bound by Answer of Guardian — It is said in Wright '■. Miller, l Sandf. 103 : " The answer of an infant by his guardian i- in truth the answer of the guardian, and not of the infant. Wrottesley v. Bendish, 3 P. Wins. 336. Hence, the infant is not bound by his answer, it cannot be read against him, and no decree can be made on the admission of facts which it contains, i Uan. Ch. Pr. 236, 238; I Hoffm. Ch. Pr. 232, 243, note I, and cases cited. Where there are infant defendants, and it is necessary in order to enti- tle the complainant to the relief he prays, that certain facts should be before the court, such facts, although they might be the subject of admis- sion on the part of the adults, must be proved against the infants. I Dan. Ch. Pr. 238; Mills r. Dennis. 3 Johns Ch. 367. In Wilkinson i'. Beal, 4 Madd. 408, Sir John Leach refused to receive the admission in an infant's answer as evidence against him, that one of his co- defendants was out of the jurisdic- tion of the court." Vol. I 462 ADMISSIOXS. whether they are admitted by the pleaihngs of the defendant or not." b. Verbal Admissions or Confessions Insufficient. — In most of the states the granting of a divorce on the admissions or confessions of the parties to the suit is forbidden. (1.) Held Not to Be Competent Evidence. — And in some of the cases it is held that, not only by the terms of the statute, but as matter of public policy, such admissions are not competent evidence." (2.) Other Cases Hold Them Competent. — But in others it is held, notwithstanding the provision of the statute that a divorce cannot be granted on the admissions of the parties, that their admissions or confessions are competent to be proved and considered with other evidence as establishinsf the risht to a divorce.* ■Hughes <'. Hughes, Beuuett, 6. Alabama. 44 Ala. 698. California. — Renuett v. 28 Cal. 599- Illiiwis. — Sbillinger ': Shilliuger. 14 111. 147. Indiana. — Scott z: Scott, 17 Ind. 309. Kentucky. — Stibbins v. SliblMiis, i Met. (Ky.) 476. Massachusetts. — Baxter v. Baxter, I Alass. 346. Minnesota. — True ■«'. True, 6 Minn. 458. Nc7i.' York. — Palmer v. Palmer, i Paige Ch. 276; Barry v. Barry, Hopk. Ch. 118; Fowler v. Fowler, 29 Misc. 673, 61 N. Y. Supp. 108. Pennsylvania. — Kilborn v. Field, 78 Pa. St. 194- Texas. — Stafford v. Stafford. 41 Tex. Ill; Hanna v. Hanna, 3 Tex. =;i, 21 S. W. 720. Virginia. — Hampton v. Hampton. 8; \'a. 148, \2 S. E. 340. Admissions in Pleadings, Eifect of. It is said in Schmidt v. Schmidt, 2q N. J. Eq. 496, that to permit parties in divorce suits to establish, merely by the allegations and corresponding admissions of bill or petition and answer, the facts necessary to give the court jurisdiction would be to practically annul important provis- ions of tlie law, and leave to simple unverified averment and admission facts which the legislature intended should be established by proof. 7. Stafford v. Stafford, 41 Tex. Ill ; Sheffield v. Sheffield, 3 Tex. 79; Hanna i'. Hanna, 3 Tex. 51, 21 S. W. 720; Hampton v. Plampton, 87 Va. 148, 12 S. E. .340. Mere Silence Under Charge, Vol. I Effect Of. — In True v. True, 6 Minn. 458, it was held that independ- ently of any statute to that effect a divorce could not be granted upon the mere silence of a defendant un- der the charge made against him. Admission or Confession Incom- petent In Viser v. Bertraiid. 14 Ark. 267, Mr. Justice Scott used this language : " The marital tie, although a civil contract in the eye of the law. differs from all other civil contracts in one essential particular. The par- ties can never annul it by means either direct or indirect. Hence the inflexible rule of law that the con- fessions of either party are wholly incompetent as evidence." Conviction Under Plea of Guilty. In Endick v. Endick, 61 Tex. 559, the record of conviction of tlie husband on a criminal charge of having as- saulted the wife, based upon a plea of guilty, was held to be incompetent on the ground that it was in effect an admission, and as such inadmissi- ble. 8. .See "Divorce." Alabama. — King v. King, 28 Ala. 315- California. — Baker v. Baker, 13 Cal. 87 ; Cooper v. Cooper, 88 Cal. 45- Illinois.- — Lenning v. Lcnning, 176 111. 180, 52 N. E. 46. /»rfm»n. — McCuIloch v. McCul- loch, 8 Blackf. 60. Kansas. — Burk v. Burk. 44 Kan. 307, 24 Pac. 466. Kentucky. — Stibbins 7'. Stibbins, I Met. 476. Maine. — Vance i'. Vance, 8 Greenl. (Me.) 132. .Massachnsetts. — Baxter 7'. Baxter, ADMISSIONS. 463 (3.) And Others That Divorce May Be Granted On, Alone. — And some- go to the extent of holding that a divorce may properly be granted on the admissions or confessions of the party where it appears that there was no collusion or imposition on the court." c' Cannot Be Granted on Stipulation. — What the parties cannot do by their admissions or silence they cannot do by express consent or agreement; therefore, a divorce cannot be granted on the stipu- lation of thej parties." d. Neeessary Allegations, Not Ground for Divorce, Effect of Admissions.- — It has been held that the rule against accepting the admissions in the answer as evidence extends only to " facts alleged as grounds of divorce," and not to other necessary allegations, such as the marriage of the parties. ^^ E. Admissions in Open Coukt. — a. Generajly. — Admissions are often made in open court, generally for the purpose of avoiding the necessity of proving the facts admitted at the trial. When so made they stand in the place of absolute proof of the facts admitted, at I Mass. 346; Holland v. Holland, 2 Mass. 154. Mississippi. — Armstrong ;■. Arm- strong, 32 Miss. 279. Nczv Jersey. — Clutch v. Clutch, i N. J. Eq. 474; Miller v. Miller, 2 N. J. Eq. 139 : Lindsay v. Lindsay, 42 "N. J. Eq. IW. 7 Atl. 666; Derhy i'. Derhy. 21 N. J. Eq. .36. AVtc York. — Doe "'. Roe, i Johns. Ch. 25; Betts V. Betts, i Johns. Ch. 197; Stewart v. Stewart, 51 N. Y. St. 629, 65 N. Y. Supp. 927." Pennsylvania. — Matchin z\ Match- in. 6 Pa. St. 332, 47 Am. Dec. 466: Baker 1'. Baker, 195 Pa. St. 407, 46 Atl. 96. Other Proof Necessary In Evans V. Evans, 41 Cal. 103, evidence of ad-" missions made by the defendant was e.xcluded by the court below. It was held that the statute required other proof to warrant the granting of a divorce, but did not prohibit the proof of admissions in connection with other proof. 9. Lvon V. Lvon, 42 Barb, f N. Y.) 138. Admissions Competent In Baker z'. Baker, 13 Cal. 87, it was held that the statute providing that a divorce shall not be granted on the confes- sions of the parly ahfne does not ren- der such confessions incompetent evidence, and that the statute is only affirmatory of the well established common law, and of the English Ec- clesiastical law which has been recog- nized from the earliest period, both in England and in the several states of the Union, and that the object of the rule is to prevent collusion between the parties. See also Andrews i'. An- drews, 120 Cal. 184, 52 Pac. 298; Smith V. Smith, 119 Cal. 183, 48 Pac. 7W Divorce Granted on Confession Alone. — In Billings z: Billings, u Pick. (Mass.) 461, the ground for divorce was adultery, and the only evidence was the confession of the defendant contained in a letter to his wife. It was held that the reason for requiring other evidence is, in general, to prevent collusion, and that, as in that case it appeared by other evidence that there could be no collusion, the divorce was properly granted upon the confession alone. 10. Robinson X'. Robinson, 16 Mich. 79. 11. Allegations That May Be Admitted. — In Fox r. Fox. 25 Cal. 58-', it was directly held that a fail- ure to deny in the answer the alle- gation of the marriage of the parties, was an admission of the fact that rendered proof of it unnecessarj'. Not Jurisdictional Facts But a different rule was declared in Ben- nett 7'. Bennett, 28 Cal. 599, in re- spect of the allegation of the resi- dence of the plaintiff, on the ground that the latter was a jurisdictional fact that could not be admitted but must be proved. Vol. I 464 .^l)^llssJ().\s. least for the purposes of the trial, in and as a part of which they are made, and no evidence to the contrary can be heard. '^ b. U'/icii Issues Arc C/nvigcd. — It is lield that a clianrinal proof of the fact at the trial. =" Made by Counsel in One Case not Admissible in Another. — Achnissions of fact, made b}' counsel in the trial of one case, are held not to be competent evidence against his client in another action.-^ 20. Greeiil. Ev., § 186. England. — Young v. Wright, i Camp. 139. Alabama. — Ryan v. Beard, 74 Ala. 306; Price V. Bank, 17 Ala. 374. Arkansas. — Flynn v. State, 43 Ark. 289. Califnniia. — /» re Jessnp, 81 Cal. 408, 21 Pac. 976, 6 L. R. A. 594. Georgia. — Central R. R. Co. v. Gamble, 77 Ga. 584, 3 S. E. 287. Illinois — Carthage v. Buckner, 8 111. App. 152. lo'iva. — Treadway v. The S. C. & St. P. R. R. Co., 40 Iowa 526. Kentucky.— 'Ta.\ho\. v. McGee, 4 T. B. Mon. 375. Maine. — McKeen v. Gammon, 31 Me. 187. New Hampshire. — Alton v. Gil- manton, 2 N. H. 520. New York. — King v. Masonic L. Ass'n, 87 Ihin 591. 34 N. Y. Supp. 563 ; Sullivan v. Dunham, 35 App, Div. 342, 54 N. Y. Supp. 962; Ander- son V. McAIleenan, 15 Daly 444, 8 N. Y. Supp. 483 ; Voisen v. Commer- cial Ahit. Ins. Co., 51 N. Y, St. 635. 22 N. Y. Supp. .348. North Carolina. — Fleming v. Wil- ming-ton &c. Co., 115 N. C. 676, 20 S. E. 714; Davidson v. Gifford, 100 N. C. t8, 6 S. E. 718. Oklahoma. — Blankinship v. Okla- homa &c. Co., 4 Okla. 242, 43 Pac. 1088. Ohio. — Garrett v. Hanshue, 53 Ohio St. 482, 42 N. E. 256, 35 L. R. A. 321. South Carolina — Cooke v. Pen- nington, 7 Rich. 385 ; Brown v. Pech- nian. 55 S. C. 555. 33 S. E. 732. West Virginia. — McGinnis v. Curry, 13 W. Va. 29. Compare Pratt v. Conway, 148 Mo. 291, 49 S. W. 1028, and Walsh v. Mo. P. R. Co., 102 Mo. 582, 14 S. W. 873 and 15 S. W. 757. After Trial and Before Decision. It is held that an admission made by an attorney after the trial, but before the final decision, and in answer to an inquiry by the judge before whom the case is pending for decision, is binding on the client. Holderness v. Baker, 44 N. H. 414. See also The Harry, Fed. Cas. N'O. 6147. 21. England. — Doe v. Bird, 7 Car. & P. 6, 32 Eng. C. L- 4iS- .•tlaha)na. — llolman v. Bank, 12 Ala. 369. California. — Wilkins v. Stidger, 22 Cal. 231, 83 Am. Dec. 64. Illinois. — Hardin v. Forsythe, 99 111. 312; Contra. Home Ins. Co. v. Field, 53 111. App. 119, and Carthage V. Buckner, 8 111. App. 152. Indiana. — Hays v. Hynds, 28 Ind. S3I- Kansas. — Central Branch U. P. Co. V. Shoup, 28 Kan. 394, 42 Am. Rep. 163. Louisiana. — Shipman v. Haynes, 15 La. 363. Maryland. — Dorsey i'. Gassoway. 2 H. & J. 402, 3 Am. Dec. 5.S7. .!\lichi.i;au. — Isabelle v. Iron ClifTs Co., 57 Mich. 120, 23 N. W. 613. Missouri. — Nichols v. Jones, 32 Mo. App. 657. Nc%i' York. — Owen v. Cawley. 36 N. Y. 600 ; Anderson v. McAIleenan, IS Daly, 444. 8 N. Y. Supp. 483. irisc-i>iLs-in. — Weisbrod v. Cliicngo & N. W. Ry. Co., 20 Wis. 441. By Attorney Not Admissible in Another Action — An attorney, in all matters relating to the progress and trial of the cause, may bind his client. And so admissions made by tlie attorney, for the purposo of alleviating the stringency of some rule of practice, or of dispensing with the formal proof of some fact, at the trial, are binding upon the client, for the purposes of the cause in which tlicv arc made, i Greenl. Pac. 925, 16 .\m. St. Rep. 185, sL. R. Mn, .App. 657, 664. But see to the contrary, Voisen v. Commercial Mut. Ins. Co, 51 N. Y- Vol. I 4()S ADMISSIONS. At Hearing of Rule to Show Cause. — It is held that an admission made by counsel on the hearing of an order to show cause cannot be used at the trial.-- But the correctness of this holding may be questioned.^" Unless Made With Knowledge of Client. — Admissions of the attor- ney are competent if it is shown that they were made with the knowledge and consent of the party, or that he acquiesced in them.-^ In Argument — Statements of counsel in argument are not bind- ing on the client as admissions.-^ St. 635. 22 N. Y. Supp. 348; Truby v. Seybert, 12 Pa. St. lOi ; Central B. U. P. Co. V. Slioup, 28 Kan. 394, d2 .■\ni. Rep. 163. Only Binding at the Trial at Which Made — In Isabelle v. Iron Cliffs Co., 57 Mich. 120, 23 N. W. 613, it is said: "The stipulation of facts made in another case by the at- torneys therein was not admissibli in this. The only ground upon which its reception could be based was that it contained admissions of the party of the e.xistence of certain facts. Attorneys, as the agents of parties whom they represent in a cause, have authority, by virtue of such agency, to make admissions which are binding upon the parties in that particular case ; but they have no authority, by reason of such relation, to bind a party generally by admission of facts. Their agency is for a special purpose, and for a spcciticd Iraiisactioii. and their ad- missions inade with reference thereto rre binding upon the party they represent. But admissions so made cannot bind the party in other suits or proceedings between other par- lies. I Greenl. Ev.. Sees. 113-115; Elling V. Scott, 2 Johns. 157, 163; Harrison's Devisees v. Baker, =; Litt. 250; Baylor v Smithers, I T. B. Mon. 6; Tompkins v. Ashley, Mood & M. 32; Brittingham v Stephens, I Hall (N. Y. S. C.) 379." 22. State v. Buchanan, Wright (Ohio) 233. 23. Shippman v. Haynes, 15 La. 363. 24. Lord V. Bigelow, 124 Mass. 185. Acquiescence Must Be Shown. The attorney's power is not general but special and confined to the par- ticular rncp in which it is employed, Vol. I and his admissions cannot be re- ceived outside of said case unless the client has made the admissions his own by acquiescing in them. Nichols -'. Jones, 32 Mo. App. 657, 664. Contra. — Voisen v. Insurance Co., 51 N. Y. St. 63s, 22 N. Y. Supp. 348; Truby v. Seybert, 12 Pa. St. lOi ; Central, etc., Co. v. Shoup, 28 Kan. 394. 42 .\m. Rep. 163. Express Acquiescence Required. .\ stipulation made by an attorney in one action will not bind his client in another unless the latter expressly ■Tcquiesces in it in the second suit, much less will it estop his assignee. Compare Truby v. Seybert, 12 Pa. St. T0[ and Overholzer 7'. Mc- ATichacl, 10 Pa. St. 139. Made by Counsel Without Author- ity When it appeared, as in (his case, that the admission was limited lo the trial then pending, merely to save time, and that the client had no knnwled,ge of the admission, and never expressly authorized it. and when the opposite party was put on his .guard by timelv notice that the fact would not again be admitted, it ';eems to iis that it was error to al- low the evidence of the previous con- cession to go to the iury. Itwotdd, ns a rule, tend to defeat rather than nromote justice; would discourage (he making of concessions upon nisi f'rius trials, as to facts not deemed necessary to contest, and thereby contract them, and render them niore expensive and vexatious : and all (his would be compens.nted by no !»ood resid's whatever." Hays v. TTvnds. ?R Tnd. S3i. 25. Sanderson :•, State (Tex,"). 4-1 S. W. IT03. in.\nssic)NS. 46') f. Acliiiissioiis In Opening .'^Uilcnicnl i\oi Binding. — The admis- sion to be bindiny nuisl he so made as to be a part of the evidence in the case, or formally made to avoid or excuse the mak- ing of proof. Therefore, the mere admission or statement of counsel in an opening statement is not such as to amount to a binding admission.^" But there may be exceptions to this rule. Indeed, it has been held that an admission made by counsel, in the opening statement, may be conclusive of the case, and warrant a judgment without further proceedings.-' By Counsel in Criminal Case. — It is held that an admission of a fact by his attorney is not binding on the defendant in a criminal case.-' Rut the wciqlit of authority seems to be the other When Offered in Evidence in An- other Action — Adee ;'. Howe, 15 Hun (N. Y.) 20. Especially if in one action client is agent and in the other principal. Moffit V. Witherspoon, 10 Ired. (Law N. C.) i8s. 26. I Greenl. Ev., Sec. 186; Lake Erie & W. R. Co. v. Rooker, 13 Ind. App. 600, 41 N. E. 470; Flynn v. State, 43 Ark. 289; Person v. Wil- cox, 19 Minn. 449; Lvnian v. Kansas City & A. R. Co.. loi Fed. 639. Opening Statement Made in Former Trial — In Evans ■;•. Mont- gomery, 95 Mich. 497, 55 N. W. 362, it is said : "On cross-examination, defendant sought to show state- ments made by plaintiff's counsel in the opening before the jury upon a former trial, as tending to show that plaintiff there contended for a different state of facts. We know of no case going to the extent of hold- ing that such statements amount to admissions." See also Butler v. Nat'l Home, 144 U. S. 64, 12 Sup. Ct. 581. 27. Pratt v. Conway, 148 Mo. 291, 49 S. W. 1028; Walsh V. Mo. P. Co., 102 Mo. 582, 14 S. W. 873, 15 S. W. 757- Effect of Admission in Opening Statement — Thus in Oscanyan v. Arms Co., 103 U. S. 261, the action was to recover commissions for the sale of firearms to the Turkish gov- ernment, effected through the plaint- iff's influence. It appeared from the opening statement of counsel that the sales for which the commissions were claimed were made whilst the plaintiff was an officer of the Turk- ish government, and the influence wliich he exerted upon its agent sent to this country to examine and re- port in regard to the purchase of arms. The facts as detailed in the statement were such as to convince the trial court that the contract was void as corrupt and against public policy. The defendant moved the court, on the statement made, to direct a verdict for it without taking testimony. The motion was granted, an appeal taken and the judgment affirmed. See also Denefeld v. Baumann, 40 App. Div. 502, 58 N. y. Supp. no; Garrison v. McCullough, 28 App. Div. 467, 51 N. Y. Supp. 128; Missouri Pac. Ry. Co. v. Hartman, 5 Kan. App. 581, 49 Pac. 109; Lind- ley V. Atchison, T. & S. F. R. Co., 47 Kan. 432, 28 Pac. 201. Compare. Kapischki ?■. Kncli. 180 111. 44, 54 N. E. 179- 28. Counsel Cannot Admit in Criminal Case. — 'The prisoner's counsel had no authority to make any statement or admission to supply the place or have the force of evi- dence against him. No confession of theirs could bind or affect him. Their admissions could not in law prejudice or affect his rights; nor could they be in any wise jeopard- ized by the assumption of any grounds whatever upon which his defense may have been placed by his counsel. Whether those grounds were correct or incorrect, true or false, was wholly immaterial. That Vol. I 470 .l[>.]flSSfONS. way.-'' g. How Must Be Made. — Te) h^ a part of tlie evidence in the case they must be made as a i)art of the evidence at the trial, or be proved to have been made.^" F. By Stipulation. — a. Generally. — The parties may stipulate that certain matters put in issue by the pleadings are true, and thus avoid the necessity of making proof of them. For the pur- poses of the trial and any appeal taken from a judgment or decree rendered as a result of the trial, such stipulations are not only binding upon the parties, but they are conclusive.^' was not the question for the con- sideration of the jury, whose duty it was to decide the question of the guilt or innocence upon the law as given them by the court, and the evidence as given by the witnesses, irrespective of any admissions by the prisoner's counsel, or any grounds upon which they may have rested his defense." Nels v. State, 2 Tex. 280. Approved in Clayton v. State, 4 Tex. App. 515. Admission Made in Summing up Not Binding — Sanderson v. State, (Tex. Crim.), 44 S. W. 1103. Admission Must be Distinct and Formal. — "Without determining what rights an attorney can waive for a prisoner on trial for a felony, we feel sure that the fact of the waiver or admission should be dis- tinct and formal, and made for that purpose in order to bind the prisoner." Flynn v. State, 43 Ark. 289. 29. A Rule Contrary to that Stated in the Text has been An- nounced — In People v. Garcia, 25 Cal. 531, it was held that a solemn admission made by counsel to avoid a continuance, and entry on the records of the court having been made, in defendant's presence, must be presumed to have been made with his consent, and might properly be considered by tlie jury. See also Com. v. Young, 165 Mass. 396, 43 N. E. 118. Admissions Made After Case is Closed — Admissions made by coun- sel before the parties rest are bind- ing, but otherwise, if made after- wards. In re Noah, 3 City Hall Rec. (N. Y.) 13. Submission on Agreed Statement. Pisar V. Stale, 50 Neb. 455, 76 Vol. I N. W. 869; People v. Hall, 86 Mich. 132, 48 N. VV. 869. Whether Intent can be Stipulated. " It is said tliat the iss\K' of crim- inal intent was, at least, for the jury, . . . Bui lie (the defend- ant) is conclusively presumed to know the law, and, if an actual un- lawful intent is essential, that pre- sumption supplies it." Pisar v. State, 56 Neb. 455, 76 N. W. 869. In that case the jury were given in- structions that amounted to direct- ing a verdict of guilty, and it was held that this was not error because the criminal intent followed from the facts agreed upon. But in People v. Hall, 86 Mich. 132, 48 N. W. 869, the court remark- ed: "A conviction in a criminal case, involving the question of intent, cannot be predicated upon the admis- sions of counsel, and it is error in such cases to instruct that the jury must find the defendant guilty. 30. Lowrie v. Verner, 3 Watts (Pa.) 317; Commercial Bank v. Clark, 28 Vt. 325 ; Advance Elevator Co. V. Eddy, 16 111. App. 263; Hearne v. De Young, in Cal. 373, 43 Pac. 1 108. 31. Alabama. — Stark v. Kenan, 11 Ala. 818. California. — Haight v. Green, 19 Cal. 113; Donner v. Palmer, 51 Cal. 629; Taylor v. Randall, s Cal. 80; Hearn v. De Young, in Cal. 37^, 43 Pac. 1 108. Colorado. — Water Supply Co. v. Larimer &c. Co., 25 Colo. 87, 53 Pac. 386, 46 L. R. A. 322; Rockwell v. Graham, 9 Colo. 36, 10 Pac. 284. Illinois. — Wilson v. Spring, 64 111. 14; City of Chicago v. Drexel, 141 111. 89, 30 N. E. 774; Culver v. Cou- gle, i6s 111. 417. 46 N. E. 242. yl I 'MISSIONS. 471 b. MaiU' for Purposes of the Trial. — But as a rule such admis- sions by stipulation are made for the purposes of the trial only, and if they are, they are not competent as evidence for or against the parties in any other action, or in a subsequent trial of the same action. ^^ c. Made ll'itlioiit I.iim'fatioii. — T.ut it is held that if the stipu- lation is made- generally, and without qualification, it is binding at a subsequent trial, or in any other case.'" lotva. — Jones v. Clark, y Iowa 586. Iiidiana.^Peop\e &c. Soc. v. Mc- Kay, 141 Ind. 415, 39 N. E. 231, 40 N. E. 910. Massachusetts. — Lewis v. Sumner, 13 Met. 269; Leonard v. White, 5 Allen 177. Michigan. — Alexander v. Rice, 52 Mich. 451, 18 N. W. 214. Minnesota. — Bingham v. Board, 6 Minn. 136, 8 Minn. 441. Missouri. — Alder v. Wagner, 47 Mo. App. 23 ; Hanna v. Baylor, 23 Mo. App. 302. Neiv Hampshire. — Burbank v. Rockingham &c. Co., 24 N. H. 550, 57 Am. Dec. 300; Alton v. Gilman- ton, 2 N. H. 520. New Yorlt. — Ayvard v. Powers, 25 Misc. 476, S4 N. Y. Supp. 984; Butler V. Walsh, 48 App. Div. 459, 62 N. Y. Supp. 913; Jacklin v. Na- tional L. Ass'n, 75 Hun 595, 27 N. Y. Supp. 1 1 12; Brewster v. Man- ning, 6 Hun 530; Penniman v. La Grange, 23 Misc. 653, 52 N. Y. Supp. 27; Auburn Savings Bank v. Bunkerhoff, 44 Hun 142. New Jersey. — Union L. & E. Co. V. Erie R. R. Co., 37 N. J. Law, 23. North Dakota. — Mooney v. Wil- liams, (N. Dak.), 83 N. W. 237- Oklahoma. — Consolidated Steel & Wire Co. v. Burnhani, 8 Okla. ^14, 58 Pac. 654. South Carolina. — Cooke v. Pen- nington, 7 Rich. 385 ; Daniel v. Ray, I Hill (Law), 32. Te.xas. — Strippelman v. Clark, ii Tex. 296. Vermont. — Commercial Bank v. Clark, 28 Vt. 325. Wisconsin. — Whorton v. Webster, 56 Wis. 356. 32. Hardin v. Forsythe, 99 111. 312; Hays V. Hynds, 28 Ind. 531; Holman v. Bank of Norfolk, 12 Ala. (N. S.) 369, 407; Kinney v. Salem, 77 Ind. 213; Wheat v. Ragsdale, 27 Ind. igi ; Isabelle v. Iron Cliflfs Co., 57 Mich. 120, 23 N. W. 613. Stipulation Admissible but Not Conclusive — Although a stipulation is made for the purposes of a par- ticular trial, and afterwards with- drawn, it is nevertheless admissible in evidence against the party making it in a subsequent trial of the same cause, but is not conclusive, and may be disproved, rebutted or ex- plained. King V. Shepard, 105 Ga. 473, 30 S. E. 634. Burden of Proof The burden is upon the party objecting to the use of the stipulation to show that it was to be used only on the first trial. Brown v. Pechman, 55 S. C. 55=;. 3i S. E. 732. Admission Made at First Trial. An admission made by counsel at the first trial is not admissible against his client at the second trial. Weisbrod v. Ry. Co., 20 Wis. 441; Hardin v. Forsythe, 99 111. 312; Dor- sey V. Gassoway, 2 H. & J. (Md.) 402, 3 Am. Dec. 557. Contra. — Home Ins. Co. v. Field, 53 III. App. 119 and Carthage v. Buckner, 8 111. App. 152. 33. England.— Dot v. Bird, 7 Car. & P. 6, 32 Eng. C. L. 472; Langley V. Oxford, I M. & W. 508. Illinois. — Home Ins. Co. v. Field, S3 111. App. 119. Iowa. — Tones v. Clark, 37 Iowa 586. Maryland. — EKvood v. Lannon, 27 Md. 200; Farmers' Bank v. bprigg, II Md. 389. Minnesota. — Merchants' National Bank v. Stanton, 62 Minn. 204, 64 N. VV. 390. Missouri. — Nichols v. Jones, 32 Mo. App. 657 ; Hammontree v. Huber, 39 Mo. App. 326. Vol. I 472 IPMISSIONS. d. Hozi' Must Be Made or I'roi'ed. — The stipulation, to be a part of the evidence, must be made in the presence of the court or jury, as a part of the trial, or, if not so made, must be proved at the trial to have been entered into, or it is not available.^* e. Change of Issue Iiiuiiaterial. — It makes no difference that the issues in the case are changed after the stipulation is filed if the admission is of facts material to the issues newly formed.^^ G. Agkiced Case. — a. Generally. — An agreed case is an agree- ment between the parties as to what the facts are, such facts to be taken as if alleged in proper pleadings, and proved at the trial. ^^ b. Is Conclusive. — The case thus agreed is conclusive against the parties as to the truth of the facts stated in the absence of an) showing of fraud, accident or mistake.^' c. Made for Purposes of Case Not Competent in Another Case. But if the agreed case is expressly made for the purpose of the case in which it is made, it is not competent evidence against the parties, or either of them, in another action.^*' New Yorli. — Foster v. Milliner, 50 Barb. 385. Olilahoma. — Consolidated Steel & Wire Co. v. Bunham, 8 Okla. 514, 58 Pac. 654. Vertnont. — Commercial Bank v. Clark, 28 Vt. 325. That Certain Matters Shall Not be Litigated — Stipulations to the effect that matters presented by the pleadings are not and shall not be litigated in the action may be used on the trial of another action where the judgment in the first cause is offered in evidence to show a former adjudication, to prove that the mat- ter in controversy and covered by the stipulation was not adjudicated. Foster v. Milliner, 50 Barb. 385. Stipulation Competent on Sub- sequent Trial — In Merchants' Nat. Bank v. Stanton, 62 Minn. 204, 64 N. W. 390, the court said : "The first trial was had upon a written stipulation of facts, signed by both parties. On the last trial a part of this stipulation, reciting and admit- ting the existence of certain of these facts, relevant to the issues, was of- fered and received in evidence against plaintiflf's objection and ac- ceptance. This stipulation was clearly competent evidence on the subsequent trial, i Thomp. Trials, Sec. 361." Admissible but Not Conclusive. I.uther V. Clay, too Ga. 236, 28 S. E. 46. Vol. I 34. Lowrie v. Verner, 3 Watts (Pa.) 317; Hearne -'. De Young, ill Cal. 373, 43 Pac. 1108. 35. Jones v. Clark, 37 Iowa 586; Penniman v. LaGrange, 23 Misc. 653, 52 N. Y. Supp. 27. 36. Pennsylvania R. R. Co. v. Niblack. qq Ind. 149 ; Day v. Day, TOO Ind. 460; Hawks v. .vlayor, 144 Ind. 343, 43 N. E. 304 ; Fearing v. Irwin, 55 N. Y. 486 ; Royall v Eppes, 2 Munf. (Va.) 479. 37. Page v. Brewster, 54 N. H. 184; Levy V. Sheehan, 3 Wash. 420, 28 Pac. 748; Ex Parte Hayes, 92 Ala. 120, 9 So. 156; Van Wart v. Wolley, R. & M. 4, 21 Eng. C. I.. 366. 38. Page v. Brewster, 58 N. H. 126. Reasons for the Rule — Chief Jus- tice Gibson, ruling that an agreed case is not admissible except in the proceeding in which it is drawn, said: "It is supposed to have ac quired a degree of credit from the bare statement of the case as an ad- mission of the facts. For what pur- pose, and on what condition was that admission? Exclusively to have a judgment of the court on the facts submitted, and not to give them ef- fect for any other purpose. Each may have been willing to put the law upon the circumstances without intending to admit, or even without believing them to be an accurate representation of the truth ; and IPM/SSIOXS. 473 But an agreed case, for the purpose of the " suit " is binding, not only for the purpose of determining the question of law involved, but for the purposes of all subsequent proceedings in that action.^' H. Agreed Statement. — \\ licrL- ihc parties agree to a state- ment of the facts 'n an action, such statement takes the place of an}' and all evidence that might have been given, in whole or in part, and the parties are each bound as having admitted the facts to be as stated for the purposes of the trial, and any appeal that may be taken from any judgment rendered upon the facts as agreed upon.'"' without consenting to be bound by them in another proceeding." Mc- Lughan V. Bovard, 4 Watts (Pa.) 308. See also Hart's Appeal, 8 Pa. 32 ; Harrison's Devisees v. Baker, 5 Litt. (Ky.) 250; Frye v. Gragg, 35 Me. 29. 39. Made for Purpose of Suit. " The agreement in question was entered into for the purposes of the suit, and not merely for the case that was transferred. An agreement entered into for the purposes of the suit, must mean not only for deter- mining the questions of law raised by the case, but for any and all sub- sequent proceedings to the close of the suit. There was nu provision inserted that the facts should be con- sidered as agreed to only for the purposes of that case, or that they should not be used as evidence before the jury, as is usual where such is the intention of the parties. It is to be presumed that only such facts were agreed to as were necessary to determine the questions then raised, and that if the defendants should elect a trial by jury such other com- petent testimony as either party might wish to introduce would be offered for the consideration of the jury. It will hardly be pretended that the facts stated were untrue, or that a fictitious case has been pre- sented to the court. The court cer- tainly would not encourage such a practice." Page v. Brewster, 54 N. H. 184, 187. 40. Luther v. Clay, 100 Ga. 236, 28 S. E. 46, 39 L. R. A. 95 ; Callin V. Ins. Co., 83 111. App. 40; State v. Connor, 86 Tex. 133, 23 S. W. 1103; Morgan v. Davenport, 60 Tex. 230 ; Adams V. Erchenberger, (Ark.) 18 S. W. 853; Ish V. Crane, 13 Ohio St. 574; Consolidated Steel & Wire Co. V. Burnham, 8 Okla. 514, 58 Pac. 654- Does Not Exclude Other Evidence. An agreed statement does not, un- less so specified, exclude other evi- dence, not inconsistent therewith. Burnham v. Railroad Co., 88 Fed. 627 ; Dillon v. Cockcroft, 90 N. Y. 649. Unlimited Binding Generally. "The primary question to be con- sidered is whether, on a subsequent trial, this statement of facts was ad- missible, and its operation and ef- fect as evidence. . . . Such agreements are sometimes made to avoid continuances, or for some specific purpose, and, by their terms, are limited to the particular occa- sion or purpose, and, of cou-se, lose all force when the occasion has passed, or the purpose has been accomplished. But if by their terms they are not limited, and are unqualified admissions of facts, the limitation is not implied, and they are receivable on any subse- quent trial between the parties. Wetherell v. Boyd, 7 Car. & P. 6; Langley v. Oxford, I Mees. & W. 507; Holley V. Young, 68 Me. 215; Railroad Co. v. Shoup, 28 Kan. 394. Speaking of admissions of this character made by counsel of record, Mr. Greenleaf terms them ' solemn admissions,' and says, ' they are, in general, conclusive, and may be given in evidence on a new trial.' I Greenl. Ev., Sec. 186. . . . Upon such agreements or admis- sions, made verbally, every court is necessitated to act daily. . . . And when made in open court, and Vol. I 474 .IPMISSIONS. It differs from the statutory " agreed case " in that the agreed statement of facts is not the " case," but only evidence of the facts.*' Where Not limited to the Trial. — And it is held that if the admis- sions so made are not limited to the purposes of the present trial, they are binding on the parties at any subsequent trial of the case.*" It is not necessary that the agreed statement of facts be in writing or, if in writing, that it be signed.*^ Case Stated.- — Under the practice in some of the states a " case stated " is provided for or allowed, which is a statement of the reduced to writing, intended to be used, and used as an instrument of evidence, and is without limit- ation as to time or occasion, it can- not be withdrawn or retracted at the mere will of either party. . . . The admission of the facts dispens- ing with evidence, if it could be dis- regarded by either party on any sub- sequent trial, in the event of in- ability to produce witnesses to es- tablish them, would often convert such admissions into instruments of fraud and injury. When they are made dehberately and intelligently, in the presence of the court, and reduced to writing, they are of the best species of evidence; and parties cannot be permitted to 'retract them, as they are not permitted at pleasure to retract admissions of fact made in any form. If they are made im- providently and by mistake, and the improvidence and mistake be clearly shown, the court has a discretion to relieve from their consequences — a discretion which should be ex- ercised sparingly and cautiously, I Greenl. Ev. Sec. 206; Harvey v. Thorpe, 28 Ala. 250." Prestwood V. Watson, in Ala. 604, 20 So. 600. 41. In Pennsylvania Co. v. Nib- lack, 99 Ind. 149, the agreement was : "For the purposes of the trial of this case, it is agreed by plaintiflf and defendant that the facts are as follows :" and the facts as agreed upon were set out. The court said : "This was not an agreed case under Section 553 R. S. 1881, but it was a trial upon an agreed statement of facts used merely as evidence." 42. Prestwood v. Watson, in Ala. 604, 20 So. 600 ; Merchants' Bank v. Marine Bank, 3 Gill (Md.) 96, 43 Am. Dec. 300; Doe v. Bird, 7 Car. & P. 6, 32 Eng. C. L. 472; Vol. I Farmers' Bank v. Sprigg, 11 Md. 389 ; Woodrufif v. Munroe a Md. 146; Elwood V. Lannon, 27 Md. 200; Consolidated Steel & Wire Co. v. Burnham. 8 Okla. 514, 58 Pac. 654; P.x parte Hayes, 92 Ala. 120, 9 So. 156. Admissible but Not Conclusive. In Luther v. Clay, 100 Ga. 236, 28 S. E. 46, 39 L. R. A. 95, it is held that agreed statements of facts upon which a case was tried, though not thereafter absolutely binding and conclusive upon the parties in the trial of another case, involving the same issues, is, in such trial admis- sible in evidence at the instance of one against the other, subject to the latter's right to disprove, rebut, or explain any statement therein con- tained, the court saying : "When parties to a case agree to submit the same for decision upon an agreed statements of facts, and nothing is said in the agreement to the contrary, each party is abso- lutely bound and concluded by the statements of fact thus agreed to, so far as the trial in which the stip- ulation is made is concerned. Where the agreement is not expressly lim- ited to use in the, trial in which it is made, it is admissible in evidence as an admission in any other trial or litigation between the same par- ties, where the same issues- are in- volved ; but it is not absolutely binding and conclusive upon the parties. When it is used against such parties in another trial of the same case, or in any other case, either party has the right to attack any statement of fact made therein either by disproving or rebutting the same or explaining it away. 43. Prestwood v. Watson, in Ala. 604, 20 So. 600. .IPMISSIOMS. 475 facts in ihe case to prucitrc a ilccisum ul a court on such facts. Such a statement of the facts can be used only for the purpose indicated, and is not competent as evidence of the truth of the facts stated therein for any other purpose."'* Abandoned Not Competent. — And if the case stated is aljandoned it ceases to be competent as evidence for any purpose.''^ I. L'liLL oF Exceptions. — A bill of exceptions is the statement of the court and not of a party, and cannot, therefore, be used as an admission. Furthermore, the bill contains a statement of the facts proved at the trial, for the purposes of an appeal, only, and cannot be used as evidence establishing the facts of a subsequent trial."' 44. Hart's Appeal, 8 Pa. St. 32; •Wheeler v. Ruckinan, 35 How. Pr. (N. Y.) 350; McLughan v. Bovard, 4 Watts (Pa.) 308; Neilson v. Columbia Ins. Co., i Johns. (N. Y.) 301; Elting V. Scott, 2 Johns. (N. Y.) 157; Castleman v. Sherry, t6 Tex. 228. Case Not Competent on Second Trial. — "The defendant's counsel of- fered a copy of the case, prepared on ihe appeal from the judgment on a former trial of this action claimed to be in the handwriting of the plaintiff, which, the case before us states, showed an entire different statement by him from that made on the present trial. The fact that the case was in his handwriting can • make no difference as to the ad- missibility of the evidence. The case itself is no evidence of what took place on the trial." Wheeler V. Ruckman, 35 How. Pr. 350, 355. Reason for Such Limitation. So again it is said : "Independent of the effect imparted to it by those terms, it is supposed to have ac- quired a degree of credit from the bare statement of the case as an admission of the facts. For what purpose and on what condition was that admission? Exclusively to have the judgment of the court on the facts submitted, and not to give them effect for any other purpose. . . . A counsel, confident that the law of the case depends entirely on a par- ticular fact, which, if found, would be decisive for him, might be will- ing to say to his antagonist, 'give me that fact and make the rest of the case as you please ;' yet a state- ment immaterial in point of legal effect, which could well be risked before a court, might expose the party to the most inveterate pre- judices of a jury; and if the con- sequences of admissions thus made were to follow him on subsequent occasions into an inquiry by another tribunal, there would be an end of agreements to settle facts by con- sent." McLughan v. Bovard, .4 Watts (Pa.) 308, 313- 45. McLughan v. Bovard, 4 \\'atts (Pa.) 308. 46. Heeler v. Young, 3 Bibb (Ky.) 520; Leeser v. Boekhoff. 38 Mo. App. 445 ; Baylor v. Smithers, I T. B. Mon. (Ky.) 6; Hardin v. Forsythe, 99 111. 312. Not Competent on Subsequent Trial "But as the cause will have to be remanded to the court below for a new trial, it is proper we should notice an objection to the de- cision of that court in refusing to permit a bill of exceptions taken on a former trial by Beeler to be used as evidence to prove his in- fancy. In that bill of exceptions it is stated to have been on that trial proven Beeler was an infant when he executed the obligation; but as that statement was made for the purpose of obtaining a decision on a question of law in the progress of the cause, we apprehend it should he considered as true only for the purpose of a decision on that ques- tion, and cannot conclude the par- ties on the trial of an issue of fact at a subsequent trial; for if a state- ment in a former bill of exceptions of what was then proven, was re- ceived as evidence of the fact, it would be nugatory to call a jury to ascertain the truth of the fact, and would be attended with the absurd Vol. I 476 ADMISSIONS. iJiil the cuiUrary has been held.'' And in some of the states a bill of exceptions is made competent by statute, to prove the facts contained therein.^* Statement of Case. — In some states a statement of the case, or statement on appeal, similar in its object and effect to bills of excep- tions, is authorized. And to these like rules, as to their admissibility as evidence, must prevail, as in case of bills of exceptions.*-' J. Petitions and Affidavits! — a. Generally. ■ — Admissions made by a party in petitions filed or affidavits made in the course of a trial or the proceedings in a cause are competent against him the same as statements or declarations made in pleadings : not conclusive as pleadings in the cause on trial, therefore, they may, as a general rule, be disproved or explained, but are nevertheless competent evidence if thev contain admissions material to the issue.'*" consequence of enabling either party by an exception not only to liavc a decision on the point of law, but also draw from the jury to the court a trial of the facts." Beeler v. Young, 3 Bibb (Ky.) 520, 522. 47. Bill of Exceptions Admissible. In Scaifc v. Western N. C. Land Co., 90 Fed. 238, the bill of exceptions was offered to prove a former admission of the fact, signed by an attorney of record on the trial, and in passing upon the ques- tion as lo its admissibility, the court said: ''The fifth assignment of error relates to the admission of a bill of exceptions in the former trial signed by counsel for the plaintiff and by the presiding judge, wherein it was admitted that S. H. Flemming was the agent of the de- fendant company. This paper, which is stated by the court to be a 'record in this cause,' was offered by the defendant to prove that the plaintiff had admitted Flemming's agency. Admissions by a party are always competent evidence against liim, and there seems to be no reason why a distinct and formal admission signed by an attorney of record upon a former trial, and not with- drawn or modified, should not be competent evidence. We are of opinion that there was no error in admitting tliis record." 48. Padley v. Catterlin, 64 Mo. App. 629. 49. Statement on Motion for New Trial Not Competent — A statement upon motion for a new trial and Vol. I appeal is made for the purpose of explaining the errors upon which the moving party and appellant will rely. If it contains the evidence in- troduced at the trial, it is for this purpose. Counsel frequently agree to the correctness of a statement, or that it contains all of the evidence given at the trial, and these agree- ments are accepted as true for the purpose for which they are made. But, in fact, notwithstanding stip- ulations of this nature, statements rarely embody more of the evidence of rulings than counsel consider necessary to illustrate the errors as- signed ; and matter upon which no question is made, although a part of the history of the case, is set aside as unnecessary. \ docuiuent prepared in this way, it is scarcely necessary to say, should not be re- ceived without preliminary proof that its report of the evidence is correct." Ferraris v. Kyle, ig Nev. 435, 14 Pac. 529. 50. Engla}id.—Re\ v. Clarke, 8 T. R. 220. Uiiilcd States. — National S. S. Co. V. Tugman, 143 U. S., 36, 28 L. Ed. 87, 12 Sup. Ct. 361 ; Chicago &c. Ry. Co. V. Ohle, 117 U. S. 123, 6 Sup. Ct. 632; C.annan :■. U. S.. 34 Ct. Claitns, 237. Alabama. — Penn z\ Edwards, 50 .Ma. 63; Halletl v. O'Brien, i Ala. 585. California. — Shafter v. Richards, 14 Cal. 125, Z),-/cKi'(H-.-.— Hall V. Cannon, 4 Har. (Del.) 360. ADMISSIONS. 477 The rule extends to voluntar)- afifidavits.'^' Copies of Affidavits When Competent. — Copies of affidavits sliown to have been recognized as true copies by the affiant may be used as the originals might be used as an admission. '^- lllinois. — Stone i'. Cook, yg 111. 424; 111. Cent. R. Co. v. Cobb, 64 111. 143; Snydacker v. Brosse, 51 111. 357- Indiana. — Springer v. Drosch, },2 Ind. 486, 2 Am. Rep. 356 ; Behler v. State, 112 Ind. 140, 13 N. E. 272; Obio & M. Ry. Co. v. Levy, 134 Ind. 343, 32 N. E. 815, 34 N. E. 20; Ioi\.'a. — Asbach v. Chicago B. & Q. Ry. Co., 86 Iowa lor, 53 N. W. 90; Davenport v. Cummings, 15 Iowa 219. Louisiana. — Michel v. Davis, 6 La. 470; Flower v. O'Connor, 8 Mart. (La.) N. S. 555- Massachusetts. — Knight i'. Roths- child, 172 Mass. 546, 52 N. E. 1062; Dodge V. Nichols, 5 Allen, 548; Brighani v. Fayerweatber, 140 Mass. 411, 5 N. E. 265. Missouri. — State v. Hayes, 78 Mo. 307- New York. — ^Morrell v. Cavv!rocnred the affidavit to be made,"^^ or knowing the contents of such affidavit, admits its truth.'''"' But not other- wise.'''' plaintiff's attorney and cannot be listened to in saying tliey are not trne copies, they were equivalent to office copies." Jackson 7'. Harrow, II Johns. CN. Y.) 4,34. To same ef- fecfNatl. S. S. Co. v. Tngman, 143 U. S., 28; 36 L. Ed. 32; 12 Sup. Ct. 361. 53. An affidavit for a change of venue is authorized by law and the right to a chan.ge is not one to be em- barrassed or burdened by permitting the adverse party to use the affi- davit as an instrument of evidence. Ohio & M. Ry. Co. v. Levy, 134 Ind. ,■^43. 32 N. E. 815 and 34 N. E. 20. See also Behler v. State, 112 Ind. 140, 13 N. E. 272. The Supreme Court of Illinois had little doulit that such an affidavit could be used as an admission of the affiant's. Kankakee etc. Co. v. Horan, 131 111. 288, 23 N. E. 621. 54. Kankakee &c. Co. v. Horan, 131 111. 288, 23 N. E. 621. 55. Trustees of Wabash etc. Canal v. Bledsoe, s Ind. 133 ; Hargis V. Price, 4 Dana (Ky.) 79; Brickell f. Hulse, 34 Eng. C. L. 454. Affidavit of Third Party; 'When Competent. — In Trustees of Wabash etc. Canal v. Bledsoe, 5 Ind. 133, 135, it is said: "Had the affidavit been made by the trustees, or one of them, it cannot be doubted tliat its statements would have been admis- sions binding upon them. It was made by their chief engineer, and was adopted and presented to the court by them as containing the truth, and a continuance was ob- tained upon it. They thus made its statements their own, obtained an advantage upon them, and they must not now repudiate them, when, as evidence, they may work to their disadvantage. Ex Parte Affidavit by Third Party. Vol. I The affidavit of a third party con- tained in a record read by defend- ant is not evidence against defend- ant, the evidence being c.r farie and the affiant in court, and, if evidence at all, it is not conclusive. Hargis v. Price, J Dana (Kv.) 79. 56. Where a Party Admits Affi- davit of Another to Be True. — In Knight 7'. Rothschild, 172 Mass. sonalty. The attorney was only au- affidavit stated that he knew the con- tents of an affidavit made by his at- torney, and that the statements therein made were true ; the court said : "These statements thus be- came admissions of the defendant, and they tended to establish the plaintiff's contention that McKeon was insolvent, and the defendant^ had reasonable cause to believe that he was insolvent, and that the goods were delivered as a preference." 57. Housten v. Bruner. 59 Ind. 25. Unauthorized Affidavit by Attor- ney — "We must not be understood as deciding that every affidavit made by a third person in the progress of a cause would be evidence on its trial. In a case, for example, where the party was absent, and the at- torney representing him, not being fully advised, but believing certain facts could be proved, sboidd make an affidavit setting forth in it the circumstances under which it was made, and should obtain a continu- ance upon it, we do not say the party himself would be liound by its statements. But here, one of the trustees resided in the town where the suit was pending, and another of them near by, and we presume, nothing appearing to the contrary, that they were superintending the -.nit." Trustees of W;di.i^h ek". V. r.lrdsoe, 5 Ind. 133. .IPM/SSIOXS. 479 c. Made by an Agent. — So if made l)y an agent within the scope of his authority/'* d. iMadc by One Not Harming Anilwrity. — Either a petition or affidavit made without the direction of a party, or containing matter not authorized to be inserted tlierein, is not binding upon him, and is therefore inadmissible to prove an admission by him.'^" e. Not Admissible As Secondary Evidence, When. — A petition or affidavit when olTcred to establish a fact stated therein, is parol evidence and cannot be used to establish a fact that must be proved by a record or other written evidence."" f. Must Be Offered in Bvidenec. — The affidavit, although made in and as a part of the proceedings in the cause, must be ofTered in evidence to be available. It cannot be noticed as an item of evidence unless introduced as such."' 58. Asbacli v. Chicago B. & Q. Ry. Co., 86 Iowa tot, 53 N. W, 90. Made by an Agent — In Reme- man v. Blair, 96 Pa. St. 155, the court referring to an affidavit made in another action by the agent of a party, and now offered against the latter, said : "That it was not made by the plaintiff, bnt by his agent, may weaken the effect of it with the jury. But it was made for the plain- tiff, presumably with his knowledge, and he has had the benefit of it. It was not the mere affidavit of one who could be called as a witness; it was a ckfence set up by the plain- tiff to a suit against him by the contractor for these very repairs." Contra. — An affidavit for continu- ance made by the president of a cor- poration is held not admissible against the corporation in another action, the affiant being in court ; the court saying that he ought to have been sworn as a witness and subject to cross-examination. Kemp V. Ins. Co., 2 Gill S: T. (Md.) 108. 59. By Attorney Without Au- thority — In Duff V. Duff, 71 Cal. 513, 12 Pac. 570, a petition was sub- scribed ill petitioner's name, but by his attorney, whose authority was to file a petition approi)riate to the pro- curement of an order of court for letters of administration. The court said: "This authority would not ex- tend beyond the insertion of such allegations which the law required such application should contain. As is clear from the section of the statute above cited, a description of the property of the decedent's estate was not required, but only the value and character of such property. The character of the property would suf- ficiently appear by a statement in the petition that it was realty or per- sonality. The attorney was only au- thorized to file a petition stating the character and value of the property. In going beyond this, he was not act- ing within the scope of his au- thority, and therefore the statements in the petition describing the prop- erty were not on that ground ajd- missible." 60. Cannot Prove Contents of Written Instrument. — In Phillips v. Cooper, 50 Miss. 722, the contest was to determine the right of the parties to certain personal property that had been taken on execution. One of the parties had claimed the property as his, and given bond as required by statute. At the trial the affidavit and bond were offered in evidence lor the purpose of proving the judgments, executions and levy, relied upon by the plaintiff in the action, and it was held, first : that the affidavit did not state the ex- istence of the judgment and execu- tion, but only recited facts of such judgment and execution as were necessary under the statute, and second : that tlie existence of such judgment and execution could not be proved by such affidavit. 6i- Osterman v. Goldstein, 26 Misc. 847. 55 N. Y. .Supp. 1005. Must Be Offered In Evidence. Thus it is said in Wyser :'. Calhoun Vol. I 480 AJ'MISSIOA'S. g. Whole iMiist Be Read. — If a part of an affidavit is offered by one party, the other party is entitled to have read all, or so much of it as may be relevant to the part already offered."- The fact that an affidavit is made on information and belief afifects its weight but not its competency as an admission."' K. Admission, to Avoid Continuance, That Absent Witness Will Testify to Certain Facts. — In some of the states it is pro- vided by statute that where a continuance on account of the absence of a witness is applied for, the facts to which the witness would testifv if present, must be shown, and that, if it is admitted by the opposite party that the witness would so testify if present, the continuance must be denied. Such an admission gives the party applying for the continuance the benefit of the testimony of the witness, as if he were present and testified to the facts. Rut it is not an admission that the facts stated are true, nor can the admission be used at anv other trial as an admission."* II Te.xas 323: "The affidavit com- plained of, as affecting the legality of the judgment, was made to obtain an attachment, which appears to have been abandoned. No question, therefore, arises upon the sufficiency of the affidavit. The only use which could have been made of it. by the defendant, was to have given it in evidence, to disprove the plaintiff's right to recover in the right in which they sued. Rut it was not given in evidence ; nor was the plaintiff's right so to recover, questinned in the court below. That tlie defendant had evidence which he might have adduced, but, did not, cannot now avail him as an objec- tion to the legality of the judg- ment." Held, Might Be Read at Argument Without Being Offered in Evidence. But in Cross 7'. Carrctt, 35 Towa 480, it was held proper for the counsel for plaintiff in his closing argument, to read to the jury and comment upon tlie motion of defend- ant for a continuance, filed in a case wlicre such motion had not been in- troduced in evidence, at the trial of the case holding that the motion for continuance was a part of the rec- ord and a proper matter of com- ment I)y the opposite party, without being formally offered in evidence. And this case seems to Ijc ap- proved in the later case of Asbach v. Chicago, R. & Q. Ry Co., 86 Iowa Kit, 53 N. W. (X). VoL I 62. Forrest <'. Forrest, 6 Ducr (N. Y.) 102. Truth of Entire Affidavit not Con- ceded — AUhough one whose affida- vit is used against him may require that the whole affidavit be read, yet the party offering it does not by so reading it concede the truth of all of it. State V. Hayes, 78 Mo. 307. 63. Chicago &c. Rv Co. v. Ohle, 117 U. S. 123, 6 Sup. Ct. 632. But in Mittnacht v. Bache, 16 App. Div. 426, 45 N. Y. Supp. 8r, there was of- fered as an admission an "affidavit reading, "I nmv undrrsfand that cer- tain money belonged to an estate, and in support of sucli belief I refer to the demand made," etc. The court held this not competent, saying that i( was evident that affiant had no per- sonal knowledge on the subject and did not pretend to have. 64. Made to Avoid Continuance. At a former term of the court de- fendants submitted an affidavit for a continuance, in which they set forth what they expected to prove by a witness, who had been summoned, but did not attend. For the purpose of obtaining a trial, plaintiff's coun- sel admitted that the witness, if present, would testify as therein set forth. The party making such ad- mission is not even held to admit either the competency of the witness or of the testimony. It is an admis- sion that he would so testify. The party admitting may, however, ob- iect to the competency of the wit- IPMlSSfOA'S. 4S1 L. Ix TiiiTiiMoNY CiiVKN As A WiTNiiss. — a. Generally. — Tes- timony given by a party containing material admission is alwavs competent against him in any action, whether the same be given orally or in written answers to interrogatories prupoundeil.'"'' ness and to the legality of the evi- dence, or any part of it. So, he may disprove of the facts the ad- mitted testimony tends to prove. Such affidavit can in no case he nsed in a subsequent trial without the consent of opposing counsel. Its whole power and efficiency expire with the trial it is intended to ac- celerate. Ryan v. Beard, 74 Ala. 306, 309. It must appear that a continuance was applied for and denied on agreement by the adverse party ; that the witness named would testify as stated in the affidavit. Dempster etc. Co. V. Fitzvvater, 6 Kan. App. 24, 49 Pac. 624. But in Prosecutions for Crime. In absence of a witness, the state must not only admit that the witness would testify as alleged, but must admit the absolute truth of such testimony. Newton v. State, 21 Fla. 53, and see also People v. Vermil- yea, 7 Cow. (N. Y.) 369; State v. Brette, 6 La. Ami. 652, where it is held, however, that if it appears from the record that the jury did, in fact, give full credit to the state- ment of the expected testimony, the error is without prejudice. De Warren v. State, 29 Tex. 465 ; Peo- ple V. Diaz, 6 Cal. 248; Wassels v. State, 26 Ind. 30; McLaughlin v. State, 8 Ind. 281 ; Miller v. State, 9 Ind. 340; Hyde v. State, 16 Tex. 445 ; 67 Am. Dec. 630'; Van Meter v. People, 60 111. 168. Contra. — Hamilton v. State, 3 Ind. 55^- Such Affidavit Used Against Affi- ant. — But an affidavit for contin- uance may be used as an admission of any fact therein averred and as a basis for inferences against affiant from such facts, and this even in a criminal action. Belilcr v. State, 112 Ind. 140, i^ N. E. 272; Kemp v. Ins. Co., 2 Gill. & J. (Md.) 108; Pledger V. State, 77 Ga. 242, 53 S. E. 320; State v. Young, 99 Md. 666, 12 S. W. 879; Greenley v. State, 60 Ind. 141 ; State v. Hayes, 31 78 Mo. 307; Farrell v. People, 103 III. 17; Newton v. State, 21 Fla. 53; De Warren v. State, 29 Tex. 465. 65. /llabama. — Loeb v. Peters, 63 Ala. 243, 35 Ani. Rep. 17. California. — Lorcnzana v. Cama- rillo, 45 Cal. 125. Colorado. — ^Onialia S:c. Smelting & Ref. Co. V. Tabor, 13 Colo. 41, 21 Pac. 92s , 16 Aiu. St. Rep. 185, L. R. A. 236; Buddee v. Spangler, 12 Colo. 216, 20 Pac. 760. Connecticut. — Benedict v. Nichols, I Root (Conn.) 434. Georgia. — Maxwell v. Harrison, 8 Ga. 61, 52 Am. Dec. 385. Illinois.- — Wheat v. Summers, 13 111. App. 444; Chase v. Debolt, 2 Gilm. 371. Indiana. — Jones v. Dipert, 123 Ind. 594, 2Z N. E. 944; McKenzie v. Re- neau, 8 Blackf. 410. Kentucky. — Louisville & N. Ry. Co. V. Miller, 19 Ky. L. Rep. 1665^ 44 S. W. 119. Massachusetts. — Lynde v. Mc- Gregor, 13 Allen 182, 90 Am. Dec. 188; Judd V. Gibbs, 3 Gray 539. Missouri. — -Wiseman v. St. Louis &c. Ry. Co., 30 Mo. App. 516; Utley V. Tolfree, yy Mo. 307; Glenn v. Lehnen, 54 Mp. 45. Nebraska — I^owe v. Vaughn, 48 Neb. 651, 67 N. W. 464; German Nat. Bank v. Leonard, 40 Neb. 676, 59 N. W. 107. New York. — Lormore v. Camp- bell, 60 Barb. 62; Dusenbury v. Du- senbury, 63 How. Pr. 349; Fisher v. Monroe, 2 Misc. 326, 21 N. Y. Supp. 995 ; McAndrews v. Santee, 57 Barb. 193; Pickard v. Collins, 23 Barb. 444. Pennsylvania. — Tains v. Bullitt, 35 Pa. St. 308. Rhode Island. — Fitzpatrick i'. Fitz- patrick, 6 R. I. 64, 75 Am. Dec. 681. South Carolina. — State v. Senn, 32 S. C. 392, II S- E. 292. Vermont. — Johnson v. Powers, 40 Vt. 611. Evidence on Former Trial Com- petent as Admission. — A party of- fered the testimony of his opponent, Vol. I 482 inMfSSlONS. h. Oilers of Letter .Uliiiissiun of Its Correctness. — So a letter or other writing offered by a party in his own behalf, at another trial, is coni])etent evidence against him as an admission of the correctness of its contents.'''' given as a witness at the trial of another action ;■ it was objected that tliis testimony was given for the purposes of the other action only. But the court said: "It is not com- petent for a witness to hmit or re- strict his testimony to the particular trial for which it is offered. He is bound, by the obligations of his oath, to tell the truth. And that his evidence, thus elicited, in a judicial proceedings, or even in a voluntary affidavit, may be used as evidence against him, as an admission of the facts contained therein, is well set- tled by all authorities." Maxwell v. Harrison, S Ga. 6i , 52 Am. Dec 385. Testimony in the Trial of Another Case Competent — The rule is thus stated in Pickard v. Collins, 23 Barb. 444, 456: "The testimony of the plaintiff, on the trial of another case, which was proposed to be proved, to the effect that no gas tar had been put on the fence after he moved on the premises occupied by him, which is directly contrary to his testimony on the trial of this case, regarded as an admission, was relevant evidence in this case on the issue joined upon the first cause of action ; and the de- fendant clearly had a right to prove that testimony as an admission, by any competent witness other tlian the plaintiff." But see Carter 7: Edwards, 16 Ind. 238; Carter v. Buckner, 3 Blackf. (Ind.) 314; Mulliken v. Green, 5 Mo. 489. Statements in Arbitration Pro- ceeding.— Statements assented to or acquiesced in by a party to an arbi- tration may be introduced against him at the trial of a subsequent ac- tion at law. Tanis v. Bullitt, 35 Pa. St. 308. Admissible Against Executor Ad- missinns made by a parly at the first trial are admissible against his executor at the second trial. Graf- fenreid v. Kundert 31 111. App. 304. Testimony Before a Justice Held Not Admissible on Appeal In Car- Vol. T ter z\ LSuckner, 3 Blackf. (Ind.) 314, it was offered to prove by a witness what had been testified to by the plaintiff on the trial before the justice, but the evidence offered was excluded. In ruling upon the question on appeal, the court said : "The plaintiff was in court, and could have been required to answer to the plea on oath. This was not done, but a witness is offered to prove his admissions made under oath before the justice. This was inadmissible. "Other admissions or confessions of the plaintiff would have been re- ceived, or if he had been examined in the Circuit Court, it would have been competent to have proved con- tradictions, discrepancies, or vari- ances occurring in his examination before the Justice of the Peace, and that in the Circuit Court. It is true the admissions of a party may be given in evidence against him. These ad- missions may either be in pais or of record ; they, however, relate to the party, without violating any rules of evidence which apply when the party is constituted by statute a wit- ness." See explanation of this ruling in McKenzie v. Reneau, 8 Blackf. 314. And in Carter v. Edwards, 16 Ind. 238, it was held that admissions made by a party examined under oath, on the trial before the justice, could not be proved in an appellate court, the party being in court on the trial on appeal, and not then ex- .imined. See also Martien v. Barr, 5 Mo. 102. 66. Effect of Offering letter In Evidence at Previous Trial In .\laclay i'. Work, 10 Serg. & R. (Pa.) 194, it is said: "The letter of Casper Weitzel had been procured, and at a former trial given in evi- dence by the plaintiff, as containing facts midoubtcdly true, and as those on which, among others, he relied for recovery. Can it therefore be questioned that by the very act of giving it in evidence, he admitted ADMISSIONS. 483 c. To I'roi'c Uiiiisshiii to Make Claim. — And his tfstiinon\- may l)c used to prove an omission on his part to claim sometliing in the former case that he is now claiming, in which case the whole of the testimony must be read, although not material to the issue."' d. That Party JVas Compelled to Testify Iinmaterial. — It makes I'.o ditiference in respect of' the admissibility of the testimony of a jiarty that he was forced by legal process to become a witness and give such testimony ;"* nor that such testimony was illegally that every fact it contained was true? And if it cannot, is it not as little to be questioned that his an- tagonist might use this admission against him as soon as the effect of those facts was ascertained to be different from what it was first sup- posed to be? If the plaintiff were mistaken as to the trutli of such as- sertion, he would be permitted to disprove it, and that is all he could rcasonalily reipiirc; luit that the let- ter was competent and proper to go to the jury I have not the slightest doubt." 67. Offer of Testimony to Show Omission to Make Claim. — Tn Eaton V. Telegraph Co., 68 Me. 63, the disclosure made by a party to a suit as trustee in another action, was of- fered in evidence against him to show that he omitted to claim there- in to be the owner of the property he was suing to recover, and the evidence v.as held to be competent, the cou.t Sojing: "But the admissi- bility of the testimony upon which ihe verdict was founded is contested l)y the plaintiff. First, the trustee disclosure was objected to. VVe have no doubt that it was legally ad- mitted. It is insisted that it laid be- fore the jury many matters foreign to the issue. But it must be borne in mind that the point was to show what the disclosure did not contain rather than wliat it did contain, and therefore the whole of it was to be read in order to render the point available." 68. Chase v. Debolt, 2 Gil. (111.^ 371 ; Lilley v. Mutual Ben. L. Ins. Co.. 92 Mich. 153. 52 N. W. 631. Statute Forbidding Use of Testi- mony — But by a federal statute evi- dence obtained from a party or witness by means of a judicial proceeding in this or any foreign country cannot be given in evidence, or in any manner used against him or his property or estate in any criminal proceeding or for the en- forcement of any penalty or forfeit- ure. U. S. Rev. Stat., Sec. 860; Johnson v. Donaldson, 3 Fed. 22; Daly V. Brady, 69 Fed- 285. .'\nd it is held that independently of such a statute it would be con- trary to all precedent and the rules of law, to allow evidence so ob- tained to be used for such purposes. Johnson v. Donaldson, 3 Fed. 22; Atwill V. Ferrett, 2 Fed. Cas. No. 640. Similar statutes may be found in ■; ime of the states. Lapham v. .Marshall, 20 N. Y. St. 795, 3 N. Y. Supp. 601 ; Uhler v. Maulfair, 23 Pa. St. 481 ; Duseiibury v. Dusenbury, 63 IJow. Pr. 349. Examination in Supplementary Frooeedings With respect to the provisions of the Code of New York, prohibiting the use of an- swers to interrogatories in proceed- ings supplementary to execution in other actions, it was held in Lapham V. Marshall, 20 N. Y. St. 79s, 3 N. Y. Supp. 601, that the statements made by a witness under e.xamina- tion in a supplementary proceeding were privileged; and under the code and its amendments could not be used either in a civil or criminal action, but, by the amendment of 1881, the inhibition was removed so far as it related to civil actions, thereby making the statements of the witness competent evidence upon the trial of another civil action ; and that, as in that case, the party had testified before the amendment of the statute, she was protected by the statute then in force, from the use of her testimony in the civil action. Contra. — In criininal actions. Bar- ber V. People, 17 Hun (N. Y.) 366. Vol. I 484 ADMISSIONS. taken,'''' nor lluit llie party is present in court and niinlil lie called as a witness/" nor that the testimony o'iven on the former trial was incompetent.'^ e. Hotv Proved. — The proof of his previous testimonv ma\' be made by the party himself, or by any one else that heard it.'- 69. McGahan v. Crawford, 47 S. C. 566, 25 S. E. 123. Statute Forbidding xise of Testi- mony — In Uhler -t'. .Mauhair.. 23 Pa. St. 481, it was held that the ob- ject of the legislature of that state in passing the act, forbidding the use of testimony given in answer to any bill seeking a discovery in rela- tion to any fraud, or to answer as a witness in relation to such fraud was to remove every temptation to falsify from every person called upon to answer as to such fraud, and that upon that ground the answers given and offered in evidence were properly rejected. Testimony Illegally Taken Com- petent as Admission. — In Lilley v. Mut. Ben. Life Ins. Co., 92 Mich. 153, 52 N. W. 631, one had been ex- amined orally in the probate court, contrary to the .statute which pro- vided for written interrogatories; and upon the objection that testi- mony was illegally taken, and could not be afterwards introduced as an admission, the court said, that he gave his evidence as any witness would have done, and did not seem to have been scared or misled into saying anything to his detriment. There was no reason to suppose that his evidence was different from what it would have been had he testified at his own free will, al- though he had objected to the juris- diction of tlie court. Testimony of a Married Woman Illegally Elicited Before a Grand Jury — In Wilson v. Hill, 13 N. J. Eq. 143, it is held that what a party testifies before a grand jury, ap- pearing there under a subpoena and compelled to testify, the testimony being illegal because given against her own husband, cannot afterwards be offered against her as an admis- sion. But see Carter v. Buckner, 3 Blackf. (Ind.) 314; Carter v. Ed- wards, 16 Ind. 238; McKcnzie v. Reneau, 8 Rlackf. (Ind.) 411. 70. I'liuldee j'. Sp.'ingler, 12 Colo. Vol. I 216, 20 Pac. 760; Lorenzana v. Ca- marillo, 45 Cal. 125 ; Phoenix Mut. L. Ins. Co. V. Clark, 58 N. H. 164. ■71. Maclay v. Work, 10 Serg. & R. (Pa.) 194. 72. Pickard v. Collins. 23 Barb. 444; German Nat. Bank v. Leonard, 40 Neb. 676. 59 N. W. 107. How Former Testimony May be Proved.— In the case of Chase v. Debolt, 2 Gil. (111.) 371, the suit was originally brought before a justice of the peace, and was appealed to the Circuit Court, and there tried. On the trial before the justice. Chase became a witness. On the trial in the Circuit Court, the court permit- ted the justice to testify to what Chase had sworn on the trial before him, and this was assigned as error. In passing upon the admissibility of this evidence, the court said ; "One witness cannot testify to what an- other witness had sworn on a for- mer trial, especially when that wit- ness is alive and may be called, for this would be hearsay, if offered as evidence in chief. But the rule does not extend to the admissions of the party. What the party may have stated, although under oath as a wit- ness, is most clearly admissible as as an admission, although compul- sory. 2 Stark. Ev. 22 ; i Camp. 30 ; 4 Jo. 10; 4 Esp. C. 172, 212; Atk. 200; Cook 200; II Ves. 521 ; i Stark. C. s66; 3 Eng. Com. Law R. ,385; i Phil. Ev. 89; 2 Phil. Ev. 161, note 170. "The decision in 3 Bl;ickf. 315, to the contrary, I do not regard as sound law, nor reconcilable with principle or tlie Ijooks. Surely the additional solenmity and sanction of an oath to the admission ought not to destroy its credit or its admissi- bility; otherwise, all answers to bills of discovery, and analagous cases, would be e.xchided as incompetent. An examination, therefore, although compulsory, will not exclude the ad mission that may be made " Minutes of Defendant's Testimony UK]nssioNS. 485 The minutes of the stenographer are not competent unless proved to be correct. ''•' f. Evidence Iiiiprof^eiiy Taken Conif'etent. — It makes no differ- ence as to the com]K'tency of tlie evidence tliat the testimonv was niit taken in the manner required by law.'* g". Party Need Not Be Called to Testify. — It is not necessary to call the party himself, or to direct his attention to the testimony fjiven by him. It is not impeaching but original evidence against him, and provable like any other admission.'^ h. 'I'estiniony of T/iird Party Not Competent. — .\s a rule the testinion\- of a third party is not competent, being, like other decla- on Former Trial. — In Johnson v. Powers, 40 Vt. 611. tlie plaintiff of- fered to read tlic minutes nf the de- fendant's own testimony, given at a former trial, which minntes the counsel testified were correct, except that they did not contain the cross- examination ; and it was held that the defendant, beinp; present at the trial under revision, and not show- ing that the cross-examination qualified the examination in chief, such minntes were admissilile. Minutes of the Judge as Evi- dence of Testimony Given In Fitz Patrick v. Fitzpatrick, 6 R. I. 6_|. 75 Am. Dec. 681, it was permitted to prove testimony of a witness by the judge's minutes, the court saying that such minutes are taken by every judge as a necessary part of his duty, not only to enable him to in- struct the jury, or to sum up to the jury, but for use on motions for new trial. That to apply to such min- utes the strictest rule with regard to vohmtary memoranda would be to prevent the use of them as a source of evidence for the numerous and important purposes for which they are needed; for no judge, speaking generally, could testify farther than to identify his minutes as written by him at the time, and that he believed them to be correct. The presumption is that they are correct and should be admitted as evidence with such verification as in the nature of tilings is possible. Record of Other Jiction Need Not be Produced — When tiio evidence of a witness on a former trial, who is dead or absent, is proper to be introduced as evidence between the same parties on another trial upon the same subject matter, the record nuist of necessity 1)e introduced to show the fact of the trial and of the identity of the parties and of the subject matter. But that principle has no applica- tion where the testimony of the party is offered to show his own admission. Tlie witness in narrat- ing such testimony of the party, must stale it from memory and can- not read his notes as evidence, or must state that on recurring to his notes they contain substantially what the party said. Kutzmeyer v. Ennis, 27 N. j. Law 371. 73. Misner v. Darling, 44 Mich. 438, 7 N. W. 77- Reporter's Notes Not the Best Evidence — In German Nat. P.auk V. Leonard, 40 Neb. 676, 59 N. W. 107, the question arose as to the proper manner of proving what had been testified to by a witness on a foriuer trial. It was offered to prove what was said by a witness wlio heard the testimony given. This was objected to on the ground that the testimony was taken down by a shorthand reporter, and that his notes of the testimony given were the best evidence. But it was lield that the reporter's notes were not the best evidence, as claimed, and that the oft'ered evidence was competent. 74. Lillcy V. Mut. Ben. L. Ins. Co., 92 Mich. 153, 52 N. W. 631. 75. I.oel) r. Peters, 63 Ala. 243, 35 Am. Rep. 17; Fisher v. Monroe, 2 Misc. 326, 21 N. Y. Supp. 995; Ed- dings V. P.oner, I lud. Tcr. 173, 38 S. W. mo; Louisville & N. Ry. Co. V. .Miller, IQ Ky. L. Rep. i66s, 44 S. W. 119. Vol. I 4S() .iDMissioys. rations of third parties, mere hearsay.'"' i. Exceptions. — Assent of Party to Correctness. — Cut the party may give his assent to statements testified to by another in such way as to make them his own admissions. In such case they are com- petent upon a showing of such assent to, or acknowledgment of their truth.'" The mere fact that he heard the testimony of another in a case of his own, and expressed no dissent, is not enough to render the testimony competent.'* j. Por Purpose of Iinpcacliuicut. — As against one not a party, l)ut a witness only, testimony given by him at another time may be given in evidence, the proper foundation being laid therefor, not as an admission, but for the purpose of impeachment.'" k. Testimony on Trial Not an Admission. — The testimony of a party to the suit cannot be taken as an admission, in that action, of the truth of any fact, but only as evidence, like that of any other witness in the case.'" 76. Recckman v. Montgomery, 14 N. J. Eq. 106, 80 Am. Dec. 229; I^ormore v. Campbell, 60 Barb. 62. 77. Recckman v. Montficniery. 14 N. J. Ea. 106, 80 Am. Dec. 229; State V. Gilbert. 36 Vt. 145. Testimony of an Agent or Em- ployee, yivcn at a former trial, is not generally competent apainst tbe principal at a snbscqnent trial. Sa- vannab &c. Rv. Co. v. Flannagan, 82 Ga. 579. 9 S. E. 471. 14 .'Vm. St. Ren. 18.3 ; Denver &c. Co. v. Watson, 6 Colo. App. 429. 40 Pac. 778. Admission of Truth of Testimony of Third Party — Tims it is said in State V. Gilbert. 36 Vt. 14.';: "But if a party wbo has beard a witness testify admits that what tbe witness testified is true, be may thereby make tbat testimony evidence against bim, not as independent evi- dence, bnt as explanatory of tbe ad- mission. It becomes by reference a part of tbe admission and it admis- sible for the purpose of interprctins: it. A letter written by another would not be evidence against a party; but if tbe party on reading it. says that tbe facts stated in it are true, it be- comes evidence in connection with the admission, not as evidence of the truth of the statements it con- tains, but to show what the party acbuitted." Testimony of a Third Party Com- petent if Acquiesced In Tn Reeok- man v. ATontgomery, 14 N. J. Eq. 106. 80 .'\m. Dec. 229. the court in Vol. I passing upon this question said: "Tbe examination of Andrew Mont- gomery, taken in a cause wherein be was defendant at tbe suit of these coiTipIainants, by virtue of an order of a justice of tbe Supreiue Court, under the act to prevent fraudident trusts and assignments (Nix. Dig. 2^i) is not l^er sc competent evi- dence. Tt is not competent as the testimony of a deceased witness in a former action, for the cause is not between tbe same parties ; nOr as an admission of a privy in blood, or in estate. . . . The examination is. however, ren- dered competent by the subsequent examination of Ebenezer Moutcom- ery. who was nresent at and beard read the examination of his father, and assciiied to the truth of its'-tate- nients. Tbe facts stated, therefore, liy the father, so far as they are with- in the knowledge of tbe defendant, are admitted by him to be true." 78. Sheridan r. Smith. 2 Hill (N. Y.) 538. 79. Mc.\ndrews 7'. Santep. 5:7 Barb. 193; Omaha Sic. Smelting & Ref. Co. V. Tabor. 13 Colo. 41, 21 Pac. 02=;. 16 .^m. St. Rep. i8s, 5 L. R. A. 236. 80. Ephland v. Mo. Pac. Ry. Co., 57 Mo. App. 147. 71 Mo. App. 507. Testimony of Parties In Case on Trial Not Admissions. — Tn ATa'tbews 71 Storey. 54 Tud. 417. tbe parties to the action testified therein as wit- nesses. The court below, in an in- .■ii\]frssfONS. 4S7 statutes Forbidding Use of Testimony. — In some cases sUitutcny l)rovisions, reiiderino- testimony givfn in one action or ])roceedini;' incompetent in another, have been enacted the better to insure free and candid disclosures by the party examined.*' l\r. In Dkpositions. — a. Generally. — Any statements made by a party in a deposition given by him, material as admissions, may be introduced as evidence of such admissions, in the cause in which the deposition was taken, or in any other action. '- slrnctioii, troatcil the stalcnicnts of the parties as witness as adniissioiis of the fact testified to. In passing upon the correctness of this instruction, the court said; "This testimony of the two parties would go to the jury as evidence tending to prove the facts therein stated, but not as facts admitted or to take the place of facts as proved, as the court in the instruction com- plained of stated. The testimony of parties to a suit must be regarded as evidence, not as facts admitted. It seems to us that the court commit- ted an error in giving the instruction to the jury." But see Coit v. Wa- ples. I Minn. 134: Cal. Elec. Wks. v. Finck, 47 Fed. 583 ; Mason v. Poul- son, 43, Md. 161 ; De Clercq v. Mun- gin, 46 111. IT2. 81. Uhler V. Maulfair. 23 Pa. St. 481 ; Lapham v. Marshall, 20 N. Y. St. 79$, 3 N. Y. Supp. 601 ; Dusen- bury I'. Dusenbury, 63 How. Pr. 340; Johnson v. Donaldson, 3 Fed. 22; Atwill I'. Ferrett, 2 Fed. Cas. No. 640; Daly v. Brady, 69 Fed. 285. 82. United States. — 'Lastrapes v. Blanc, 3 Woods 134, 14 Fed. Cas. No. 8,100; Cambioso v. Moffett, 2 Wasli. C. C. 98, 4 Fed. Cas., No. 2. 330. Alabama. — Ilallett v. O'Brien, i Ala. (N. S.) 585. Kansas. — Moore v. Brown, 23 Kan. 269. Massachusetts. — Knowlton v. Mosely, 105 Mass. 136; Judd v. Gibbs, 3 Gray 539. Missouri. — Charleson v. Hunt, 27 Mo. 34; Kritzcr v. Smith, 21 Mo. 296; Bogie V. Nolan, 96 Mo. 85; Padley v. Cattcrlin, 64 Mo. Apn. 629; State V. Bank, 80 Mo. 626; Zimmer i'. l\TcLaran, 9 Mo. App. 591. Nezv Han: I shire. — Brewer ■:■. Hyndman, 18 N. II. 9; Phoenix Mut. L. Ins. Co, V. Clark. 58 N. H. 164. Ncii< York. — Lapham z>. Marshall, 51 Hun 36, 3 N. Y. Sunn. 601. South Carolina. — McGahan v. Crawford. 47 S. C. 566, 25 S. E. 123. Texas. — Edwards v. Norton, '^5 Tex. 40=;; Chaddick v. Haley, 8i Tex. 617, 17 S. W. 2^^; Bilger 7'. Buchanan ("Tex.") 6 S. W. 408; Parker v. Chancellor, 78 Tex. 524, 15 S. W. 157. •I'irginia. — ^Hatcher ■:■. Crews, 78 Va. 460. For What Purpose Admissible in Another Action In Last rapes f. Blanc, 3 Woods 134, 14 Fed. Cas. No. 8,100. it was held that the depo- sition of the defendant, taken in an- other cause, was admissible either to contradict as oral evidence given on the trial or as an admission by him. A Deposition in Insolvency Pro- ceeding by one not in custody and not then charged with crime, is admissible against him in a crim- inal proceeding. People ■:•. Wieger, 100 Cal. 352, 34 Pac. S26. Statement in Deposition Admissi- ble Although Party Has Testified State -.■. Bank, 80 Mo. 626. Deposition May be Explained, and it may be shown that certain state- ments made were for some reason omitted from the deposition, the deposition, like other admissions, is not conclusive. Boardman v. Wood, 3 Vt. 570. Deposition of Party Since De- ceased — In Chaddick v. Haley. 81 Tex. 617, 17 S. W. 233, it was held that a deposition of the testator taken in another action was properly admitted on the contesting of his will, to show the cause of his es- trangement from his disinherited child ; and that it was immaterial whether the deposit in:i was prop- Vol. I 488 inMissioxs. 1). Wlirii Dcl^ositioii Iiicuinpctcnt .Is Siiiii. — And tlie statements made in a deposition may be read in evidence against a party upon proof that he made such statements, aUhough the deposition lias been suppressed and is no longer competent evidence as a depo- sition, or is incompetent as a deposition for other reasons. ^^ c. \y/icrc Parly in Court. — And although the party is in court and might be called as a witness,*'^ or might legally have declined crly taken or not where no objeclion was raised on the jrronnd that tlie statements therein contained were not made by the testator. 83. Parker z'. Chancellor, 78 Tex. 524, 15 S. W. 157; Moore v. Brown. 23 Kan. 260; Hatch v. Brown, 63 Me. 410; INTcOahan v. Crawford, 47 S. C. 566, 25 S. E. 123: Carr r. Oriflfin, 44 N. H. 510: Bilger v. Bu- chanan (Tex."), 6 S. W. 408; Faiince V. Gray, 2T Pick. (Mass.) 243; Zim- mer v. McLaran, g Mo. App. 591. Not Properly Taken Admissible as Admission — Tlic rule is ihiis slated in ledger v. Buchanan (Tex.) 6 S. W. A08: "Ohiection was made to reading Bilger's depositions in the case between O'Hara and Bonner. The objection amounted to ihis; That the depositions were not properly taken, as is required in case of denositions fiven under the statutes. It is not objected that the statements of Bilgerwere not proven by the testimony of the officer be- fore whom they were made. Bil- ger's admissions made in those depo- sitions were good teslimouy aL'aiusl himself. It mattered not that there was no commission, or whether they were made under oath before a proper officer. If they had been made privately to an individual, they should have been received, if proven by the party in whose presence they were made. . . . Thiy were prop- erly admitted." 84. Meyer v. Campbell, 48 N. Y. St. 666, 20 N. Y. Supp. 70s; Phoenix Mut. L. Ins. Co. V. Clark, 58 N. H. 164 ; Bogie i: Nolan, q6 Mo. 8=;, 9 S. W. 14; State V. Bank, 80 Mo. 626. Presence of Party in Court Im- material — In Charleson !■. Hunt, 27 Mo. 34, plaintiff was permitted to read in evidence the deposition of a defendant who was present in court under a subpoena and ready to testify, the court holding that the statute which gives the right to ex- amine an adverse party as a witness did not exclude ordinary means of proof, and that it is competent to prove, as admission, oral or written statements of the party, though he might be called as a witness. Where Canse for Using Deposition No longer Exists In Hatch v. Brown, 63 Me. 410 it is said that Revised Statutes, Chap. 107, Sec. 17. providing that a deposition shall not be used at a trial if the adverse party shows that the cause for tak- ing it no longer exists, simply means that it shall not be used as a depo- sition ; that the enactment has no application to the deposition of a party. It was only as a paper con- taining his written deposition that the paper was offered and received. However obtained they are com- petent evidence subject to such ex- planations or additions as he might be able to make. Deposition Incompetent as Such. In Meyer v. Campbell, 48 N. Y. St. 666, 20 N. Y. Supp. 705. it is said: "Defendant's counsel also of- fered in evidence plaintiff's depo- sition, taken dc bene esse. . . . This also was excluded, under ob- jection and exception by defendant's counsel. The deposition was, as a matter of course, not competent in plaintiff's favor, since he was pres- ent on the trial ; but the same prin- ciple which rendered the allegations of the original complaint competent evidence for defendant as declara- tions made by plaintiff at variance with his claim on the trial applied to the deposition, and its exclusion was tlierefore error," Vol. I ADMISSIONS. 4S9 to depose as a witness,'''^ or was incompetent to testify.*" (1. Not Conclusive. — 1 hit when tlie statements made in a depo- sition are offered as an admission they are not conclusive, but may be disproved or explained like any other admission.*'' e. Whole Must Be Read. — The g-eneral rule is that the whole of the deposition must be offered.** f. E.rceptions to the Rule. — An exception to the rule admitting depositions as admissions has been made, in some cases, by statute, where the deposition has been taken to perpetuate testimony.*" .Sf. Party Need Not Be Called. — Tf the deposition is of a party to the suit, it is not necessary to call his attention to it, or to ask him if he made such statements as it contains. It is competent as evidence of an admission, and not for the purposes of impeachment only."" N. Answers to Interrogatories. — Answers of a party to inter- rogfatories in an action in which he is a party are competent as admis- sions against him, not only in that action, but in any other action to which he is a party, where the statements made in such answers are material to the issues in the cause on trial."' 85. Where Party Might Have Refused to Depose In Helm v. TTandley. i Litt. (Ky.') 2IQ. it if^ ?aid the law. in some instances, indulges witnesses in the privilege of not de- nosing, where their own interest may he affected ; hut wherever they do depose to facts which may affect them in another controversy, we are aware of no rule which precludes their testimony from being used against them in such contro\'ersy. 8S. Where Deponent Incompe- tent as a Witness In Paunce v. Cray 2i Pick. (Mass.') 24,-?. it ap- peared that a deposition had not been taken in compliance with the statute, and it was the deposition of a defendant who was incompetent as a witness, and the court said: "Rut the confessions of executors and administrators are competent evidence against themselves in any suit by or against them in their rep- resentative character. Emerson v. Thompson. if> Mass. R. a20: Atkins T'. Sanger, i Pick. ig2 ; Hill v. Buck- niinster, 5 Pick. .TOI. And we can discover no reason for excluding the written statement of the defendant from the operation of this rule." 87. Boardman v. Wood, t, Vt. 570 88. Whole Deposition Must be Read — In Kritrcr v. Smith. 2T Afo. 20(^. .■?oi. it is said : ".^s the depo- sition was read as an admission, reg- ularly, the party readin? it should have read the whole. The distinc- tion is that, when an answer is read as part of the pleadings in the cause in which it is filed, only such parts may be read as the narty desires ; but when it is taken from the cause in which it is filed and read in an- other proceeding, as an admission, there the whole of it must be read by the narty offering it. 89. Dwinel v. Godfrey, 44 Me. 65. But thi.s is only by virtue of a stat- ute to that effect. The general rule annlies to depositions taken for such purnosp. Faiince v. Gray, 21 Pick. CMass.1-2M; McGahan v. Crawford, 47 S. C. s66, 25 S. E. 12.-!. 90. Phoenix Mut. L. Ins. Co. v. Clnrk. c8 N. H. 164. 91. Alabama. — Gay 7: Rogers, 100 Al.n. 624. 20 So. 77. Florida — Tacksonville T. & K. Rv. Co. V. Peninsula L. T. & M. Co.. 27 Fla. 1. 157, g So. 661, 17 I- R- A. Genrsia.—WhMock v. Crew. 28 Ga. 2R0. Louisiana. — Alford v. Hu.ghcs, 14 T.a. Ann. 727; Murison v. Butler. t8 La. Ann. 107. MniHC— Jewett v. Rines. .10 Me, 9; AForrell v. Rogers. T Greenl. 328. ]\fassnrliiisrtt.';. — Williams v. Che- Vol. I 490 .IPMfSSJONS. And they may become competent and material for the purpose of contradicting the party making the answers, as a witness in that or any other case, whether a party to the action or not. b. Bills of Particulars. — A bill of particulars furnished by one party to a suit to another is competent evidence of an admission."- P. By Default. — Generally. — Where a defendant, after legal service, fails to answer, and thereby suffers a default, he admits or confesses all of the material allegations of the complaint well pleaded, except tlie amount of damages alleged."'' ncy, 3 Gray 215 ; Nichols v. Allen. 112 Mass. 23. Missouri. — Utiev v. Tolfree, 77 Mo. 307. Pcnnsvh'ania. — IMalone}' v. Davis, 48 Pa. St. S12. 92. I,ee v. Heath, 61 N. J. Law, 250. 39 Atl. 729. 93. England. — Green v. Hearne. 3 D. & E. .-^oi ; Skelton v. Hawling, i Wil.son 258. United .9/a/c.s. — Dickson v. Wilk- inson, 3 How. S7 ; Clements v. Berrv. II How. 398:' Miller v. U. S., 11 Wall. 268: McAllister v. Knhn, 96 U. S. 87 ; Oregon Rv. Co. v. Oregon Ry. & Nav. Co., 28 "Fed. 505. Alabama. — Powell v. Washington, 15 Ala. 803; Garrow v. Emanuel. 3 Stew. 285 ; INTcGehee v. Childress. 2 Stew. 50(5; Mannd 7'. Loeh, 87 Ala. 374, 6 So. 376: Ledhelter, etc. v. Vin- ton, 108 Ala. 644. 18 So. 602. Arkansas. — Johnson v. Pierce, 12 .'\rl<. =0Q ; Hershy ?'. MacGreevv. 46 Ark. 498. California. — Hntchings v. Eheler. 46 Cal. 557 ; Himnielmann v. Spana- gel, 39 Cal. 401 ; McGregor 7'. Shaw, II Cal. 47; Cnrtis 7'. Herrick, 14 Cal. 117; Rowe V. Table ]\rt. Water Co., 10 Cal. 441. Colorado. — Hoyt 7'. Macon. 11 Colo. 113; Weese v. Barker, 7 Colo. 178, 2 Pac. 919. Connecticut. — Shcpard v. New Haven, etc. Co., 45 Conn. 54; Hav- ens V. Hart, & N. \\. R. Co.," 28 Conn. 69; Martin 7'. New York & N. E. R. Co., 62 Conn. 331, 25 Atl. 239; Welch 7'. Wadsworth, 30 Conn. 149; Star Cash, etc. Co. 7'. Starr, 69 Conn. 440. 37 Atl. 1057. Delaware. — Randell v. Chesapeake & Del. Canal, i Harr. 233; Maeklin V. Ruth, 4 Harr. 87. Plorida. — Russ v. Gilbert, 10 Fla. 54- Vol. I Illinois. — Tucker v. Hamilton, 108 111. 464; Binz 7'. Tyler, 79 111. 248; Morton 7'. Bailey, i Scain. 213 ; Greenup v. Woodworth, Breese 232; Peck 7'. Wil.son, 22 111. 205 : Cook 7'. Skelton, 20 111. 107: Underbill v. Kirkpatrick. 26 III. 85': Rietzell v. Peonle. 72 111. ai6; Madison County 7'. Smith, 9^ 111. 328; Garrison 7'. People. 21 Til, 53';; Phociii\- Ins. Co, V. Hendrick, 73 111. .\np. 601 ; Cut- right 7', Stanford. 81 111. 240, Indiana. — Cravens 7', Duncan, 55 Tnd. 347; Fisk 7', Baker, 47 Ind. S34; Briggs 7'. Sneghan, 45 Ind. 14; Peo- ple r. County Court. 10 Ind. 19; Hub- Iiard 7'. Chappel. 14 Ind. 601 ; Ein- erv V. Evansville T. C. R. Co,, 13 Ind, 143: Goble V. Dillon. 86 Ind. 327. Iowa. — Greeley 7'. Sample, 22 Iowa 3.38: Pfantz 7'. Culver, 13 Iowa 312; Johnson 7'. Mantz. 69 Iowa 710, 27 N. \\'. 467; Warthen 7'. Himstreet, I12 Iowa 605, 84 N. W. 702. Kansas. — Breiuicr 7'. Bigelow, 8 Kan. 496. Maine. — Thompson v. Gilmore. 50 Me. 428; Ellis 7'. Jameson, 17 Me. 235- Maryland. — Kiersted 7'. Rogers, 6 Har. & J. 282. Massachusetts. — Folger 7'. Fields. 12 Cush, 03; Gardner -■, Field. I Gray 151. .l//»)i«()/(J.— Dond 7'. Dnluth Mill- ing Co.. 55 Minn, 53, 56 N, W. 463; F.xlev V. Berrvhill, 37 Minn. 182, 33 N. W. 567. .Mississifpi. — Claiborne 7'. Plant- ers' Bank, 2 How. "27; Winn v. Levy, 2 How. 902. Missiinri. — Moore 7'. Sauborin, 42 Mo. 490. Montana. — Second Nat. Bank v. Kleinschmidt, 7 Mont. 1.1(1, 14 Pac. 667. Nebraska. — Hardy v. Miller, 11 Neb. 395, 9 N. W. 47.S ; German Am. ADMISSIONS. 491 ]'*xcc])ti(ins ti) the general nik- ari' SDiiK'tiiiu's niailc l)v statute. "' When Equivalent to Confession of Judgment. — In some of the Bank V. Stickle, 59 Neb. t,2\. 80 N. W. QTO; Slater v. Skirviiig, 51 Neb. 108, 70 N. W. 493. Nevada. — Evving v. Jennings, 15 Nev. 379. Nn^' Haiiif'sliirc. — Toppan's Peti- tion, 24 N. H. 43; Hnntress r. Ef- fingham, 17 N. H. 584; Parker r. Roberts, 63 N. H. 431. New Jersey. — Creamer v. Dike- man, 39 N. J. Law 195. Nczc Me.rieo. — Metzger v. Wad- dell, I N. M. 400. Ne-M York. — McGnire v. Ulrich, 2 Abb. Pr. 28; Stelle v. Palmer, 11 Abb. Pr. 62. North Camlina. — McDowell v. As- bury, 66 N. C. 444; Parker v. Smith, 64 N. C. 291. Ohio. — McKinzie v. Perrill, 15 Ohio St. 162. South Carolina. — Frean v. Cruik- shanks, 3 McCord 84. Tennessee. — Mississippi, etc. R. Co. V. Green, 9 Heisk. 588; Hall r. Mount, 3 Cold. 73; Union Bank r. Hicks, 23 Tenn. 326. Te.vas. — Watson v. Newshani, 17 Tex. 437; Boles t'. Lintbicum, 48 Tex. 220; Guest v. Rhine, 16 Tex. 549; Willard z'. Conduit, 10 Tex. 213 ; Long V. Wortham, 4 Tex. 381 ; Johnson i'. Stallcup, 41 Tex. 529; Clark V. Compton, is Tex. 32; Focke V. Sterling, 18 Tex. Civ. App. 8, 44 S. W. 611; Hawkins r. Haney, i Tex. App. 395 ; Johnson r. Dowling, I Tex. App. 6m; Belcher z: Ross, x^ Tex. 12. What Default Admits In Binz r. Tyler, 79 111. 248, it is said: "The remaining objeclion urged, that the verdict was contrary to the evidence can not be considered. The judg- ment was on the demurrer, for de- fault of plea. The defendant, by IK-rmitting judgment thus to be given, was so far out of court that he was entitled to cross-examine wit- nesses for the purpose of reducing the damages, only, and it was not admissible for him to make a de- fense to the action. The demurrer admitted every material allegation in the declaration, and nothing was left lo be inquired into but the amoinit i)f damages sustaine' for the purpose of as- sessing the amount due the plain- tiff. The jury is necessary only when the damages of the plaintiff are un- liquidated. A judgment by default amounts to an achnission of the truth of the facts charged; the facts set out in the petition are to' be taken as proved and admitted, (4 Tex. 381 ; 21 Id. 508) ; and there is noth- ing to prevent the court from making a decree without reference to a jury. •(3 Tex. 305: 10 /(/. 213; 16 Id. 549; 17 Id. 438.)" 11. Briggs T'. Sneghan, 45 Ind. 14. Does Not Admit Amount of Dam- ages.— In Goble 7'. Dillon. 86 Ind. 327, it is said: "A default admits the cause of action and all tlic ma- terial and traversable averments of the complaint. As to the amount sued for in such an action as that of Hobbs, which was upon a Quantum meruit, a default admits that some- thing is due the plaintifT from the defendant, but no more than a nom- inal amount. Upon an assessment of damages after a default, the de- fendant can not, for the purpose of defeating a recovery, prove that the contract sued on was not performed, or any substantive defense as such, so as to secure a judgment for the defendant as to the cause of action. Evidence wdiich, under a general denial, might defeat a recovery by the plaintifif, will not, after a default, have that eflfect." Rights of Party After Default. The doctrine as to the rights of a party after default taken against him is thus declared in Loeber r'. Dela- haye, 7 Clark (Iowa) 478: "A de- fendant, being in default, admits the right of the plaintiff to recover. While in this attitude, his rights are exceedingly circumvented by the ex- press language of the code. The pro- ceeding is substantially in the hands of the plaintiff. While the default continues, the plaintiff has nothing to do, but to prove his damages. In doing this, his proof will, of course, vary according to the nature of his cause. If a defendant is in default, however, he cannot claim that plain- tiff is entitled to recover nothing. He is, at least, entitled to nominal damages. In the adjudication of the question, whether he is entitled to more, the defendant is given the right to appear and cross-examine witnesses. If he would do more, he must first remove the default. These remarks are made in view of the ob- jection of appellants, that the petition is insufficient to authorize the judg- ment. We are clear that it is not so wanting in substance, as that the ob- jection can avail a party in default." And in Frabue i\ Stonuni, 20 Tex. 453, it is said that '' if the claim set forth be in writing and liquidated, the amount to be recovered by the plaintiff is still an open question to be determined by the clerk, unless a jury is asked for by either party." The action was one in which the clerk was, by statute, authorized to assess the damages in case of de- fault. Rights of Defendant After De- fault In Fisk V. Baker, 47 Ind. 534, it is held that " a party who has suffered a judgment to be rendered against him by default has no stand- ing in court except for two purposes. The one is to have the default set aside and the other is to appear and contest the amount of damages." Damages Assessed by Clerk — In some of the states provision is made for the assessment, or ascertainment of the damages by the clerk. But this is confined to cases wdiere the amount can be ascertained from the complaint; is a purely ministerial act. and must rest upon the rule that, being certain and liquidated, the amount is admitted by the default. Alexander v. McPow, 108 Cal, 25. 41 Pac. 24. Vol. I 496 .IDMISSIONS. tory provisions relating to the effect of a default, and the power of the clerk to enter judgment without proof.^- Special Defense, When Allowed. — Under the Statutes of some of the states a defendant, resting under default, is permitted to inter- pose a special defense affecting the damages and reducing the amount of the recovery to a nominal sum.'' Value Not Admitted. — In actions for damages for a tort, or other actions invol\-ing the value of property, a default does not admit the vahie alleged, but the value must be proved.''' When Admits Cause of Action. — If the declaration or conlplaint states facts sufficient to constitute a cause of action, and withstand a general demurrer, the default admits a cause of action, and a judgment may be rendered on such admission, but not otherwise." 12. Billiard z: Sherwood, 85 N. Y. 253; McMullin ?■. ]\Iackey, 25 N. Y. St. 265, 6 N. Y. Supp. 885 ; Lazzanme V. Oishei, 49 N. Y. St. 520, 21 N. Y. Supp. 267; Vorzimer v. Shapiro, 6 Misc. 143, 26 N. Y. Supp. 53 ; Cole v. Hoeburg, 36 Kan. 263, 13 Pac. 275; Cobb f. Dunkin. 19 How. Pr. (N. Y.) 164. 13. Brcnnan v. Berlin Iron Bridge Co., 71 Conn. 479. 42 Atl. 625; Oc- kershausen v. New York, N. H. & H. R. Co., 71 Conn. 617, 42 Atl. 650. 14. Warren v. Kennedy, i Heisk. (Tenn.) 437; City of Guthrie v. Har- vey Lumber Co., 5 Okla. 774, 50 Pac. 84; Slater v. Skirving, 51 Neb. 108, 70 N. W. 493 ; Parker v. Smith, 64 N. C. 291 ; Haley v. Kureka Co. Bank. 21 Nev. 127. 26 Pac. 64. What Default Admits In Rose 7'. Gallup, 33 Conn. 338, the rule is stated as follows: "A default in such a case would admit no more than what would be sufficient to decide the case in favor of the plain- tiff, upon the plea of the general issue. It is simply an admission, on the part of the defendant, that he is unable to make a complete defense. " We are satisfied that no case can lie found which goes farther than this, that in a case like the present a default admits a liability for the removal of some one of the articles described in the declaration, and without further proof nominal dam- ages only can be given. Havens v. Hartford & New Haven R. R. Co., 28 Conn. 69; BoUes v. Loomis, 5 Wend. 134; Green v. Hearnc, 3 T. R. 301. Vol. I "It would seem to follow, as a nec- essary consequence, that if nominal damages only can be given without further proof, the defendant may contest his liability, so far as the plaintif!^ seeks by proof to enhance the damages beyond a nominal sum'." 15. England. — Bowdcll 7'. Par- sons, 10 East 359. United States. — Cragin v. Lovell, 109 U. S. 194; McAllister v. Kuhn, 96 U. S. 87. Alabama. — Randolph v. Cook, 2 Port. 286; Napper v. Noland. 9 Port. 218; Cater 7: Hunter, 3 Ala. 30; McGchee i'. Childress, 2 Stew. 506. Arkansas. — Chafifin v. McFadden, 41 Ark. 42; Johnson ?'. Pierce, 12 Ark. 599. California. — Harlan i'. Smith, 6 Cal. 173; People j'. Rains, 23 Cal. 127 ; Hammon v. Ashmead, 60 Cal. 439; Hunt ?•. San Francisco, 11 Cal. 250. Colorado. — Hoyt v. Macon 11 Colo. 113. Connecticut. — Shepard v. New Haven etc. Co., 45 Conn. 54; Whipple V. Fuller, n Conn. 582. Delaware. — Macklin v. Ruth, 4 Harr. 87. I'lorida. — Russ v. Gilbert, 19 Fla. 54 ; Hcllen v. Steinwender, 28 Fla. 191. 10 So. 207. Illinois. — Bragg v. City of Chi- cago, 73 111. 152; Madison Co. v Smith, 95 111. 328; Chicago & N. W. R. Co. V. Coss, 73 III. 394; Cutright V. Stanford, 81 111. 240; Thompson V. Dearborn, 107 111. 87. Indiana. — Smith i'. Carley, 8 Ind. j-i; Globe Ace. Ins. Co. v. Reid, 19 Inil. App. 203, 47 N. E. 947; Sloan ADMISSIONS. 497 I'lUt the default does waive mere defects or irregularities in the V. Faurot, II Ind. App. 689, 39 N. E. 539- /oicn. — Locber v. Delahaye, 7 Clarke 478; Wartlien v. Himstreet, 112 Iowa 605. 84 N. W. 702; Whittey f. Douge. 9 Iowa 597 ; Bosch v. Kas- sing, 64 Iowa 312, 20 N. W. 454. Kansas. — St. Louis & S. F. Ry. Co. J'. McReynolds. 24 Kan. 368; Zane -■. Zane, 5 Kan. 134. Keiitiickv. — Gould V. Bonds, i Bush 189. " Massnchusctts. — Mollis f. Richard- son, 13 Gray 392. .Mississi/'fii. — Clail)orne i'. Planters' Bank. 2 How. 727 ; Winn v. Levy, 2 How. 902 ; Winston r. Miller. 12 Snied. & M. 550. Missouri. — Robinson j'. Missouri R. etc. Co., 53 Mo. 435. Nebraska. — Slater v. Skirving, 51 Neb. 108. 70 N. W. 493. Nd'ada. — Ewing v. Jennings, 15 Nev. 379. Ne-.i' York. — Argall z: Pitts, 78 N. Y. 239; Shields r. Clement. 67 N. Y. St. 370, 3i N. Y. Supp. 676. Oregon. — Bailey v. Malheur etc. Ins. Co. (Or.), 57 Pac. 910; Mitchell ■z'. Silver Lake Lodge, 29 Or. 294, 45 Pac. 798. Tennessee. — Miss. etc. R. Co. ?'. Green. 9 Heisk. 588. Te.ras. — Hall i'. Jackson. 3 Tex. 305: Goodlett z: Stamps, 29 Te.x. 121; Boles z'. Lilhicum, 48 Tex. 220; Ishmel z: Potts (Tex. Civ. App.), 44 S. W. 615; Andrews z: Union Cent. L. Ins. Co.. 92 Tex. 584, 50 S. W. 1/2; McCulIan z'. Worchison (Tex.)," 40 S. W. 545; Thighen v. Mnndine, 24 Tex. 282. When Complaint Does Not State a Cause of Action. — In 1 lall z\ Jack- son, 3 Tex. 305, it is said : " That the present was a judgment by de- fault, cannot alter the case, or dis- pense with the rule which requires that the proofs shall conform to the allegations: and that the latter must be sufficient to constitute a legal has s on wdiich to predicate the judgment. The defendants, not liaving appeared, can be deemed to have waived noth- ing which was essential to the plain- tiff's title and right to recover. " In Virginia, it has even been held, that the statute of jeofails, does 32 not apply to cure errors and defects in the proceedings, in cases of judg- ments by defaults ; and that defects which would be cured by verdict in other cases, will, in these, be held fatal. (3 Leigh. 270.) But without going quite this length, it may safely be asserted, that to maintain a judg- ment by default, the petition must set forth a cause of action with sub- stantial accuracy (3 Scammon, 258,) and with sufficient certainty, to in- form the court wdiat judgment to render, without looking for infor- mation to proofs not within the alle- gations, since ' the court cannot judicially act upon such proofs ' as a ground for its decision." Declaration Must Be Sufficient. " As a general rule, a default regu- larly taken adinits the cause of action, but then there must lie a declaration or complaint, containing such a statement of facts as will, when admitted, in point of law au- thorize a judgment against the de- fendant." Smith z\ Carley. 8 Ind. 451- Where Complaint Is Insufficient. In Bosch V. Kassing, 64 Iowa 312, 20 N. W. 454, the court said : '' A default is an admission of the cause of action stated in the petition, and that something is due to the plain- tiff. But where no cause of action is stated in the petition a default can have no such effect. It is true that a defendant may be concluded by a default where the facts stated in the petition do not constitute a good cause of action in law, or where the petition is so defective as to be vulnerable to a demurrer ; but, where the petition omits the neces- sary averment to show liability against the defendant, the court may and should, even unon default, refuse to enter judgment." Does Not Admit Cause of Action. •■ The default admits the facts averred in the petition to be true, but does not admit that the facts in law entitle petitioner to relief. If the facts thus admitted to be true do not authorize or require the relief, the court has no power to grant it. Plaintiff, on a default, is not entitled to a judgment unless he, Vol. I 498 ADMISSIONS. complaint if a cause of action is stated."' And some cases have gone so far as to hold that a default nia\' admit a cause of action when the complaint does not state a good cause of action in law," and when there is an " omission of any allegation or averment, on accoinit of which omission a demurrer could have been main- tained."''* Admits Cause of Action Alleged. — In some of th.c cases it is said in terms, that the default " admits the cause of action,"' and that the party can only contest the amount of damages.'" lUit by this must be meant the cause of action " as disclosed in the declaration."-" and not that a recovery may be had as upon an admission, by default, of a cause of action, when none is alleged in the declaration or complaint. Admits Truth of Complaint but Not Its Sufficiency. — The cticct of a default is to admit the truth of the facts alleged in the pleading, but not that the pleading or the facts thus admitted are sufficient to entitle the pleader to recover.-' by his declaration, has shown a right of recovery. If, on looking through the record, the court sees that there are grounds for arresting the judg- ment, the court should refuse judg- ment, notwithstanding the default. "To recover, the plaintiff must show a sufficient cause of action, and this is true wliether there be a trial or a default. The default con- fers no more rights than a finding of a jury. And all know tliat if the facts found by a jury do not au- thorize a recovery, the court will refuse to enter a judgment. So, in this case, if the facts averred in tlie petition do not authorize tlie relief sought, tlie judgment must he re- versed." Madison Co. T', Smith, ti^^ III. 328. In Case of Insufficient Declaration. In Winston i'. Miller, t2 Smed. & M. (Miss.) 550, it is said: ''It is insisted, however, tliat our statute in regard to amendments, cures this defect after a judgment by default. Its words are, ' Nn judgment after verdict, or by nil dicit. sliall be re- versed for any defect in the writ or for any defect whatsoever, in the declaration or pleading, either of form or of substance, which might have been taken advantage of by a demurrer.' Hutch. Code, 847. These terms are very comprehensive. and cure almost every conceivable defect in the proceedings. But we do not think they embrace a case in wliieh the writ and declaration Vol. I show, tlial, at the lime of tlie com- mencement of the suit, the cau.-e of action had not accrued. That is a defect which arises above the writ and declaration, and is not inherent in them. It shows the party liad no riglit to sue out either, and the ut- most perfection of their form could not aid the total absence of cause of action." 16. Warthen z\ Himstreet, 112 Iowa 60s, 84 N. W. 702; Miller Brewing Co. r'. Capital Ins. Co., Ill Iowa 520. 82 N. W, 1023; r>.skren v. Squire. 29 Or. 228, 45 Pac. 779. 17. Bosch "'. Kassing. 64 Iowa ,112, 20 N. W. 454; Miller Brewing Co. V. Capital Ins. Co.. iii Iowa .S20. 82 N. W. i02,v. W'artlicn v. Himstreet, 112 Iowa 605, 84 X. W. 702; Askrcn i'. Squire. 29 Or. 228, 45 Pac. 779; Moore r. .\larti1i, 124 .\la. 291, 27 So. 252. 18. Ro1)inson ?'. Mo. Ry, etc. Co.. 3.? Mo. 4,:!4. 19- Briggs ''. Siieghau. 45 Ind. 14; Fisk !•. Baker. 47 [nd. ^,^4 ; C.oble V. Dillon, 86 Ind. ,=,27 ; Whit- ney T'. Douge, 9 Iowa 597 : Union Bank v. Hicks, 2? Tenn. 326. 20. Hunt V. Burton. 18 .\rk. 188: Shepard 7'. New Haven etc. Co.. 45 Conn. 34; Whipple t\ Fuller. 11 Conn. 381 ; Argall v. Pitts. 7*^ N. Y. 239; Chaffin v. McFadden, 41 .Ark. 42; Doud I'. Dulnth Milling Co., 55 Minn. 33, 56 N. W. 463. 21. Thompson ■;■. Dearborn, 107 111. 87. ADMISSIONS. 4"t't When it Will Be Presumed Cause of Action Was Stated. — In case of a collateral attack upon the judgment on default, it will he pre- sumed that a cause of action was stated. -- Confined to Relief Prayed For. — The default only admits and au- thorizes judgment for the relief prayed for in the complaint.--' And Relief Must Be Warranted by Facts Alleged. — It is not enough that the relief is prayed for. however. It must he within the alle- gations of the complaint. The default admits that the plaintiff is entitled to such relief as the facts properly- alleged authorize.-* Not an Admission That Plaintiff Is Entitled to Recover. — The effect of a default as an admission is clearly stated in Johnson ;'. Pierce, 12 Ark. 599. " ' Default,' says TidH, ' is an admission of the cause of action and therefore, when founded on a contract, the defendant cannot prove the contract fraudulent. .\nd so when the action is on a note or bill, no proof of their execution is required.' Tidd's Pr. 522. So that, when Tidd says. ' Default is an ad- mission of the cause of action,' we see from the examples given by him what he means by ' admitting the cau.>ie of action.' It evidently can- not, upon principle, mean more than that the facts alleged in the declar- ation are admitted, or. in other words, are considered as though they were proven. And this is the extent to which we -understand tlie case cited by counsel in 4 Humphries Reports, to go. " But suppose, when they are all admitted as fully as if proven, and still fail to show a legal right in the plaintiffs to recover after allow- ing the benefit of the statute of jeofails and amendments, shall we say that they are entitled to recover? Most clearly not ; unless we could suppose that a default would not only confess the facts alleged, but also furnish additional facts by in- tendment to be confessed." 22. Cutright z: Stanford, 8r 111. 240. 23. Jolinson t'. Stallcup. 41 Tex. 529; .\lexander ''. McDow, 108 Cal. 25, 41 Pac. 24 ; Pickett v. Handy, 9 Colo. 357, 48 Pac. 820; Staacke v. Bell, 125 Cal. ,309, 57 Pac. 1012; Parszyk 7: Mach, 10 S. D. 555', 74 N. W. 1027 : Johnson ?•. Mantz. (Sg Iowa 710. 27 X. W. 467. Relief Confined to Prayer of Com- plaint The rule is thus stated in Burling v. Goodman, i Nev. 266: " We think both grounds of objec- tion are well taken, and that the judgment as it stands is erroneous. Where judgment is taken by default, the plaintiff is confined to a re- covery of the particular amount or thing demanded in the prayer of the complaint. If the prayer be for judgment of one thousand dollars, the plaintiff cannot legally take judg- ment for a greater amount. Or if he pray for the possession of specific personal property, he cannot have judgment for the return of properly of a different kind. The reason and fairness of the rule are obvious. '' The defendant by his default admits the justice of the claim, and thus consents that judgment be taken against him for what is prayed for in the first instance. Whereas, if a greater sum or a different relief were demanded, he may appear and contest the claim as unjust and un- reasonabl* It would seem to fol- low, and indeed is embraced within this rule, that where the demand is for judgment in federal currency generally, that is, in dollars and cents, a party cannot recover a judg- ment upon a default payable in a specific kind of money — gold cnin. for instance — especialK' if the latter kind of money exceed the former in (uliial value. .\ different rule would prove a trap and snare for debtors, however honest they may be. and certainly could never receive the sanction of courts of justice." 24. Argall v. Pitts. 78 N. Y. 239; Chicago & X. W. Ry. Co. z: Coss, 73 111. 394; Sloan V. Fanrd, 11 Ind. App. 689, 39 X. E. 5.w; Hall V. Jack- son, 3 "rex. 305 ; Chaffin v. McFad- den, 41 .Vrk. 42; Thompson v. Dear- born, 107 111. 87. Vol. I 30(1 ADMISSIONS. Admission of Part of Cause of Action. — \\ here separate causes of action are alleged in separate counts, a default as to one entitles the plaintiff to judgment thereon, although an answer is filed to the other. -^ Where Some Counts Good, Others Bad. — So, if the complaint is good as to some of its counts, and bad as to others, a default as to all of them is an admission of the cause of action stated in the good counts, but not as to the others."" Against i-art of Parties Jointly Sued. — Where the cause of action is joint, a default by one only admits the joint liability and does not authorize a judgment against the party defaulting until the right to such judgment is established as against his co-defendant.-' Default of One of Several Not Jointly Liable. — Even where the cause of action is not joint, or the relief sought the same against all of the defendants, a default by one does not necessarily entitle the plaintiff to a judgment against him. The defendant or defend- ants not defaulting, may make such defense as to prevent a recovery against such other defendant, notwithstanding his default.-'* Default As to Part of the Issues. — It may happen that a party has defaulted as to a part of the issues, only, by a failure to ])lead to such part. If so the effect of such default extends only to those issues.-" Effect of in Divorce Cases. — The rule that a default admits the allegations of the bill or complaint does not apply to proceedings for divorce. In such cases the plaintiff must prove his case not- withstanding the default.'''" , But it is held that even in divorce cases a default dispenses with the necessity of findings of fact by the court.-" O. Offer to Confess Judgment or Suffer Default. — In many of the states provision is made by which the defendant in an action is allowed to offer to confess judgment after suit brought for such sum as he believe* to be due, which, if accepted, is binding upon him for the amount offered. But this cannot be regarded as an admission, but a mere offer, which, if not accepted, amounts to nothing, unless the plaintiff fails to recover a greater sum which 25. Curran r. Kerchiier, 117 N. C. land r. Floyd, 6 Serg. & R. (Pa.) 264. 23 S. E. 177- 412. 26. Hunt v. San Francisco, 11 28. Picrson v. David, 4 Clarke Cal. 250. (Iowa) 410; Perrin v. Johnson, 16 27. Kincaidt'. Purcell, I Ind. 324; ^"^^'\ , ^ , ,,. , Davis v. Graniss, S Blackf, (Ind.) 29- Snyder !■. Quarton, 47 Mich. 79; Finance Co. 7C Hanlon, 7S III. "" ' ""'" '' ^■''" F'"-'"ic>^co, 11 Cal. App. 188; McDonald v. Mayor etc. ^50. (Cal). 55 Pac. 600; Brigs v. Grein- 30. A)ile, p. 461 ; Welch v. Welch, feild. I Strange (Eng.) 606. 16 Ark 527; Stihhins v. Slibbins, I For an interesting discussion of ^let- (Ky.) 47^1: Shillinger r. Shil- the proper mode of assessing dam- linger, 14 111. 147; I.inden 7: I.iiulen, ages where some defendants sued on .^6 Barb. (N. Y. ) 61. a joint cause of action plead to issue 31. Fox v. Fox, 25 Cal. 588; In re and others suffer default, see Crid- Cook. 77 Cal. 220. Vol. I ADMISSIONS. SOI casts him for tlie costs, and if acccjjted, it becomes in legal cftect a contract to pay that sum which is consiinimated l>y the rendition ■of a jud,q;ment for the sum offered. ■'- Offer to Be Defaulted. — It has been held that an offer to be defaulted under some of the statutes is equivalent to brinoing money into court, and as a confession of an indebtedness, leaving only the amount due to be determined.'''' But again it is held that a mere ofifer to suffer default does not admit the contract sued on.'''* R. Confession of Judcmkxt. — A confession of judgment is an admission of the facts necessary to establish the riglit thereto, and is competent evidence of such admission. ^'^ Admits the Law As Well As the Facts. — .\nd the admission extends to the law as well as the facts involved in the claim and judgment.^* Is Conclusive. — And the general rule is that the judgment by confession, based upon the admission of the party, is conclusive, and the confessor estopped to go behind it.^' Competent in Another Action. — And the admission may be shown as such, in another action, Init in such case it is not conclusive. '' Admission of Amount Due in the Answer. — A like effect has been given to an admission in the answer of a defendant, of an ainount due. where the monev is in court. ^° 32. WeiUwortli t'. Lord. 39 Me. 71 ; Oilman t. Courtright <•. SU- SS. Fogg V see Jackson 7', Pearson, Staggers, Me. 352; Ohio St. Hill, 21 Me. 529. Bnt Hampden, 20 Me. 37. 34. Jackson i'. Hampden, 20 Me. 37- . In Maine, where this practice pre- vailed, it was later provided by stat- ute that an offer to be defaulted, if not accepted, should not be taken as an admission. 'Wentworth z>. Lord, 39 Me. 70. It is not equivalent in its effect to a default. Pitkin z>. New York & N. E. R. Co., 64 Conn. 482, 30 Atl. 772. 35. lozi'a. — Troxel Z'. Clarke, 9 Iowa 201 ; Plummer v. Douglas, 14 Iowa 6g, 81 Am. Dec. 456. Kentucky. — Bonta z'. Clay, i Litt. 27- , . Louisiana. — Skinner z'. Dameron, 5 Rob. 447. Maryland. — McMechen z'. Mayor of Baltimore, 2 Har. & J. 41 ; Huston v. Ditto, 20 Md. 305. Nczi' lerscy. — Seward v. Payne, 4 N. J. Law loi. Pennsylvania. — Earnest v. Hos- kins, 100 Pa. St. 551; Bradde v. Brownfield, 4 Watts 474. Virginia. — Honaker v. Howe, 19 Graft. 50. Wisconsin. — Buffalo z: Barb Wire Co.. 64 Wis. 338, 25 N. W. 208. 36. Troxel z: Clarke, 9 Iowa 201 ; Plummer Z'. Douglas. 14 Iowa 69. 81 Am. Dec. 456 ; Trimmer v. Win- smith. 23 S. C. 449. Admits the Law As Well As the Facts. — In Borta z: Clav. i Litt (Ky.) 27, it is held that a confession of judgment admits the law as well as the facts to be against the party confessing. Estops to Attack Note for Usury. So it is held that a confession of judgment for the full amount of principal of a note, usurious on its face, estops the party from going behind the judgment to purge it of illegal interest. 37. Troxel z'. Clarke, 9 Iowa 201 ; Burchett z'. Casady, 18 Iowa 342. 38. Earnest z: Hoskins, 100 Pa St. 551. 39. Merritt v. Thompson, i Abb. Pr. (N. Y.) 223, 10 How. Pr. 428; Quintard Z'. Secor, i Abb. Pr. (N. Y.) 393: Jackson z\ Hampden, 20 Me. 37- Vol. I =i(i2 .IDMISSIONS. Binding Until Time for Acceptance — The offer is Ijiiulitir;- on the defendant for the time within which the plaintiff is allowed to accept it, and in the meantime cannot be withdrawn.^" S. Payment of Money Into Court. — The voluntary payment of money into court, upon a claim made against a party therefor, is an admission of the cause of action to recover that sum and no more." Where Action Is on Contract Admits the Contract. — And where the action is upon a special contract, payment into cotirt admits the contract and liability thereon in the amount of the sum paid in.^^ P.ut this has been doubted. *•■" The payment may be made as upon a particular count, in which case the admission extends no farther than to the confession of a cause of action upon that count. ''^ Is a Payment on Account. — The bringing in of the money is in eft'ect a payment as of that date, on account of the sum claimed.*" Is a Confession of a Cause of Ac- tion.— But in Fogg 7'. Hill, 21 Me. 529, it is held that an offer, inider the statute of that state, to be de- faulted, is equivalent to bringing the money into court, and must be re- garded as a confession of the cause of action, but not the amount due. 40. Walker v. Johnson, 8 How. Pr. (N. Y.) 240. 41. Monroe v. Chaldeck, 78 111. 429; Sweetland z: Tuthill, 54 111. 215; Seaton v. Benedict, 5 Bing. 28, 15 Eng. C. L. 454; Gutteridge 7". Smith, 2 Black. 374 : Rucker z: Pals- grave, I Taunt, 419; Story z'. Finnis, ^ Ene. Law & Ef|. S48; Stapleton z'. Norvell, 6 ^I. & W. g. What Payment Into Court Admits. In Creenl. Ev., vol. I. § 205, it is said: "There is still another class of judicial admissions, made by the f>ay- incnl of money into court, upon a rule granted for that purpose. Here, it is obvious, the defendant con- clusively admits that lie owes the amount thus tendered in payment ; that it is due for the cause men- tioned in the declaration; that ihc plaintiff is entitled to claim it in the character in which he sues: that the court has jtirisdiction of the matter ; that the contract des- cribed is rightly set forth, and was duly executed ; and that it has been broken in the manner and to the extent declared; and if it was a case of goods sold by sample, that they agreed with the sample. In other Vol. I words, the payment of money into court admits conclusively every fact whi(;h the plaintiff would lie obliged to prove in order to recover that money." 42.' Dyer v. Ashton. i Barn. & C 2, 8 Eng. C. L. 2 ; Leggett z\ Cooper, 2 Stark. 102, 3 Eng, C. L. 335'; Cox z\ Brain, 3 Taunt. 95 ; Bennett v. Francis, 2 B. & P. 550. Extent of Admission In Seaton Z'. Benedict. 5 Bing. 28, 15 Eng. C. L. 454, it is held that where the action is upon a special contract, payment into court admits the con- tract and liability thereon in the sum paid in. But that in common in- debitatus assumpsit the payment admits no more than that the sum paid is due. 43. Gutteridge z\ Smith, 2 Black. 374- 44. Gutteridge -■. Smith, 2 Black. 374; Cox. I'. Brain, 3 Taunt. 95; Stapleton z'. Norvell, 6 M. & W. 9. 45. The effect of bringing money into court is thus stated in Boyden 7'. Moore, 5 Mass. 365 : " The bring- ing money into court is a practice adopted to relieve the defendant against an unexpected suit for money, which he is willing to pay, but which he has not tendered to the plaintiff before the commencement of the suit. MtCT the defendant has brought ill as much money as he thinks proper, and the plaintiff has refused to receive it in satisfaction, the defendant is entitled to have the ADMISSIONS. SO:^ In Cases of Tort. — The rule is the same in cases of tort. The l)avnieiit into court achnits a cause of action for the amount paid iu.^" III. TO WHOM MAY BE MADE. 1. Generally. — In respect of the mere question of the competency of admissions, as evidence, it is immaterial as a rule, whether they are made to a party in interest or to a stranger. I5ut as we shall see farther along, it may he (|uite material in respect of their weight as against the party making them. If made to an adverse party in interest they may be conclusive, but not so if made to a stranger.'" And as to their competency, it may be quite material whether they are made to an attorney or other person sustaining a confidential relation towards the party making them under such circumstances as to render them ])rivileged, in which case they are not competent.** 2. To Adverse Party or His Agent. — It may be stated as a general rule that all admissions made to the adverse party to the contro- versy, or his agent, if material to the issue, are competent unless made in an efifort to arrive at a compromise."*'' 3. To Attorney or Agent. — As to admissions made to one's own attorne}' or agent, they are competent to be proved against the party making them unless made under such circumstances as to rentier them confidential and, for that reason privileged."'" If made to the attorney or agent of the adverse party respecting a matter in which he is then engaged as such attorney or agent, it is the same as if made to the principal. If made to him when not so engagetl, it is the same as if made to a stranger. If made to one's own agent it is competent.''' 4. To Third Party. — The competency of an admission does not, as a rule, depend upon the person to whom it is made. Therefore, if made to a stranger having no interest in the controversy, it is just as competent as if made to a party in interest. '''- same considered as a payment made 44-^; Winebrenner v. Brunswick- on the day on which it was brought Balke etc. Co., 82 Iowa 741, 47 N. W. in, and he is answerable only for io8y. fiinhcr damages. He then stands on 52. Georgia. — Brown ?■. INIat- the same ground as if, on tendering thews, 79 Ga. i, 4 S. E- IJ. money before the action, the plain- JlUnois. — Brown r. Calumet River tiff had refused to receive it, but Ry. Co., 125 111. 600, 18 N. E. 283. had commenced his action, in which .Massachusetts. — Hosmer v. Groat, the tender was pleaded." 143 Alass. 16, 8 N. E. 431. 46. Story :•. Finnis, 3 Eng. Law Missouri. — Hinters v. Hinters, 114 & Eq. 548. Mo. 26, 21 S. W. 456; Meier v. 47. Brown i'. Mathews, 79 Ga. I, Meier, 105 Mo. 411, 16 S. W. 223. 4 S. E. 13; Gregory v. Com., 121 Pa. North Carolina. — Carpenter v. St. 611, 15 Atl. 452. Tucker, 98 N. C. 316, 3 S. E. 831. 48. See succeeding sections. Pciinsyhaiiia. — Gregory v. Com., 49. Post, p. 596; Gregory v. Com. 121 Pa. St. 611, ij Atl. 452; Reed v. 121 Pa. St. 611, 15 Atl. 452. Reed, 46 Pa. St. 239. 50. Post, p. 60b; Brown v. Mat- rcniio;//. — .\bbott v. Pratt, 16 thews. 79 Ga. i, 4 S. E. 13. Vt. 626. 51. Cramer v. Gregg, 40 111. .A.pp. In Secor v. Pestana, 37 111. 525, it Vol. I 504 ADMISSIONS. By Acquiescence. — \\ ith respect to admissimis by ac(|uicscence in what is said by another, the inference to be drawn from silence, when a statement is made by a stranger is not so strong as if made by one adversely interested, because the obligation to speak or the inducement to make answer is not so great. ''■' IV. BY WHOM MAY BE MADE. 1. Parties to the Record. — A. GenEkallv. — The general rule is that every material fact must be proved by testimony on oath and not by declarations or admissions not on oath.'** One of the excep- tions to this rule is that the declarations of a party to the record, or of one identified in interest with him against his iiiterest. are. as against such party, admissible in evidence.^" is said: "As to the fom-lh in- struction, it was properly refused, because the admissions and declar- ations of appellant were admissible no matter to whom made, as con- fessions relating to the character and extent of his tenancy. There is no rule of law requiring such admis- sions, to be available, that they should be made to the party or his agent." To Stranger Competent When a relevant fact or act is to be ac- counted for, a conversation had with one of the litigating parties with a third person, in the absence of the other, may account for it. or serve as a link in the chain of explanation. If so it is admissible in evidence. But the application of this rule must be carefully guarded." Brown v. Matthews, 79 Ga. i, 4 S. E. 13. 53. Ante, p. 379; Larry v. Sher- borne. 2 Allen (Alass.) 34; Com. v. Kenney. 12 Mete. (^Iass.) 235, 46 Am. Dec. 672 ; Hackett i'. Callendcr, 32 Vt. 97 ; Bentley's Appeal, 99 Pa. St. 500. 54. Lancaster z: Longenecker, 6 Binn. (Pa.) I. 55. England. — Spargo v. Brown, 9 Barn. & C. 935, 17 Eng. C. L. 412- United States. — The Stranger. 23 Fed. Cas. No. 13.525. Alabama. — Humes v. O'Bryan, 74 Ala. 64; Frank v. Thompson, 105 Ala. 211, 16 So. 634. Arkansas. — Phelan v. Bonham, 9 .•\rk. jSg; Southern Ins. Co. v. White, 58 Ark. 277, 24 S. W. 425. California. — Moore v. Campbell, 72 Cal. 251, 13 Pac. 689: White v. Vol. I Merrill, 82 Cal. 14, 22 Pac. 1 129; Robinson zk Dugan (Cal.), 35 Pac. 902; Wright 7'. Carillo, 22 Cal. 595. Colorado. — Wilson t'. Morris. 4 Colo. App. 242, 36 Pac. 248 : Holnian V. Boston L. & S. Co., 20 Colo. 7, 36 Pac. 797 ; Plummer v. Struby-Esta- brooke M. Co., 23 Colo. 190, 47 Pac. 294; Teller v. Ferguson, 24 Colo. 432, 51 Pac. 429. Connecticut. — White t'. Reed, 15 Conn. 457 ; Bassett v. Shares, 63 Conn. 39, 27 Atl. 421 ; Plant v. ?iIcEwen, 4 Conn. 544 ; Pierce v. Roberts, 57 Conn. 31, 17 Atl. 275. Georgia. — Ingram v. Hilton etc. L. Co., 108 Ga. 194, 3i S. E. 961. Illinois. — Cramer i'. Greee. 40 111. App. 442. Indiana. — Miller v. Cook, 124 Ind. loi, 24 N. E. 577; Denman v. .McMahin, 37 Ind. 241. Iozs.'a. — Winebrenner !■. Bruns- wick- Balke C. Co., 82 Iowa 741, 47 N. W. 1089; Bullard z: Bullard, 112 Iowa 423, 84 N. W. 513. Kansas. — Pope Z'. Bowzer. i ls.au. App. 727, 41 Pac. 1048. Maine. — Laughlin v. Eaton, 54 Me. 156. Maryland. — Pierce z\ Roberts, (Md.), 17 All. 275. Massachusetts. — Green z\ Gould, 3 Allen 465 ; Abbott v. Andrews, 130 Mass. 145 ; Hosmer v. Groat, 143 Mass. 16, 8 N. E. 431; Heywood v. Heyvvood, 10 Allen 105 ; Atkins v. Sanger, i Pick. 192. Michigan. — Evans v. Montgomery, 95 Mich. 497, 55 N. W. 362; Reiser z: Portere, 106 Mich. 102. 63 N. W- 104 1 ; Ford z'. Savage, in Mich. ADMISSIONS. 505 Identity With Party Must Be Shown. — Therefore, in order to ren- der such admissions competent, if not made by the part}' himself, the identity of interest of the person making them with the party to the suit must be shown. ^" 144, 59 N. W. 240; Ba.xtcr i: Rey- nolds, 112 Mich. 471, 70 N. W. 1039. Minnesota. — Potter r. Alellen, 41 ]\Iinn. 487, 43 N. \V. 375; Hosford V. Hosford, 41 Minn. 245, 42 N. \V. 1018; Towle z: Shcrer, 70 Minn. 312, 73 N. W. 180. .l/uj/ij"//'/'/. — Hall V. Waddill, 78 Miss. 16, 28 So. 831. Missouri. — Meier v. Meier, 105 Mo. 411, 16 S. W. 223; McLaughlin V. McLaughlin, 16 Mo. 242; Wise- man z: St. L. A. & T. Ry. Co.. 30 Mo. App. 516. Nebraska. — Bartlctt t'. Cheese- brough, ^u Neb. 339, 49 N. W. 360. A'rii' llampsliirc. — Tcnney z'. Evans, 14 N. H. 343, 40 Am. Dec. 194. Nezc York. — Bronson v. Winian, 8 N. Y. 182; Potter v. Ogden, 136 N. Y. 384, i3 N. E. 228; Larrison v. Payne, 52 Hun 612, ^ N. Y. Supp. 221 ; Reed v. McCord, 18 App. Div. 381, 46 N. Y. Supp. 407 ; New- combe v. Hyman, 16 Misc. 25, 2y N. Y. Supp. 649; Alarvin v. Rich- mond, 3 Denio 58; Doyle v. St. James Church, 7 Wend. 178. North Carolina. — Tredwill v. Urahani, 88 N. C. 208. Pennsylvania. — Silvis z'. Ely, 3 Watts & S. 420; Wilson v. Wilson, 137 Pa. St. 269, 20 Atl. 644. Rhode Island. — Fay v. Feelcy, 18 R. I. 715, 30 Atl. 342; State v. Little- field, 3 R. L 124. South Carolina. — Hodges Z'. Tar- rant. 31 S. C. 608, 9 S. E. 1038; Mc- Gahan v. Crawford, 47 S. C. 566, 25 S. E. 123. Texas. — Hardy z'. De Lenn, 5 Te.x. 211; Ellis V. Stone, 4 Te.x. Civ. App. 157. 23 S. W. 405; Wells V. Fairbanks, 5 Tex. 582 ; Clapp ZK En- gledow, 72 Tex. 252, 10 S. W. 462; Galveston H. & S. A. Ry. Co. v. Hertzig, 3 Tex. Civ. App. 296, 22 S. W. 1013 ; Extence v. Stewart, (Tex. Civ. App.). 26 S. W. 896; Shelburne v. McCrocklin (Tex. Civ. App.). 42 S. W. 329. Vermont. — Robinson v. Hutchin- son, 31 Vt. 443 ; Bennett v. Camp. 54 Vt. 36; McCann v. Hallock, 30 Vt. 233; Hill V. Powers, 16 Vt. 516; Goodnow V. Parsons, 36 Vt. 46; Barber r. Bennett, 58 Vt. 476, 4 Atl. 271. I L. R. A. 224. I'irginia. — Barton i'. Scott, 3 Rand. 399. Wisconsin. — Hunter z\ Gibbs, 79 Wis. 70, 48 X. W. 257. In Proof of Marriage The fact of marriage may lie established by the admissions of the parties. Greenawaldl z\ McEnuelev, 85 Pa. St. 35-'. So the declarations of defendant in an action for criminal conversa- tion is held to be competent to prove the marriage of the woman against whom the offense is committed. Forney z'. Hallacher, 8 tierg. & R. (Pa.) 159, II Am. Dec. 590. Party Not Served — In some of the states under statutory provisions it is held that the admissions of a party not served are inadmissible as against a party who has appeared. Derby v. Rounds. 53 Cal. 659; Gris- wolcl 7'. Burroughs, 60 Hun 558, 15 N. V. Supp. 314. Where Not Made Upon Personal Knowledge. —- And his admissions made without any personal knowl- edge of the fact admitted may be proved against him. Reed v. Mc- Cord, 160 N. Y. 330, 54 N. E. 737. 56. England. — Spargo v. Brown, 9 Barn. & C. 935, 17 Eng. C. L. 412; Wise z: Charlton, 4 Ad. & E. 786, 31 Eng. C. L. 346; Beauchamp v. Parry, i Barn. & C. 89, 20 Eng. C. L. 408; Barough ?■. Wliite, 4 Barn. & C. 325. 10 Eng. C. L. 600; Phillips v. Cole, 10 Ad. & E. 106, 37 Eng. C. L. United Slates. — Lamar f. Micou, 112 U. S. 452. Alabama. — Harrison z'. Mock, 16 Ala. (N. S.) 616; Jones z'. Norris, 2 Ala. 526; Mahone v. Williams, 39 Ala. 202. California. — Kilburn v. Ritchie, 2 Cal. 145, 56 Am. Dec. 326 ; Dean v. Ross, 105 Cal. 227, 38 Pac. 912. Colorado. — Davis v. Johnson, 4 Colo. .\pp. 545, 36 Pac. 887. Vol. I 5()(j ADMISSIONS. Cannot Be Shown by Admissions of the Party. — As against another the admissions of a party cannot be received to show his interest in property in controversy.^' And it is not enough in case of per- Cfliiiiccticut. — Plant v. McEwen, 4 Conn. 544. Georgia. — Pool ;■. Morris. 29 Ga. 374. 74 Am. Dec. 68. Idaho. — Deascy v. Thurman. i Idaho 775. Illinois. — Haulfv v. Erskine. 19 111. 265-. Mas.iacltiisctts. — Noyes v. Morrill. 108 Mass. ,396 ; Baker v. Briggs, 8 Pick. 122, 19 .-Xni. Dec. 311. MicJiigan. — Canipaii v. Dubois, 39 Mich. 274. New York. — Smith v. Webb, i Barb. 230: Gardner v. Barden, 7 N. Y. 433 ; Bullis V. Montgomery, 50 N. Y. 352 ; ^lercadante v. Manhattan Ry. Co.. 82 Hnn 555. 31 N. Y. Supp. 540. Pennsylvania. — Hill 7: Roderick, 4 Watts & S. 221 ; Continental Ins. Co. V. Delpench, 82 Pa. Si. 225. South Carolina. — Agncw v. Adams. 26 S. C. loi, I S. E. 414; De Bruhl V. Patterson, 12 Rich. (Law) 363. Vermont. — Warner v. McGary, 4 Vt. 507: Orr. V. Clark, 62 Vt. 136, iq .All. 929. By a Co-Distributee In Prcwett V. Coopwood. 30 Miss. 369. the ques- tion was as to the competency of ad- missions made by one distributee of an estate as against other distribu- tees, and the court said, in passing upon the question : "The object of the evidence was to create a presumption that the de- fendant had not received so much of the estate at least as belonged to the widow. If she had been the only distributee, and the estate owing no debts, as is proved in this case, the evidence would have been admis- sible on the ground that, being the sole beneficiary in the estate, she could make admissions or do any other act affecting her interest, which a legal owner of property could make or do. But she could make no admission affecting the rights of a co-distributee, because she liail no power over his interest." By Contractor for construction of building against owner. Dickenson College V. Church, I Watts. & S. (Pa.) 462. Vol. I Statement of the Rule It is well settled that the declarations of third persons, not parties to the record, cannot be admitted in evi- dence, except in those cases where they have a joint interest with the plaintiff or defendant, or where some legal relation such as that of part- ners, exists. Kilburn i'. Ritchie, 2 ■ Cal. 145. 56 .\m. Dec. ,^26. By Assignor for Benefit of Cred- itors In the case of Bullis v. Montgomery, 50 N. Y. 352, the as- signment was by an insolvent debtor for the benefit of his creditors and his admissions were offered in evi- dence as against the assignee, and in support of the offer it was urged that there was such privity between the assignor and the assignee as to let in such admissions against the latter. But it was held by the court that there was no identity of in- terest between an insolvent assignor in trust for his creditors and his assignee, but that the assignee holds primarily for the creditors, and for lho--e in hostility to the assignor. Must Be Identity of Interest In .Fitch r. Chapman, 10 Conn. 8, the court said : " It is said that the plaintiff is identified with John Chap- man because he claims through him. The indorsee of a promissory note, claims through the indorser ; but it does not therefore follow, that the declarations of that indorser can be given in evidence; as was observed in Barough '■. White, above cited. I should think the idemity snoken of in the books, referred rather to those cases where the nominal plain- tiff was suing, in fact, for the bene- fit of a third person ; and this iden- tified their interests." By Executor Before His Appoint- ment So it is held that the ad- missions of one -sued as e.xecutor, before he became such, are inadmis- sible because the judgment if re- covered would affect the creditors and heirs of the testator to whom the executor was a stranger. Plant Z'. .\lcEvven. 4 Conn. 544. 57. Backnam v. Barnum, 15 Conn. 67. ADMISSIONS. 507 sonal property to show merely that the part\- to the action claims through the party whose admission is offered.''** Foundation for Proof of, Not Necessary. — The evidence of admis- sions by a party is not necessarily impeaching, although it may have that effect, and it is not necessary to lay a foundation for the proof by asking the part\ with respect to it as in case of impeachment."'' After Action Brought. — It makes no difiference in respect of the competency of admissions by a party that they were made after the commencement of the action if they relate to matters occurring before suit brought.''" a. By One of Two or More. — • Where two- or more defendants are joined, the admissions of any one of them are admissible, as against him, but not against his co-defendants except where such a joint interest is shown as will render his admissions l)inding on the other defendant as shown farther along."' b. Other Declarations to Explain Iiiadiuissible. — \\'here admis- sions are proved against a party, it is not competent for him to prove other declarations of his in his own interest contradictory or explan- atorv of such admissions."- The rule is different where the counter- 58. Fitch V. Chapman. lo Conn. 8 1 Smith V. Webb, I Rarlx 230; Christie v. Bishop, i Barli. Ch. 105. 59. Bullard v. Bullard. T12 Iowa 42.^. 84 N. W. 513; Teller v. Fer- guson. 24 Colo. 432, 51 Pac. 429; Louisville & N. R. Co. v. Miller, ig Ky. Law 1663'. 44 S. W. 119; Bart- lett V. Cheesebrough, 32 Neb. 339, 49 N. W. 360; Hunter 7'. Gibbs, 79 Wis. 70, 48 X. W. 2^7: Garr Scott & Co. V. Shaffer, no Ind. 191, 38 N. E. 811; Salter T'. Edw. Hines L. Co., 77 111. App. 97. GO. Dole V. Young. 24 Pick. (Mass.') 250. 61. England. — Rex. v. Inhab- itants of Hardwick. 11 Fast. ""'8. Alabama. — VoWy v. McCall, 37 Ala. 20 ; Palmer v. Severance, g Ala. 751: Falkner v. Leitli, 15 Ala. (N. S.) 9; Goodman v. Walker, 30 Ala. (N. S.) 482, 68 Am. Dec. 134; Smith J'. Rogers, i Stew. & P. 317; Lewis V. Lee. 66 .\la. 480. California. — White v. Merrill. 82 Cal. 14, 22 Pac. 1 129; Spanagel v. Dellinger, 38 Cal. 278. Georgia. — Kiser v. Dannenberg, 88 Ga. 541, 15 S. E. 17. Illinois. ■ — Rogers 7'. Suttle, 19 111. App. 163. Indiana. — Hayes v. Burkam, 67 Ind. 359; Smitli v. Meiser, 11 Ind. ApTi. 468, 38 N. E. 1092. Kansas. — Boynton z'. Hardin, g Kan, App. 156, 58 Pac. 1007. Massachusetts. — Hubbell 7'. Bis- sell, 2 Allen 196; Hodges 7'. Hodges. 2 Cush. 455: Edgerton 7'. Wolf, 6 Gray 453 ; Phelps 7'. Hartwell, i Mass. 71. Missottri. — Enders v. Richards, 33 Mo. 598. New York. — Christie v. Bishop, I Barb. Ch. 105. Norili Carolina. — Tredwell v. Graham, 88 N. C. 208. Pennsylvania. — Continental Ins. Lo. 7'. Delpench, 82 Pa. St. 225. Soutli Carolina. — De Brulil v. Pat- terson, 12 Rich. (Law) 363. Texas. — Shelborn 7'. AlcCrocklin (Tex. Civ. .App.), 42 S. W. 329. ]]'est Virginia. — Dickinson 7/. Clarke. 5 W. Va. 280. Inadmissible Against Party Mak- ing Them, When. — In Mc]\Iillen v. McDill. no 111. 47, it was held that the admissions of one party were not admissible even as against him where the effect of the admissions must go to defeat the action as to his co-parties as well as himself. Unless in the Presence of the Others. — Crippen v. Morse, 49 N. Y. 63. But see Rogers v. Suttle, 19 111. .App. 163. 62. Nutter 7'. O'Donnell, 6 Colo. 253; Harding 7'. Clark, 15 III. 30; Vol. I 308 ADMISSIONS. declarations are made as a part of the same conversation or in the same letter, or other writing', or correspondence. There the whole conversation, instrument or correspondence must be heard and taken together."^ B. Proper P.-vrties. — If one made a party to the suit is a proper party, his admissions are admissible, at least as ag^ainst him."^ C. Of Nominal Parties. — a. Generally Incompetent. — The test of the competency of statements made as admissions, if other- wise competent and material, is whether or not such statements were against interest. If a party to the suit is a merely nominal party, having no interest in the result, his declarations are not within the reason of the rule and are inadmissible.'"-'' r,ut it has been held that Blight V. Ashley. Pet. C. C. 15, 3 Fed. Cas. No. 1541. 63. Bailey v. Pardridgc, 35 III, App. 121 ; Lippus V. Columbus Watch Co., '6 N. Y. St. 620. n N. Y. Supp. 3ig; Ellen v. Ellen, 18 S. C. 4Sg. 64. Edwards v. Derrickson. 28 N. J. Law 39; Gibson v. Winter, 5 Barn. & A. 96, 27 Eng. C. L. 50: Hogan V. Sherman, s Mich. 60: Sargeant V. Sargeant, 18 Vt. 371 ; Smith v. Vincent. 15 Conn, i, 38 Am. Dec. 52. By One Joined but Not a Proper Party. — '['he admissions of a party to tlie suit are inadinissible where it appears that he has no interest in the matter in controversy, and is for that reason not a proper party. Wright V. Cornelius, 10 I\Io. 174. 65. f.ngland. — Webb ■;•. Sinith, R. & M. 106, 21 Eng. C. L. 712; Rex. V. Inhabitants of Hardwick, 11 East 578. United States. — Palmer -'. Cassin, 2 Cranch C. C. 66, 18 Fed. Cas. No. 10,687. Alabama. — Graham v. Lockhart, 8 Ala. (N. S.) 9; Chisholni v. New- ton, I Ala. 371 ; Head v. Shaver, g Ala. (N. S.) 791; Roberts v. Tra- wick, 13 Ala. 68; Thompson v. Drake, 32 Ala. 99; Gary v. Colgin. II Ala. 514; Sally v. Gooden. 5 Ala. (N. S.) 78; Copcland v. Clark, 2 Ala. (N. S.) 388; Brown v. Fos- ter, 4 Ala. 282. California. — Spanagel ?'. Dellin- ger, .38 Cal. 278. Illinois. — Dazey v. Mills, 5 Gilm. Indiana. — McSweeney ?■. McMil- Icn. 96 Ind. 298. Maine. — P.utler v. Milletl, 47 Me. Vol. I 492; Foster V. Gilnian, 29 Me. 136; Carle v. Bearce, 33 Me. 337. Massachusetts. — Ragley i'. Bry- ant, 24 Pick. 198: Tyler v. Ulmer, 12 Mass. 163 ; Wing v. Bishop, 3 Allen 456. Minnesota. — State v. Olson, 55 Minn. 118, 56 N. W. 585-. Nc'iV York. — Frear v. Evertson, 20 Johns. 142. Pennsylvania. — Mertz v. Det- weiler. 8 Walls & 6. 376 ; Morton v. Morton, 13 Serg. & R. 107. Tennessee. — Moyers 'c: Tnman, 2 Swan 80. Texas. — Thompson ?■. Johnson (Te.x. Civ. App..) 56 S. W. S9I. Vermont. — Sargeant t. Sargeant, 18 \l. 371- Of Nominal Plaintiif Not Admissi- ble The rule is thus stated in the case of Chisholm v. Newton, i Ala. 371 : " The general prir.ciple on which the competency of admissions as evidence rests, is the interest which the party making them has in the suit, or its subject matter. Froin this it would seem that the admis- sions of one who has no interest in a suit, ought not to be allowed to control, it. It is said by Mr. Starkie in his compilation of the rules of evidence (2 Starkie on Ev.. 40.) lliat the admission of a /yarty on the record is always evidence, though he be but a trustee for another, and al- though it appear from the admission itself that he is such : for this he cites the case of Bowernian v. Rodenius (7 Term, 663). This case when examined, does not support ihd rule in its great extent, as stated by the commentator. It was an ac- tion brought in the name of one ADMISSIONS. 50'» the question, whether such party has an interest in the result or not, is a question for the jury."" The declarations of one not a party on the record cannot be received to show that he has an interest."" But the admissions of the alleged nominal jiart}- are competent to show that he has an interest.''* b. Of Kciord Held Competent. — And there are cases holding tliat the admissions of a party of record, although onlv a nominal party, are comjictent. This was the common law rule."'' The person, wlieii tlic actual i itcrcst was in another: to prove tlic interest of the latter, in order to let in an ad- mission made by hint, a letter from the nominal jilainliff was offered, which the jud.efc at n'si frius re- jected: but which was afterwards ruled by the Court of King's Bench to be competent evidence. " This decision, then, was merely that the admission of the plaintiff of record, was proper evidence to show the actual interest in the suit was in another, whose admissions ought then to have been allowed to con- trol the case. This case evidently does not warrant the conclusion that the admission of the plaintiff on the record will be allowed to control the case against the interest of the actual plaintiff, after that in- terest is disclosed. Indeed, the reverse of the principle laid down bv Mr. Starkie was ruled in the case of Cowling T'. Ely (2 Star, cases 366) where it was held that the ad- mission of a guardian who was the plaintiff on the record, was not evi- dence against the infant." Made After Parting with Interest. In Sally r. Gooden, 5 Ala. (N. S.) 78, it is held, that declarations made by- a nominal parly after parting with his interc'-t are inadmissible; otherwise, if made before. Admissions of a Trustee Plaintiff in the Action. — The rule is thus stated in Sargeant t'. Sargeant, 18 Vt. 371 : " One question made in this case is, whether the admissions of the plaintiff of record are to be received in evidence. At common law the declarations and admissions of the party of record, although a mere trustee, are always adtnissible: Gib- son ;■. Winter, 5 P>. S: .\d. 96 (27 E. C. I^. 501 where the subject is fully discussed and the cases are citeil and commented upon by Ch. J. Denman. But in this state a different rule has long prevailed. We do not allow the admissions of a mere trustee to go to the jury. The payee of a promissory note, which is put in suit by some other person as holder, but to whom the note is not indorsed, is perhaps prima facie to be regarded in that light. His admissions were, then, correctly enough excluded." 66. Campbell v. Day, 16 Vt. 558; Hogan V. Sherman, 5 Mich. 60. 67. Ryan v. Merriman, 4 Allen (Mass.) 77. 68. Thompson v. Drake, 32 Ala. 09- 69. England. — Gibson v. Winter, 5 Barn. & A. 96, 27 Eng. C. L. 5°- Connecticut. — Bulklev v. Landon, 3 Conn. 76 ; Plant v. McEwen, 4 Conn. 544; Coit v. Tracy, 8 Conn. 268, 20 Am. Dec. no. Maine. — Hatch v. Dennis, 10 Me. 244. Maryland. — Beattv <'. Davis, 9 Gill. 211. Michigan. — Hogan v. Sherman, 5 Mich. 60. Missouri. — Dillon v. Chouteau, 7 Mo. 386. Nezi' Hampshire. — Tenney v. Evans, 14 N. H. 343, 40 Am. Dec. 194. Pennsylvania. — Johnson v. Kerr, I Serg. & R. 25. J'ermont. — Sargeant v. Sargeant. 18 Vt. 371. Of Party to Record Competent. The cases holding that the admissions of a party of record, tending to show that he has no cause of action competent, proceed upon the theory that he must be regarded for the purposes of the action, as having an interest, or he could not maintain Vol. I ;io .IDMISSJONS. extent or nature of his interest, whether joint or several, is imma- terial so lonij; as the admission is offered as against the party mak- ing it.'" 2. Of Persons Interested in Result, but Not Parties Competent. A party having an interest in tlie suit, and particularly one in whose behalf the suit is being prosecuted bv a nominal party, is. in respect of this question, in legal effect a party, and his admissions are com- petent."' 3. By Party in Possession Affecting Title. — A. Grnekai.lv. The general rule is that declarations of a part\- in disparagement of title to property of which lie is in possession, claiming to be the owner, or otherwise interested therein, are competent. "-' B. Grantors, FormJ'R Owners and Pri\-ies. — a. Of Grantor .Id- inissiblc x-lgaiiist Him and Claimants Under Him. — The admissions of the owner of property in possession are admissible, not onlv against him, but against subsequent purchasers from or claimants under him, if such admissions affect his title to the propertv and are against his interest.''' the action. Bulkk-y f. I^infloii, 3 Ciinii. 76. Exception to the Rule. — But where the admissions of an executor, made before his appointment, were oftered. it was held thai as it ap- peared that they were made wlien he had no interest, they were inadmis- sible. Plant !■. McEwen. 4 Conn. .=;44. Where Party Has Parted with His Interest. — In IJillon r. Chouteau. 7 Mo. 386, it is held to lie the incon- trovertible rule that the admissions of the plaintiff on the record are ad- missible evidence, and that his ceas- ing to be a party to the record does not affect the question of the com- petency of the evidence, and that the fact that the party is since deceased does not affect the question. But the rule is in this case placed upon the ground that the party being a party to the record, he could not be ex- amined as a witness. 70. Black V. Lamb, 12 N. J, Eq. 108 ; Foster !■. Oilman, 29 Me. 136. 71. Carlton v. Patterson, 29 N. II. 580; I Greenl. Ev., §180; Bigelow I'. Foss, 59 Me. 162; Richardson v. Field. 6 Green. (Me.) 303; Proctor r. Lainison, 7 Car. & P. 629, 32 Eng. C. L. 793 ; Eaton v. Corson, 59 .\le. 510; Barber 7'. Bennett, 58 Vt. 476, 4 Atl. 231, I L. R. A. 224; Grim- shaw V. Paul, 76 111. 164; Pike v. Wiggin, 8 X. TI. 356. Vol. I Must Be Interested at the Time. In Boston v. Scott, 3 Rand. (Va.) ,?99, it is held that to render declar- ations competent they must have been made while such interest existed and that if ni.-ide before the party acquired an interest they were inadmissible. 72. 2 Whart. Ev, § 1156. linglaitd. — Woolwav v. Rowe, i Ad. & E. 114. 28 Eng.'C. L. 76-, Connecticut. — Smith i'. ^lartin. 17 Conn. 399. Indiana. — McSwceney v. McMil- len, 96 Ind. 298. Massachusetts. — Plimpton v. Chamberlain, 4 Gray 320. Minnesota. — Hosford v. Hosford. 41 Minn. 245, 42 N. W. 1018. .Missouri. — -Meier v. Meier. 105 Mo. 411, 16 S. W. 22?: Anderson v. McPike, 86 Mo. 293. Pennsylvania. — Morrison f. Funk, 2;^ Pa. St. 421 ; Grant r. I.cvan, 4 Barr 393. Te.vas. — Ellis i'. Stone, 4 Tex. Civ. App. 157, 23 S. \\'. 40^: Hays r. Hays. 66 Tex. 606. i S. \V. 895. I'ermont. — Wood z\ Willard, 36 Vt. 82. 84 .\m. Dec. 659. I'irginia. — Dooley v. Ba\nes. 86 Va. 1144. 10 S. !■;. 974. 73. Ilngland. — I5rown v. Raw- lins, 7 East 409; Doe v. Peltett. 5 Barn. & A. 223, 7 Eng. C. L. 129; Doe V. Coyle, 6 Car. & P. 359. 25 Eng. C. L. 474; Doe v. .Austin, 9 Ring. 41, 23 Eng. C. I.. 477; Wise ADMISSIONS. 511 z: Charlton. 4 Ail. & E. 786, 31 Eiig. C. L. 346. Uiv.tcd States. — Bowen v. Chase, 98 U. S. 254; Henderson v. W'ana- niaker, yq Fed. 736. Alabama. — Brewer z: Brewer, ig Ala. 481 ; Pearce v. Ni.\, 34 Ala. 183; Alexander i: Caldwell, S.t Ala. 517; Bancani v. George, 6"; Ala. 259; Beasley r. Clarke, 102 Ala. 254, 14 So. 744; Wisdom ■:■. Reaves, no .\la. 418. 18 So. 13: Mahone i'. Williams, 39 Ala: 202 ; Goodganie ;■. Coles, 12 Ala. (N. S.) 77- Arizona. — Rnsh '■. French, i .Ari'. 00, 25 Pac. 816. Arkansas. — Allen v. AIc(^iaiigliey, 31 Ark. 252. California. — Bollo v. Navarro, i;^ Cal. 459; People v. Blake, 60 Cal. 497; Lord c'. Thomas (Cal.), 36 Pac. -■-2; Stanley r'. Green, 12 Cal. 148: McFadden i'. Ellmaker, 52 Cal. 348; Tompkins v. Crane, 50 Cal. 478 ; Austin V. Andrews, 71 Cal. 98, 16 Pac. 546; Smith J'. Glenn (Cal.), 62 Pac. 180. Connecticut. — Norton v. Pcttihone, 7 Conn. 319, 18 Am. Dec. 116: Rogers i'. Moore, 10 Conn. 13; Peck v. Atwater Mfg. Co., 61 Conn. 31, 23 Atl. 699; Potter r. Waite, 55 Conn. 236, 10 Atl. 563; SiTiith r. Martin. 17 Conn. 399. Georgia. — Lamar 7'. Pearre, 90 Ga. 377, 17 S. E. 92; Yonn t'. Pitt- man, 82 Ga. 637, 9 S. E. 667 ; Power r. Savannah etc. Ry. Co.. 56 Ga. 471: Ozment v. Anglin, 60 Ga. 242; Ogden -'. Dodge Co., 97 oa. 461, 25 S. E. 3^1. Illinois. — Mueller i'. Relihan. 94 111. 142; Cline r. Jones, tit ill. 563; Stunipf !■. Osterhage, in 111. 82; Randegger v. Ehrshardt, 51 111. loi ; Gage -'. Eday, 179 111. 492, 33 N. E. 1008. Indiana. — Joyce v. Hamilton, in Ind. 163, 12 N, E. 294; McSweency z'. McMillen, 96 Ind. 298. Indian Territory. — AlcCurlain t'. Grady, i Ind. Ter! 107, 38 S. W. 65. loti'a. — Robinson v. Robinson, 22 Iowa 427; Wilson t". Patrick, 34 Iowa 362. Kansas. — .Anderson f. Kent. 14 Kan. 207. Maryland. — Dorsey 7'. Dorsey, 3 Har. & J. 410, 6 Am. Dec. 506; Hale V. Monroe, 28 Md. 98; Keener f. KaufFman. 16 Md. 296, .Massachnsells — i'ickeriiig v. Rey- nolds, 119 Mass. in; Plimpton z: Chamberlain, 4 Gray 320 ; Blake z'. Everett, I .Allen 248; Hyde -•. Mid- dlese.x Co.. 2 tjrav 26T ; Foster z: Hall, 12 Pick. 89; Bridge z: Egglcs- ton, 14 Mass. 244; White z'. Loring, 24 Pick. 319; Proprietors of the Cnurch, etc. v. Bullard, 2 Mete. 363; Davis t'. Spooner, 3 Pick. 283 : Tyler z: Mather, 9 Gray 177. Michigan. — Jones z'. PasJiby, 67 Mich. 459. 35 N. W. 152. Mississipfii. — Graham v. Biisliv, 34 Miss. ^72; Whitfield z: Whitfield, 40 Miss. 3S2. Missouri. — Wilson t'. Albert, 89 Mo. 537, I S. W. 209; Wood I'. Hicks, .36 Mo. 326; Dickerson z: Chrisman, 28 Mo. 1.^4; Johnson z: Quarlles, 46 Mo. 423; Meier v. Meier, 10=; Mo. 411. 16 S. W. 223. Nebraska. — Cunningham z\ Fnller, 35 Neb. 58, 52 N. W. 836. Nezv Hampsliire. — Dow z\ Jewel, 18 N. H. ,uo, 45 Am. Dec. 371 ; Baker v. Haskell, 47 N. H. 470, 93 Am. Dec. 455 ; Pike v. Hayes. 14 N. H. 19, 40 Am. Dec. 171 ; Hulburt v. Wheller, 40 N. H. 7?, : Smith v. Pow- ers, 15 N. H. 546; State z: Mills, 63 N. H. 4; Smith -'. Forrest. 49 N. H. 230. Nezi.' Jersey. — Edwards z: Der- rickson, 28 N, J. Law 39; \'an Blar- com V. Kip, 26 N. J. Law 351 ; Town- send V. Johnson, 3 N. J. Law 279; N. J. Zinc etc. Co. z\ Lehigh Zinc etc. Co., 59 N. J. Law 189, 35' Atl. 91S; Nezc York. — Bingham ''. Hyland. 3^ Hun 631, 6 N. Y. Supp. 7;; Lvon r' Ricker. 141 N. Y. 225. ^6 N." E. 189; Pitts V. Wilder, i N. Y. 5J.S : Jackson z'. Bard. 4 Johns. 2^0; Keator v. Dimmick, 46 Barb. 138; Spauldiiig t'. Hallenbeck, 35 N. Y. 204; Chadwick z: Fonner, 69 N. Y. 404 ; Jackson z'. McCall, 10 Johns, 377, 6 Am. Dec. ,343 ; Vroonian v. king, 36 N. Y. 477. North Carolina. — Newlin z'. Os- borne, 4 Jones (Law) 1-7, 67 Am. Dec. 2(39; Roberts z\ Preston, 100 N. C. 243, 6 S. E. S74 ; McCauless z: Revnolds, 67 N. C. 268; Gidnev z: Moore. 86 N. C. 484; Harshaw T'. i\Ioore, 12 Ired. Law 247 ; Hed- rick V. Gobble, 6^ N. C. 48; Headen r. Womack, SS Si. C. 468; Magee v. Vol, I ADMISSIONS. Blankfn--hip, g^ \. C. 563; Canslcr v. File. 5 Jones 424. Pennsylvania. — ^^orri^on f. Funk. 2}, Pa. "St. 421; Patton v. Gold.s- borongh. Serg. & k. .17 ; Pierce x\ McKeelian, ,3 Pa. St. 136: Hiigus v. Walker. 12 Pa. St. 173: Sergeant v. Ingersoll, 15 Pa. St. 343: St. Clair I'. Sliale. 20 Pa. St. 105 ; Dawson v. Mills, ,!2 Pa. St. 302 i Grant v. Levan. 4 Pa. St. 393; Penrose v. Oriffitli, 4 Binn. 231 ; Griibb v. Grtibb, 74 Pa. St. 25; Alden v. Grove. 18 Pa. St. 377; Gihblchousc i\ Toug, 3 Rawl. 436. South Caraliiia — Ellen z'. Ellen, 18 S. C. 489. Tennessee. — Dunn v. Eaton, 92 Tenn. 743, 23 S. W. 163. Te.vas. — Ellis r. Stone, 4 Tex. Civ. App. In7. 23 S. W. 405; Snow V. Starr (Tex.,) 12 S. W. 673; Hancock f. Tram Lumber Co.. 65 Tex. 225 ; Hurt v. Evans, 49 Tex. 311: Wilson 7'. Simpson (Tex.), 16 S. W. 40 ; Coughran v. Alderete (Tex. Civ. .\pp.), 26 S. W. log: Hays r. Hays, 66 Tex. 606, I S. W. 895; Titus V. Jobnson, 50 Tex. 224. Utah. — McCormick ?■. Sadler. 14 Utah 463, 47 Pac. 667; Harrington V. Chambers, 3 Utah 94, i Pac. 362. Vermont. — Wood v. Willard, 36 Vt. 82. 84 Am. Dec. 659: Hale v. Rich, 48 Vt. 217; Oakman v. Walker, 69 Vt. 344, 38 Atl. 63. I'irginia. — Dooley z'. Baynes, 86 Va. 644, 10 S. E. 974. Il'est I'irginia. — Fry v. Peamster. 36 W. \"a. 454, IS S. E. 253; Houston 7'. McCluney, 8 W. Va. 13.S. As Against Grantees The ad- mission, is confined in some of the cases, in respect of purchasers, to grantees not shown to be innocent purchasers for value, and to admis- sions made prior to the purchase. Ellis 7'. Stone, 4 Tex, Civ. App. 157, 23 S. W. 405 ; Dooley 7'. P.aynes. 86 Va. 644, 10 S. E. 974- As to Existence of Homestead. Where the existence of a homestead is in question, the admissions of a former claimant, while in possession, in disparagement of the claim, are competent in favor of one claiming adversely. Anderson 7'. Kent, 14 Kan. 207. Reason of the Rule. — The groiuids upon which such admissions Vol. I arc held to be competent are thus stated in Dooley 7-. Rayncs, 86 Va. 644, 10 S. E. 974 : ■' The principle more fully expressed, upon which such declarations are admissible as original evidence, is that the declar- ant probably knew the truth, and that his own interest, which would natur- ally influence him not to make un- true admissions to the prejudice of his title, is a sufficient security against falsehood ; and not only arc such admissions admissible against the declarant, but equally so against per- sons subsequently deriving title through or from him, because of the privity of estate or identity of in- terest that subsists between the par- ties." See to the same effect, Chadwick V. Former. 69 N. Y. 404. Of Widow in Possession. — In Doe 7'. Peltetl, 5 Barn. & A. 223, 7 Eng. C. L. 129, it was held that the declarations of the widow in posses- sion of premises, that she held them for life, and that after her death they would go to the heirs of her husband, were admissible in evidence to negative the fact of her having had twenty years' adverse possession, the court saying: "All questions of evidence must be considered with reference to the particular circum- stances under which it is offered. Here, the question was, whether the widow had occupied the premises adversely for more than twenty years, and her declarations are of- fered in evidence to rebut the statute of limitations; and for that purpose. I think they were admissible. They were not used to show the quantum of her estate, but only to explain the nature of her possession." Who Are Privies in Estate As to who are privies in estate within this rule of evidence, see Pool v. Morris. 29 Ga. 374, 74 Am. Dec. 68. Of Mistake in Deed The ad- mission of a grantor of a mistake in a deed is competent against a sub- sequent purchaser. Allen 7'. Mc- (^.aughcy, 31 Ark. 232. Tenant by Courtesy — In Orr 7'. Clark, 62 Vt. 136. 19 Atl. 929, the court said : " The testimony of Andrews as to the admissions of Whitcomb was properly excluded. Whilcomb occupied the land after his ADMISSIONS. 51.-? b. .iiid Against Strangers. — And against strangers.'^ The fact that the party making the declarations is still alive does not affect the competency of the evidence.'^ But it is held that the admissions of living former owners should be confined, as against strangers, to cases where they are part of the res gestae.''^' Nor is it affected by the fact that the declarant is a competent witness.'' c. Against Whom Not Admissible. — (1.) Prior Grantees. — Such admissions are not competent against a prior grantee.'* wife's decease, with his daughters' consent. He was a tenant by cour- tesy without their consent. What he supposed aliout the title while lie was thus occupying could not give construction to the writing, or affect tlie title of his daughters or of their legal representative^." By Expected Heir of an Estate. In Morton v. Massie. 3 Mo. 482, it was held that declarations made by one likelj' to become an heir of an estate, in the lifetime of the intes- tate, as to the condition of his prop- erty, were not competent after his death as evidence. By Administrator of Predecessor. The admissions of the administrator of a predecessor in title are not com- petent as against the present claim- ant. Lawrence v. Wilson, 160 Mass. 304. 35 N. E. 858. Of Ancestor Against Heir It is held in general terms that whenever the adinission of an ancestor would have been admissible against him, if living, it is admissible against an heir claiming under him by descent. Davis T'. Melson, 66 Iowa 715, 24 N. W. 526; McSweeney v. McMillen, 96 Iowa 298; Wallis i'. Luhring. 1.34 Ind. 447, 34 N. E. 231 ; Hodges i'. Hodges. 2 Cush. (Mass) 455. For What Purpose Admissible. In Stanley ?'. Green, 12 Cal. 148 it is held that it matters not whether the declarations relate to the limits of a party's own premises or the extent of his neighbor's, or to the boundary line between them or to the nature of the title he asserts, if their purport is to restrict his own premises or lessen his own title, they are ad- missible. Must Be Privity of Estate. — Such admissions arc admissible only against one claiming under the same title held by the pre, W. Va. 449, 10 S. E. 799. Wiseonsin. — Matteson i\ Hart- maun, 01 \\'is. 485. 65 X. W. 58. To Show Adverse Possession A difFerenl rule may prevail with re- spect to declarations in case of a claim of adverse possession. For example : in the case of Stearns v. Hendersass, 9 Cush. (NFass.) 497, -'' Am. Dec. 64, the declarations of a grantor, made after his grant, were held to be competent as bearing upon the question of adverse possession under a claim of right, as it tended to establisli such adverse possession, with the knowledge of the grantor, and to show his acquiescence in such an adverse claim. Made at Time of Execution of Deed Declarations made at the time of the execution of a i\i:ei.\. which is in evidence, are held to be competent as a part of the res g sfae, and are therefore admissible not only as admissions against those claiming under him, but in their favor. See "Declarations:" "Res Gestae;" Kenney v. Phillipy, 91 Ind. 511 ; Pot- ter V. McDowell, 31 Mo. 62 ; Branch V. Makeig, 9 Tex. Civ. App. 284, 28 S. W. loso ; State r. .\ndrews, 39 W. Va. 35. 19 S. E. 385. Between Signing and Delivery. In Denton t. Perry, 5 Vt. 382, it was held that admissions made by a grantor between the date of the deed and its acceptance by the grantee were competent as against such grantee. By Mortgagor After Execution of Mortgage. — The declarations of a mortgagor after the execution of the mortgage in disparagement of the validity of the instrument are not admissible against the mortgagee. Grimes Dry Goods Co. v. Malcolm, 58 Fed. 670; Duane v. Paige, 82 Hun 139, 31 N. Y. Supp. 310. Deed of Gift The rule excluding declarations of the grantor, made after the sale or conveyance, applies to deeds or other transfers by way of gift. Newman z'. Wilbourne, i S. C. Eq. 10 ; Julian i'. Reynolds, 8 Ala. (N. S.) 680. But see Worniouth z'. Johnson, 58 Cal. 621. in which it is held that in case of a deed of gift the declarations of the grantor made after the con- veyance were competent against the grantee. To Establish Trust Such dec- larations made after the conveyance cannot be received to convert an ab- solute deed into a trust for the bene- fit of a stranger. Crow v. Watkiiis, 48 Ark. 169, 2 S. W. 6^0. 80. Williams v. Williams, ij2 N. Y. 156, .36 N. E. TO53; Cnrdini :■. Vol. 1 516 ADMISSIONS. for example, res };cs/at' or coiis])irnc\ l)el\\i.x'ii llie grantor and grantee." (3.) By Testator After Execution of Will. — The rule exchuling admissions made after a party has parted with his interest, has been applied tn declarations of a testator made after tlie execution of his will."- Ritciunir, ni])etent ;" but not if tliey are a jjart of a subsei|ucnt conversation, although explanatory of admissions made in the first.* k. UliUe in Possession of Personal Properly. — (1.) Generally. The declarations of a party while in possession of and dealing witii personal property, in disparagement of title, are competent as admis- sions against him and those claiming under him,'' and in explanation of the possession, but not necessarily aS admissions." If, however, 3. Ellen V. Ellen, i8 S. C. 489; Postens V. Postens, 3 Watts & S. (Pa.) 127; Wilsnn v. Woodruff, J Mo. 40, 31 Am. Dec. 194. 4. Wilson V. Woodruff, 5 Mo. 40, 31 Am. Dec. 194; Lewis v. Adams, 61 Ga. 559. Subsequent Conversation Inadmis- sible In Perry v. Ciraves. 12 .Ma. (N. S.) 246. it is said: "It may be the declarations made subsequently were offered with a view to explain and do away the force of those previously made ; but even in this view they were entirely inadmissible, as they were not parts of the same conversation, and as he would be directly interested to sustain the right of the plaintiff; and also on the ground that these declarations were more hearsay." Where Ancestor Is Dead — The fact that the prior owner is dead does not render such declarations ad- missible. Smith V. Powers, 15 N. H. 546. 5. f.iiglaiid. — Grocers, etc. v. Donne, 3 Bing. 34. 32 Eng. C. L. 25. Alabama. — hide v. Lide, 32 Ala. 449; Moses V. Dunham, 71 Ala. 173; Arthur z: Gavle, 38 Ala. 259; Mc- Rride'z'. Thompson, 8 Ala. (N. S.) 650; Mobley r. Barnes, 26 Ala. (N. S.) 718; Jennings v. Blockers, 25 Ala. (N. S.) 415- C'o/iyciniia.— Gallagher v. Willianis, 23 Cal. 3,3^. 83 Am. Dec. 114. ruiiiicc/iCK/. — Avery v. Clemons, 18 Conn. 306, 46 Am. Dec. 323. Georgia. — Horn v. Ross, 20 Ga. 210, 65 Am. Dec. 621 ; Jones v. Mor- gan, 13 Ga. 515. ///iiiDiV— Waggoner z: Cooley, 17 111. 2,^9; First Nat. Bank z: Strang, 138 111. 347, 27 N. E. 903; Venmim z: Thompson, 38 111. 143; Randcgger z: Ehrhardt, 51 111. lOi. hutiana. — Kuhns v. Gates, 92 Ind. 66 ; Bunberry v. Brett, 18 Ind. 343 : Durliam z\ Shannon, 116 Ind. 403, 19 N. E. 190: Tyres v. Kennedy, 126 Ind. 523, 26 N. E. 394: McConncll z'. Hannah, 96 Ind. 102 ; Garr, Scott & Co. ■;'. Shaffer, 139 Ind. 119, 38 N. E. 811. /oii'fl. — Taylor v. Lnsk, 9 Iowa 4-t4- Kentucky. — Carrel v. Early. 4 Bihb 270. Maine. — McLanathan v. Patten, 39 Me. 142; Bcedy v. Maconiber, 47 Me. 451 ; White v. Chadbourne, 41 Me. 149. Missouri. — Carin v. Smith, 24 Mo. 221 ; Burgess v. Quimby, 21 Mo. 508; Criddle v. Criddle, 21 Mo. 522. Nczv Hamf shire. — Putnam <■. Os- good, 52 N. H. 148. North Carolina. — Johnson v. Pat- terson, 2 Hawks. 183, II Am. Dec. 756; Kirbey v. Masten, 70 N. C. 540. Pennsylvania. — In re Gracie's Es- tate, 158" Pa. St. 521, 27 Atl. 1083. Tennessee.— Peoples v. Devault, II Heisk. 431. Tc.ra.s. — Fellman v. Smith, 20 Te.x. 99. V ermont. — M^er v. Andrews, 47 Vt. 238; Hayward Rubber Co. v. Duncklee, 30 Vt. 29; Downs v. Bel- den, 46 Vt. 674. By Mortg'agor of Chattels Thus, it is held that the admissions of a mortgagor of personal property are admissible against the mortgagee in an action for possession founded on the mortgage. Tyres v. Kennedy, 126 Ind. 523, 26 N. E. 394- 6. See " DKC^,.^RATI0NS ; " " Rf.s Gestae." .Alabama. — Webster v. Smith, 10 .Ma. (N. S.) 429; Mobley Z'. Barnes, 26 Ala. 718; Mohlcy v. Bilberry, 17 Ala. (N. S.) 428. Colorado. — Stone v. O'Brien, 7 Colo. 458, 4 Pac. 792. Vol. I 226 ADMISSIONS. they are in the nature of admissions against liis title, they are admissible, not only as against the ]iarty making them, but against one claiming under him.' They may be, as in other cases, by acquiescence in what is said by another.' The fact that the party is not a competent witness does not affect the question of the admis- sibility of his admissions." They must, however, be made while the party is in possession of the property, or be accompanied by some corresponding act relating "to the property.'" Must Be in Disparagement of Title. — And they must, even where the party is in possession at the time, be either in disparagement of his title or explanatory of his possession to be admissible." In some cases such declarations, made in favor of the party in possession and not against his interest, are held to be whollv inadmis- sible as hearsay.'- And the rule allowing them seems to be without the shadow of reason.'-' (2.) As Against the Vendee. — If offered against the vendee tliev must have been made before the sale," unless thev fall within some Connecticut. — Avery v. Clenioiis, i8 Conn. jo6, 46 Am. Dec. 323. Indiana. — Garr, Scott & Co. v. Shaffer, 139 Ind. 191, 38 N. E. 811. Iowa. — Murray v. Cone, 26 Iowa 276; Taylbr v. Lusk, 9 Towa 444; Sweet V. Wright, 57 Iowa 510, 10 N. W. 870; Stephens v. Williams, 46 Iowa 540; Hardy v. Moore, 62 Iowa 65, 17 N. W. 200; Blake v. Graves, 18 Iowa 312. New York. ■ — Mclntyre v. Costello, 53 Hun 636, 6 N. Y. Supp. 397. Tf.i-o.y. ^O'Brien v. Hilburn, 22 Te.x. 616. Vermont. — \Ivl\q v. Ricli, 48 Vt. 217. Wisconsin. — Roebke i'. Andrews, 26 Wis. 311. 7. Connecticut. — Avery v. Clem- ens, 18 Conn. 306, 46 Am. Dec. 323. Illinois. — Randegger v. Ehrliardt, 51 111. lOI. Indiana. — King i'. Wilkins, 11 Ind. 347; Bunberry v. Brett, 18 Ind. 343. Louisiana. — Leefe v. Walker, 18 La. (O. S.) 362. Maine. — AlcLanathan v. I'atten, 39 Me. 142 ; White v. Cliadbourne, 41 Me. 149; Parker v. Marston, .34 Me. 386. Missouri. — Darrett v. Donnelly, 38 Mo. 492. Nei<.< Haml'shire. — Pnlnani ?'. Os- good, 52 N. II. 148. I'cnnesscc. — llolmark f. Molin, 5 Cold. 4,S.'; Guy I'. Hall, 3 Humph. 150. Vol. I I'crmont. — Hayward Rubber Co. I'. Duncklee, 30 Vt. 29; Downs v. Belden, 46 Vt. 674. Virginia. — Walthal v. Johnson, 2 Call 275. Only Against Him and His Imme- diate Representatives. — Simpson v. McKay, 3 Hun (N. Y.) 316. 8. Carrel v. Early, 4 Bilil) (Ky.) 270. 9. Hatcli 7'. Denis, 10 >,Ie. 244; Webster v. Smith, 10 .\Ia. (N. S.) 429. 10. O'Brien v. Hilburn. 22 Te.\. 616; Mclntyre v. Costello, 53 Hun 636, 6 N. Y. Supp. 397: -Alexander v. Jennings, 10 Lea (Tenn.) 419; Bunker v. Green, 48 111. 243; Sum- ner V. Cook, 12 Kan. 162: Benson i\ Lundv, i2 Iowa 26^, 3 N. W. 149: Mobley v. Barnes. 26 Ala. (N. S.) 718: Vaughan '•. Winckler, 4 Munf. (Va.) 136. 11. .Mobley v. Barnes, 26 Ala. ( N. S.) 718; .Abney 7'. Kingsland, 10 .Ala. (N. S.) 355. 44 Am. Dec. 491. 12. King V. Frost, 28 Minn. 417, 10 N. W. 423; Olsom 7'. Swenscn, 53 ^linn. 516, 55 N. W. 596; McGough 7'. Wellington, 4 .Mien (Mass.) 502. 13. Sweet 7'. Wright, v Vms. sio, 10 N. W. 870. 14. United Slates. — V. S. 7'. Lot of Jewelry, 13 Blatchf. 60, 26 Fed. Cas. No. 15,626; Winchester etc. Co. 7: Cleary, u6 V. S. 161. .Ilabama. — Taylor 7'. Bank of lluntsville, 14 .Ma. 633. ADMISSIONS. 527 of the exceptions to the rule ; for example, where they are part of the res gestae, or there is a conspiracy to defraud on the part of Arh'ciiisas. — Smith t'. Hanilct. 43 Ark. 320; Clinton v. Estes. 20 Ark. 216; Rector v. Danley, 14 Ark. 304. California. — Colin v. Mulford, 15 Cal. 50; Hutchings v. Castle, 48 Cat 1.^2; Visher v. Webster. 13 Cal. 58; Paige V. O'Neal, 12 Cal. 483; Ban- ning V. Marleau, 121 Cal. 240, 53 Pac. 692. Georgia. — James v. Kirbey, 29 Ga. 684. Illinois. — Randeggcr v. Ehrhardt, SI 111. loi ; Myers v. Kinzie, 26 III 36: Edwards 1: Hamilton, 10 III App. 340; Bnnker r. Green, 48 III. 243 ; Hessing v. McCloskey, 37 111. 341; Milling V. Hillenbrand, 156 111. 310. 40 N. E. 941 ; Miner i'. Phillips, 42 III. 123. Indiana. — King v. Wilkins, 11 Ind. 347; Campbell v. Coon, 51 Ind. 76; Keith V. Kerr, 17 Ind. 284; Gar- ner Z'. Graves, 54 Ind. 188. Iowa. — Gray v. Earl, 13 Iowa 188; McCormicks 7'. Fuller. 56 Iowa 43, 8 N. W. 800: Allen r. Kirk, 81 Iowa 658, 47 N. W. go6. Kansas. — Sumner v. Cook, 12 Kan. 162. Kentucky. — Brashear r. Burton, 3 Bibb 9, 6 Am. Dec. 634; Gatlif v. Rose, 8 B. Mon. 629. Maine. — White v. Chadbourne, 41 Mc. 149. .1/ao''a"<'- — Garther v. Martin, 3 Md. 146; Cooke v. Cooke, 29 Md. 538; Hall r. Hinks, 21 Md. 406. Massacliusctts. — Pzrry v. Libbey, 166 Mass. 112, 44 N. E. 124. Michigan. — Lewis r. Rice. 61 Mich. 97, 27 N. W. 867: Munccy V. Sun Ins. Office, 109 Mich. 542, 67 N. W. 562. Minnesota. — Holland z\ Fuller, 8 Minn. 50; Zimmerman v. Lamb, 7 Minn. 421 ; Beard J'. First Nat. Bank, 41 Minn. 153, 43 N. E. 8; Derby v. Gallup, S Minn. 119. Missouri. — Carin v. Smith, 24 Mo. 221; Milliken v. Greer, 5 Mo. 489; Farrar v. Snyder, 31 Mo. App. 93- Mcbraska. — Farmer's L. & T. Co. V. Montgomery, 30 Neb. 33, 46 N. W. 214; Williams v. Eikenberry, 2.S Neb. 721. 41 N. W. 770; Zobel V. Bauer- sacbs, .=;5 Neb. 20, 7.S N. W. 43. iVi-tf F(H-^. — Taylor r. Marshall. 14 Johns. 204; Jacobs z'. Remsen, 36 N. Y. 668 : Snragne v. Kneeland, 12 Wend, 161 ; Hurd v. West. 7 Cow. 7^2: Roeber 7'. Borne. ,30 Hun 370; German- Am. Bank v. Slade, 1=; l\Iisc. 287, 36 N. Y. Supp. 983- North Carolina. — Hicks 7'. For- rest. 6 Ired. 528. South Carolina. — Land v. Lee. 2 Rich. 168; Crawley p. Tucker, 4 Rich. 560. Tennessee. — McClellan v. Cornwell, 2 Cold. 298 ; McCasIand i'. Carson, I Head 117; Holmark v. Molin, 5' Cold. 482. Texas. — Hinson v. Walker, 65 Tex. 103 ; Garrahv v. Green. 32 Tex. 202; Grooms v. Rust. 27 Tex. 231; Copn r. Swift (Tex. Civ. App..) 26 S. W. 438; Smith V. Dunham (Tex. Civ. App..") 29 S. W. 713: D'Arrigo 7'. Tex. Produce Co. (Tex. Civ. App.,) 31 S. W. 713; Dallas Nat. Bank v. Davis, 78 Tex. 362, 14 S. W. 706. Vermont. — Bullard v. Billings. 2 Vt. .309. IVisconsin. — Selsby v. Redlon. 19 Wis. 18; Grant v. Lewis, 14 Wis. 487. 30 Am. Dec. 785. ll'voniing. — Toms z: Whitmore. 6 Wyo. 220. 44 Pac. ,s6. ■When Vendor's Statements Admis- sible In Orr & Lindsley Shoe Co. z\ Needles.* 67 Fed. 990, the court said: "It is undeniable that declar- ations made to third parties by a vendor of property after the sale and delivery thereof have been con- suiumated, are not admissible against the vendee to impair the latter's title, unless there is independent evidence to show that the vendor and vendee have entered into a fraudulent con- spiracy of some sort, so that the statements of one are admissible against the other, or unless the ven- dor's statements are authorized, or subsequentlv ratified by the vendee." Where They Accord With Those of Vendee. — But see Hunter v. Jones, 6 Rand. (Va.), in which it is held that the declarations of the vendor made after the sale are competent where they accord with the ackm^wl- Vol. I 528 ADMISSIONS. the vendor and vendee or other relations between them rendering the admissions of one binding upon the other ;'^ and in some cases, it is lield to be the general rule that declarations of a vendor of per- sonal property going to defeat the title are not admissible against his vendee in good faith and for value whether made before or after the sale.^" (3.) By Donor Against Donee. — So it is held that the declarations of a donor, in case of a gift of personal property, for the purpose of showing the gift to be fraudulent, are inadmissible against the donee if made after the gift;'' so if offered to defeat the gift on other grounds.'' (4.) To Show Fraud in the Transfer. — The rule as to the compe- tency of admissions of the vendor to show fraud in the transfer is the same, generally, as the case of grantor and grantee of real estate, considered above, some cases holding such admissions to be inadmissible ;'" others holding them to be competent to show fraudu- edgments of the vendee previously made. 15. See " Declarations ; " Res Gestak : " Allen r. Kirk, 8i Iowa 658. 47 \. \\'. 90(1. For Purpose of Impeachment. — It should be borne in mind also, that such declarations may be admissible, the foundation being laid, for the purpose of impeaching the vendor if he becomes a witness. Rut in such case, they are not admissible as ad- missions. Williams z: Eikenberry, 25 Neb. 721, 41 N. W. 770; Selsby v. Rcdlon, 19 Wis. 18. 16. Uitited States. — Dodge 7: Freedmen's S. & T. Co., 93 U. S. 379; Orr & Lindsley Shoe Co. v. Needles, 67 Fed. 990. • Alabama. — Walker v. Blassingame, 17 Ala. Sio; Garner v. Bridges, 38 Ala. (N. S.) 276; Murphy v. Bntler, 75 Ala. 381 ; McKenzie v. Hunt, i Port. 37 ; Smith v. Rogers, I Stew. & P. 317; Weaver v. Yeatman, 15 Ala. 539; Borland v. Mayo, 8 Ala. (N. S.) 104. California. — Spanagel v. Dellin- ger, 38 Cal. 278; Silva v. Serpa, 86 Cal. 241, 24 Pac. 1013; Walden v. Purvis, 7Z Cal. 518, 15 Pac. 91 ; Gar- lick V. Bowers, 66 Cal. 122, 4 Pac. 1 138; Briswaller v. Palomaris, 66 Cal. 259, 5 Pac. 226. Maiiu'. — Hatch v. Dennis. 10 Me. 2< I. Massachusetts. — Short v. Tinslcy, I Mete. 397, 71 Am. Dec. 482. y\/u.m.?i7'/'/.--Wilkeson v. MofTelt- Vol. I West Drug Co. (Miss.), 21 So. 564. New York. — Flannery v. Van Tassel, 127 N. Y. 631, 27 N. E. 393; Paige V. Cagwin. 7 Hill 361, 42 Am. Dec. 68; Bnllis ;■. Montgomery, 50 N. Y. 352 ; Gardner t: Barden, 34 N. \ . 433 ; Tilson v. Terwilliger, 56 N. Y. 273; Hart v. West, 7 Cow. 752; Morris v. Wells, 54 Hun 634, 7 N. Y. Supp. 61. •Vermont. — Sherwin i', Bugbee, 17 Vt. 337- Except Where Part of the Res Gestae. — Squire v. Greene, 47 App, Div. 636, 62 N. Y. Supp. 48. 17. Walden v. Purvis, 73 Cal. 518, 15 Pac. 91 ; Strong v. Brewer, 17 Ala. 706. 18. Julian v (N. S.) 680. 19. Whiting & R. (Pa.) 328; Reynolds, 8 Ala. Johnson, 11 Serg. 14 Am. Dec. 633; Winchester Alfg. Co. v. Creary, 116 L'. S. 161 ; Paige v. O'Neal, 12 Cal. 483 ; Tapley v. Forbes, 2 Allen (Mass.) 20; Parry ?'. Libbey, 166 Mass. 112, 44 N. E. 124; Orr etc. v. Needles, 67 Fed. 990. By Mortgagor Against Mortgagee. The declarations of a mortgagor made after the execution of the mortgage tending to show its fraudulent char- acter are inadmissible as against the mortgagee. Silva v. Serpa, 86 Cal. 241, 24 Pac. 1013 ; Farmer's L. & T. Co. 7'. Montsfonierv. .V> Neb. 33, 46 S. W. 214. By Vendor of Personal Property, hi Garner v. Bridges, ,?8 Ala. 276, .in.MISSIOXS. 52') lent intent on the ]);irt (if the N-endor only, leaving knowledge of or partici])ation in the fraud hy the vendee to l)e estalilished by other evidence,'-'" and others limiting the rnle to admissions made before tlie transfer.-' it was held that the (lecl.'iralioiis of the vendor of a slave made several months before the sale not explana- tory of his position or tiile and noi made in the presence of the pnr- chaser were not competent evidence against the purchaser. 20. Gallagher v. Williams, 23 Cal. 3.3r, 83 .\m. Dec. 114; Foster v. Hall, 12 Pick. (Mass.) 8g; Guidry v. Grivot, 2 Mart. (La.) (N. S.) 13, 14 Am. Dec. 193: Hinson v. Walker. 65 Tex. 103. For What Purpose Admissible, bi a note to Horton f. Smith, S Ala. 73, 42 Am. Dec. 628, the editor makes this statement, followed hv the citation of nnnierons authori- ties: "The declarations and acts of a vendor made or done before the execution of a conveyance which is attacked on the ground of fraud are admissible in evidence .against the vendee to show such fraud on the part of the vendor; but to render the same operative against the vendee, such evidence must be followed by testimony tending to prove knowl- edge or notice of the vendor's fraud- ulent intent by the vendee. This rule is one of frequent application, and although decisions may be found to the contrary, its correctness is established by an overwhelming weight of authorities." 21. United Stales. — Winchester etc. Mfg. Co. I'. Creary, 116 U. S. 161. Alabama. — Bilberry i'. Mobley, 21 Ala. 277; Weaver v. Veatnians, i^ Ala. (N. S.) 539- California. — Cohn v. ^hilford, 15 Cal. 50; Jones i'. Morse, 36 Cal. 205; Paige V. O'Neal, 12 Cal. 483; Visher t. Webster, 13 Cal. 58. Illinois. — Wheeler r. McCorristen, 24 111. 41. Jiii\.a. — Fowler Co. i\ .McDowell. 100 Iowa 526, 6g N. W. 873. Kansas. — Smith v. Wilson, 5 Kan. App. 379, 48 Pac. 4,36. Maine. — Dennison "■. I'enner. 41 Me. 332. 34 Massaclmsells. — Horrifian v. Wright, 4 .Mien 514. .l//;;».-.v,i/<;. — Holland ?■, Fuller, S Minn. 50. .Vez'adii. — llirschfelil ''. William- son, 18 Nev. 66, I Pac. 201. Ohio. — Ohio Coal Co. r. Daven- port, 37 Ohio St. 194. Pennsylvania. — Hartley v. Weide- nian, 175 Pa. St. 309, 34 Atl. 625. South Carolina. — Kittles i'. Kittles, 4 Rich. 422. irisconsin. — Bogerl ?'. Phelps, 14 Wis. 88. Except in Case of Independent Evidence of Conspiracy bi the case of Winchester, etc. Mfg. Co. v. Creary, 116 U. S. 161, the rule is thus stated: " It is, however, insisted that Webb's declarations after the sale were admissible in support of the charge of combination or conspiracy to defraud the defendants Hayner & Co., and other creditors. Without extending this opinion by a review of the adjudged cases in which there was proof of concert or collusion between vendor and vendee to de- fraud creditors, and in which ihe subsequent declarations of the ven- dor were otTered in evidence against the vendee to prove the true char- acter of the sale, it is sufficient to say that such declarations are not admissible against the vendee, unless the alleged common purpose to de- fraud is first established by inde- pendent evidence, and unless they have such relation to the execution of that purpose that they fairly con- stitute a part of the res gestae. There was no such independent evi- dence in this case, and there is no foundation for the charge of a con- spiracy between the vendors and the vendee to hinder creditors, outside of certain statements which Webb is alleged to have made after his firm had parted with the title and surren- dered possession." See also, Caldwell r. Williams, i bid. 405; Ewing <■. Gray. 12 bid. 64; Vol, I bM) IPMISSfONS. By Debtor As Between Purchaser and Attaching Creditor. — Declara- tions of a debtor cannot be received to sliow a fraudulent intent on the part of such debtor in an action between a purchaser for value without notice and an attaching' or execution creditor, where such declarations were made anterior to the sale claimed to have been fraudulent ;-'- nor can the admissions of the execution jilaintiff or defendant made pending- the proceedings for sale under attachment or execution, be received to defeat the title of the purchaser;-'' nor to show a valuable consideration for the purchase."'' But ordi- Wcaver v. Yeatman, 15 Ala. (N. S.) 5,30. ■Where the Vendor Retains Pos- session of the Property The effect upon the rule excluding such fleclar- atious made after the sale of the retention of the property by the vendor is thus stated in McCIellan 7'. Cornwell, 2 Cold. (Tenn.) 298: " But, in cases where the transaction itself is attacked, upon the ground of fraud, if the vendor retains the pos- session of the property, inconsistently with the terms of the contract, and, consequently, in hostility to the rights of the purchaser, this rule is rela.xed, and liis statements in the absence of the purchaser, in refer- ence to the ownership, or contract, or terms upon which he holds pos- session of the property, may be re- ceived as evidence against the pur- chaser, as part of the res gestae, be- cause such possession of the prop- erty is a badge of fraud, which, of itself, connects him with the pur- chaser, in the suspicion of a con- federate to defeat creditors. But the bare fact of possession by the vendor, is not, of itself sufficient; for if his possession be consistent with the rights of the purchaser, and accord- ing to the terms of the contract, his statements, in the absence of the purcliaser, are inadmissible as against the purchaser." See also Boyd 1'. Jones, 60 Mo. 454; Grant v. Lewis, 14 Wis. 487, 30 Am. Dec. 785. To Explain the Nature of His Possession. — In Mobley r. Bilberry, 17 .A.la. 4j8, it is held that subsequent declarations of the vendee while re- taining possession arc admissible to explain tlie nature of his possession. ■Where 'Vendor Remains in Pos- session P.iu it is luld that where the vendor remains in possession Vol. I after the sale his declarations are ad- missible. Gallick V. Bordeaux, 22 Mont. 470, 56 Pac. 961 ; Lehmann ?'. Cliapel. 70 Minn. 496, 73 N. W. 402. 22. Waggoner Z'. Cooley, 17 III. 239; Tabor r. Van Tassel, 86 N. Y. 642; Jones V. Norris, 2 Ala. 526; Murphy v. Butler. 75 .\la. 381. Admissions of Debtor Thus it is said in Muses f. Dunliam, 71 Ala. 173; "Out of this has grown a well considered and well settled prin- ciple of evidence, namely : That in such contests, which most usually arise in " trials of the right of prop- erty ' — a proceeding under our stat- utes — the adiuissions and declarations of the debtor, made anterior to the sale, under which the claimant as- serts title, are not admissible evi- dence against him to show a fraud- ulent intent on tlie part of such debtor in luaking the sale, provided the sale was on valuable consider- ation, and the purchaser is not chargeable with knowledge of the fraiululent intent." Of Bankrupt Against His As- signee It is held that in ref'levin by the assignee of a bankrupt the defendant may give in evidence the statements of the bankrupt, made before his application for the benefit of the bankrupt law, to prove the property to be in a stranger, but that the assignee could not prove admis- sions of such stranger that the prop- erty belonged to the bankrupt. Complon V. Fleming, 8 Blackf. (hid.) 15,3- 23. ■Vandyke r. Bastedo, 15 N. J. Law 224; Renshaw v. Steamboat Pawnee, 19 Mo. 532 ; Brown v. Up- ton, 12 Ga. 505. 24. Berry v. Hardman, 12 .\la. (N. S.) 604; Falkner v. Leilli, ig .\la. (N. S.) 9. Of Debtor to Show Consideration IPMfSSfOXS. 531 iiarily tlui'c is no ilittcrcncc Ijctwccn unc claimiui;- under an exe- cution and a QTantee of the prior owner, in this respect, and the admissions of the possessor of property made while in possession are admissiiile asj^ainst an attacliing or execution creditor.-' Must Be Made Before Lien Attaches. — I, ike the case of a s'de hy tlie owner, tlie admission to he competent as a^'ainst the attachinij cred- itor must have hecn made heforc the lien attaches either hy levy or judgment.-" Of Debtor to Show Bona Fides of Transaction. — Where the cpiestion arises between two creditt)rs the admissions of the debtor in support of the good faith of the transaction with one of the claimants may be admissible.-' of the Purchase In Hooper t'. Edwards, i8 .\la. (N. S.) 280, it was held that in a contest between the existing creditor and a pnrchaser from the delitor, the statements of such debtor were not admissible to prove the consideration of the pur- chase. To Establish a Demand Against Property Attached — In Ren-.liaw r. Steamboat Pawnee. ly .Mo. 532, it was held that the demands of the owner of the boat, made after the l)oat had been seized and ordered to be sold, were not competent to es- tabhsh a demand presented for al- lowance) as a lien upon the proceeds of the sale of the boat. 25. Alabama. — liubosc i'. Voung. 14 Ala. 139. Arkansas. — Allen v. McGaughey, 31 Ark. 252. California. — Gallagher v. Williams, 23 Cal. 331, 83 Am. Dec. 114. Georgia. — Horn v. Ross, 20 Ga. 210, 65 Am. Dec. 621. Indiana. — King i'. Wilkins, 11 Ind. Massachusetts. — Pickering i'. Rey- nolds, 119 Mass. III. iVcie Hampshire. — Putnam v. Os- good,; 52 N. 11. 148. Pennsylvania. — Biddle <'. IMoore, 3 Pa. St. 161 ; Magee v. Raiguel, 64 Pa. St. no. South Carolina. — Crawley i'. Tuc- ker, 4 Rich. 560. Tennessee. — Mnlholland 7'. Ellit- son, I Cold. 307. Te.vas. — JMartel j'. Somcrs, 26 Tex. 551- By Debtor Against Execution Creditor. — Mulhohand -•. Ellitson, i Cold. (Tenn.) 307, was an action of trespass brought by the plaintiff against the defendant who had re- covered judgment and sold property claimed by each of the parties. The plaintiff offered to prove admissions against the execution defendant to the effect that he had sold the prop- erty in question to the plaintiff prior to the levying of tlie execution. The evidence was excluded by the court below, and, in passing upon the ques- tion on appeal, the court said : " Manifestly, in a contest between the plaintiff and the said Michael, in regard to the title of this property, these admissions would be competent against him. upon the principle of a declaration against his interest; and also in a contest Ijetween the plain- tiff and a third party, claiming this property under a purchase made by him of said Michael, at a period subsequent to the admissions, tlicy would be admissible, because the pur- chaser is in privity with his vendor, and takes the property encumbered with his declarations. They are of- fered as coming from a privy in estate, and, therefore, in laic, from the party himself." Against Attaching Officer In Hayward Rubber Co. v. Duncklee, ,p Vt. 29. it was held that adiuissions made by one while in possession of personal property against his title w^ere admissible against the officer attaching the property in an action of trespass involving the title to the property. 26. .\lulholland r. Ellitson. i Cold. (Tenn.) 307. 27. Lambert v. Craig. 12 Pick. (.Mass.) 199. Vol. I .IPMISSIOXS. In Case of Collusion Between Debtor and His Vendee. — The rule making the admissions of one eo-cunspirator admissible against another is ap])Iicalilc liere.-" By Officers of Corporations. — And the mle extends to deelarations made Ijv offieers of a corjjoration in the performance of their duties in respect of the title to property in the possession of the corpora- lion.-"' C. Assignors .\.\1) Assio.nkks. — a. Of Assi^^nor Before Assigii- menP Admissible. — The admissions of an assignor made before the assignment are admissible against his assignee or others claiming under him."" (1.) Exception Negotiable Paper. — An exception to the rule is made in favor of the holder df negotialile paper, ■'' but not where Of Debtor to Establish Good Faith of Transaction. — Tliu.>i, in Strong v. W'hoolor, 5 Pick. (Ma.ss. ) 410. where two creditors of tlic defendant attach the same property, the second attacli- ing creditor lieing admitted under the statute providing therefor to defend against the first suit, it was held that " the plainlifif might give any evidence and confession of the debtor that his demand was bona fide, and for a valuable consideration." 28. O'Neil -■. Glover, :; Grav (Mass.) 144. 29. Piingliam v. Hyland, 5.1 llun 6?!, 6 N. Y. Supp. 75. 30. Connecticut. — Bulkley v. Lan- don. 3 Conn. 76. Illinois. — Merrick v. Hulbert, 15 111. App. 606; Thorp V. Goewcy, 85 111. 611; Saudifer v. Hoard, 59 111. 246; Williams v. Judy. .•? Gilm. 282, 44 Am. Dec. 699 ; Anderson v. So. Chicago Brewing Co., 17^ 111, 213, so N. E. 655. Indiana. — Abbott v. .Muir, 5 Ind. 444; Stoncr V. Klbs, 6 Ind. 152; Blount 7'. Riley, j Ind. 471. Kentucky. — Scott ''. Coleman. 5 l.itt. .349, 15 Am. Dec. 71. Louisiana. — Smith ?■. McWaltcrs. 7 La. Ann. 144. .Maine. — Parker i'. Marsion, 34 .\lc. 386. .Maryland. — Clarv 7'. Grimes, 12 '".ill & J. 31; Robinett v. Wilson, 8 Gill 179. .Massachusetts. — Bond i'. l'"ilzpal- rick, 4 Gray 89. .Minnesota. — Anderson v. Lee, 73 .Minn. 397, 76 N. W. 21. .Mississipfii. — Brown ',■. McGraw, Vol. I 12 Smcd. & M. 267; Millsaps v. M. Bank, 71 .Miss. 361, 13 So. 903. Missouri. — Murray r. ^nver, iS .Mo. 405 ; Rol)l) f. Schmidt, 35 Mo. 290; Hazcll r. Bank of Tipton, 95 Mo. 60, 8 S. W. 173- Neii' York. — Merklc ?•. Beidleman, 30 App. Div. 14, 51 N. Y. Supp. 916, Pennsylvania. — Magee -'. Raiguel, 64 Pa. St. no; Kellogg v. Krauscr, 14 Serg. & R. 137; Brindle 7'. -Mc- I lvalue, 10 Serg. & R. 282. .'iouth Carolina. — McClendon f. Wells, 20 S. C. 514; Craylou z: Col lins, 2 McCord 271 ; Sharp v. Smith, 7 Rich. 2; Westburv "■. Simmons, 57 S. C. 467. 35 S. E. 764. ■Vermont. — Alger v. .Andrews, 47 Vt. 238. To Show Illegal Consideration. In Sharp v. Smith, 7 Rich. (S. C.) 2, the payee had on the day after the note bore date admitted that it was given for a gaming consideration and this admission was held to be com- petent where the action was by the transferee. 31. iingland. — Smith v. De Wrintz, R. & M. 212, 21 Eng. C. L. 735 ; Beauchamp j'. Parry, i Barn. & A. 89, 20 Eng. C. L. 408; Barough V. White. 4 Barn. & C. 325, to Eng. C. L. 600; Shaw V. Broom, 4 D. & R. 730, 16 Eng. C. L. 220. Connecticut. — Roe v. Jerome, 18 Conn. 138. Illinois. — Merrick v. Hulbert, 15 111. .-Vpp. 606; Williams v. Judy, 3 Gilm. 282, 44 Am. Dec. 699. Massachusetts. — Butler v. Damon, 15 Alass. 222; Produce Ex. Trust Co. V. Bciberbach, 177 Mass. 137, 58 N. E. 162. .iPM/ssioxs. s:-:-. tlu- transfer and adinissiors are maile after maturitx.''- In some of the states, tliis exception has been removed bs' statntc.''" And the general rule that admissions of the assi,sj;nor or endorser against his title or rij^ht to recover are admissible against his assignee is denied in nnnierors cases, ■''' and in some the rule is Mississif'fi. — Brown t. McGrnw, 12 Smcd. & M. 267. Missduri. — Murray 'r. Oliver, t8 Mo. 40t; niaiu-jniir v. Tatt, JJ Mn. 576. •Vi'ii' Vorl:. — Smilli v. Scluinck, 18 Barb. ,U4. 32. Iln^land. — Bcaucliamp v. Parrv. i Barn. & C. 8y. jo Ena;. C. L. 408. Illiiiiiis. — Sandifer ■;■. Hoard- 59 111. 246; Williams x\ Judy. ,? v'.ilm. 282, 44 Am. Dec. 609: Kane '■. Tor- bit, 23 III. App. 311; Cnrtivs r. Mar- tin, 20 III. 557. Indiana. — Blouni ?•. Rilev, ^ Ind. 471- Maine. — Hatch v. Dennis. 10 Me. 244; Eaton V. Corson, 59 Me. sro; Merrick t'. Parknian, 18 Me. 407 ; Shirley z'. Todd, 9 Greene 83. .Massachusetts. — Bond i'. Fitzjiat- rick, 4 Gray 89. .\fissouri. — Robh i'. Schniidl, 35 Mo. 290. jVcit' )'(irk. — Paige ?'. Cagwin, 7 Hill 361, 42 Am. Dec. 68. I'crmont. — Miller ?•. Bingliani, 29 \'l. J 27. Assigned After Admissions Before Maturity. — In Robb v. Schmidt, 35 Mo. 290, it is held that where the assignment is made after maturity but the admissions were made before, they are admissible against the as- signee. 33. Brown v. McGraw, 12 Snicd. & M. (Miss.) 267; Sloner t'. Ellis, 6 Ind. 152; Millsaps v. M. Bank, 71 Miss. 361, 13 So, 903. 34. United States. — Dodge i'. Freednian's Sav. & Trust Co., 9? u. s. 379. Alabama. — Jones 'i\ Norris, 2 .\la. (N. S.) 526. IdaluK — Deasey v. Tliurnian. i Idalio 775. .Massachusetts. — Holbrook f. llol- brook, 113 Mass. 74. Montana. — Slmber r'. Jack. 3 .Mont. 351. .Vt'it' York. — Paige v. Cagwin. 7 Hill 361, 42 Am. Dec. 68; Trnax r. Slater, 86 N. Y. 6to: Flannery f. \'an Tassel, 127 N. Y. 631, 27 N. K. ,Vli: Bullis c'. Montgomery, 50 N. Y, ^S^■, Gardner v. Barden, .u N. Y. 433; Whitaker v. Brown, 8 Wend. 490; Jones V. East Society, 21 Barb. 161: Bristol V. Daiin, 12 Wend. 142: Booth V. Swezcy, 8 N. Y. 276; Top- ping V. Van Pelt, HofF. 545; Tousley V. Berry, 16 N. Y. 497; Foster i'. Beals, 21 N. Y. 247; Edingtou v. Mut. Life Ins. Co., 67 N. Y. i8.s; Kent T. Walton, 7 Wend. 256; Clews V. Kehr, 90 \. Y. 633; Stark v. Boswell, 6 Hill 405, 41 Am. Dec. 752;, Barhydt v. Valk, 12 Wend. 145. 27 .\m. Dec. 124; Smith v. Webb, i Barb. 230; Van Aernam i'. Granger, 86 Hun 476, a N. Y. Supp. 885; Os- born V. Robbins, 37 Barb. 481. Pennsylvania. — Eckert v. Cameron. 43 Pa. St. 120. Of Assignor Not Admissible Against Assignee. — In Trau.x i'. Slater, 80 X. Y. (130, it is said : ■' The conversation inquired about does not appear to have been a part of any res gestae, and it was clearly incompetent to bind or affect the plaintiff. The mere declarations of an assignor of a chose in action, forming no part of any res gestae, are not competent to prejudice. the title of his assignee, whether the assignee be one for value, or merely a trustee for creditors, and whether such declar- ations be antecedent or subseciuent to the assignment." And again in Flannery t. Van Tassel, 127 N. Y. 631, 27 N. E. 393- ■■ Ordinarily the declaration of a ven- dor, when not a party, made to a stranger in the absence of the vendee, is not competent as evidence affecting tlie title of a purchaser of personal property, in good faith and for value, either before or after its transfer. To this rule there are exceptions, as, for instance, where a cons|)iracy be- tween the vendor and vendee lo de- fraud is first shown to have existed ; Vol. I 534 .IPMISSIONS. (leclart'd to be that such achnissions arc not a; Gihn. 67; Thorp V. Goewev. 8> 111. 611; Myers v. Kinzie, 26 III. -^6. Indiana. — Wynne 7'. Glidewell. 17 Ind. 446; Proctor 7'. Cole, T04 Ind. .373, .■? N. E. 106; Harcourt 7'. Har- court, 8q Ind. 104; Lister 7'. Baker, 6 Blackf. 439 ; Fleming 7'. Newman, 5 Blackf. 220. Kentucky. — Crane 7'. G\mn, 4 B, Mon. ID. Louisiana. — Dowty 7'. Sullivan, ig La. .\nn. 448. Maine. — Hatch 7'. Dennis, 10 Me. 244 ; Mathews 7'. Houghten, 10 Me. 420; Hackett 7'. Martin, 8 Greene 77- Massachusetts. — Bond 7'. Fit?pat- rick, 4 Gray 89. Michigan. — Frankel 7'. Coots. 41 Mich. 75, I N. W. 940. Missouri. — Wemrich v. Porter, 47 Mo. 293; Garland 7'. Harrison. 17 Mo. 282: Porter 7'. Moore, 6 Mo. 48; Eyermann v. Piron, i;i Mo. 107. 52 S. W. 229; Enders 7'. Richards, i:>, Mo. 598. New HanifsJiire. — Forsaith -■. Stickney, 16 N. H. 575. A''c7i' Jersey. — Kinna 7'. Smith, 3 N. J. Eq. 14. A''('7i' Me.vico. — Pcarce 7'. Stricklcr. 9 N. M. 467, 54 Pac. 748. .Vc7f York. — Holmes 7'. Roper. 141 N. Y. 64, 36 N. E. 180; Van Gelder 7'. Van Gelder, 81 N. Y. 625; Christie 7'. Bishop, I Barb. Ch. 105; Feare 7'. F.vcrtson. 20 Johns. 142; Coyne 7'. Weaver. 84 N. Y. 386; Ogdcn v. Peters, 15 Barb. 560; Peck 7'. Crouse. Vol. I 536 .IPMfSSIONS. name of the assignor if prosecuted for the benefit of the assicjnee ;■''' but it is otherwise if the assignment is merely colorable and the assignor still remains the owner of the thing assigned as between the parties. In that case his admissions are competent/''' And 4(1 I'.arlh 151; People v. Grattan, 50 TIovv. Pr. 14.V. Harlan v. Green. 31 Misc. 26T. 64 N. Y. SiipD. "o: Flagler f. Sclinffel, 40 Hnn 178. Xiirlli Carolina. — Wootcn ■:•. Out- law, 113 N. C. 281. t8 S. E. 25.'; Maddox v. Ml & N. C. Ry. Co., 115 N. C. 624, 20 S. E. 190. Pcinisvlz'aiiia. — Fbv 7'. Eby. ^ Pa. St. 43=;;' Camp V. Walker, 5 Watts ^82; Morton v. Morton, 13 Serg. & R. 107; Bailey v. Clayton, 20 Pa. St. 205; Prinsfle r. Pringle, ^9 Pa. St. 281. Soufli Cai;i!i}ia. — Clayton v. Col- lins. 2 AlcCord (Law) 27T : De Buhl f. Patterson. 12 Ricli. (Law) Texas. — Reed v. Herrin.e;, 37 Tex. 1(10; Ricker Nat. Bank 7'. . Brown (Tex. Civ. Anp.), 43 S. W. 909. Vermont. — Washburn v. Ramsdell. 17 Vt. 299 ; Halloran v. Whitcomb, 43 Vt. 306. Virginia. — Gintcr 7'. Breeden, 90 Va. sfii;'. 19 S. E. 656; Strother r. ^litchcll, 80 Va. 149. IVisconsin. — Welch 7'. Town of Sugar Creek, 28 Wis. 618. By Assignor After Assignment. In Molnifs 7'. Roper, 14T N. Y. 64, ,^5 N. E. 180, the court said: "The general rule is that a former owner of a chattel or a chose in action, who has transferred his interest to another by an absolute sale or assign- ment, cannot, by his subsequent asliire. — Webster 7'. Clark. 30 N. H. 245; Town of Alton 7'. Town of Gilmanton, 2 N. H. .sao. Ne7V Jersey. — Sussex Co. Mut. Ins. Co. 7'. Woodruff, 26 N. J. Law Nc'ii' York. — Epnens &• Co. 1: Lit- tlejohn, 27 .\pp. Div. 22. 50 N. Y. Sunp. 2^1. North Carolina. — Prinnix ?■. Mc- Adoo. 68 N. C. =;6; McComb 7'. N. C. R. Co.. 70 N. C. 178. On-go/i. — North Pac. Lum. Co. 7'. Willamette S. M. L. & Co.. 29 Or. 2iq. 44 Pac. 286. Pennsvlvania. — Grim v. Bomiell, 78 Pa. St. T5;2; Baker 7'. Westmore- land & C. Nat. Gas Co.. 157 Pa. St. 593, 27 .\tl. 789; Stockton 7'. De- niuth, 7 Watts 39, 32 Am. Dec. 73.S ; Union R. & Trans. Co. 7'. Ricgel, 73 Pa. St. 72; O'Toole 7'. Post Printing & Pub. Co., 179 Pa. St. 271. ,?6 Atl. 288. Tennessee. — Scnance Min. Co. v. McMahon, i Head 582. r<'.n7.y. — Western U. Beef Co. v. Kirchevalle (Tex. Civ. App.,) 26 S. ADMISSIONS. 539 B. Agents and Employees. — The g^eneral rule is that admis- sions made by agents or employees in the reg;ular course of dutv arc competent as agrainst the principal if they would be competent and material if made by the principal himself.'"' \V. IJ7; Barliee v. Spivey (Tex. Civ. .\rn..~) ,^2 S. W. j,T,s. Statement of the Rule The treii- cral rule is jvell cxnressed in Cov- ington, etc.. R. R. Co. V. Tngles, T^ B. IVfon. CKy.') 6x7. i" which it is said : " The doctrine is well settled that where the acts of the ascent will hind the principal, there his repre- sentations and statements respecting the snhiect matter will also hind him, if made at the same time, and constitnting a part of the res gestae. Wherever what the agent did is ad- missible in evidence, then whatever he said on the subject while doing it is also evidence against the prin- cipal." 49. Alabama. — Williams v. Shackelford, ifi Ala. TN. S.") .liS. Colorado. — 'Denver &• R. 0. R. Co. V. Wilson, 4 Col. .\pp. .3,=;,=;, i^ Pac. 67. Georgia. — Hines v. Poole, s6 Oa. 638. Illinois. — Wagoner T'. Cooley, 17 Til. 2.TO; Cook f. Hunt, 24 111. 5.36: Tlollev T'. Knan. 45 Til. App. 372. Indiana. — Grand Rapids & Co. R Co. V. Diller, no Tnd. 223, 9 N. E. 71b; Rahm t. Deig, 121 Tnd. 2S3, 23 N. E. iJi ; Cleveland C. C. & T. Rv. Co. V. Closser, 126 Tnd. 348. 26 N. E. 159- /oK'(7. — Home Machine Co. ?'. Snow, 32 Towa 433 ; Black 7'. Des Moines Mfg. & S. Co. (Towa,") 77 N. W. 504. Kentneky. — Plotz v. Miller, 21 Ky. Law 257, 51 S. W. 176. Maryland. — City Bank v. Bate- nian. 7 Har. & J. 104. Massaelntsctts. — Baring v. Clark, 19 Pick. 220; Allin 7'. Whittemore, 171 Mass. 259, 50 N. E. 618. Minnesota. — Cumbey f. T^ovctt, 76 Minn. 227, 79 N. W. 99. Missouri. — Hpwk v. Applegate, 37 Mo. App. 32. Nev Jersey. — Cifford 7'. T.andrine, .V N- J. Eq^ 127. AVji' York. — Seymour t'. .Matter- son, 42 How. Pr. 496; Miller v. King, 84 Hun ,308, 32 N. Y. Supp. 332: !\Iorgan v. Short, \\, Misc. 279, 34 N. Y. Supp. 10. Ohio. — Globe Tns. Co. r'. Bovle, 21 Ohio St. no. Te.vas. — Hinson 7". Walker, 65 Tex. 103. Vermont. — Churchill r'. Smith, 16 Vt. s6o. Washington. — Selher 7: Spring- brook Trout Farm, 19 Wash, 49, 52 Pac. 2.38. IViseonsin. — Smith f. Wallace, 25 Wis. 5=;. Where Agent Is Competent Wit- ness. — The fact that the agent is competent and might be called as a witness does not affect the right to prove his admissions. Baring 7'. Clark, ig Pick, (Mass.") 220. By Contractor to Construct Build- ing Tn Dickinson College t'. Church, T Watts & S. (Pa.") 462, it was held, in an action to enforce a mechanic's lien against the owner of a building, that the declarations of the contractor for the construction of the building, as to the material re- ceived and amount due, were compe- tent, but should be received with great caution. But in Philibert 7: Schmidt, 57 Mo. 21 T, a contrary rule is declared. See also Happy 7\ Moslier. 48 N. Y. 313 ; Grace 7'. Nesbitt, 109 Mo. 0, 18 S. W. 1 1 18; Carthage Marble & Co. 7: Bau- man, 5t AIo. App. 204: Treusch 7'. Slirvock, 51 INId. 162. Of the Architect The architect of a building is, as a rule, the agent of the owner, and, as such, his admis- sions are competent evidence against the owner as in other cases. Wright 7\ Reuscns, 13.3 N. Y. 298, 31 N. E. 2T5. Master of Vessel, — The master of a vessel is the general agent of the owner, and as such, his admissions are competent evidence against such owner. Eads 7: Bacon, r Newb. 274, 8 Fed. Cas. No. 4232; Gerke 7'. Cali- Vol. I 540 ADMISSIONS. Rule Applies to Criminal As Well As Civil Cases. — The nik' thai the declarations of the agent, within his authority, and while acting' as such, are tlie declarations of the ]irincipal. and liinding ujdou him. applies as well to criminal actions and criminal liability as tn civil cases. ^" a. Must Be U'ltilc .Jr/nit; As Such anil U'itliiii .lutliority. — To render one's admissions admissible as an agent they must be made as such, and while acting for the jirincipal and within his authority as such agent.''' fornia S. Nav. Co.. 9 Cal. 251. 70 Am. Dec. 650; Collins ?■. Davis, 32 Ohio St. 76. 50. Cliquot's Cliampagiio. 3 Wall. 114; American Fur Co. ■;■. U. S., 2 Pet. 358. 51. United 67. Simmons, 5 Gill (Md.) S13; Yordy v. Marshall Co., 113 Iowa 340, S3 N. W. 298; Keough V. Scott Co., 28 Iowa 337 ; West Jersey Trac. Co. v. Camden Horse R, Co. (N. J. App.), 35 .\tl. 49; Thornton v. Campton, 17 N. H. 338; Chicago V. Greer, 9 Wall. (U. S.) 726; Davis V. Town of Rochester, 66 Hun 629, 21 N. Y. Supp. 215; Walker v. Dunspaugh, 20 N. Y. 170; Jex V. Board of Education, i Hun (N. Y.) 157; Weir v. Borrough of Plymouth, 148 Pa. St. 566, 24 Atl. 94; Salado College v. Davis, 47 Tex. 131; Low V. Perkins, 10 Vt. 532. 2>i Am. Dec. 217. 69- United States. — Lee v. .\Iun- roe, 7 Cranch 366; U. S. f. Martin, 2 Paine 68, 26 Fed. Cas. No. 15,732. Illinois. — County of La Salle v. Simmons, S Gilm. 513. Indiana. — Holton v. Board of Com'rs, 55 Ind. 194. IozkV. — Yordy -■. Marshall Co., 113 Iowa 340, 53 N. W. 298; Peters v. City of Davenport, 104 Iowa 625, 74 N. W. 6. Maine. — Brighton i'. St. Alhans, 77 Me. 177; Mitchell v. Rockland, 41 Me. 363, 66 Am. Dec. 252; Smith v. Bangor, 72 Me. 249; Corinna v. Exeter, 13 Me. 321 ; Foss v. White- house, 94 Me. 491, 48 Atl. log. Massachusetts. — Burgess v. Ware- ham, 7 Gray 345; Weeks v. Inhab- itants of Needham, 156 Mass. 289, 31 N. E. 8. New )'o/7i-. — Cortland Co. v. Her- kimer Co., 44 N. Y. 22; Stone v. Town of Poland, 58 Hun 21, 11 N. Y. Supp. 498. Pennsylvania. — Green v. North Buffalo Tp.. 56 Pa. St. no. Vol. I I'ernivnt. — Green z\ -'Town of Woodbury, 48 Vt. 5. Only Competent to Explain the Acts of Officers In Brighton r. St. .•Mhans, 77 Me. 177, it is held that it is the acts and not the words of the officer that arc evidence, and that their words are only admissible when accompanying and as a part of their acts, and therefore the mere casual remark of an officer unconnected with any act is not competent as an admission. Must Be at The Time of Doing the Acts. — Tlio admission must be at the time of and connected with the act done. Burgess v. Inhabitants of Wareham. 7 Gray (Mass.) 345. Contractor for City. —Declarations of a contractor for a public cor- poration as to the character of the work done, where a question of neg- ligence is involved, are inadmissible against the corporation. ^loore v. Hazelton Tp., 118 .Mich. 42:^, 76 N. w. 977. 70. Cortland Co. -■. Herkimer Co.. 44 N. Y. 22; Blanchard ;■. Black- stone, 102 Mass. 343. By Public Officer. When Compe- tent. — In Burgess 7'. Inhabitanls of Wareham, 7 Gray (Mass.) 345, the offer was made to prove the declar- ations of a surveyor of a highway uttered while he was still in office, but some time after the work to which the declarations related was done, and the court said ; " And when it is said that his declarations are competent made whilst his agency continues, wc un- derstand it to mean not whilst he continues to hold the office in respect to which he made the contract, but .IDMISSJONS. SF^l d. Of Dc[. Duffey, 48 Ga. 358; Georgia R. R. Co. V. Smith, 76 Ga. 634. Illinois. — Lake Shore & M. S. R. Co. V. Baltimore & O. C. R. Co., 149 111. 272, 37 N. E. 91 ; Chicago B. & Q- R. Co. V. Coleman, 18 111. 297, 68 Am. Dec. 544; Chicago B. & Q. R. Co. V. Lee, 60 111. SOI ; Chicago B. & Q. R. Co. v. Riddle, 60 111. 534; Grand Prairie Ass'n v. Riordan, 61 III. App. 457; Merchant's Dispatch Co. V. Leysor, 89 111. 43. Indiana. — Miit. Benefit L. Ins. Co. V. Cannon, 48 Ind. 264; Cleveland C. C. & I. R. Co. V. Closser, 126 Ind. 348, 26 N. E. 159, 9 L. R. A. 754; Heller v. Crawford, 37 Ind. 279; Bellefontaine R. Co. z'. Hunter, 33 Ind. 335, 5 Am. Dec. 201 ; Lafayette R. Co. V. Ehman, 30 Ind. 83 ; Ohio & M. R. Co. V. Stein, 133 Ind. 243, 31 N. E. 180, 19 L. R. A. 733; Tipton Fire Ins. Co. v. Barnheisel, 92 Ind. 88; Adams Ex. Co. v. Harris, 120 Ind. 73, 21 N. E. 340, 7 L. R. A. 214; Indianapolis R. Co. v. Jewett, 16 Ind. 273; Pennsylvania R. Co. v. Weddle, 100 Ind. 138. lozi'a. — Peden z'. Chicago R. I. & P. R. Co., 78 Iowa 131. 42 N. W. 625, 4 L. R. A. lOi ; Ayres v. Hart- Vol. I ford Fire Ins. Co., 17 Iowa 176, 85 .A^m. Dec. 553 ; Verry v. B. C. R. & M. R. Co., 47 Iowa 549; Sioux Val- ley Bank v. Kellogg, 81 Iowa 124, 46 N. W. 859; Deere v. Wolf, 77 Iowa 115, 41 N. W. 588; Des Moines & D. L. Co. V. Polk Co. H. & T. Co., 82 Iowa 663, 45 N. W. 773. Kansas. — Donnell v. Clark, 12 Kan. 154; Union Pac. R. Co. v. Fray, 35 Kan. 700, 12 Pac. 98; Atchison T. & S. F. R. Co. V. Wilkinson, 55 i^an. 83, 39 Pac. 1043 ; Amazon Ins. Co. V. Briesen, i Kan. App. 758, 41 Pac. 11x6. Kentucky. — Louisville & N. R. Co. ?'. Foley, 94 Ky. 220, 21 S. W. 866; Chesapeake & O. R. Co. v. Reeves, II Ky. Law 14, II S. W. 464; Mc- Lead v. Ginther, 80 Ky. 399. Maine. — Barnham v. Grand Trunk R. Co., 63 Me. 298; Linne Rock Bank v. Hewett, 52 Me. 531 ; Franklin Bank v. Steward, 37 Me. 519. Maryland. — Merchants' Nat. Bank V. Marine Bank, 3 Gilm. 96, 43 Am. Dec. 300; Baltimore & O. R. Co. v. State, 62 Md. 479. Massachusetts. — Blanchard v. Blackstone, 102 Mass. 343 ; Rich- mond Iron Works v. Hayden, 132 Mass. 190; Wellington v. Boston M. 6 R. Co., 158 Mass. 185, 23 N. E. 393 ; Robinson v. Fitchburg R. Co., 7 Gray 92; Grinnell v. Western U. Tel. Co., 113 Mass. 299, 18 Am. Rep. 485 ; Tripp V. New Metallic Pac. Co., 137 Mass. 499; Lane v. Boston & A. R. Co., 112 Mass. 455. Michigan. — McCammon v. Detroit L. & N. R. Co., 66 Mich. 442, 33 N. W. 728; Sisson V. Cleveland R. Co., 14 Mich. 489, 96 Am. Dec. 252 ; Peek V. Detroit Novelty Works, 29 Mich. 313; Kalamazoo M'f'g Co. v. McAl- ister, 36 Mich. 327. Mississipfi- — Moore -■. Chicago R. Co., 59 Miss. 243. Missouri. — Northrup v. Miss. Val- ley Ins. Co., 47 Mo. 435, 4 .'^m. Rep. 337; Malecek v. Tower Grove R. Co., 57 Mo. 17; Kelly v. Chicago & A. R. Co., 88 Mo. 534 ; Western Boatmen's B. A. V. Kribben, 48 Mo. 37 ; Costigan ADMISSIONS. 553 :■. Michael Trans. Co., 38 Mo. App. Jig. Ncii' Hampshire. — Low "'. Rail- road, 45 N. H. 370; Pemigevvassett Bank v. Rogers, 18 N. H. 255. New Jersey. — Halsey v. Lehigh Valley R. Co., 45 N. J. Law 26; Stults V. East Brunswick Tp. Co. (N. J.), 9 Atl. 193; Agricultural Ins. Co. V. Potts, 55 N. J. Law 158, 26 Atl. 27- Neiv York. — Bingham v. Hyland, 53 Hun 631, 6 N. Y. Supp. 75; JMc- Cotter V. Hoaker, 8 N. Y. 497; An- derson V. Rome N. & O. R. Co., 54 X. Y. 334; First Nat. Bank v. Ocean Xat. Bank, 60 N. Y. 278; White v. Miller, 71 N. Y. 118; Com'rs v. Plank Road Co., 7 How. Pr. 94; Luby v. Hudson River R. Co., 17 N. Y. 131 ; Furst V. Second Ave. R. Co., 72 N. Y. 542; Pierson v. Atlantic Nat. Bank, yy N. Y. 304; Bank of New York V. American Dock Co., 148 N. Y. 339, 38 N. E. 713; Alexander v. Caldwell, 83 N. Y. 480; Niagara Falls Co. z: Bachman, 66 N. Y. 261 ; Wild V. New York Min. Co., 59 N. Y. 644; Matteson v. N. Y. Cent. R. Co., 62 Barb. 364; Trustees First Baptist Church v. Brooklyn Fire Ins. Co., 18 Barb. 69. North Carolina. — Porter v. Rich- mond & D. R. Co., 97 N. C. 46, 2 S. E. 374- Oregon. — Nichols v. Southern Pac. Co., 23 Or. 123, 31 Pac. 296, 18 L. R. A. 55. Pennsylvania. — Long v. North British & M. F. Ins. Co., 137 Pa. St. 3iS, 20 Atl. 1014, 21 Am. St. Rep. 879; Stewart v. Huntingdon Bank, 11 Serg. & R. 267, 14 Am. Dec. 628; Spalding v. Bank of Susquehanna, 9 Pa. St. 28; Hanover R. Co. v. Coyle, 55 Pa. St. 396; Huntingdon R. Co. v. Decker, 82 Pa. St. 119; Pennsylvania R. Co. V. Books, 57 Pa. St. 339, 98 Am. Dec. 229; Magill v. Kaufman, 4 Serg. & R. 317, 8 Am. Dec. 713; Pennsylvania R. Co., v. Titesville Co., 71 Pa. St. 350; Erie & W. V. R. Co. v. Smith, 125 Pa. St. 259, 17 Atl. 443 ; Custar v. Titesville G. & W. Co., 63 Pa. St. 38; Harrisburg Bank v. Ty- ler, 3 Watts & S. 373- South Carolina. — Simmons Hard- ware Co. V. Bank of Greenwood, 41 S. C. 177, 19 S. E. 502; Aiken v. Telegraph Co., 5 Rich. 358; Beckham V. So. R. Co., 50 S. C. 25, 27 S. E. 611. South Dakota. — Wendt t. Chicago, St. P. M. & M. O. R. Co., 4 S. D. 476, 57 N. W. 226. -Tennessee. — Sewell i: McMahon, 1 Head 582. Te.vas. — Laredo Elec. L. & AI. Co. -c'. U. S. Elec. L. Co. (Tex. Civ. App. J, 26 S. W. 310; Texas Pac. R. Co. V. Lester, 75 Tex. 56, 12 S. W. 955; Gulf C. & S. F. R. Co. V. Soulhvvick (.Te.x. Civ. App.), 30 S. W. 592; Blain v. Pac. Ex. Co., 09 Tex. 74, 6 S. W. 679; Western Union Tel. Co. V. Bennett, i Tex. Civ. App. 558, 21 S. W. 699; Houston E. & W. T. R. Co. z: Campbell, gi Tex. 551, 45 S. W. 2. Utah. — Idaho Forwarding Co. v. Fireman's Fund Ins., 8 Utah 41, 29 Pac. 826; 17 L. R. A. 586; Burton v. Winsor & U. S. M. Co., 2 Utah 240. I'lrginia. — Baltimore & O. R. Co. V. Gallahue, 12 Gratt. 655, 65 Am. Dec. 254. IVashington. — Weideman v. Ta- coma R. & M. Co., 7 Wash. 517, 35 Pac. 414. IVest Virginia. — Mulheman v. Na- tional Ins. Co., 6 W. Va. 508. Wisconsin. — Hooker v. Chicago M. & St. P. R. Co., 76 Wis. 542, 44 N. W. 1085. Wyoming. — Rock Spring Nat. Bank v. Luman, 5 Wyo. 159, 38 Pac. 678. By Agent of a Corporation In Denver & R. G. R. Co. v. Wilson, 4 Colo. App. 355, 36 Pac. 67, it is said: " A corporation can act only through its officers and agents. Their acts done within the scope of their au- thority, are its own acts. The origi- nal book was made by the defend- ant's agent in the course of his duties. In the same capacity he made the time sheet, and sent it to the superin- tendent, who made the copy for preservation in his office, as pertain- ing to the affairs of his division, and it is immaterial whether it was made by a letter-press, or by a slower and more tedious process. It was still a copy made by him as superintendent of the company. The time book, Vol. I 554 ADMISSIONS. time sheet and impression book were therefore the time book, time sheet and impression book of defendant ; and either might be nsed in evidence as the defendant's admission of the same fact." Admissions by Acquiescence Tlie failure of an officer of a corporation having authority in the premises to deny a material fact stated in his presence will amount to an admission by acquiescence. Paulson Mercan- tile Co. r. Seavcr. 8 N. D. 215. 77 N. W. looi. By President of a Corporation. The case of Ricketts i'. ISirniingham St. R. Co., 85 Ala. 600, 5 So. 353, was to recover for personal injuries charged to have resulted from the negligence of the defendant. Certain declarations of the president of the company made after the injury was inflicted were offered as admissions against the company. In passing upon the question as to the admissi- bility of this evidence, the court said: " The declarations of Morris, the president of the defendant corpora- tion, are not shown to have been made while he was in the perform- ance of his duties as such officer, or while acting for the company, or while transacting any business con- temporaneous with the declarations, which they served to elucidate or ex- plain. The declarations were not within the scope of his authority, and are not binding on the defendant." And in Danner Land Co. i\ Stone- wall Ins. Co., 77 Ala. 184, it is said : " The declarations of Danner, who was president and business manager of the Danner Land and Lumber Company, made to Davis and others, several days after the delivery of the deed in question, were inadmissible against either the company or the de- fendant Strong, its assignee, for the purpose of showing that the contract- ing parties intended such deed to operate either as a mortgage or a conditional sale. The declarations and admissions of an agent of a cor- poration stand clearly on the same footing with those of an agent of a natural person. ' To bind the prin- cipal, they must be within the scope of the a\ithority confided to the agent. Vol. I and must accompany the act or con- tract which he is authorized to make.' " United States. — Goetz %'. Bank of Kansas City. 119 U. S. 551, 7 Sup. Ct. J 18; Tuthill Spring Co. v. Shaver Wagon Co., 35 Fed. 644 ; Jesup z: 111. Cent. R. Co., 43 Fed. 483. Alabama. — Henry z\ Xorthern Bank, 64 .•\la. 527. ////jio/,s. — Chicago B. & Q. Co. v. Coleman, 18 111. 297, (18 .\m. Dec. 544; Lake Shore & M. S. R. Co. v. Baltimore & O. and C. R. Co., 149 111. 272, 37 N. E. 91. lozi'a. — Hamilton Buggy Co. t'. Iowa Buggy Co., 88 Iowa 364, 55 N. W. 496; First Nat. Bank v. Booth. 102 Iowa 333, 71 N. W. 238. Maine. — Lime Rock Bank v. Hcw- ett, 52 Me. 51. Maryland. — City Bank v. Bate- man, 7 Har. & J. 104. Massaehnsetls. — Robinson r. Fitch- burg, etc. R. Co., 7 Gray 92. MissDuri. — Northrnp v. Miss. Val- ley Ins. Co., 47 Mo. 435, 4 Am. Rep. .3.37 ; Costigan z'. Michael Trans. Co., .38 Mo. App. 219. New Hani/'shire. — Low v. Rail- road, 45 N. H. 370. Nciv Jersey. — Halsey z: Lehigh Valley R. Co., 45 N. J. Law 26. Pennsylvania. — Spalding v. Bank of Sns(|uehanna, 9 Pa. St. 28. South Carolina. — Charleston & S. R. R. Co. V. Blake, 12 Rich. 634. Tennessee. — Ward Courtney & Co. r. Tennessee C. & I. R. Co.'(Tenn. App.), 57 S. W. 193. U'isconsin. — Hazelton !■. Union, ,^2 Wis. 34. Must Be Engaged in Performance of His Duty The president of a corporation may bind the company by his admissions only when engaged in the performance of his duties as such president as in case of other agents. Flour City Nat. Bank v. Grover, 88 lliui 4. 34 N. V. Snpp. 496. Must Be Authorized by the Board of Directors In the case of Stew- art T. Huntingdon Bank, 11 Scrg. & R. (Pa.) 267. 14 .'\m. Dec. 628, it was held that the declarations of the officers of a bank were not evidence against it if unauthorized by the ADMISSIONS. 555 excludes narrations uf past transactions. Such declarations are board of directors. God/, i'. Bank of Kansas Cil}', iig U. S. 551, 7 Sup. Ct. 318; Cunningham v. Cochran, 18 Ala. 479, 52 Am. Dec. 230; Tuthill Spring Co. z\ Shaver Wagon Co., 35 Fed. O44. See also as to the author- ity of the president of a corporation to make admissions admissible against his company, Chicago B. & Q. R. Co. V. Coleman, 18 111. 297, 68 Am. Dec. 544; Farmers' Bank v. Mc- Kee, 2 Pa. St. 318; Halsey i: Lehigh Valley R. Co., 45 N. J. Law 26. But see Costigan v. Michael Trans. Co., 38 -Mo. App. 219; First Nat. Bank v. Booth, 102 Iowa 533, 71 X. W. 238. Ordinary Affairs of Corporation. The rule that the president must be authorized by the board of directors does not apply to the ordinary busi- ness affairs of the company that fall within the duties of the president, and are usually performed by him. Chicago B. & Q. R. Co. z\ Coleman, 18 111. 297, 68 Am. Dec. 544. By Conductor of Railroad Train. In .Mobile & .\1. R. Co. t: .\shcraft, 48 Ala. 15. an action for damages for injury to the plaintiff alleged to have resulted from the negligence of the defendant railroad company, it was offered to prove the statements of the conductor of the train to a pas- senger a moment before the accident, of the bad condition of the road, and that his train had run off the track five consecutive times ne.xt preceding the present trip; but the court held the evidence to be inadmissible, say- ing: "It is true there is a differ- etice between the agent of a corpora- tion and the agent of an individual, because the corporation, if it act or speak at all, can do so only through an agent. Some of its agents are, in some instances, the corporation itself, and others its mere employees or servants. It would be equally unjust to charge it with all the statements of its agents, or to relieve it entirely from responsibility for such declara- tions. If the statements of the con- ductor had been made the day before the accident, they would not be sup- posed to be the admissions of the defendant, or to be a part of the res gestae. Their coincidence alone, without other connection, can not change their character." See also Moore v. Chicago R. Co., 59 Miss. 243; Furst V. Second Av. R. Co.. 72 N. V. 54^ ; Gulf C. & S. F. R. Co. v. Southwick, tTex. Civ. App.), 30 S. W. 592. It is otherwise if the declarations are made while engaged in and as a part of his duty as conductor. Sis- son V. Cleveland, etc, R. Co., 14 Mich. 489. 90 .Vm. Dec. 252. After an Accident. — The same rule applies if statements are made by a conductor after an accident has oc- curred. Jammison z: Chesapeake & O. R. Co., 92 \-a. 327, 23 S. E. 758; Nebonne z: Concord R. Co., 67 N. H. S3I, 38 Atl. 17; Reem v. St. Paul City R. Co., 77 Minn. 503, 80 X. W, 638. The Rule Extends to Ticket Agents. Acts and admissions of ticket agents within the scope of their authority, and while acting therein, are within the rule. Burnham v. Grand Trunk R. Co., 63 Me, 298. By a Brakeman. — In Patterson v. Wabash, etc. R. Co., 54 Mich. 91, 19 N. W. 761, it was held that a brake- man's admission that he caused a railway accident, was inadmissible in an action arising therefrom against the company by which he was em- ployed, where the statement was not made in the execution of his duty, or while the act to which it referred was in progress, and that such an ad- mission could not bind the company where it did not appear that the act done was in the line of his duty. See also Kelly f. Chicago & .A.. R. Co., 88 Mo. 534. Subsequent Statement Sometimes Admissible. — In Malecek z'. Tower Grove etc. R. Co., 57 Mo. 17, it was held, in a case for damages for ejecting a passenger from a street car, that the statements of the super- intendent of the street car company, made three days later, admitting and justifying the act of the driver were competent. Vol. I 55b ADMISSIONS. inadmissible. '° c. Reports Made to Superior Officers. — The fact that the state- ments of employees are contained in reports made to superior officers prepared after the transaction, although required by the company to be made, does not chaufje the rule. They are inadmissible as admissions.'" d. Must Be Acting As Agent. — The admission of an officer of a corporation is not admissible merely because he sustains that relation to the company. He must be acting in the capacity of an agent with authority to bind it, and in the line of his dutv." 75. United States. — Goetz v. Bank nf Kansas City, 119 U. S. S51, 7 Sup. Ct. 318. Alaba>na. — Commercial F. Ins. Co. V. Morris, 105 Ala. 498, 18 So. 34. Arkansas. — St. Louis, I. M. & S. R. Co. V. Kelley, 61 Ark. 52, 31 S. W. 884; St. Louis, L M. & S. R. Co. v. Sweet, 57 Ark. 287, 21 S. W. 587. California. — Durkee v. Cent. Pac. R. Co., 69 Cal. 533, II Pac. 130, 58 Am. Dec. 562 ; Silversa v. Iverson, 128 Cal. 187. 60 Pac. 687; Hewes v. German F. Co., 106 Cal. 441, 39 Pac. 853. . Georgia. — Hermatite Min. Co. v. East Tenn., V. & G. R. Co.. 92 Ga. 268, 18 S. E. 24. Indiana. — Bellefontaine R. Co. v. Hunter, a bid. •^ss. 5 Am. Dec. 201 ; Ohio & M. R. Co. V. Stein, 133 Ind. 243, 31 N. E. 180. 19 L. R. A. 733. Kansas. — LTnion Pac. R. R. Co. v. Fray, 38 Kan. 700. 12 Pac. 98; Acme Harvester Co. v. Madden. 4 Kan. App. 598, 46 Pac. 319. lientuelcy. — Graddy f. Western Union Tel. Co., 19 Ky. Law 1455. 43 S. W. 468; Chesapeake & O. R. Co. V. Reeyes, 11 Ky. Law 14, i S. W. 464; East Tenn. Tel. Co. v. Simms, 18 Ky. Law 761, 3S S. W. 131. Maine. — Franklin Bank v. Cooper, 36 Me. 179. Micliigan. — Hall v. Murdock, 119 Mich. 389. 78 N. W. 329; Peck v. Detroit Noyelty Works, 29 Mich. 313. Nezv Hamf shire. — Pemigewassett Bank v. Rogers. 18 N. H. 255. North Carolina. — Branch t. Wil- mington & W. R. Co., 88 N. C. 573; Williams v. Williams, 6 Ired. (Law) 281. I'ennsyliHviia. — Pennsylvania R. Vol. I Co. V. Books, 57 Pa. St. 339, 98 Am. Dec. 229. 76. Reports to Superior Officers. The case of Carroll v. East Tennes- see, V. & G. R. Co., 82 Ga. 452, 10 S. E. 163, was an action for damages for personal injuries received in an accident. Reports of the accident were made to the general manager of the defendant company by the super- intendent, by the conductor, sup- ported by his affidavit, and others, embracing engineer, fireman, flag- man, brakenian, and another conduc- tor, the latter reports being trans- mitted from the superintendent and along with his report to the general manager. It was held by the court that these reports having had their origin many days after tlie happen- ing of the event to which they re- lated, were no part of the res gestae of the cause of action on trial, but mere narrative touching past occur- rences, and were, therefore, inadmis- sible. But see to the contrary, Rog- ers V. Trustees of N. Y. & B. Bridge, 11 App. Diy. 141, 42 N. Y. Supp. 1046, afHrmed, 54 N. E. 1094. 77. United States. — Fidelity & Dep. Co. V. Covirtney, 103 Fed. 599. Alabama. — Huntsville Belt Line, etc. Co. V. Corpcning, 97 Ala. 681, 12 So. 295; Mobile & G. R. Co. v. Cogsbill, 85 Ala. 456, 5 So. 188; Ricketts v. Birmingham St. R. Co., 85 .Ma. 600, 5 So. 353; Postal Tel. Co. V. Lenoir. 107 Ala. 640. 18 So. 266. Arl,-ansas. — Pacific Mut. L. Ins. Co. f. Walker, 67 Ark. 147, 53 S. W. 675- California. — Green v. Ophir C. S. & G. M. Co., 45 Cal. 522. ADMISSIONS. 557 G. Attorneys- at-Law". — a. Arc Agents of Clients. — Attorneys- at-law are the agents of their cHents and may, unless restrained by statutory Hmitations, bind them by their admissions the same as Colorado. — Emerson v. BiirnoU, II Colo. App. 86, 52 Pac. 752. Connecticut. — Hartford Bank v. Hart, 3 Day 491. Georgia. — Hematite Min. Co. v. East Tenn., V. & G. R. Co., 92 Ga. 268, 18 S. E. 24. Illinois. — Hodgerson z: St. L.. C. & St. P. R. Co., 160 111. 430. 43 N. E. 614. Indiana. — Lafayette R. Co. i'. Eh- man, 30 Ind. 83. /oica. — ^h^ndlleck v. Cent. Iowa R. Co., 57 Iowa 718, 11 N. W. 656. Kentucky. — Bank of Kentucky v. Todd, I A. K. Marsh. 116; Chesa- peake & O. R. Co. V. Smith, 18 Ky. Law 1079, 39 S. W. 832; Graddy v. Western Union Tel. Co., 19 K3'. Law 1455, 43 S. W. 468. Maine. — Pallets v. Ocean Ins. Co., 14 Me. 141. Maryland. — Merchants' Bank v. Marine Bank. 3 Gill. 964, 43 Am. Dec. 300; Rowe %'. Baltimore & O. R. Co., 82 Md. 493, 33 Atl. 761 ; Balti- more & O. R. Co. V. State. 62 Md. 479 : Phelps z: George's Creek & C. R. Co.. 60 Md. 536: Dietrich r. Balti- more & H. S. R. Co.. 58 Md. 347- Massacliusetts. — Pratt J'. Ofdens- bnrg & L. C. R. Co., 102 Mass. 557; Boston & M. R. Co. v. Ordway. 140 Mass. 510, 5 N. E. 627. Micliigan. — Grand Trunk R. Co. V. Nichols, 18 Mich. 170. Minnesota. — Halverson z: Chicago, M. & St. P. R. Co., 57 Mimi- UA 58 N. 'W. 871 ; Doyle v. St. Paul & M. R. Co., 42 Minn. 79, 43 N. W. 787. Missouri. — Midland Lumber Co. v. Kreegcr, 52 Mo. App. 418; Bangs Milling Co. f. Burns, 152 Mo. 350, 53 S. W. 923. Ncbraslca. — Columbia Nat. Bank V. Rice. 48 Neb. 428, 67 N. W. 165. Nevada. — Meyer z\ Virginia & T. R. Co., 16 Nev. 341. Nezi' Yorli. — Comrs. i\ Plank Road Co., 7 How. Pr. 74; Hay v. Piatt, 66 Hun 448. 21 N. Y. Supp. .362: Saper z\ Buffalo & R. Co.. 19 Barb. 310; Van Wagenan z\ Genesee Falls S. S. Ass'n., 88 Hun 43, 34 N. Y. Supp. 491 ; Drake !■. New York Cent. & H. R. Co., 80 Hun 490, 30 N. Y. Supp. 671 ; Strong v. Wheaton, 38 Barb. 616. North Carolina. — Branch v. Wil- mington & VV. R. Co., 88 N. C. 573- Oregon. — Wicktorwitz v. Farmers' Ins. Co., 31 Or. 569, 51 Pac. 75; First Nat. Bank v. Linn Co. Nat. Bank. 30 Or. 296. 47 Pac. 614. Pennsylvania. — Baltimore & O. R. .Vss'n. V. Post, 122 Pa. St. 579. 15 Atl. 885, 2 L. R. A. 44- South Carolina. — Waldrop v. Greenville L. & S. R. Co., 28 S. C. 57, 5 S. E. 471 ; Mars v. Va. Home Ins. Co., 17 S. C. 514. South Dalzota. — Plymouth Co. Bank v. Gilman, 3 S. D. 170. S2 N. W. 869. Tc.vas. — Salado College v. Davis, 47 Tex. 131 ; Long v. Moore, 19 Tex. Civ. App. 363, 48 S. W. 43. Wisconsin. — Scott v. Home Ins. Co., 53 Wis. 238. 10 N. W. 387. Different Rule 'Where Question One of Notice. — The rule that an officer of a corporation must, in or- der to make his admissions admissi- ble against the corporation, be act- ing in the line of his duty, does not apply where the question is one of notice to the corporation. There it is immaterial as to any conversations with such officer relating to the mere question of notice or knowledge, whether he was then acting in his official capacity and in the line of his duty or not. Garretson z'. ?ilerchants' & Bankers' Ins. Co.. 92 Iowa 293, 60 N. W. 540; Hopkins v. Boyd. 18 Ind. App. 63. 47 N. E. 480. See also Rog- ers V. Trustees N. Y. & B. Bridge Co.. II App. Div. 141. 42 N. Y. Supp. 1046. But in such case the officer must be one having authority in the prem- ises. Ohio & M. R. Co. V. Levy, 134 Ind. 343, 32 N. E. 815; Nelson v. Southern Pac. Co.. 15 L^tah 325, 49 Pac. 644. ■When Authority Will Be Presumed. Vol. I 558 .IDMISSrONS. otlier agents."* Tlieir autliorit\- in respect of judicial admissions Sometimes the authority of the agent to bind the corporation by his admis- sions will be presumed. Peden ■:■. Chicago. R. I. & P. R. Co.. 78 Iowa 131, 42 N. W. 625, 4 L. R. A. 401 ; Amazon Ins. Co. i'. Briesen, i Kan. App. 75S, 41 Pac. II 16. By Director or Stockholder "The next question presented, relates to the admission of the declarations of Benjamin Knight, a stockholder and one of the directors of the company. The declaration was not made while acting in the business of the com- pany, but after the loss happened ; and it purports to state the knowl- edge of the company at the time the insurance was effected. Such declara- tions cannot be received as coming from an agent of the company, when he was not acting in that character. Haven v. Brown, 7 Greenl. 421. The rights of all corporate bodies would be wholly insecure, and at the mercy of each corporator, if the ad- missions or declarations of one cor- porator could charge the corporation. The principle cannot be admitted. And the testimony must be regarded as improperly received. 2 Stark Ev. 580: 3 Day, 491, Hartford Bank v. Hart." Polleys i'. Ocean Ins. Co., 14 Me. 141. By Organizers of Corporation Be- fore They Became Officers State- ments made by persons proposing to organize a corporation, and who sub- sc(|uently become its officers, are in- admissible against the corporation or- ganized subsequent to the making of such statements. Fogg 7'. Pew. 10 Gray (Mass.) 409, 71 Am. Dec. 662. 78. United States. — The Harry, 9 Ben. 524, II Fed. Cas. No. 6147. Alabama. — McRea t'. Ins. Bank, 16 Ala. (N. S.) 755; Rosenbaum !■. State, 33 Ala. 354. California. — People v. Garcia, 25 Cal. 531. Connecticut. — Perry v. Simpson Waterproof Mfg. Co., 40 Conn. 313. Illinois. — Wilson v. Spring, 64 111. 14- Indiana. — Blessing ?'. Dodds, 53 Vol. I Ind. 95; Miller v. Palmer, 25 Ind. App. 357, 58 N. E. 213. Kansas. — Central Branch V. P. R. Co. Z'. Shoup, 28 Kan. 394, 42 Am. Rep. 163. Massachusetts. — Loomis v. New York etc. R. Co., 159 Mass. 39, 34 N. E. 82. Ncxc Hampshire. — Hanson v. Hoitt, 14 N. H. 56. New York. — Tredwell z'. Don Court, 18 App. Div. 219, 45 N. Y. Supp. 946; Stinesville etc. Co. v. White, 32 Misc. 135', 65 N. Y. Supp. 609. Pennsylvania. — Douglass v. Mitch- ell,_35 Pa. St. 440- South Carolina. — Cooke <■. Rem- ington, 7 S. C. 385. Wisconsin. — Knapp v. Runals, 37 Wis. 135. Not an Agent in the Ordinary Sense In Anderson v. McAleenan, 29 N. Y. St. Rep. 406, 8 N. Y. Supp. 483, it is said : " The rule that declarations of an agent, made within the scope of his authority, will bind the principal, has no application here. .\ man's counsel is in one sense his agent, but the special work which the counsel has to perform is to make the most favorable showing possible upon facts as well as law. He is an advocate with unlimited powers of discretion. He is not like an or- dinary agent whose express duties and methods of procedure are laid out beforehand, so that the principal may justly be held liable for what he originates, though its execution be intrusted to another. An advocate's statements are always supposed to be adapted to the exigencies of the case on trial, and colored by what he con- ceives his client's best interests de- mand at that particular time, and under those peculiar circumstances. .■\cts and statements that would seem ilisingenious, or even culpably mis- leading, in other relations of life are pardoned in a professional ad- vocate because of his necessary atti- tude towards his client and towards the enemy. There is every reason, therefore whv the (U'al statements .-IDM/SSfOXS. 559 lias been somewhat considered.''' .And the general authoritv of attorneys as it relates to evidence, will he considered under the head of " Attorney and Client."*" b. Admissions .Competent Only When Within T/ieir Anthoritv. Their power to bind by their admissions, is confined, like that of other agents, to admissions made in and as a part of the perform- ance of their duties and within the scope of their authority.*" of counsel upon a judicial inquiry of any sort, no matter wliat tlieir purport may be, should not be taken as solemn admissions of fact which the client may not afterwards gain- say." Acts as Attorney and Ordinary Agent Distinguished — liurraston v. First Nat. Bank, 22 Utah 328, 62 Pac. 425- 79. Ante, p. 426. 80. See "Attorney and Client." 81. England. — Doe ?'. Richards, 3 Car. & K. 216, 61 Eng. C. L. 215 ; Watson V. King, 3 M. G. & j. 60S, 54 Eng. C. L. 608; Wagstaff z: Wil- son, 4 Barn. & A. 339. 24 Eng. C. L. 7. Alabama. — Floyd f. Hamilton, i,,^ Ala. 235. California. — Wilson v. Southern Pac. R. Co., 53 Cal. 725. Connecticut. — Rockwell v. Taylor, 41 Conn. 55. Georgia. — Cassels v. Usry Sturgis & Co., 51 Ga. 621 ; Thomas f. Kin- sey, 8 Ga. 421. Illinois. — Chicago City R. Co. v. McMeen, 70 111. App. 220. Indiana. — Morley v. Hineinan, 6 Ind. App. 240. Maryland. — Dorsey v. Gassaway, 2 Har. & J. 402, 3 Am. Dec. 557. Massachnsctts. — Saunders v. Mc- Carthy, 8 Allen 42; Proctor v. Old Colotiy R. Co., 154 Mass. 251, 28 N. E. 13 ; Murray v. Chase, 134 Mass. 92. Michigan. — Fletcher v. Chicago & N. W. R. Co., 109 Mich. 363, 67 ^'- W'. 330; Fanners' Mut. F. Ins. Co. V. Bowen, 40 Mich. 147. • Minnesota. — Gray v. Minn. Trib- une Co., 81 Minn, m, 84 N. W. 113. Missouri. — Walden z\ Bolton, 55 Mo. 405 ; Nichols. Shepard v.o. i'. Jones, 32 Mo. App. 657. -Vc7i' Jersey. — Janeway v. Sker- ritt, 30 N. J. Law 97. Nezi' York. — Lewis i'. Duane, 6g Hun 28, 23 N. Y. Supp. 433; O'Brien r. Weiler, 68 Hun 64, 22 N. Y. Supp 627 ; Breck v. Ringler, 56 Hun 623, 13 N. Y. Supp. 501 ; Adee v. Howe, 15 Hun 20; Smith i'. Bradhurst, 18 .Misc. S46, 41 N. Y. Supp. 1002. ■Vermont. — Underwood v. Hart, 23 Vt. 120. Wisconsin. — Weisbrod v. Chicago & N. W. R. Co., 20 Wis. 419- Limitation of Authority to Make Admissions. — In Wilson v. S. P. R. Co., S3 Cal. 725, the action was brought in conformity with a stat- utory provision to recover the value of property alleged to have been stored in the defendant's warehouse. .\fter the defendant had answered, the plaintiff served upon the attor- ney of the defendant a demand to be informed of the circumstances under which the count for injury mentioned in the complaint grew. In reply to this demand the attorney of the de- fendant addressed a letter to the attorney for the plaintiff which was offered in evidence. In passing upon the question of the adinissibility of the statements of attorneys as ad- missions, the court said : " The sec- tion authorizes a written or oral demand for information upon the depositary. It provides for a state- ment iti pais which inay be taken before or after an action has been coiumenced, and it is not within the province or authority of an attorney at laii.' employed by the depositary to defend an action brought by the depositor for the destruction of the deposit to make in pais admissions or statements in respect to the cir- cumstances under which the destruc- tion occurred which are binding upon the depositary." Vol. I 560 ADMISSIONS. c. Not Competent to Prove That He ll'as Attorney. — The admis- sions of the alleged attorney are not competent to prove that he was attorney for the party against whom they are offered.'^ d. By General Attorney. — The fact that an attorney is employed generally does not change the rule. To warrant proof of his admissions, they must have been made in and about, and while engaged in the transaction in controversy.*^ e. Oral Admissions Out of Court. — As a rule, mere oral admis- sions made out of court are inadmissible to bind the client.*'' There are authorities holding that such statements, within the scope of his employment, are admissible.*^ In some cases, the rule excluding such admissions has been extended to oral admissions in court.*" But the authority to make them must be confined to admissions made for the purposes of the action in which the attorney is engaged.*' f. Made in One Case Inadmissible^ in Another B.veeption. — There- fore, it is generally held that an admission, made in one case, is not admissible in another, usually upon the ground that no authority existed by reason of his employment in one case, to make admissions 82. Morley v. Hiiieman, 6 lad. App. 240. 83. Ohio & M. R. Co. v. Levy, 134 Ind. 343, 34 N. E. 20. By a County Attorney — In Hol- ton V. Board of Com'rs., 55 Ind. 194, an offer was made to prove the declarations of the county attorney, but it was held that as the general attorney of the county, such attorney had no power to make any promise binding upon the county. 84. Saunders v. AlcCarthy, 8 Allen (Mass.) 42; Underwood v. Hart, 23 Vt. 120; Chicago City Ry. Co. V. McMeen, 70 111. App. 220; Smith V. Bradhurst, 18 Misc. 541, 41 N. \. Supp. 1002; Cassells v. Usry, 51 Ga. 621. Admissions Made Out of Court. In Smith v. Bradhurst, 18 Misc. 546, 41 N. Y. Supp. I002, it is said: " His admissions could only bind his client in matters relating to the prog- ress of the trial. The statements which he made out of court, in con- versations with the opposing counsel, although they may have related to the facts in controversy, were not admissible in evidence against Mrs. Bradhurst.' The reason of the dis- tinction is that the attorney .1 au- thority extends only to the manage- ment of the cause in court, and he Vol. I has no right to go beyond that au- thority, unless expressly authorized liy his client." Narrative of Events by, Not Com- petent. — In Chicago City R. Co. v. McMeen, 70 111. App. 220, it was held that what an attorney says is not evidence against his client unless it be in the nature of a stipulation as to the conduct of the cause, and that even then it is not his narrative of events or his opinion as to any- body's rights or disabilities that binds his client, but his agreement as to the conduct of the cause. Letters Written in the Conduct of Business But in Stinesville & B. Stone Co. V. White, 32 Misc. 135, 65 N. Y. Supp. 609, it is held that let- ters written by an attorney in the conduct of business within his au- thority are competent as admissions against his client. See also Holdcr- ness V. Baker, 44 N. H. 414. Authority to Write Must Be Shown Cassells v. Usry, 51 Ga. 621. Lord i'. Bigelow, 124 Mass. 85. i8s. 86. N. Y. 87. ,\nderson v. McAleenan, 29 St. 406, 8 N. Y. Supp. 483. Wilson V. Southern Pac. R. Co.. 53 Cal. 725. .IDMISS!0\'S. 5(.l for the purposes of another case.** Exception Where Made With Express Authority of Client. — Rut if the admission is made without limilalion and with the authorization or acquiescence of the chent, it will he admissible for all purposes, as if made directly by the client.'*'' g. Must Be Distinct and Formal. — The general rule is that admissions, made by an attorney, to be available against his client, must be distinct and formal.'"' h. Generally Not Conclusive. — Admissions of an attorney have no greater binding effect than those of other agents. Therefore, unless they are of such a nature as to be conclusive, they are not so when macle by an attorney, but may be explained or disproved by other evidence."^ i. Made to Attorney. — Admissions made to an attorney, if made to him by a client and while acting as attorney, are inadmissible to be proved bv the attorney the same as other confidential communica- tions. "- H. Persons Refekred to eor Informatiox. — a. Generally. A party by referring to another for information thereby, in effect, authorizes such person to state the facts, and any admissions made within the scope of the reference are competent to be proved against hiiTi, as his own."^ 88. Dawson z: Schloss, g,^ Cal. 194, 29 Pac. ,?i ; Wilkins z\ Stidger, 22 Cal. 2JI, 83 Am. Dec. 64; Nichols. Shepard Co. v. Jones, 32 AIo. .App. 6s7: State '•. Buchanan, Wriglit (Ohio) 2ii. Admissions at Former Trial Ad- missible In Scaife f. Western X. C. Land Co.. 90 Fed. 238, it is held that distinct and formal admissions of fact signed by an attorney of record on a trial, are competent evi- dence on a subsequent trial of the same case. Where Intended to Be General. So in Central Branch U. P. R. Co. v. Shoup, 28 Kan. 394, 42 Am. Rep. 163, it is held that an oral admission made by an attorney binds the client on a second trial if it appears to have been intended to be general. 89. City of Rockland v. Farns- worth, 89 Me. 481, 36 .Atl. 989. 90. Treadway z: S. C. & St. P. R. Co., 40 Iowa 526; McKeen r, Gammon, 33 Me. 187 ; Ferson v. Wilco.x, 19 Minn. 449 ; Davidson v. Gifford, 100 X. C. 18. 6 S. E. 718; Adee z\ Howe. 15 Hun (X. V.) 20. Incidental Statement of Counsel. 36 In Lake Erie & \V. R. Co. r. Rooker, 13 Ind. App. 600, 41 N. E. 470, it is held that the incidental statement of counsel, in opening a case, of a fact as he expects to prove it, is not an admission of such fact so as to relieve the opposite party of the burden of proof if that fact is relied on by him. 91. Douglass V. Mitchell. 35 Pa. St. 440; McRea v. Ins. Bank, 16 Ab. (X. S.) 755- 92. City of Indianapolis Z'. Scott, 72 Ind. 196; 93. I Greenl. Ev., i6th Ed. 182. lingland. — Hood z\ Reeve, 3 Car. & P. Si2. 14 Eng. C. L. 432; Wil- liams V. Innes, i Camp. 364, 10 Rev. Rep. 702 ; Daniel v. Pitt, i Camp. 366, 10 Rev. Rep. 706. Connecticut. — Cbadseye v. Green, 24 Conn. 562. Kansas. — Linton v. Housh, 4 Kan. 535- Kentucky. — Sullivan v. Kuyken- dall, 82 Ky. 483, 56 Am. Rep. 901. Maine. — Chapman v. Twitchell, i7 Me. 5'9. 58 Am. Dec. 773- Missouri. — Price z'. Lederer, 33 Mo. App. 426. Vol. I 562 . IDMISSJOXS. h. Must Be Siic/i Reference As to Make Referee an Agent. — It is not every reference to another for information that will have the effect stated. It must be such a reference as will authorize the referee to make the admission offered to be proved for and on behalf of the party. ''^ c. Must Be \]'ithi)i Authority Given. — And the admission to be competent must be within the authority given by the reference."'^ I. Husband .\nd Wife. — a. Generally. — There is no difference as to the aclmissibilitA' of admissions, because of the existins: relation New Haiiipshirr. — Folsom v. Bat- chelder, 22 N. H. 47. iVeii' Yorl:. — Lehman z: Frank, 19 App. Div. 442. 46 N. Y. Supp. 761. SoutJi Carolina. — Click v. Hamil- ton, 7 Rich. 65; Deleshire v. Green- land. I Bay 458. IVisconsin. — Nadeau z'. White River Lum. Co., 76 Wis. 120, 43 N. W. 1 1 35, 20 Am. St. Rep. 29. Statement of the Rule After stating that the admissions of a third person are receivable in evidence against the party who had expressly referred another to him for infor- mation in regard to an uncertain or dispnted matter, Mr. Greenleaf states tlic rule thus: " In such cases, the party is bound by the declarations of the person referred to in the manner and to the same extent as if they were made 1)y himself." i Greenl. Ev., § 182. Limitation of the Rule In connnenting upon this statement of the rule by Mr. Greenleaf, it is said, in Rosenbury v. Angell, 6 Mich. 508 : " It is observable that Mr. Green- leaf entirely ignores the idea of any agency of the party referred to, and yet he calls the declarations of the persons referred to ' admissions of third persons.' Now, this term 'ad- missions' in such a connection would seem to imply that the person making the admissions must stand in some confidential relation to or be inter- ested for or represent the interests of the party making the reference ; in short, to have authority in the nature of an agency to speak for the party making tlic reference. Upon any other hypotlicsis it would seem to he a confusion of ideas to call the declarations of such third persons Vol. I his admissions, or the admissions of the party referring to him." Interpreter. — In Nadeau v. White River Lum. Co., 76 Wis. 120, 43 i\. W. 1 135, 20 Am. St. Rep. 29, state- ments made by an interpreter were held to be within the rule, the court saying : " The person speaking through an interpreter virtually says to such other person : ' You listen to what the interpreter says and he will tell you what I say,' and what the interpreter says is to be taken as the language of the person speaking through him, and may, therefore, be admitted in evidence against him under the rule that the statement of a third person is receivable in evidence against the party who has e.xpressly referred another to him for information as to any matter." But not where the interpreter is one appointed by the court to in- terpret for a witness. Schearer v. Harber, 36 Ind. 536. Not the Admissions of an Agent. In Linton v. Housh, 4 Kan. 535, it is held that such statements are not admitted on the ground of agency but " by adoption of tlie representa- tions." 94. Barnard v. Macy, 11 Ind. 536; Rosenbury v. Angell, 6 Mich. 508; Hood V. Green, 3 Car. & P. 532, 14 Eng. C. L. 432 ; Allen v. Killinger, 8 Wall. 480; Lehman v. Frank, 19 App. Div. 442, 46 N. Y. Supp. 761 ; Robertson v. Hamilton, 16 Ind. App. 328, 45 N. E. 46, 59 ,'\.m. St. Rep. 319- 95. Duval I'. Covcnhoven, 4 Wend. 561; Allen V. Killinger, 8 Wall. 480; Cohn V. Goldman, 76 N. Y. 284 ; Adler-Goldman Com. Co. v. Adams Ex. Co., S3 Mo. App. 284. ADMISSIONS. 563 of husband and wife. They are, in respect of this question, the same as strangers, unless the declarations offered as admissions are confidential communications and for that reason inadmissible."'' And the rule as to the admissibility of a wife's admissions against the husband is not changed by the fact that they were married after the declarations were made."' b. Must Be Otlierwisc Competent. — The mere fact that the rela- tion of husband and wife exists does not render the admissions of one competent as against the other. They must be competent for some other reason to be admissible."* 96. .JZobumo.— Walker v. Elledge, 65 Ala. 51 ; Lide v. Lide. 32 Ala. 449; Rochelle v. Harrison, 8 Port. 351 ; ^hlrpllree v. Singleton, yj Ala. 412; Brunson v. Brooks, 68 Ala, 248; Davis I'. Orme, 36 Ala. 540. .Arkansas. — Burnett z: Burkhead, 21 .Ark. 77, 76 Am. Dec. 358. California. — Brennan ?■. Wallace, 3S Cal. 108. Connecticut. — Turner v. Coe, 5 Conn. 94. Georgia. — Ernest r. Merritt, 107 Ga. 61, 32 S. E. 898. Illinois. — Pierce X'. Harbsouck, 49 111. 23. Indiana. — Coryell j'. Stone, 62 Tnd. 307 : Kingen i'. State, 50 Ind. 557- /oti'fl. — Claussen v. La Franz, i Clarke 226; Whitescarver c'. Bonny, 9 Iowa 480; Cedar Rapids Nat. Bank V. Lavery, no Iowa 575, 81 N. W. 775, 80 Am. St. Rep. 325. Kansas. — Donaldson z\ Everhart, 30 Kan. 718, 32 Pac. 405 ; Van Zandt ''. Schuyler, 2 Kan. App. 118, 43 Pac. 295- Kentucky. — Cook v. Burton, 5 Busli 64; Bonney ?■. Rearden, 6 Bush 34 : Manhattan L- Ins. Co. t'. Myers, 22 Ky. Law 875, 59 S. W. 30; Burgen t'. Tribble, 2 Dana 383. Massachusetts. — Aldrich %'. Earle, 13 Gray 578; Hunt t'. Poole, 139 Mass. 224; Broderick ?'. Higginson, 169 Mass. 482, 48 N. E. 269, 61 Am. St. Rep. 296. Micliigan. — Hunt v. Strew, 33 .Mich. 85; Dawson v. Hall, 2 Mich. 390 ; Rose v. Chapman, 44 Mich. 312, 6 N. W. 681 ; Burns v. Kirkpatrick, Qi Mich. 364, 51 N. W. 89^, 30 .\m. St. Rep. 48s. Minnesota. — ^ Keller v. Sioux City & St. P. R. Co., 27 Minn. 178. Mississippi. — Cameron v. Lewis, 59 Miss. 134; Sharp v. Ma.xwell, 30 Miss. 589. .Missouri. — Fo.x v. Windes, 127 Mo. 502, 30 S. W. 323 ; Bruce v. Bombeck, 79 Mo. App. 231. Nebraslia. — Norfolk Nat. Bank v. Wood, 3i Neb. 113, 49 N. W. 958. Netv York. — Dewey i'. Goode- nough, 16 Barb. 54 ; Platner r. Plai- ner, 78 N. Y. 90; Keenan v. Get- singer, I App. Div. 172. 37 N. Y. Supp. 826. Pennsylvania. — Smith i'. Scudder, II Serg. & R. 325; Martin v. Rutt, 127 Pa. St. 380, 17 Atl. 993; Evans T. Evans, 155 Pa. St. 572, 26 .\tl 755; Lee v. Newell, 107 Pa. St. 283; Hackman v. Flory, 16 Pa. St. 196. Soutli Carolina. — Williams v Cockran, 7 Rich. 45. Tennessee. — Fidelity Mul. L. Ins. .\ss'n V. Winn, 96 Tenn. 224, 33 S. W. 1045. Te.x-as. — McKay v. iVeadwell, 8 Tex. 176; Clapp V. Engledow, 82 Tex. 290, 18 S. W. 146; Hurley v. Lockett, 72 Tex. 262, 12 S. W. 212. I'ernwnt. — Curtis v. Inghain, 2 Vt. 287; Murray v. Mattison, 67 Vt. 553, 32 Atl. 479; Gilson 'e. Gilson, 16 Vt. 464. 97. Churchill v. Smith, 16 Vt. 560. 98. Georgia. — Virgin %: Dun- wody. 93 Ga. 104, 19 S. E. 84. Indiana. — Stanfield v. Stilz, 93 Ind. 249; Allen i'. Davis, loi Ind. 187 ; City of Indianapolis i'. Scott, 72 Ind. 196. Iowa. — Cedar Rapids Nat. Bank V. Lavery, no Iowa 575, 81 N. W. 775- Vol. I 564 ADMISSIOXS. c. Dues Competency .Is Witness Affect the Question. — There are cases, however, in which the admissibihly of the husband's or wife's admissions is niatlc to turn U])on the question whether, if called as witnesses, they wnuld lie ct)nipetent to testif\- to the admit- ted facts. ^^ Michigan. — Rose v. Chapman, 44 Mich. 312, 6 N. W. 681 ; Glover v. Alcott, n Mich. 470; Whelpley v. Stoughton, 112 Mich. 594, 70 N. \V. 1098. MississijJpi. — Cameron v. Lewis, 59 Miss. 134. Missouri. — Fox v. Windes, 127 Mo. 502, 30 S. W. 32,^ ; State f. Chat- ham Nat. Bank, 10 Mo. App. 482. Nebraska. — Woodruff v. White, 25 Neb. 745, 41 N. W. 781. New Korfe. — Stillwell :'. New York Cent. R. Co., 34 N. Y. 29; Post V. Smith, 54 N. Y. 648; La Grae v. Peterson, 2 Sandf. 338; Gillespie v. Walker, 56 Barb. 185. North Carolina. — Towles v. Fish- er, 77 N. C. 437- Pennsylvania. — Jones v. McKee, 3 Pa. St. 496, 45 Am. Dec. 661 ; Fleming v. Parry, 24 Pa. St. 47 ; Gardner's Appeal (Pa. St.), 8 .\tl. 176. South Carolina. — Park v. Hopkins, 2 Bailey 408. Te.vas. — Clapp v. Engledow. 82 Tex. 290, 18 S. W. 146; McKay v. Treadwell, 8 Tex. 176; Owens ■:'. New York & T. Land Co., 11 Tex. Civ. App. 284, 32 S. W. 189; La Master v. Dickinson, 17 Tex. Civ. App. 473, 43 S. W. 911. Vermont. — Pierce z'. Pierce, 66 Vt. 369, 29 Atl. 364. 99. United States. — Vnyton v. Brenell, i Wash. C. C. 46/, 28 Fed. Cas. No. 17,026. Alabama. — Hussey v. Elrod, 2 Ala. 339, 36 Am. Dec. 420. Arkansas. — Funkhouser J'. Pogiie, 13 .Ark. 295; Burnett v. Burkhead, 21 Ark. 77. 76 Am. Dec. 358. Indiana. — Bevins v. Clino. 21 Ind. 37; Laselle v. Brown, 8 Blackf. 221; Casteel v. Casteel, 8 Blackf. 240, 44 Am. Dec. 763; Brown z'. Laselle, 6 Blackf. 147, 38 Am. Dec. 135. Ioii.'a. — Cedar Rapids Nat. Bank V. Lavery, no Iowa 575, 81 X. \V. 775- Vol. I Maine. — White tv Hohnan. 12 Me. 157- Micliigan. — Dawson t. Hall, 2 Mich. 390. Missouri. — Fourth Nat. Bank v. Nichols, 43 Mo. App. 385. New Jersey. — Ross •;■. Winners, 6 N. J. Law 366. New York. — Hopkins -e. Clark. 90 Hun 4, 35 N. Y. Supp. 360; La Grae r. Peterson. 2 Sandf. 338; Ma- condray i'. Wardle, 7 Abb. Pr. 3. North Carolina. — May Z'. Little, 3 I red. Law 27, 38 Am. Dec. 707. Ohio. — Thomas -e. Hargrave. Wright 595. Soutli Carolina. — Hawkins r. Ilat- ton. 2 Nott & McC. ,^74. Where Husband or Wife Is Incompetent as a Witness — In Macondray -'. Wardle. 7 .-Vbb. Pr. (N. Y.) 3, the court after holding that the wife was incompetent as a witness to testify to certain facts, says further : " The admissions of the wife to the same effect were offered in evidence. The objection which has been considered to her tes- timony under oath would apply with much greater force to admissions made not under oath. The point has been considered in La Grae v. Peter- son, 2 Sandf. 338. in which we con- cur." ,\nd in Underwood z\ Linton, 44 Ind. 72, it is said that " it is a general rule that the declarations or admissions of the wife are not legal evidence for or against the husband." Admissions by Acquiescence — In Fourth Xat. Bank ■:■. Xichols, 43 Mo. App. 385. it is held thai state- ments made by the wife in the pres- ence of the husband and not denied by him cannot be proved to show his acquiescence in the fact stated, placing the ruling on the ground of her incompetency tn testify against him. General Rule Stated.— In Daw- ADMISSIONS. 505 d. As Agents for Bach Other. — If the relation of principal and agent exists between them, their admissions are competent as in other cases of agency.^ (1.) Must Be Within Scope of Authority. — But as in case of any other agency their admissions are competent only when made in and about the acts done as such agent and within the scope of their authority." son V. Hall, 2 Mich. 390, it is held 10 be the well settled rule that the declarations of husband and wife are subject to the same rules of ex- clusion which govern their testi- mony as witnesses. Where Wife Is Administratrix of Husband's Estate The fact that the husband has since died and the wife is the administratrix of his es- tate does not render her admissions made Lefore his death competent, there being no proof of agency. May I. little, 3 Ired. Law (N. C.) 27, .l?^ .\m. Dec. 707. Of Matters Occurring Before Mar- riage. — The fact that the wife is incompetent to testify does not render competent admissions made by her after marriage relating to business transacted by her before marriage. Churchill V. Smith, ib \'t. 559. Made Before Marriage Admis- sions made before marriage, if other- wise competent, are admissible. Wil- lis z: Snelling, 6 Rich. (S. C.) 280. 1- England. — Clifford v. Burton, 1 Bing. igg, 8 Eng. C. L. 294. Alabama. — Mitcham v. Schnessler, 98 Ala. 635, 13 So. 617. Indiana. — Casteel v. Casteel, 8 Blackf. 240, 44 Am. Dec. 763; Under- wood I'. Linton, 44 Ind. 72. Ioii.'a. — Gault v. Sickles, 85 Iowa 266, 52 N. W. 206. Kansas. — Van Zandl t: Schuyler, 2 Kan. App. 118, 43 Pac. 295. Louisiana. — Smalley f. Lawrence, 9 Rob. 211. Maine. — White i'. Holman, 12 Me. 157- Massaclnisetts. — Barker v. Mac- kay, 175 Mass. 485, 56 N. E. 614. Missouri. — Bates v. Holladay, 31 Mo. App. 162. Nei^' Hampshire. — Chamberlain v. Davis, 33 N. H. 121 ; Pickering v. Pickering, 6 N. H. 120. Neiv York. — Riley v. Suydam, 4 Barb. 222; Fenner v. Lewis, to Johns. 38; Barton z: Lynch, 6g Hun i, 23 N. Y. Supp. 217; La Grae z\ Peter- son, 2 Sandf. 338. North Carolina. — State z'. Lemon, 92 N. C. "go; Hughes v. Stokes, i Hayw. 372. . Ohio. — Thomas v. Hargrave, Wright 595. Oregon. — Minard v. Stilhnan, 35 Or. 259, 57 Pac. 1022. Pennsylvania. — Murphy !■. Hubert, 16 Pa. St. 50. South Carolina. — Colgan z\ Phil- ips, 7 Rich. 359. I'cnnont. — Churchill v. Smith, 16 V't. 560 ; Felker v. Emerson, 16 Vt. 653, 42 Am. Dec. 532 ; Gilson Z'. Gil- son, 16 Vt. 464. 2. Goodrich v. Tracy, 43 Vt. 313; Livesley v. Lasalette, 28 Wis. 38; Jordan v. Hubbard, 26 Ala. 433 ; Mitcham v. Schnessler, 98 Ala. 635, 13 So. 617; Underwood v. Linton, 44 Ind. 72 ; Evans v. Purinton, 12 Tex. Civ. App. 158, 34 S. W. 350; Logue V. Link, 4 E. D. Smith (N. V.) 63. Must Be Within Scope of Au- thority. — In Goodrich z'. Tracy, 43 Vt. 314, it is said ; " The only ground upon which it can be claimed that the acts or ad- missions of !Mrs. Goodrich could be given in evidence against the plaintiff is that she was the agent of the plaintiff, so as to be competent to bind him by such acts and admis- sions. We do not think the evi- dence shows any such agency. Her agency only extended to the per- formance of certain specific acts, and the admissions sought to be proved were not so connected with ti.e performance of those acts as to make them binding upon her prin- cipal. Her authority was special Vol. I =>(,(, .IPMLSSJONS. e. Confidential Conunumcations Inadmissible. — If the statcnicnl offered to be proved as an admission constitutes a confidential com- nuinication between husband and wife, it is, of course, inadmissible.* J. Trustees and Beneficiaries. — a. Of Trustee When Adniis- sible Agai}ist Cestui Que Trust. — A trustee may make admissions, provable against the beneiiciary for whom he acts, if made in the transaction of the trust business and within his anllmritx- as such trustee.^ b. Of Trustee Without Benetieial Interest. — But this rule does not extend to a mere trustee to sell property under a mortgage or trust deed f or to one who has no beneficial interest in the property.*^ and limited, and when she exceeded that authority, llie principal was not bound." In Action for Wages of Wife. In an action by husband and wife for her wages which belong to the husband, her admission of payment foj" the services rendered, made after the suit was commenced, was held inadmissible. Jordan v. Hub- bard, 26 Ala. 43J. 3. Greenl. Ev., §254; Van Zandt V. Schuyler, 2 Kan. App. 118, 43 Pac. 29S- 4. England. — Gibson v. Winter, 5 Barn. & A. 96, 27 Eng. C. L. 47- Georgia. — Know v. Raymond, ys Ga, 749. Maine. — Franklin Bank %■. Cooper, 36 .Me. 179. Michigan. — Hogan v. Sherman, 5 Mich. 60 ; Chipman v. Kellogg, 60 Mich. 438, 27 N. W. 592. Nnv Hampsturc. — Tenney v. Evans, 14 N. H. 343, 40 Am. Dec. 194. Tennessee. — Helm v. Steele, 3 Humph. 472. Of Deceased Trustee. — In Chip- man V. Kellogg, 60 Mich. 438, 27 N. VV. 592, it was held that books of a tru.st kept by a deceased trustee and his declarations and admissions on the subject were admissible to show the condition of the fund, and the recognition of the claim if not barred. As Part of the Res Gestae. Such admissions are received as con- stituting a part of the res gestae. Know V. Raymond, y2 tia. 749. 5. Eitelgeorge v. Mutual etc. Ass'n, 69 Mo. 52. 6. I'nited .'Stales. — Waterman v. Wallace, 13 Blatchf. 128, 29 Fed. Cas. No. 17,261. Alabama. — Graham v. Lockhart, 8 Ala. (N. S.) 9; Thompson -: Drake. 32 Ala. 99. Arkansas. — Ludlow '■. Flournoy. 34 .\rk. 451; Fargison v. Edrington, 49 Ark. 207, 4 S. W. 763. Connecticut. — Townsend Sav. Bank r. Todd, 47 Conn. 190. Illinois. — Bragg ;■. Geddes, 93 111. 39 ; Thomas v. Bowman, 30 111. 84. Kentucky. — Allen v. Everett, 12 B. Mon. 371. .Massachuselis. — stratton f. Ed- wards, 174 Mass. 374, 54 N. E. 886. Missouri. — Eitelgeorge v. Mut. House B. Ass'n, 69 Mo. 52. Vermont. — Sargeant v. Sargeant, 18 Vt. 371 ; Barber v. Bennett, 62 Vt. 50. 19 Atl. 978. I I,. R. A. 224. West I'irginia. — Caldwell v. Prin- dle, 19 W. Va. 604. Admissions Incompetent. — In Bragg v. Geddes, 93 111. 39, it is held that a party defending as a trustee cannot make any admission to the prejudice of the trust fund and against the cestui que trust. See to the same effect Thomas v. Bowen, 29 111. 426; Sargeant ~e. Sargeant, 18 Vt. 371- " As a general rule, the naked ad- missions of a trustee having no bene- ficial interest in the property con- veyed to him, cannot be given in evidence to affect his cestui que trust. It is his duty to protect the interest of his cestui que trust, and he will not be allowed to betray that interest and the confidence placed in him. Not having any bene- ficial interest, his admissions or Vol. I .IDMISSIONS. 567 But his declarations are competent, as against him, to show that he has an interest." c. Must Be Part of Res Gestae. — The mere fact that one is a trustee holding title to property gives him no right to make admis- sions respecting or affecting it. To make his admission competent he must, like any other agent, be then doing some act, as such trustee, and the declaration must be connected with and relate to such act.' d. WTrratkr of Fast Transactions Inadniissihlc. — Therefore a mere narrative by the trustee of past transactions connected with the trust is inadmissilile as against the cestui que trust." e. When Party to Record. — As we have seen some cases hold that the admissions of the party of record are always admissible to defeat his action or defense," which would of course include trus- tees." But a distinction is made between trustees made so by volun- tary act of the parties, and such as become trustees by operation of law.'- declarations not made in the interest of his beneficiary are hearsay. Far- gison V. Edrington, 49 Ark. 207, 4 S. W. 763. Not to Enlarge His Own Right or Estate A written declaration of a trustee in a conveyance to a third person of property which has been previously conveyed to the trustee in trust, cannot be used against the cestui que trust to determine the intent of the parties in making the original conveyance, or to show the extent of tlie interest which the cestui que trust intended to convey thereby. Waterman v. Wallace, 13 Blatchf. 128, 39 Fed. Cas. No. 17,261. 7. Thompson v. Drake, 32 Ala. 99. 8. Fargison f. Edrington. 49 Ark. 207, 4 S. W. 763 ; Hogan v. Sherman, 5 Mich. 60. Where Party Has Voluntarily Made Trustee the Ostensible Prin- cipal In Hogan v. Sherman, 5 Mich. 60, it is held that where a party has voluntarily made his trus- tee or agent the ostensible principal, and the only one capable of legal action, he will be bound by the ad- missions of such trustee or agent. 9. Ludlow V. Flournoy, 34 Ark. 451 ; Fargison z'. Edrington, 49 Ark. -'07, 4 S. W. 763. 10. Ante. p. 509: Beatty v. Davis. 9 Gill. (Md.) 211; Tenney v. Evans, 14 N. H. 343. 11. Beatty v. Davis, 9 Gill. (Md.) 211 ; Dent v. Dent, 3 Gill, (Md.) 482. 12. By Executor. — Thus in Plant z\ McEwen, 4 Conn. 544, where declar- ations of an executor, made before his appointment as such were of- fered, the court said : " On general principles, the declarations and acts of the party on record, whether he had, or had not an interest in the subject, at the time of making or performing them, are admissible in evidence against him. There is hardly any rule so vmiversal as to be free from exception ; for a case without the reason of the rule, cannot be considered as embraced within the provision. The declarations or acts of a person, who has become a party to the record, ought to affect him personally ; and upon the same principle, it is reasonable, that they should act upon those who derive their property through him, or wha have confided their interests to his care. The latter comprises the cas< of a trustee, whose acts and declar- ations are operative against the cestui que trust. But Charles Mc- Ewen is not the trustee of the heirs or creditors of his deceased father, nor is the estate derived through him to the heirs : he is merely the agent of the law. To them he is as Vol. I 568 .WMISSIOXS. f. By Party Creating the Trust. — The admissions of a party con- veying in trust made before the conveyance was executed, are com- petent as against the cestui que trust.'-' But not if made after the execution of the trust deed." vl.) To Establish Trust. — Independently of any statutory provis- ion to the effect that a trust can be created only by writing, such trust may be established by proof of admissions.'^ But not where the trust is required to be created by writing." g. By Cestui Que Trust. — Whether the admissions of the cestui que trust may be received to affect the title of the trustee has been doubted.'' And it has been expressly held that the admissions of one of several beneficiaries under the trust are inadmissible against another.'* K. Guardians. — a. Against Theinsclz'cs. — Guardians are held like others by admissions made against their own personal interests in matters between them and their wards.'" b. Against the IVarcl, Not Admissible. — We have seen that guar- dians cannot bind their wards by judicial admissions.-" much a stranger as a creditor would be who had taken out administration on the estate of the deceased ; and upon any principle which would au- thorize the proof of an act or con- tract of his, anterior to the accep- tance of the trust of executor, to alt'ect the estate committed to his care, a similar act or contract of a creditor would be equally admissi- ble, and with equal effect, if he should become an administrator." See also Sargeant i'. Sargeant, i8 Vt. 371. 13. Head v. Halford, 5 Rich. (S. C.) 128; Gidney v. Logan, 79 N. C. 214. To Show the Trust Deed Fraud- ulent. _ Thus it is held that the admissions of the grantor in trust made before the conveyance are com- petent to show that the transaction was fraudulent. Head 7'. Halford, 5 Rich. (S. C.) 128. But see to the contrary, Hodge v. Thompson, 9 Ala. (N. S.) 131. 14. Ante, p. 514; Weaver v. Yeat- nians, 15 Ala. (N. S.) 539. Where Trustor Remains in Pos- session — But see Gidney v. Logan, 79 N. C. 214, in which it is held that where the trustor remains in posses- sion, his declarations are competent Vol. I to prove and qualify the fact and purpose of the possession. 15. Williard z: Williard, 56 Pa. St. 119; Lide T'. Lide, 32 Ala. 449; Hamsburg Bank z\ Tyler, 3 Watts & S. (Pa.) 373- But see Phillips '•. South Park Com'rs, 119 111. 62b, 10 N. E. 230, where the adinissions contained in letters were held to be insufficient to establish the alleged trust. 16. Hayne v. Herman, 97 Cal. 259. 17. Pope V. Devereux. 5 Gray 409. 18. Pope I'. Devereux, 5 Gray 409; Doan -'. Dow, 8 Ind. App. 324. 19. Admission by a Guardian. In an action by a ward against his guardian to set aside certain allow- ances made the guardian, it was held that the presiding judge was com- petent to testify concerning the state- ments made by the guardian to pro- cure the allowance of his claims, and also that the same facts might be proved by an attorney who was not at tlie time of the transaction testified to, but had been the attorney of the guardian, and that the declar- ations of the guardian as to the amount of the ward's estate, or what he expected it to be, were adinissible in evidence against him. Doan v. Dow, 8 Ind. App. 324. 20. .-lute. p. 460. JDMISSJOXS. 569 It is likewise true that they cannot, as a rule, bind their wards by non-judicial admissions.-^ (1.) Exception Res Gestae. — But where the guardian is engaged in the transaction of business, as such, his admissions, made at the time, and a part of the res gestae, are admissible. '-- c. When Party to the Record. — Under the rule laid down in some of the cases that the admissions of a party to the record are always admissible, it is held that where the guardian is a party, his admissions are competent. -■' d. Atfcctiiig li'ard's Title to Land Iiunhnissiblc. — The guardian in possession of land, as such, cannot bind the ward by admissions made in disparagement of title thereto.-* L. Guardians Ad Litem. — Admissions made by the guardian ad litem are not binding upon the infant for whom he acts.-^ M. Persox.\l Rki'RESENtativES. — a. Of Executors and Admin- istrators lllicn Admissible. — Admissions by executors or adminis- trators made in the transaction of their business, as such, are com- petent to be proved against the estate represented by them."" But 21. Westenfelder v. Green, 24 Or. 448, 34 Pac. 23 ; Chisholm z'. Newton, I Ala. 371 ; Neal v. Lapleinc, 48 La. Ann. 424, 19 So. 261. 22. Tenney v. Evans, 14 l^. H. 343, 40 Am. Dec. 194. Made Before His Appointment In- admissible .-Vdmissions made hy a guardian before his appointment as sucli cannot be proved against the ward. Phillips i'. Herndon, 78 Tex. 378. 14 S. W. 857; Moore v. Butler. 48 N. H. 161. 23. Ante, p. 509; Tenney v. Evans, 14 N. H. 343, 40 Am. Dec. 194. 24. Westenfelder -■. Green, 24 Or. 448, 34 Pac. 23. 25. Ante, p. 460; Mathews v. Dowhing, 54 Ala. 202; Cooper v. Mayhew. 40 Mich. 528; Cochran v. McDowell. 15 111. 10; Hiatt v. Brooks, II Ind. 508; Hammer v. Pierce, 5 Harr. (Del.) 304; Buck r. Maddock, 167 III 219, 47 N. E. 208. By Prochien Ami Before Acting as Such. _Iu Metz r. Detweiler, 8 Watts & S. ( Pa. ) 376, the court below admitted the admissions of the proclticn ami made before he became such, which was held error. Admissions of " Next Friend " Inadmissible. _ Buck v. Maddock, 167 III. 219, 47 N. E. 208. 26. Georgia. — Planters and Min- ers' Bank v. Neel, 74 Ga. 576; Horkan v. Benning, iii Ga. 126, 36 S. E. 432. Indiana. — Eckert z'. Triplett, 48 Ind. 174. hn^'a. — Schmidt v. Kriesmer, 31 Iowa 479. Massacliuselts. — Heywood v. Hey- wood, 10 Allen 105; Hill v. Buck- minister, S Pick. 390; Faunce f. Gray 21 Pick. 243. A'c'a' ]'orl;. — Whiton v. Snyder, 88 N. Y. 299- Oliio. — Matoon v. Heirs of Clapp. 8 Ohio 248. Pennsylvania. — Lobb v. Lobb, 26 Pa. St. 327; Hunt's Appeal, 100 Pa. St. 590. Soutli Carolina. — Haylyburton v. Kershaw, 3 Des. Eq. 104. Tennessee. — Helm v. Steele, 3 •Humph. 472 ; Lashlee v. Jacobs, 28 Tenn. 718. Not Admissible Against Joint Contractor With Intestate Mar- shall r. .'N.danis. 11 III. sy. Appraisement by Administratrix Inadmissible Against Estate — In Morrison z\ Burlington, C. R. & N. R. Co.. 84 Iowa 663, 51 N. W. 75, it was held that the appraisement of the property .of the estate returned by the administratrix was not com- petent as evidence of the value of Vol. I 570 ADMISSIOXS. there are cases holding to the contrary.-" And against them person- ally when sought to be held liable."** Rut the declarations of an administrator of a predecessor in title to real estate are not com- petent, as admissions, against the present claimant to the title."" b. Must Be Made When Traiisaeting Business of Estate. — The admission to be admissible must be made in and about the settlement 01 the estate. If it is not, it is incompetent.'" c. Respecting Claims Against the Estate. — The admissions of an executor or administrator may be received to establish a claim against the estate.'^ d. Affecting Title to Land. — The admissions of an administrator cannot be heard to affect the title to property of the intestate. ■'- e. By One of Sez'eral, Admissible. — An admission made by one administrator of an estate where there is more than one, is admis- the property appraised in an action against the estate. Made Before Appointment.' — Ad- missions made by an administrator or executor before his appointment as such are inadmissible, even as against him, after his appointment, and in his representative capacity. Prudential L. Ins. Co. v. Fredericks, 41 in. App. 419; Gooding f. U. S. L. Ins. Co., 46 111. App. 307; Brooks V. Goss, 61 Me. 307 ; N iskern v. Haydock, 23 App. Div. 175', 48 N. Y. Supp. 895. 27. Allen v. Allen, 26 Mo. 327; Leeper v. McGuire, 57 Mo. 360. 28. Potter v. Ogden, 136 N. Y. 384, :i3 N. E. 228; Cayuga Co. Bank z: Bennett, 5 Hill (N. Y. ) 236; Taylor z'. Adams, 2 Serg. & R. (Pa.) 534, 7 Am. Dec. 665 ; Church i'. Howard, 79 N. Y. 415. 29. Lawrence ?'. Wilson. 160 Mass. 304, 35 N. E. 858. 30. I Greenl. Ev., § 179. .ilabama, — Roberts v. Trawick, 13 Ala. 68. Connecticut. — Knapp v. Hanford, 6 Conn. 170; Plant v. McEwen, 4 Conn. 544. Illinois. — Gooding v. U. S- L. Ins. Co., 46 111. App. 307: Prudential L. Ins. Co. :■. Fredericks, 41 111. App. 419. Nei\.' York. — Church v. Howard, 79 N. Y. 415; VVhiton v. Snyder, 88 N. Y. 299; Dan v. Brown, 4 Cow. 483, 15 Am. Dec. 395. Vol. I Oliio. — Hueston v. Hueston, 2 Ohio St. 489. J'crniont. — Wheelock v. Wheelock, 5 Vt. 433. Thus if the admission relates to the validity of the will and is offered in a proceeding to determine its validity in which the executor has no interest, his admission is not admissible, al- though he is the nominal plaintifif in the action. Roberts -■. Trawick, 13 Ala. 68; Shailer '■. Bumstead, 99 Mass. 112. Otherwise Where Executor Is Party in Interest. — Atkins v. San- ger, I Pick. (Mass.) 192; Peeple v. Stevens, 8 Rich. Law ( S. C.) 198, 64 Am. Dec. 750. Must Relate to His Own Acts. It is held that his admissions are only competeiU evidence of his own acts, after he became clothed with the trust, and not to prove what was told hiin by his testator during life, (iodbee i'. Sapp. 53 Ga. 283. Not Where the Declarations Were Made Before His Appointment As Such — Plant v. McEwen, 4 Conn. .=;44- 31. Lashlcc V. Jacobs. 28 Tenn. 718; Hueston v. Hueston, 2 Ohio St. 489; Hill r. Buckminster, 5 Pick. (Mass.) 390: Fannce v. Gray, 21 Pick. (Mass.) 243; Heywood v. Heywood, 10 Allen (Mass.) 105. But see discussion of this point in .Mien V. Allen, 26 Mo. 327. 32. Lawrence v. VVilson, 160 Mass. 304. 35 N. E. 858. ADMISSIONS. 571 sible.'''' Uut it is not conclusive upon the other administrator or the estate, but may be disproved."* (1.) Of Sxecutor Against Co-Executor, Held Inadmissible. — In some cases, it is held, broadly, that the admissions of an executor or administrator cannot be received in evidence against his co-execu- tors or co-administrators,^^ or the estate he represents, if made in the absence of his co-e.xecutor.''" (2.) Must Be About Their Joint Interests, and Within Their Authority. The admission of one executor or administrator to be admissible against another must be within their joint authority and about their joint interests.^' f. 5v Former Administrator. — So it is held that admissions of a former administrator are competent against his successor in litiga- tion affecting the estate.'''* g. As Against Heirs and Devisees Inadmissible. — Generally speaking the executor or administrator does not represent either the heirs or devisees of the estate, has no joint interest with them, and his admissions cannot be proved . against either of them."'' But where he does represent such heirs or devisees in the settlement of the estate his admissions are competent as against them.*" h. By Testator or Intestate. — In actions for or against an estate the admissions of the deceased are competent as against his executor or administrator in all cases where they would have been competent 33. Mclntire v. Morris, 14 Wend. (N. Y.) 90, 12 N. Y. Com. L. 548; James r. Hackley, 16 Johns. (N. Y.) 2736 N. Y. Com. L. 138; Cayuga Co. Bank v. Bennett, 5 Hill (N. Y.) 236, 16 N. Y. Com. L. 115. Not to Establish Original De- mand In Haniiiion ;■. Huntley, 4 Cow. (N. Y.) 493, it is held that in matters which relate to the delivery, gift, sale, payment, possession or re- lease of the testator's goods, the acts or admission of one e.xecutor is deemed the act of all, but not to establish an original demand against the estate. 34. James v. Hackley, 16 Johns. (N. Y.) 273, 6 N. Y. Com. L. 138. 35. El wood V. Deifendorf, 5 Barb. (N. Y. ) 398; Cavuga Co. Bank f. Bennett, 5 Hill (N. Y.) 236; Ham- mon V. Huntley, 4 Cow. (N. Y.) 493; Potter V. Green. N. Y. Supp. 605 ; Finnem v. Hinz, 38 Hun (N. Y.) 465. 36. Berden 7: Allan. 10 111. App. 91 ; Potter r. Greene, 20 N. Y. St. 410, 3 N. Y. Supp. 605; Bruyn v. Russell, 22 N. Y. St. 374, 4 N. Y. Supp. 784 ; Cayuga Co. Bank i'. Ben- nett, 5 Hill (N. Y.) 236; Hammon z\ Huntley, 4 Cow. (N. Y.) 493. 37. Fox V. Waters. 12 Ad. & E. 43. 40 Eng. C. L. 18 ; Church v. Hiiward, 79 N. Y. 415. 38. Eckcrt -: Triplett, 48 Ind. 174, 17 .^.m. Rep. 735: Newhouse v. Red- wood. 7 Ala. 598; Lashlee v. Jacobs, 9 Humph. (Tenn.) 718; Emerson v. Thompson, 16 Mass. 429. But see to the contrary Rogers v. Grannis, 20 Ala. 247, in which it is held that the admissions of the ad- ministrator in chief were not com- petent as against the administrator dc bonis iioii. See also McLaughlin v. Nelms. 9 .\la. (N. S.) 925; More v. Finch, 48 N. Y. St. 23, 20 N. Y. Supp. 164. 39. Elwood f. Deifendorf, 5 Barb. (N. Y.) 398; Osgood I'. Manhattan Co. 3 Cow. (N. Y.) 612. 15 .\m. Dec. 304: Jennings v. Kee, 5 Ind. 257; Prater i'. Frezier, 6 Eng. (Ark.) 249. 40. I Greenl. Ev., § 179. Vol. I 572 ADMISSIONS. against him if living.'" But not in his favor unless thcv are a part of the res gestae.^'- N. Insured and Rexeficiarv. — a. Of Insured Against Bene- ficiary. — The admissions of the insured, made after the issuance of the policy, are not admissible to aiTect the rights of the beneficiary under the policy.^' 41. England. — Grocers etc. v. Doiine. 3 Biiig. 34, 32 Eng. C. L. 25. Alabama. — Lide v. Lide, 32 Ala. 449- California. — Byrne v. Reed, 75 Cal. 277, 17 Pac. 201. Connecticut. — Wainwriglit v. Tal- cott, 60 Conn. 43, 22 Atl. 484 ; Allen V. Hartford Ins., Co.. 72 Conn. 693, 4t Atl. 9t=;'; Rowland v. Philadel- phia & B. R. Co., 63 Conn. 415. 28 Atl. 102. Illinois. — Riggs ?'. Powell, 142 111. 4=;3. .^2 N. E. 482 ; Penn 7'. Oglesbv, 89 111. no. Indiana. — Slade v. Leonard. 75 Ind. 171 ; Bevins v. Cline, 21 Ind. 37; Knight J'. Knight, 6 Ind. App. 268, •'J N. E. 456; Kettry v. Thumma, g Ind. .\pp. 498, 36 N. E. 919 ; Clouser T. Rickman. 104 Ind. 588, 4 N. E. 202. Maine. — Dale v. Gower. 24 Me. 563; Wentworth ?•. Wentworth, 71 Me. 72. Massachusetts. — Fellows v. Smith. 130 Mass. 378; Grossman v. Fuller, 17 Pick. 171 ; Heywood i'. Heywood. 10 Allen 105. Minnesota. — Hosford v. Hosford, 41 Minn. 245, 42 N. W. 1018. Missouri. — McLaughlin v. AIc- Laughlin, 16 Mo. 242. New Hani/'shire. — Morrill r. Fos- ter, 33 N. H. 379. New York. — Baird v. Baird, 14^ N. Y. 659, 40 N. E. 222, 28 L. R. A. 375 : Swan v. Morgan. 88 Hun 378, ,34 N. Y. Supp. 829 : Ackley v. Ack- iev, 66 Hun 636, 21 N. Y. Supp. 877 : Hurlbart v. Hurlbart. 128 N. Y. 420. eS N. E. 650. North Carolina .—Y\\.\g\\e^ v. Boone, 102 N. C. 137, 9 S. E. 286. Pennsylvania. — Gordner v. Hcffley, 49 Pa. St. 163 ; Hunt's Appeal, 100 Pa. St. 590; Albert v. Ziegler, 29 Pa. St. 50; Johnson v. McCain, 145' Pa. St. 531, 22 Atl. 979; Perkins v. Vol. I Harbrouck. 155 Pa. St. 494, 26 .\tl. 695- /(?.vaj. — Schmidt v. Huff (Te.x.), 19 S. W. 131. Vermont. — Wheeler r. Wheeler, 47 Vt. 637. Wisconsin. — Pritchard v. Pritch- ard. 69 Wis. 373, 34 N. W. 506. By Intestate Against Administra- tor — In Slade v. Leonard, 75 Ind. 171, it was held in general terms that the declarations of an intestate are admissible against the administrator of his estate or any other claiming in his right. And in Dale z\ Gower, 2J Me. 563. that if the declarations of an intestate would be good evi- dence against him, were he hiring, and the action brought by him, they i;re admissible when the action is brought by his administrator. 42. See " Declarations." Illinois. — Treadway r. Treadway, 5 111. App. 478. Maine. — Holmes r. Sawtellc, 53 Me. 179. Massachusetts. — Fellows v. Smith, i.^o Mass. 378. Michigan. — Wilson 7'. Wilson, 6 Mich. 9; Ward -■. Ward, 37 Mich. 253- Missouri. — Perry 7'. Roberts, 17 Mo. 36. New y'ork. — Graves r. King, 15 Hun 367. Ohio. — Ky\e v. Kyle. 15 Ohio St. i.S- Washington. — Reese v. Murman, 5 Wash. :i-3, 31 Pac. 1027. West J'irginia. — Crothers v. Croth- ers, 40 W. Va. 169, 20 S. E. 927. IFisconsin. — Jilsun v. Stebbins, 41 Wis. 235-. 43. See " Declarations ; " Res Gestae; " Brown ?'. Kenyon, 108 Ind. 283. 9 N. E. 283. Sec " Executors and Ad.ministra- TORS." .IDMISSIOXS. 573 b. Exception. — Where Jiisured May Cliaiigc Beneficiary. — A different rule is declared where the insured has the right under tlie poHcy to change the beneficiary at his will.^* c. Made Before Insurance Is Affected. — And it is held that admissions made by the insured before the insurance is procured are admissible/^ d. By Beneficiary. — The beneficiary, being the real party in interest, his admissions are of course admissible against him.^'' 5. By Strangers. — A. Gener.xlly Inadmissible. — The general rule is that declarations of strangers, having no interest in the action or its subject matter, although against their interest, are hearsay and incompetent. ■"' 44. Indiana. — Pennsylvania Mnt. L. Ins. Co. z\ Wiler, lOO Ind. g>, 50 Am. Rep. 769. Iowa. — Goodwin v. Providence Sav. L. A.ssur, Soc., 97 Iowa 266, 66 N. W. 157, 59 Am. St. Rep. 411, 32 L. R. A. 473- Kansas. — Washington L. Ins. Co. V. Hanev, 10 Kan. 525. Nt-.c i'or/?. — McGinley z: U. S. L. Ins. Co., 8 Daly 390. Tennessee. — Southern L. Ins. Co. V. Booker, 9 Heisk. 606, 24 .Am. Rep. 344- Te.x-as. — Thies v. Alut. L. Ins. Co., 13 Tex. Civ. App. 280, 35 S. W. 676. West Virginia. — Schwarzhacli 7'. Ohio Valley P. U.. 25 W. Va. 622, 52 Am. Rep. 227. Contrary Rule Declared. — In Manhattan L. Ins. Co. v. Myers. 22 Ky. Law 87c. 59 S. W. 30. it is held that the acts and declarations of the insured in regard to the payment of the premium and his final conclusion not to pay it but to let the policy lapse were clearly competent against the beneficiary. Unless Part of Res Gestae. Mobile L. Ins. Co. ;'. Morris. 3 Lea (Tenn.) loi. 31 .\m. Rep. 63 r Not to Contradict Statements in Application. — Schwarzbach v. Ohio Valley P. U., 25 W. Va. 622. 52 Am. Rep. 227 ; Steinhansen z\ Preferred Mut. Ace. Ass'n, 13 N. Y. Supp. .^6; Smith V. Nat. Ben. Soc, 22 N. Y. St. 852, 4 N. Y. Supp. 521, 25 N. E. 197. Where Insured May Change Bene- nciary It is provided by statute in New York that " membership in any corporation, association or so- ciety transacting the business of life or casualty insurance or both, upon the co-operative or assessment plan shall give to any member thereof the right at any time, with the con- sent of such corporation, association or society to make a change in his payee or payees, beneficiary or bene- ficiaries, without requiring the con- sent of such payee or beneficiary." Lender this statute it is held that the original beneficiary named gets no separate standing by his desig- nation as such in the policy before the date of the death, and that by designating such beneficiary the de- ceased did not make a case to exclude evidence of his declarations. Stein- housen z: Preferred Mitt. Ace. .Ass'n, 13 N. Y. Supp. 36. 45. To Show Falsity of State- ments in Application. — In ;Mc- Gowaii T'. Supreme Court of the I. O. O. F., 104 Wis. 173, 80 N. W. 603, it was held that the declarations and admissions of the insured made prior to the application were com- petent to show his knowledge of the falsity of his answers in his demand for the insurance. 46. Allen z: Hartford Ins. Co., 72 Conn. 693, 45 Atl. 955. Where Policy Payable to Estate of Insured Where the policy is payable to the estate of the insured, an heir of the insured is not such a party in interest as to render his admissions competent. Merchants' Life Ass'n z: Yoakum, 98 Fed. 251. 47. See " Declarations." Connecticut. — Filcli z\ Chapman, Vol. I 574 ADMISSIONS. B. Exception to Rulk. — a. Deceased Persuiis. — An exception to the rule that the declarations of one having no interest in the suit or its subject matter are incompetent, is made in case of one deceased who, having peculiar means of knowledge, has made decla- rations against his interest/*' The exception extends to book accounts of deceased persons.'"' b. One Who Cannot Be Compelled to Testify. — The exception has also been extended to persons so situated that they could not be witnesses or could not be compelled to testify/" c. Interest M ust Be Pecuniary. — But to render such admissions admissible they must be against the pecuniar}- interest of the party making them.^' 6. Persons Jointly Interested. — A. Gen ek ally. — The rule is that where a number of persons have a joint interest or privity of design, or are jointly liable, the admission of one relating to such 10 Conn. 8; Town of Nortli Stoning- ton, 31 Conn. 412. Illinois. — Montgomery v. Brush, 121 111. 513, 13 N. E. 230. loiea. — Ibbitson v. Brown, 5 Iowa 532. Maryland. — Atwell v. Miller, 11 Md. 348, 69 Am. Dec. 206. Massachusetts. — Lyman v. Gipson, 18 Pick. 422. Minnesota. — Lundberg x\ North- western E. Co., 42 Minn. 37, 43 N. W. 685. Missouri. — Bain v. Clark, 39 Mo. 252. 48. I Greenl. Ev., § 147. England. — Higham v. Ridgway, 10 East log; Roe -e. Rawlings, 7 East 279. Alabama. — iis.n v. Kendall. 82 Ala. 144, 3 So. 41. Georgia. — Lamar v. Pearre, 90 Ga. 377. 17 S. E. 92; Cnnningham v. Schley, 41 Ga. 426. Illinois. — Friberg v. Donovan, 23 111. .\pp. 58. hn\.issions nor declar- ations of a partner made after the event to which they refer has trans- pired, can properly be received in evidence to bind the other, unless so immediately connected with the event as to become a part of the res gestae, and that in this respect declarations of a partner made in the absence of the other partners stand upon the same footing with the declarations of other agents. Except to Take Debt Out of Stat- ute of Limitations In Hopkuis v. Banks, 7 Cow. (N. Y.) 650, it is held that admissions made after dis- solution are not binding except to avoid the statute of limitations. See also Ward v. Howell, 5' Har. & J. (Md.) 60; Shelton v. Cocke, 3 Munf. (Va.) 191; Tappan v. Kimball, 30 N. H. 136; Warner v. Allee, i Del. Ch. 49. 66. United Stales. — Bell v. Mor- rison, I Pet. 351. Alabama. — Cochran v. Cunning- ham, 16 Ala. (N. S.) 448; Barringer V. Sneed, 3 Stew. 201, 20 Am. Dec. 74. Illinois. — W'M V. Allen, 13 111. 592- Indiana. — Kirk r. Hiatt. 2 Ind. Maine. — Darling v. Leonard, 22 Me. T84; Parker v. Merrill, 6 Greenl. 41- Massaelntsetls. — Vinal v. Burrill, 16 Pick. 401; Cady v. Shepherd, II Pick. 400, 22 Am. Dec. 379 : Harding V. Butler, 156 Mass. 34. 3° ^'- E. 168; Bridge v. Gray, 14 Pick. 55, 25 Am. Dec. 35; Ide r. Ingraham, 5 Gray 106. Miehigan. — Pennoyer :■. David, 8 Mich. 407. -i/wnssioxs. 583 (A.) Admissible Against the Party Making It. — The admission is competent as asjainst the party making it. and is properly admitted, although not binding, upon the firm or other partners."' (B.) Must Relate to Past Business. — Admissions made after dis- solution, if admissible at all, must relate to business done by the firm previous to such dissolution."'' (2.) Where Partner Made Agent to Close Up the Business. — If one partner is authorized by the other to close up the business after the dissolution, he is then made the agent of the firm for that pur- pose, and his admissions in furtherance of his agency are admissible against the other partner. °'' (3.) Where Has Assigned to Co-Partner. — If one partner has. after dissolution, assigned his interest to the other, his admissions after such assignment are not admissible against the assignee.'" But the rule does not apply where he still retains an interest in the business.'^ (4.) Not to Create New Obligation. — The authority of a partner after dissolution, will make binding only such admissions as relate to the closing up of the partnership business, and they cannot be heard to create new or extend or increase the old liabilities. '- Mississifl^i. — Currj' v. Kurtz, ^^ Miss. 24. Neic Hampshire. — Mann v. Locke. II N. H. 246. Nexi.< Jersey. — Casebolt z: Acker- man. 46 N. J. Law 169. Ohio. — Myers z\ Standart, 11 Ohio St. 29. Penitsvlvaiiia. — Houser i'. Irvine. 3 Watts & S. 345- South Carolina. — Fripp v. Birnie, 14 S. C. 502; Simpson r. Geddes, 2 Bay 533; Beckham v. Peay, I Bailey 121. Texas. — Nalle r. Gales, 20 Te.\. 315- ■Vermont. — Woodworth v. Downer, 13 Vt. 522; Wheelock v. Doolittle. 18 Vt. 440; Loomis V. Loomis, 26 Vt. 198. Admission After Dissolution of Partnership. _ In Vinal v. Burrill. 16 Pick. (Mass.) 401, the court said: " The confessions of one partner after the dissoUition of the partner- ship in relation to the concerns of the partnership are competent, though not conclusive evidence against a co-partner, the joint contract being proved aliunde. This rule does not enable a partner, after the dissolu- tion, to create a new debt or obli- gation. In regard to all contracts made before the dissolution, the joint liability continues after the disso- lution." Distinguished From Ordinary Joint Contract In this respect. partnership contracts are distin- guished from joint ordinary con- tracts. Hitt V. Allen. 13 111. 592. Cannot Create New Obligation. A distinction is made between an admission as to an existing obligalion and an acknowledgment that will create a new liability. Kirk v. Hiatt. 2 Ind. 322 ; Lansing v. Gaine, 2 Johns. (N. Y.) 300, 3 Am. Dec. 422; EUi- cott V. Nichols, 7 Gill (Md.) 85. 67. Boynton 7'. Hardin. 9 Kan. App. 166. 58 Pac. 1007 ; Creath v. Distilling Co.. 70 Mo. App. 296. 68. Taylor v. Hillyer, 3 Blackf. (Ind.) 433, 26 Am. Dec. 430. 69. Reppert v. Colvin, 48 Pa. St. 248 ; Ide -'. Ingraham, 5 Gray (Mass.) 106; Hogg V. Orgill, 34 Pa. St. 344- 70. Gillighan v. Tebbetts, a Me. 360. 71. Foster v. Fifield, 29 Me. 136. 72. United States. — Bell v. Mor- rison. I Pet. 351. Alabama. — Wilson z'. Torbert. 3 Stew. 296. California. — Curry v. White, 51 Cal. 530. Kentucky. — Merritt v. Pollys, 16 Vol. I 584 ADMISSIONS. c. F'artiicrs/iip Must Be Proved. — As the competency of admis- sions of one person as against another depends, in this case, upon the fact of the existence of the partnership, the fact of partnership hetween the two parties mnst be first shown to render the evidence admissible. "■■■ (1.) Cannot Be Proved by Admissions of One Alleged Partner. — .And the rule is that the fact of partnership cannot as against another be proved by the declarations of the alleged partner, but must be established by other evidence.'"" nor can the fact that a party was a B. Mon. 355; Wagnon z: Clay, i A. K. Marsh. 257. Michigan. — Pcniioycr v. David, 8 Mich. 407. Missouii. — Flowers i'. Hehn, 29 Mo. 324. Pennsylvania. — Shoneman v. Feg- lev. 7 Pa. St. 433 ; Levy v. Cadet, 17 Serg. & R. 126. South Carolina. — Chardon v. Oli- phant. 3 Brev. 183, 6 .\m. Dec. 572. To Take Debt Out of Statute of Limitations. — It is held that the ac- knowledgment of a partnership debt by one of the partners, after disso- lution and after the statute has run. is competent to take the debt out of the statute of limitations as to all of the members of the firm. Connecticut. — .Austin v. Bostwick, 9 Conn. 496, 25 Am. Dec. 42; Beards- ley V. Hall, 36 Conn. 270; Bissell v. Adams, 35 Conn. 299. Maine. — Greenleaf v. Quincy, 12 Me. II, 28 Am. Dec. 145. Massachusetts. — Harding t: But- ler, 156 Mass. 34, ,^0 N. E. 168 : Bux- ton V. Edwards, 134 Mass. 567 ; Sage V. Ensign, 2 Allen 245. Missouri. — McClurg v. Howard, 45 Mo. 365, 100 .^m. Dec. 378. New Jersey. — Casebolt v. Acker- man, 46 N. J. Law 169; Merritt v. Day, 38 N. J. Law 32. Nezi.' York. — Patterson r. Choate, 7 Wend. 441, II N. Y. Com. L. 190. J'ernwnt. — Wheelock r. Doolittle, 18 Vt. 440, 46 Am. Dec. 163. Rut see to the contrary, Reppert -'. Colvin, 48 Pa. St. 248; Levy '.: Cadet. 17 Serg. & R. CPa.) 126. 17 .'\m. Dec. 650 : Pennoyer v. David, 8 Mich. 407: Graham v. Selover, 59 Barb. (N. Y.) 313; Chardon v. Oli- nhant, 3 Brev. (S. C.) 183, 6 Am. Dec. 572 ; Hathaway i'. Haskins, Vol. I Pick. (Mass.) 42; Van Keuren v. Parmelee, 2 N. Y. 523, 51 Am. Dec. 122. 73. .4rlcansas. — Campbell v. Has- tings Britton Co., 29 Ark. 512. Georgia. — McCutchin i'. Bankston. 2 Ga. 244; Boswell v. Blackman, 12 Ga. 591. Illinois. — Bartlett f. Wilcox, 68 111. .-Vpp. 142. liiwa. — Holmes z\ Budd, 11 Iowa 186. Maine. — Jennings j'. Estes, 16 Me. 323. Massacliusctts. — .\lcott ;■. Strong, 9 Cush. 323. .Maryland. — Atwell v. Miller, II Md. 348, 69 Am. Dec. 206. ^^ssouri. — Rimel v. Hayes, 83 Mo. 200; Bank of Osceola v. Onth- waite, 50 Mo. .A.pp. 124. Xcbraslia. — McCann z\ McDonald, 7 Neb. 305. Neiu Jersey. — Faulkner z\ Whit- aker, 15 N. J. Law 438; Flanagin j'. Champion, 2 N. J. Eq. 51. North Carolina. — McFadyen v. Harrington. 67 N. C. 29. Pennsylvania. — Slavmaker v. Gun- dackcr. lO Serg. & R. 7$. Of Subsequent Ratification of Acts. .\ showing of subsequent ratification of acts done as a partner may let in the admissions, nrumriglit z\ Phil- pot. 16 (".a, 424. 60 .\m. Doc. 73S. Prima Facie Showing Sufficient. Dennis v. Kohm, r3i Cal. gi, 63 Pac. 141. 74. Alabama. — C\ark r. Taylor. 68 .\la. 453; Cross z'. Langley, 50 .Ma. 8. Arkansas. — Campbell z\ Hastings. Britton Co., 29 .'\rk. 512; Berry v. Lathrop, 24 Ark. 12. Georgia. — Thompson z\ Mallory, 108 Ga. 797. 3^ S. E. 9S6. inMfssinxs. 585 member of a co-partnership be proved by the admissions of members of the firm to that effect."^ nor can one's admissions be proved by the other alleged partner to disprove the partnershi]}.'" (A.) Admissible Against Party Makinc. It. — T'lit such an admis- sion is competent to prove the partnership, as against the party making it." Illinois. — Hurd v. Haggerty, 24 111. 172; Couley V. Jennings, 22 111. App. 547; Hahn i'. St. Clair S. & I. Co.. 50 lit. 456. Indiana. — King t'. Barbour. 70 Ind. 35; Pierce r. McConnell. 7 P.lackt. 170. Massachusetts. — Alcott v. Strong, 9 Cush. 323; Dutton v. Woodman, 9 Ciisli. 255, 57 .\m. Dec. 46; Tuttle r. Cooper, 5 Pick. 414; Smith v. Col- lins, 115 Mass. 388; Winchester v. Whitney, 138 Mass. 549. Missouri. — Rimel t>. Hayes, 83 Mn. 200: Bank of Osceola z'. Outh- waite, 50 Mo. App. 124. New Jersey. — Faulkner t'. Whit- aker, 15 N. J. Law 438. AVti' Hainl'shirc. — Grafton P.auk r. Moore, 13 N. H. 99, 38 Am. Dec. 478. New York. — Whitney f. Ferris, 10 Johns. 66; Kirby i'. Hewitt, 26 Barb. 607. North Dakota. — Cs.Tsoi\ v. Gillett (X. D.), so N. W. 710. Ohio. — Cowan v. Kinney, a Ohio St. 422. Pennsylvania. — Porter v. Wilson, 13 Pa. St. 641 ; Edwards %■. Tracy, 62 Pa. St. 374- South Carolina. — McCorkle v. Doby, I Strob. Law 396, 47 Am. Dec. 560. Admissions by Alleged Partner. In Faulkner r. Whittaker, 15 N. J. Law 438. it was said in a case in- volving the right to prove the dec- larations of an alleged partner: ■■ That one man cannot be bound by the admissions or declarations of another, unless such a relation is previously, and by other evidence, proved to exist between them, as will enable the one to involve the other in liabilities, is a position, so plain upon reason and principle, as to require no arguments or authorities to sustain it. If the latter is desired, they may be found collected or re- ferred to. in 2 Sand, on PI. and Evid. 258, top page, 709, marg. and in 5 Law Lib. Cary on Partnership. 136 and see], and see Ballinger t. Sher- ron. 2 Green's R. 144 and cases there 75.' Carson r. Gillitt, (N. D.,) 50 N. W. 710. 76, Clark J'. Huflfaker, 26 Mo. 264: Champlin z: Tilley, 3 Day 303, ^ Fed. Cas. No. 2586. To Prove Another Not a Partner. But see Danforth !■. Carter, 4 Clarke ( Iowa ) 230, in which it is held that the declarations of members of a firm may be heard to show that another person was not a partner with them. 77. .Alabama. — Central R. etc. Co. z\ Smith, 76 Ala. 572. Illinois. — Couley z\ Jennings, 22 111. .-^pp. 547; Rogers ?■. Suttle, 19 III. App. 163. Indiana. — Bennett z\ Holmes. 32 Ind. 108; Pierce z\ McConnell, 7 Blackf. 170. Ioz>.v. — Holmes v. Budd, 11 Iowa 186. .Maine. — Jennings z: Estes, 16 Me. .^23. Massacliuselts. — Smith z'. Collins, 115 Mass. 388. Neze Hainl'shirc. — Grafton Bank z'. Moore, 13 N. H. 99, 38 Am. Dec. 478. A'cti' J ork. — Kirby i'. Hewitt, 26 Barb. 607. Ohio. — Cowan z\ Kinnev, ^3 Ohio St. 422. Pennsylvania. — Edwards v. Tracy, 62 Pa. St. 374; Reed z'. Kremer, III Pa. St. 482 ; Lenhart v. Allen, 32 Pa. St. 312; Bowers r. Still, 49 Pa. St. 65; Painter v. Austin, 37 Pa. St. 458; Taylor i'. Henderson, 17 Serg. & R. 453; Crossgrove z: Himmelrich. 54 Pa. St. 203; Haujhey v. Stickler, 2 Watts & S. 411 ; Johnston z\ Warden, 3 Watts loi. Vol. I 586 ADMISSIOXS. (2.) Question of Partnership One for the Court. — If the admissibility of ail offered admission depends upon the (piestion of i)artnership, the latter is a question for the court. '- E. Principai, and Surktv. — a. Of Principal Against Surety. The admissions of the principal made in connection with and relating to the matter of suretyship, are competent to establish his liability and thus, incidentally, the liability of his surety."" South Carolina. — McCorkle v. Doby, I Strob. Law 396, 47 Am. Dec. 560. IVyoming. — Carr 7'. Wrigbt. i Wyo. 157. 78. Dennis i'. Kohni, 131 Cal. 91, 63 Pac. 141 ; Hilton v. McDowell, 87 N. C. 364. Question of Partnership One for Court. — In Harris v. Wilson, 7 Wend. (N. Y.) 57, it is said: "The defendant contended that whether he was then a partner or not was a fact for the jury. This would have been so if the fact had been in issue on the merits of this case, but it was not. It was incidentally raised in relation to the question about admit- ting or rejecting evidence. Tlie evi- dence offered was as the judge con- ceived admissible, if the plaintiff was a partner in 1820; otherwise, not; he was therefore obliged, in order to de- termine the question of the admissi- bility of the evidence, to pass on the fact of the plaintiff's being a partner at that time." Decision Conclusive There is no appeal from the decision of the court as to the sufficiency of the evidence of partnership to admit the declara- tions. Hilton V. McDowell, 87 N. C. 364- 79. England. — Middleton i: Mel- ton, 10 Barn. & C. 317, 21 Eng. C. L. 84. United Stairs. — Ingle i'. Collard, I Cranch C. C. 134, 13 Fed. Cas. No. 7042. Alabama. — Bondurant v. State Bank, 7 Ala. (N. S.) 830; Walker v. Forbes, 25 Ala. 139; Casky v. Havi- land, 13 Ala. 314; Dumas v. Patter- son, 9 Ala. (N. S.) 484; Walling v. Morgan Co., 126 Ala. 326, 28 So. 433. Arkansas. — State v. Newton, 3; Ark. 276. California. — Placer Co. ?■. Dicker- son. 45 Cal. 12. Vol. I Georgia. — Dobbs i'. The Justices, 17 Ga. 624; Stephens t. Crawford, I Ga. 574, 44 Am. Dec. 680. Illinois. — Guarantee Co. v. Mutual B. & L. Ass'n,. 57 111. .\pp. 254; Schureinan i'. People. 55 III. .\pp. 629; Magner f. Knowles. 67 111. 325. Indiana. — Parker v. State. 8 Blackf. 292. Kentucky. — .'Vmbcrst Bank v. Root, 2 Mete. 522. Maryland. — McShane z'. Howard Bank, 73 Md. 135. 20 Atl. 776. Massachusetts. — Williamsburg City F. Ins. Co. v. Frothingham. 122 Mass. 39; McKim ?■. Blake, 139 Mass. 593 ; Sigourney v. Drury, 14 Pick. 387 ; Singer Mfg. Co. v. Revnolds, 168 Mass. 588, 47 N. E. 438' Minnesota. — Whitaker v. Rice, 9 Minn. 13; Hall v. U. S. F. & G. Co., 77 Minn. 24. 79 N. W. 590. Mississif'I'i. — Montgomery v. Dil- linghain, 3 Smcd. & M., 647 ; State v. Stewart, 36 Miss. 652. Missouri. — Union Sav. .\ss'n. v. Edwards. 47 Mo. 445. A''^i(' Hampshire. — Hinkley v. Davis, 6 N. H. 210, 25 Am. Dec. 457. Nezi.' y'ork. — Eichhold z: Tiffany, 20 Misc. 680, 46 N. Y. Supp. 534. Pennsylvania. — Rcspublica v. Davis, 3 Yeates 128, 2 .\m. Dec. .366: Com. V. Kendig, 2 Pa. St. 448 ; Bach- man V. Killinger, 55 Pa. St. 414; Deardorf ?■. Hildebrand, 2 Rawl. 226. Rhode Island. — Atlas Bank j'. Brownell, 9 R. I. 168. South Carolina. — State v. Teague, 9 S. C. 149. Virginia. — Walker Z'. Pierce, 21 Gratt. 722. Vermont. — Wilson v. Green, 25 Vt. 450, 60 Am. Dec. 279; Brown v. Munger, 16 Pt. 12. Where Principal and Surety Ar« Sued Together. — In .\mherst Bank V. Root, 2 Mete. (Mass.) 522, the court say : " The last exception is ADMISSIONS. 587 (1.) Must Be Made at Time of Transaction. — I'.ut to be l)inf>i. — Ma.sk v. Stale, 32 Miss. 405 ; Trimble v. Turner, 13 Smed. & M. 348, 53 Am. Dec. 90. Missouri. — Weinrich t. Porter, 47 Mo- 293; State v. Danbert, 42 Mo. 239; State -■. Ross, 29 Mo. 32; Ex- change Bank z'. Russell, 50 Mo. 531 ; Boyd V. Jones. 60 Mo. 454. Montana. — Harrington z: Butte & B. Min. Co., 19 Mont. 411, 48 Pac. 758; Pincus V. Reynolds. 19 Mont. 564, 49 Pac. 145- Nezji' Hampshire. — Lee z: Lam- Vol. I prey. 43 N. H. 13: State v. Pike, 51 i\. 11. 105; Page z: Parker, 40 N. H. 47- N_ezi.' Jersey. — Patton z'. Freeman, 1 N. J. Law 134. A^ezc York. — Waterbury z: Sturte- vant. 18 Wend. 353; Legg z\ Olney. I Denio 202, 16 N. Y. Com. L. 768; Galle V. Tode, 56 N. Y. St. 851, 26 N. Y. Supp. 633 ; Flagler !■. New- come, 36 N. Y. St. 755, 13 N. Y. Supp. 299; Moers z: Martens, 8 Abb. Pr. 257 : Apthorp I'. Comstock. 2 Paige Ch. 482, 2 N. Y. Ch. 997-, Dart v. Walker. 3 Dal^- 136; Cuyler z\ Mc- Cartney. 33 Barb. 165. A^orth Carolina. — State v. George, 7 Ired. S2I ; Barnhart z\ Smith. 86 N. C. 473- Oregon. — Pacific Live Stock Co. 7'. Gentry. 38 Or. 275. 61 Pac. 422; Shcppard z\ Yocum, 10 Or. 402. Pennsylvania. — Com. z\ Eberle, 3 Serg. & R. 9 ; Souder v. Schechterly, 91 Pa. St. 83 ; Burns z: McCabe, 72 Pa. St. 309; Kelsey Z'. Murphy, 26 Pa. St. 78: Deakers z: Temple, 41 Pa. St. 234 ; Jackson z: Summerville, 13 Pa. St. 359; Kehoe z\ Com., 85 Pa. St. 127 ; Price z'. Junkins, 4 Walls 85, 28 Am. Dec. 685; Scott v. Baker, 37 Pa. St. 330; Peterson z'- Speer, 29 Pa. St. 478; McKee :■. Gilchrist, 3 Watts 230; McCabe z'. Burns, 66 Pa. St. 356 ; Sommer z: Gilmore. 160 Pa. St. 129, 28 All. 654: Palmer t'. Gil- more, 148 Pa. St. 48, 23 Atl. 1041 ; Lowe V. Dalrymple, 117 Pa. St. 564, 12 Atl. 567. Tennessee. — Strady z: State, 5 Cold. 300; Harrison z'. Wisdom, 7 Heisk. 99. Tc.ras. — Phillips z: Stale, 6 Te.x. .^pp. 364; Taylor z: Stale. 3 Tex. App. 169. 7 'irginia. — Claytor c'. Antliony, 6 Rand. 285. Cerniont. — Stale z: Tliibeau. 30 Vt. 100; Jenne i'. Joslyn, 41 \'t. 478; Qnin v- Halbert, 57 Vt. 178. West ]' irginia. — Ellis t'. Dempsey, 4 W. Va. 126. The Reason for the Rule The reason for the rule is thus staled in Moers v. Martens. 8 Abb. Pr. ( N. ADMISSIONS. 591 depends ujion the fact that the parties are acting- together, the con- spiracy must be first shown or the declarations are inadmissible."^ Y.) 257, 258: "And the acts and declarations of the other conspirators are admitted as evidence against each, npon the principle, that liy the act of conspiring together they have jointly assumed to themselves, as a body, the attribute of individuahty, so far as regards the prosecution of the common design, a part of the res gestae, and therefore the acts of all." It is the same principle of identity with each other that governs in regard to the acts and admissions of agents when offered in evidence against their principals, and of part- ners against the partnership." Scott v. Baker, 37 Pa. St. 330 ; Lacey v. Porter, 103 Cal. sg". i7 Pac. 635. Rule Stated. — "The rule is well settled, that where a cominunity of design is established, the acts of each of the parties, and their declarations made at the time of the prosecution of those acts are evidence against all." Colt V. Eves, 12 Conn. 243. The Time He Became a Party Im- material — The time when a party became a party to the conspiracy does not afTect the question. By be- coming such party, after its partial consummation, he makes the previous declarations of his co-conspirators his own. Den i". Johnson, 18 N. J. Law 87. 93. England. — Re.x v. Inhabitants of Hardwick, 11 East 578. United States. — Winchester Mfg. Co. V. Creary, 116 V. S. 161, 6 Sup. Ct. 369. Alabama. — Weaver j'. Yeatmins. 15 Ala. (\. S.) 539. Georgia. — Foster v. Thrasher, 45 Ga. 517. Indiana. — NN'olfc v. Pugh, loi Ind. 293. Iowa. — State z'. Nash, 7 Iowa 346 ; Johnson v. Miller, 63 Iowa 529, 17 N. W. 34; Wiggins v. Leonard, 9 Iowa 194. Louisiana. — Reid i'. »^ouisiana State Lottery, 29 La. Ann. 388; State V. Hogan, 3 La. .\nn. 714. Massaehtisctts. — Blanchette v. Holvoke St. R. Co., 175 Mass. si, 55 N. E. 481 ; Burke v. Miller, 7 Cush. 547- Michigan. — Mawich v. Elsey, 47 Mich. 10; Hamilton f. People, 29 Mich. 195. Mississippi. — Browning t. State, 30 Miss. 656. Missouri. — Hart v. Hicks, 52 Mo. App. 177, 31 S. W. 351; Wright v. Cornelius, 10 Mo. 174; Boyd f. Jones, 60 Mo. 454. Neiv York. — Douglass v. McDer- motl, 21 App. Div. 8, 47 N. Y. Supp. 336 ; Hoguet v. Beekman, 25 N. Y. St. 562, 6 N. Y. Supp. 214; Jones v. Horlburt, 39 Barb. 403 ; Pfeffer v. Kling, 58 App. Div. 179, 68 N. Y. Supp. 641 ; Lent v. Shear, 160 N. Y. 462, 55 N. E. 2. North Carolina. — State v. George, 7 Ired. 321. Ohio. — Preston v. Bowers, 13 Ohio St. I, 82 Am. Dec. 430. Pennsylvania. — Com. v. Eberle, 3 Serg. & R. 9; Rogers i\ Hall, 4 Watts 359 ; Benford •;■. Sanner, 40 Pa. St. 9, 80 Am. Dec. 545 ; Helser V. McGrath, 58 Pa. St. 458 ; Gauiice V. Backhouse, 37 Pa. St. 350 ; Bredin V. Bredin, 3 Pa. St. 81 ; McDowell v. Rissell, i7 Pa. St. 164. Tennessee. — Girdner v. Walker, i Heisk. 186. Te.ras. — Ft. Worth Live Stock Co. V. Hitson, (Te.x. Civ. App.,) 46 S. W. 915; Phoenix Ins. Co. z'. Pad- gitt, (Te.x. Civ. App.,) 42 S. W. 800. Vermont. — Windover v. Robbins, 2 Tyler i. West I'irginia. — Carskadou f. Williams, 7 W. Va. i. Slight Evidence of Conspiracy Sufficient. — It is held m Souder v. Schechterly, 91 Pa. St. 83, that where the bona tides of a conveyance of property is assailed by creditors, on the ground of fraud, the declarations of the grantor made after the con- veyance are admissible against the grantee if there is some evidence of collusion. See also McDowell v. Rissell, 37 Pa. St. 164. Not Sufficient to Allege It in Complaint It is not enough to let in the admissions to allege the con- spiracy in the complaint. It must be proved. Wright v. Cornelius, 10 Mo. 174. Vol. I 592 ADMISSIONS. (1.) Cannot Be Proved by Admissions of One Conspirator. — lint the conspiracy, or collusion, cannot be proved by the admission of one of the alleged conspirators as against the other, ''^ unless such decla- rations were themselves in execution of, or for the promotion of the common design.'''' (2.) Of Each Admissible Against Him. — The admissions of each arc- competent against him, for that purpose, and the admissions of all may thus establish the conspiracy as against all.'"' Must Kore Than Raise a Sus- picion Hart I'. Hopsoii, 52 Mo. App. 177- Least Degree of Collusion Suffi- cient So it is held in Rogers v. Hall, 4 Watts (Pa.) 3^0, that the least degree of conceit or collusion between parties to an illegal transac- tion makes the act of one the act of all. and their admissions competent one against the other. See also Phillips I'. State, 6 Tex. App. 364; Confer z'. McNeal, 74 Pa. Si. 112; Kelsey v. .Murphy. -'6 Pa. St. 78. May Be Proved by Circumstances. Direct evidence of the conspiracy is not necessary. It may be established by circumstances. Redding v. Wright, 49 Minn. 322, 51 N. W. 1056; Kelley v. People, 55 N. Y. 565, 14 Am. Rep. 342 ; Miller v. Dayton, 57 Iowa 423, 10 N. W. 814; D/ake iC Stewart, 76 Fed. 140. In Case of Fraud If fraud is charged, the party against whom the admissions are offered must be shown to have participated in the fraud to render them admissible. Triplett z: Goff, (Va. App.,) 3 S. E. Least Degree of Conceit or Col- lusion Sufficient The degree in which the parly is implicated is im- material. Any degree of conceit or collusion will render the admissions of his confederate competent against him. Rogers -■. Hall, 4 Watts ( Pa. ) 359- Cannot Be Proved by Mere Opin- ion Evidence. — Tlie conspiracy can- not be proved by opinion, hut must be established by facts. I.aytham z\ .^gnew, 70 Mo. 48. 94. England. — Re.\ j'. Inhabitants of Hardwick, 11 East 578. United States. — Winchester Mfg. Co. V. Cleary, 116 U. S. 161, 6 Sup. Ct. 369. Vol. I California. — Barkly v. Copeland, 86 Cal. 483. 25 Pac. i. Indiana. — Roberts Z'. Kindall. 3 Ind. .\pp. 339, 29 N. E. 487. Kentucky. — Metcalf v. Conner, Litt. Sel. Cas. 497, 12 Am. Dec. 340. Mississipf'. — Browning z-. State, 30 Miss. 656. jVcic York. — Cuyler v. McCart- ney, i3 Barl). 165. North Carolina. — Bryce v. Butler. 70 N. C. 585. Ohio. — Preston v. Bowers, 13 Ohio St. I, 82 Am. Dec. 430. Oregon. — Osmun f. Winters, 30 Or. 177, 46 Pac. 780. Can Not Be Proved by Admissions. " Evidence of an admission made by one of several defendants in trespass, will not, it is true, establish the others to be co-trespassers, but if they be established to be co-trespass- ers by other competent evidence, the declaration of the one as to the mo- tives and circumstances of the tres- pass will be evidence against all who are proved to have combined to- gether for the common object." Rex z'. Inhabitants of Hardwick, 11 East 578. 95. Clawson z: Stale, 14 Ohio St. 234; Roberts i'. Kendall, 3 Ind. App. 339; 29 N. E. 487. 96. St. Paul Distilling Co. v. Pratt, 47 N. W. 789 ; Preston :•. Bow- ers, 13 Ohio St. I, 82 Am. Dec. 430; .Miller z: Barber, 66 X. Y. 558. Of Each Co-Conspirator Against Himself. — The rule is thus stated in St. Paul Distilling Co. z\ Pratt, 45 Minn. 215, 47 N. W. 789: "So in a case like this, evidence of the alleged conspiracy is admissible, even though the same evidence do not connect all the defendants with the conspiracy. If it were not so. it would be nearly impossible to try such cases, certainly cases in which ADMISSIONS. 593 (3.) Order of Proof. — The conspiracy need not, in the discretion of the trial court, be proved first. The admission may be proved first and the conspiracy estabHshed afterwards, although it is a practice not to be encouraged.^' c. Question of Conspiracy One for the Court. — The question of the conspiracy, as a foundation for proof of admissions, is one to be determined by the court. "^ Weight of Evidence Left to the Jury. — But it is held that if there is any evidence of the conspiracy the admissions should be received, and the question whether there was or was not a conspiracy left to the jury under proper instructions to disregard the proof of such admissions, if there was not."" d. Made Before or After Conspiracy, Inadmissible. — The admis- sions, to be competent against a co-conspirator, must have been made pending and in furtherance of the conspiracy. If made before or afterwards they are inadmissible,^ unless made at the instance or the conspiracy is planned by some of the defendants, and the others after- ward join it. If, when the evidence is all in, it does not connect one of the defendants with the conspiracy, his proper course is to move for a dismissal, or for an instruction to find a verdict in his favor. There was no error in overruling the ap- pellant's objections to the evidence." 97. Miller v. Barber, 66 N. i . 558; Dole V. Wooldredge, 142 Mass. 161, 7 N. E. 832, Order of Proof in Discretion of Court. — In Miller v. Barber, 66 N. Y. 558, it is said : " The order of proof is in general a matter of dis- cretion, and we are of opinion that no legal error was committed in allowing the declarations of Barber to be given in evidence, as against his co-defendant before proof of his connection with the conspiracy had been made. If the proof subse- quently had failed to connect Scher- merhorn with the fraud, it would have been the duty of the court to have instructed the jury to disre- gard them in considering his lia- bility." 98. Jones v. Hurlbart, 39 Barb. (N. Y.) 403; Com. V. Brown, 14 Gray (Mass.) 419; Phoenix Ins. Co. V. Moog, 78 Ala. 284; State v. Nash, 7 Clarke (Iowa) 347; Brown v. Chenoworth, 51 Tex. 469. 99. Oldham v. Bcntley, 6 B. Mon. 38 (Ky.) 428; Miller f. Dayton. 57 Iowa 243, 10 N. W. 814. 1. Alabama. — Phoenix Ins. Co. v. Moog, 78 Ala. 284; Stewart v. State, 26 Ala. 44. Arkansas. — Clinton v. Estes, 20 Ark. 216. California. — People v. English, 52 Cal. 212 ; People v. Moore, 45 Cal. 19. Indiana. — Roberts v. Kendall, 3 Ind. App. 339, 29 N. E. 487 ; Hogue V. McClintock, 76 Ind. 205 ; Wiler v. Manley, 51 Ind. 169. Louisiana. — State v. Jackson, 29 La. Ann. 354 ; Reid v. Louisiana State Lottery, 29 La. Ann. 388. Maine. — Strout v. Packard, 76 Me. 148, 49 Am. Rep. 601. Minnesota. — Nicolay v. Mallery, 62 Minn. 119, 64 N. W. 108. Mississippi. — Lynes v. State, 36 Miss. 617. Missouri. — State i'. Duncan, 64 Mo. 262 ; Poe v. Stockton, 39 Mo. App. SSO- Nebraska. — Stratton j'. Oldfield, 41 Neb. 702, 60 N. W. 82. Neiv Hampshire. — State v. Pike, 5T N. H. 105. Neiv Jersey. — Ferguson v. Reeve, 16 N. J. Law 193- New York. — Scofield v. Spalding, 54 Hun 523, 7 N. Y. Supp. 927; Ap- thorp I'. Comstock, 2 Paige Ch. 482 ; Dart V. Walker, 3 Daly 136; Doug- lass V. McDermott, 21 App. Div. 8, 47 N. Y. Supp. 336. Vol. I 594 ADMISSIONS. with the knowledge and consent of the co-conspirator. - e. Must Be in Furtherance of or Connected With the Conspiracy. The admissions to be competent must not only be made at the time of the conspiracy or its execution, but must relate thereto/' 7. Persons Under Disability or Restraint. — A. Generally. — It may be stated as a general rule that the mere fact that a party is laboring under some legal disability which deprives such party of the right or power to contract, or protects him from his contracts, if made, does not render his admissions incompetent. B. Infants.- — a. Generally. — We have seen that admissions by an infant in his pleadings do not warrant a judgment against him.* But it does not follow that his admissions may not be proved subject to be controverted, as in case of admissions made by adults. His admissions are admissible against him as a rule.'' b. In Actions for Injuries Causing His Death. — His adiuissions are competent, however, only where the action is for or against him in his own right. Therefore, it is held that in an action by the father for damages for injuries causing the death of his infant son, under a statute trivina; the rig-ht of action to the father, the admis- Ohio. — Preston v. Bowers, i.^ Ohio St. I, 82 Am. Dec. 430. Oregon. — Slieppard v. Yocum, 10 Or. 402. Pennsylvania. — Benford v. San- ner, 40 Pa. St. g ; McCaskey v. Graff, 23 Pa. St. 321, 62 Am. Dec. Tennessee. — Strady v. State, 5 Cold. 300; Lyons v. Wattenbarger, i Heisk. 193. Virginia. — Danville Bank %'. Wad- dill, 31 Gratt. 469. 2. Mathews v. Herdtfelder, 39 N. V. St, 486, 15 N. Y. Snpp. 165; State V. Frederics, 85 Mo. 145 ; State v. Ah Tom, 8 Nev. 213; Helser i<. McGrath, 58 Pa. St. 458; Owens v. State, 16 Lea (Tenn.) i ; Benford v. Sanner, 40 Pa. St. 9, 80 ,\ni. Dec. .V-- U. S. V. Hartwell. 3 Cliff. 221. 26 Fed. Cas. No. 15,318. 3. Fonts V. State, 7 Ohio Sl 472; Johnson v. Miller, 63 Iowa 529, 17 N. W. 34; Ferguson v. Reve, 16 N. J. Law 193. 4. Ante, p. 460. 5. Haile v. Lillie. ? Hill 149; .McCoon V. Smith, 3 Hill (N. Y.) 147, 38 Am. Dec. 623 ; Crapster ;■. Griffith, 2 Bland (Md.) 5; Ackerman V. Rnnyon, 3 ,\bb. Pr. (N. Y.) in. Admissions of Infants Competent. Vol. I So it was said in Haile v. Lillie. 3 Hill (N. Y.) 149: "The only point in the case is, whether the admis- sions of the plaintiff, an infant, were admissible in evidence against him. There can be no donbt they were ; though the effect of such admissions may frequently be controlled by the infant's incompetency to bind him- self by contract. It is the daily practice to receive the confessions of infants in criminal proceedings, and in actions for wrongs committed by them for which they are personally responsible, as in actions of trespass, etc. The only privilege of an infant who has arrived at years of discre- tion, even in civil cases, is an exemp- tion at common law from liability upon most of his contracts. Inde- pendently of this privilege he stands in court upon the same footing of an adult." Giving Receipt. — It is held that a receipt given by an infant is compe- tent evidence. Crapster v. Griffith, 2 Bland (Md.) 5- Inadmissible But it has been directly held that an infant is incapa- ble of making an admission which will affect his rights. Barker v. Hamilton, 3 Colo. 291 ; Lunday v. Thomas, 26 Ga. 537. ADMISSIOXS. 595 sions of the son are inadmissible." C. Under Guardianship. — The fact that one is under guardian- ship does not render his admissions inachnissible.' D. NoN Compos. — It has been said to be the admitted law that the declarations of a lunatic, not a party to the action, are admissible as between third parties, where they have been made asjainst his interest.* E. Married Women. — a. Generally. — As a general rule mar- ried women are bound by their admissions the same as other per- sons. ° b. For What Purposes Inadmissible. — If a married woman is disabled by reason of her coverture to render herself liable by direct contract, she cannot do so by her parol admissions." F. Under Duress. — a. When Admissible. — If the admission is not voluntary, but is compelled by duress or under threats made, it should be received if at all, with great caution." The definition of an admission provable against a party requires the admission to be voluntary. '- And it is held that an admission not voluntary, but extorted from the party making it, should not be considered.'" 6. Louisville E. & St. L. R. Co. v. Berry, 2 Ind. .^pp. 427, 28 N. E. 714. 7. ' McNiglit !■. McNight, 20 Wis. 446. tinder Guardianship In Hoyt i'. Underhill, 10 N. H. 220, 34 Am. Dec. 148, the court said : " A promise by the defendant, after he was placed under guardianship, or after suit, would be insufficient ; but an admis- sion, after suit, of a promise made before the suit, would be competent evidence where no guardianship ex- isted ; and the guardianship does not change all the ordinary rules of evidence. The defendant might be charged for any tortious acts not- withstanding the guardianship; and those acts might be proved, we tliink, by his confessions; and if so, he may make declarations in relation to his previous transactions, which will be to be weighed by C. the 17 320. Pa. competent jury." 8. Jones v. Henry, 84 N. 37 Am. Rep. 624. 9. Hollinshead ?•. Allen, St. 275; McLemore i'. nuckoUs, 37 Ala. (N. S.) 662; Morrell z: Caw- ley, 17 .•SLbb. Pr. (N. Y.) 76; Poole I'. Gcrrard, 9 Cal. 593 ; Lindner v. Sahler. 51 Barb. ( N. Y. ) 322. Married Woman's Admissions Ad- missible Against Her In Hollins- head V. Allen, 17 Pa. St. 275, the court said ; " The question is, does her position as a married woman exclude her admissions in such a case as this? Where there is any probability that a wife acts under the constraint of her husband, or in such way as to enure to his benefit, we should be very guarded about receiving her admissions against her- self. But where there can be no such suspicion, and her admissions are most palpably against her own interest and directly affecting her separate property, I know of no prin- ciple of policy that would exclude them. In the case of McKee v. Jones, 6 Pa. St. 425, her admissions were received in just such a case as this ; and it is impossible to see that the fact of the husband's presence in that case was an element essential to their competency, as against herself. It cannot be doubted that in an equity suit to establish the trust, she would be compelled to answer." 10. McGregor r. Wait, 10 Gray (Mass.) 72, 69 Am. Dec. 305. H. Fidler r. McKinley, 21 111. 308. 12. Ante, p. 357. 13. Scott 7'. Home Ins. Co., I Vol. I 5% ADMISSIONS. But the mere fact that the part)' was forced by judicial process to become a witness and testify, does not render his statements as a witness inadmissible.'* A distinction is made between mere constraint and actual duress." V. WHAT ADMISSIONS NOT RECEIVABLE. 1. Generally. — A declaration may in some instances be admis- sible against the party making it as an admission, but will not be received on the ground of public policy, as, for example, where it will have the effect of disclosing state secrets, jury secrets, or statements between persons so related towards each other as to render communications between them confidential and privileged.'" These are only noticed here in a general way. They will be considered more in detail under their appropriate heads. 2. Admissions of Law. — The general rule is that admissions of law or the legal eft'ect of a written instrument, are not competent." 3. For Sake of Compromise. — A. Gener.xlly Inadmissible. The general rule is that offers made in an effort to compromise can- not be proved as admissions.'* Hughes 163, 21 Fed. Cas. No. 12,535; City Bank v. Foucher, 9 La. 405. 14. Ante, p. 357 ; Rex z'. Merce- ron, 2 Stark. 366, 3 Eng. C. L. 385. 15. I Greenl. Ev. § 193. While Under Arrest. — The fact that the party was, at the time of making the admission, under arrest, and arraignment does not render it inadmissible. Notara v. DeKamala- ris, 22 Misc. 3i7, 49 N. Y. Supp. 216. 16. Greenl. Ev., chap. XIII. 17. Boston Hat Mfg. Co. v. Mes- singer, 2 Pick. (Mass.) 223; Roberts V. Roberts, 82 N. C. 29; Crockett v. Morrison, 11 Mo. 3; Rice <■. Rnddi- man, 10 Mich. 125. Must Be Admission of Facts. Folk V. SchaefFer, 180 Pa. St. 613, 37 Atl. 104. Mixed Law and Fact Admissible. Lewis V. Harris, 31 Ala. 689. But see Sunmiersett v. Adamssoii, i Bing. 72, 8 Eng. C. L. 255. 18. England. — Paddock v. For- rester, 3 M. & G. 903, 42 Eng. C. L. 470; Jardine v. Sheridan, 2 Car. & K. 24, 61 Eng. C. L. 24. United States. — Gibbs v. Johnson, 3 App. Conn. Pat. 255; 10 Fed. Cas. No. 5384; Home Ins. Co. v. Balti- more Warehouse Co., 93 U. S. 527 ; West V. Smith, loi U. S. 263. Vol. I Alabama. — Jackson v. Clopton, 66 Ala. 29; Wood 7'. Wood, 3 .-Ma. 756; Collier v. Coggins, 103 .^la. 281, 15' So. 578; Feibelman v. Manchester F. A. Co., 108 .^la. 180, 19 So. 540; East Tennessee, V. & G. Ry. Co. v. Davis, 91 Ala. 615, 8 So. 349. Colorado. — Patrick i'. Crowe. 15 Colo. 543, 25 Pac. 985 ; Chicago B. & Q. R. Co. V. Roberts, 26 Colo. 329, 57 Pac. 1076. Georgia. — Emery v. Atlanta R.-E. Exch., 88 Ga. 321, 14 S. E. 556; Keaton v. Mayo, 71 Ga. 649; Mayor of Montezuma -'. Minor, 73 Ga. 484. Idaho. — Sebree ?'. Smith, 2 Idaho 329, l6 Pac. 915. Illinois. — Paulin v. Howser, 63 111. 312; Chicago E. & L. S. R. Co. V. Catholic Bishop, 119 111. 525, 10 N. E. 372; Malthressen v. Ferris, 72 111. App. 684; Hanison v. Frickctt, 57 111. App. 575. Indiana. — Dailey j'. Coons, 6.' Ind. S45- loiva. — Kassing f. Walter (Iowa), 65 N. W. 832; Houdeck v. Mer- chants' & Bankers' Ins. Co., 102 Iowa 303, 71 N. W. 354. Kansas. — Myers v. Goggerty (Kan.), 63 Pac. 296. Maryland. — Pentz r. Pennsylvania F. Ins. Co., 92 Md. 444, 48 .\t.l. 139. ADMISSIONS. 597 Massachusetts. — Harrington v. Inhab. of Lincoln, 4 Gray 563, 64 Am. Dec. 95 ; Gay ?■. Bates, 99 Mass. 263; Draper v. Hatfield, 124 Mass. S3 ; Upton v. South Reading B. R. Co., 8 Cush. 600. Michigan. — Montgomery v. Allen, 84 Mich. 656, 48 N. W. 153; Pelton V. Schmidt, 104 Mich. 345, 62 N. W. 552, 53 Am. St. Rep. 462 ; Ward v. Munson (Mich.), 75 N. W. 440. Minnesota. — Person v. Bowe, 79 Minn. 238, 82 N. W. 480. Mississippi. — Garner i'. Myrick, 30 Miss. 448. Missouri. — Huetteman v. Vresseh- man, 48 Mo. App. 582; Moore v. H. Cans & Sons' Mfg. Co.. 113 Mo. 98, 20 S. W. 975. Nebraska. — Kierstead v. Brown, 23 Neb. 595, 37 N. W. 471 : Callen v. Rose, 47 Neb. 638, 66 N. W. 639; Wright V. Morse, 5'3 Neb. 3, 73 N. W. 211 ; Hanover F. Ins. Co. v. Stod- dard, 52 Neb. 745, 73 N. W. 291 ; Boyce v. Palmer, 55 Neb. 389, 75 N. W. 849; Aultman & Co. v. Martin, 49 Neb. 103, 68 N. W. 340. Nevada. — Quinn v. White (Nev.), 62 Pac. 995. Nezi' Hampshire. — Perkins v. Con- cord R. R., 44 N. H. 223; Hamblett V. Hamblett, 6 N. H. 333 ; Green- field V. Kennett, 69 N. H. 419, 45 Atl. 233 ; Sanborn v. Neilson, 4 N. H. 501 ; Jenness v. Jones, 68 N. H. 475, 44 Atl. 607. Nezv Jersey. — Wrege v. Westcott, 30 N. J. Law 212; Miller v. Halsey, 14 N. J. Law 48; Scheurle v. Hus- bands, 65 N. J. Law 40, 46 Atl. 759; International Pottery Co. v. Rich- ardson (N. J. App.), 43 Atl. 692. New York. — Smith v. Satterlee, 130 N. Y. 677, 29 N. E. 225; Wil- liams V. Thorp, 8 Cow. 201 ; Gom- mersall v. Crew, 14 N. Y. Supp. 922 ; Slingerland v. Norton, 35 N. Y. St. 426, 12 N. Y. Supp. 647 ; Doyle v. Levy, 89 Hun 350, 35 N. Y. Supp. 434; Rods v. Dicke, 34 Misc. 168, 68 N. Y. Supp. 790; Tennant v. Dudley, 144 N. Y. 504, 39 N. E. 644. Oregon. — Cochran z'. Baker, 34 Or. 555. 56 Pac. 641. Pennsxlvania. — Fisher v. Fidelity Mut. L." Ins. Co., 188 Pa. St. i. 41 Atl. 467. South Carolina. — Gibbes v. Mc- Craw, 45 S. C. 184, 22 S. E. 790; Frick & Co. V. Wilson, 36 S. C. 65, 15 S. E. 331 ; Chandler Z'. Geraty, 10 S. C. 304; Norris v. Hartford F. Ins. Co., 57 S. C. 358, 35 S. E. 572 ; Rob- ertson z: Blair, 56 S. C. 96, 34 S. E. II. 76 Am. St. Rep. 543. South Dakota. — Reagan z'. Mc- Kibben. 11 S. D. 270. 76 N. W. 943. Tennessee. — Strong v. Stewart, g Heisk. 137. Texas. ■ — International & G. N. Ry. Co. z: Ragsdale, 67 Te.x. 24, 2 S. W. 515; Western U. Tel. Co. v. Thomas. 7 Tex. Civ. App. 105, 26 S. W. 117; Darby v. Roberts, 3 Tex. Civ. App. 427, 22 S. W. 529; San Antonio & A. P. Ry. Co. v. Stone, (Te.x. Civ. App.,) 60 S. W. 461. Vermont. — Whitney Wagon Wks. V. Moore, 61 Vt. 230, 17 Atl. 1007. Wisconsin. — State Bank v. Dut- ton, II Wis. 371. Rule Extends to Offers to Confess Judgment — Kelley v. Combs, 22 Ky. Law 365, 57 S. W. 476. Otherwise as to a Deposit in Court. Low V. Griffen, (Tex. Civ. App.,) 41 S. W. 73- Exclusions of Such Admissions Not Favored — The leaning of the courts against the exclusion of offers of compromise is thus stated in Grubbs v. Nye, 13 Smed. & M. (Miss.) 443: "The courts of late, and especially in this country, have leaned against the exclusion of offers of compromise as testimony. I Greenl. Ev., 232, p. 192, and notes. The overture in this instance was not stated to have been confidential, nor to be made without prejudice. It was not an offer of a sum of money to buy peace in a contro- verted state of case. There was, at the time, no denial of the execution of the note in the pleadings. There was no treaty pending for a com- promise, but it was a voluntary and unsolicited offer of the defendant. It evinced no willingness to submit to a sacrifice, or to make a conces- sion, to terminate litigation. On the contrary, the offer was only to be considered obligatory, provided the plaintiff obtained a judgment. It was then but a proposition to obtain time after the suit should have ter- minated against him. The admission Vol. I 598 ADMISSIONS. B. Rule Does Not Apply to Criminal Cases. — The rule has no application to criminal cases.'" in the letter of a distinct fact, fell within none of the rules for the ex- clusion of propositions of compro- mise, and was properly permitted to go to the jury." But see to the contrary Berggreu V. Fremont etc. Co.. 2^ Neh. 620, 37 N. W. 471. Made Voluntarily Without Pend- ing Negotiations. _ In Gibbs v. Johnson, 3 App. Comr. Pat.. 255, 10 Fed. Cas. No. 5384, this limitation of the rule is stated: ''If the ad- missions are by way of coinpromise and without the admissfon of any particular independent facts, this would be considered as inadmissible, but if the offer be so made volun- tarily without any pending negotia- tion, and without stating it to be made without prejudice the rule does not apply." See also International Pottery Co. V. Richardson (N. J. App.). 43 .\tl. 692; Teasley v. Bradley, no Ga. jf-?, 35 S. E. 782, 78 Am. St. Rep. 113- Offers to Arbitrate Within the Rule. — Mundhenk v. C. 1. R. Co., 57 Iowa 718, II N. W. 656; Duff V. buff. 71 Cal. 513, 12 Pac. 570. Competent Where Results in Mak- ing of Contract Sued On Stuht ;•. Sweescy, 48 Neb. 7(17, 67 N. VV. 748. To be privileged must be part of negotiations for compromise. Bros- chart f. Tuttle. 59 Conn, i, 21 Atl. 925, II L. R. .\. 33. Competent to Contradict the Party. In Taylor i<. Bay City St. R. Co., 101 Mich. 140, 59 N. W. 447, the court said ; " Propositions for a compro- mise are of course inadmissible, but, if a party during such negotiations make statements not in harmony with his claim for damages, such statements are competent to contra- dict him when he has testified that he suffered damages. Any statement made by either of the plaintiffs in this case, whether during negotiations for a settlement or otherwise, which tended to show that he considered the railroad a benefit rather than in- jury, was clearly competent." Vol. I Must Be Offered as a Compromise. In Hood V. Tyner, 3 Ind. .\pp. 51. 28 N. E. 1033, it was offered to show that the defendant offered to give the plaintiff a horse and a certain amount to boot as a settlement of the claim made against him. The evi- dence was held to be competent, the court saying ; " This conversation occurred upon an occasion when the appellee went to the house of the appellant to collect his account. The latter said that he did not have the money to pay him at that time ; hence the talk about the sale of a horse. There was no element of compromise in the negotiation. No treaty of peace was pending between the parties, and the proposition to sell the horse was not an overture of pacification, but was suggested as a means of paying a debt which the debtor was unable to pay in cash." What Amounts to Offer of Com- promise. — As to what will or will not amount to an offer of com- promise or admissions inade in course of negotiations therefor, in such sense as to protect a party from their disclosure as privileged, see \the following cases : Colorado. — Chicago B. & Q. R. Co. I'. Roberts. 10 Colo. .\pp. 87. 49 Pac. 428; Chicago B. & Q. R. Co. v. Roberts, 26 Colo, 329, 57 Pac. 1076. Connecticut. — Hartford Bridge Co. V. Granger, 4 Conn. 142. Illinois. — McKenzie v. Stretch, 13 111. App. 184. Indiana. — Hood v. Tyner, 3 Ind. App. 51, 28 N. E. 1033. Ioii.-a. — Houdeck v. Merchants & Bankers Ins. Co., 102 Iowa 303. 71 N. W. 354. Suggestion of Compromise Between Parties Jointly Interested — Thc suggestion of compromise by one party to another jointly liable or charged with liim is not privileged. It must be an offer or negotiations with the opposite party. Smith v. Whittier, 95 Cal. 279, 30 Pac. 529. 19. State V. Soper, 16 Me. 293. 33 Am. Dec. 665. ADMISSIOXS. 599 C. Must Be Made to Purchase Peace. — Offers of compromise are privileged only where made to purchase peace in a controversy where the party making the offer does not admit his liahility.-" D. Question for the Court. — As the question is one of the admissibihty of evidence, the court should determine whether the admissions offered were or were not so made as to be privileged.-' E. Admission of Facts Competent. — While offers of compro- mise cannot be proved as admissions, a distinct admission of a fact in the course of negotiations therefor are held to be admissible." 20. Hood 7'. Tyner, 3 Ind. \pp. 51, 28 N. E. 1033; Grubles i'. Nye. 13 S. & M. (Miss.) 443; Moore :■. Gaus etc. Mfg. Co.. 113 Mo. 98, 20 S. W. 975; Hartford Bridge Co. v. Granger. 4 Conn. 142 ; Jenness i'. Jones, 68 N. H. 475, 44 Atl. 607. 21. Batchelder v. Batchelder. 2 Allen 105 ; Greenfield 7'. Kennett, 69 N. H. 419, 45 Atl. 233, Question When Left to Jury. It is held that where there is a dis- agreement in the evidence up^n the question whether matters offered to be proved were made as an offer of or in negotiations for a com- promise the question may properly be left to the jury under instruction to disregard the admissions proved if made in an effort to compromise. Webber i'. Dumm, 71 Me. 330; Greenfield -■. Kennett, 69 N. H. 419, 45 Atl. 233. 22. California. — Rose i'. Rose, 112 Cal. 341, 44 Pac. 658. Colorado. — Kutcher v. Love, 19 Colo. 542, 36 Pac. 152. Connecticut. — Hartford Bridge Co. V. Granger, 4 Conn. 142. Georgia. — Molyneaus v. Collier, 13 Ga. 406. Illinois. — McKinzie v. Stretch, 53 111. App. 184. /owa. — Rosenberger v. Marsh, 108 Iowa 47, 78 N. W. 837. Massachusetts. — Marsh z: Gold, 2 Pick. 284; Gerrish v. Sweetser, 4 Pick. 373; Durgin v. Somers, 117 Mass. 55. Michigan. — Taylor v. Bay City St. Ry. Co., Id Mich. 140, 59 N. W. 447- Mississipfi. — Grubbs v. Nye, 13 S. & M. 443; Garner v. Myrick, 30 Miss. 448. Missouri. — Moore v. Gaus etc. Mfg. Co., 113 Mo. 98. 20 S. W. 975. Neif Hampshire. — Hamblett f. Hamblett. 6 N. H. 333; Perkins v. Concord R. R., 44 N. H. 223 ; Ride- out V. Newton, 17 N. H. 71 ; Plum- nier v. Currier, 52 N. H. 287. New York. — Marvin v. Richmond. 3 Denio 58, 17 N. Y. C. L. 280: Armour z\ GafTey, 30 App. Div. 121, 51 N. Y. Supp. 846. United States. — Gibbs r. Johnson, 3 App. Conn. Pat. 25s, 10 Fed. Cas. No. 5384. Admission of Independent Fact. In Rose v. Rose, 112 Cal. 341, 44 Pac. 658, a divorce case, a paper signed by the defendant, in which he offered to divide the property and described it as community property, was admitted in evidence solely for the purpose of showing that the property was, in fact, community property. The court held the ruling to have been correct, saying : " The declaration as to the com- munity character of the property was not essential to the purposes of the compromise, and is therefore not to be regarded as a concession made for that purpose. While, therefore, it would not be competent to admit an offer of compromise, as such, the declaration therein of facts involved in the controversy which are not mere concessions made for the pur- pose of such offer, but are statements of independent facts, is admissible against the party making them. The rule is thus stated by Mr. Rice : ' It is never the intention of the law to shut out the truth, but to repel any inference which may arise from a proposition made, not with a design to admit the existence of a fact, but merely to buy one's peace. If an admission, however, is made be- Vol. I 600 ADMISSIONS. 4. State Secrets. — Confidential matters of state cannot be dis- closed by proof of admissions or declarations made by officers pos- sessed as such of such secrets."^ 5. Jury Secrets. — The same rule applies to matters which come before jurors in secret sessions and in the performance of their duties.-^ 6. Privileged Communications. — If an admission is made in con- versation between parties occupying such a confidential relation as to render communications so made, privileged, proof of them is inadmissible.-"^ 7. Parol Admissions in Pais. — A. Generally. — Parol admis- sions are admissible generally as we have seen. But the question not infrequently arises, as to their competency to prove certain things, for example, the contents of written instruments. These questions have been reserved for this place under receivable admis- sions. B. As Evidence of Contents of Written Instruments. — The rule is general that a written instrument is the best evidence of its contents, and that parol evidence is competent only when the instru- ment itself cannot be produced. Therefore, such contents could not be proved by the sworn testimony of the party except as second- ary evidence after laying the proper foundation. It would seem to follow necessarily, that the contents of the instrument could not be established by the parol or verbal admissions of the party except in the same wav."" carse it is a fad, the evidence to prove it is competent, whatever motive may have prompted the declaration. But if ihc partj' admits a particular item in an account, or any other fact, meaning to m^ke the admission a« being true, this is good evidence, although the object of the conversation was to com- promise an e.xisting controversy.' " Amounting to Admission of Lia- bility It is held in McKinzie v. Stretch, S3 111. App. 184, that an offer to compromise a disputed claim to avoid litigation is not, as a general rule, admitted in evidence, but, when such offer amounts to an admission of liability, the rule is different. TTnless Made Without Prejudice. Kutcher v. Love, 19 Colo. 542, 36 Pac. 152. 23. Greenl. Ev., §250; Worthing- ton V. Scribner, 109 Mass. 487, 12 Am. Rep. 736. 24. 1 Greenl. Ev., §§ 252, 2523. 25. Emmons v. Barton, lOg Cal. 662, 42 Pac. 303 ; Van Zandt v. VoL I Schuyler, 2 Kan. App. 118, 43 Pac. 295 ; I Greenl. Ev., §§ 86-90. 26. England. — Summerset v. Adamson, 1 Bing. 73, 8 Eng. C. L. 255. United States. — In re Paine, 9 Ben. 144, 18 Fed. Cas. No. 10.673. Alabama. — Fralick v. Presley, 29 Ala. 457, 64 Am. Dec. 413 ; Ware v. Roberson, 18 Ala. (N. S.) lOS ; Chap- man V. Peebles, 84 ,\Ia. 283, 4 So. 273- California. — Poole v. Gerrard, 9 Cal. 593- Connecticut. — Davis r. Kingsley, 13 Conn. 285. ///iiiou. — Mason v. Park, 4 111. 532 ; Jameson ?'. Conway, 5 Gilm. 227. Minnesota. — Horton v. Chad- bouni, 31 Minn. 322, 17 N. W. 865. New Jersey. — Cumberland Mat. F. Ins. Co. V. Giltinan, 48 N. J.' Law 495. 7 Atl. 424. New York. — Keator v. Diininick, 46 Barb. 158; Welland Canal Co. v. Hathaway, 8 Wend. 480, 24 Am. ADMLSSIOXS. 6ni C. To Prove Fact of Which Instrument Is Evidence.— There is, however, an apparent exception to this rule where the written instrument " is not part of the fact to be proved, but is merely a collateral or subsequent memorial of the fact."-' But this, it will be seen, is not proving the contents of the instru- ment, but proving the fact of which the instrument is itself made evidence.-* Dec. 51 ; Jeimer v. Joliffe, 6 Johns. 9; Morris v. Wadsworth, 17 Wend. 103. Nortli Carolina. — Shaffer v. Gay- nor, 117 N. C. 15, 23 S. E. 154; Roberts v. Roberts. 82 N. C. 29. Soutti Carolina. — Moore v. Dick- inson, 39 S. C. 441, 17 S. E. 998; Lands V. Crocker, 3 Brev. 40. Texas. — Dooley v. McEwing, 8 Tex. 306. General Statement of the Rule. In Morgan v. Patrick, 7 Ala. (N. S.) 185, it is said that the rule is that admissions out of court are no evidence to estabhsli deeds, records or statutes. Of Existence of Policy of Insur- ance The existence of a policy of insurance on property may be estab- lished by the admission of the party in his application for other insurance. New York Cent. Ins. Co. v. Watson, 23 Mich. 486. For What Purpose Oral Admission Competent. — In Keator v. Dini- mick, 46 Barb. 158, it is held, gen- erally, that admissions of a fact are competent only when parol evidence of the fact would be competent. See also Shaffer v. Gaynor. 117 N. C. 15, 23 S. E. 154. In Fralick v. Presley, 29 Ala. 457, 462, the rule is thus stated : " So far as the declarations above men- tioned were mere statements ot the contents of the deed they were cer- tainly inadmissible unless the proper predicate for the introduction of secondary evidence was laid. Parol admissions are competent evidence only of those facts which it is per- missible to prove by parol." To Prove Consideration. — The consideration for a writing may be proved by the admissions of a party. Edgerton v. Edgerton, 8 Conn. 6; Dimon ?'. Keery, 54 App. Div. 318, 66 N. Y. Supp. 817. Statement of the Rule. — In Welland Canal Co. v. Hathaway, 8 Wend. 480, II N. Y. Com. Law 439, the rule is thus stated : " I am not aware of any principle in the law of evidence which will authorize us to substitute the declarations of a party, even as against himself, for record or written evidence, and thereby dis- pense with its production. Such ad- missions rank only with oral tes- timony, and are entitled to no higher consideration in deciding upon the competency of evidence. It may be laid down, I think, as an undeniable proposition, that the admissions of a party are competent evidence against himself only in cases where parol evi- dence would be admissible to estab- lish the same facts, or in other words, where there is not, in the judgment of the law, higher and better evi- dence in existence to be produced. It would be a dangerous innovation upon the rules of evidence, to give any greater effect to confessions or admissions of a party, unless in open court, and the tendency would be to dispense with the production of the most solemn documentary testimony." Admissions of Agent Incompetent to Prove Contents of Written In- strument In Moore v. Dickinson, 39 S. C. 441, 17 S. E. 998 it is held that evidence of the declarations of an agent as to the contents of letters received by him from his principal is not admissible against the latter, in the absence of testimony showirfg that the letters have been lost or destroyed. 27. I Greenl. Ev., §§86-90; Dooley V. McEwing, 8 Te.x. 306. 28. I Greenl. Ev., §§ 86-90; Dooley V. McEwing, 8 Tex. 306. In What Cases Admissions Inad- missible In Greenleaf on evidence the following are stated as cases in which admissions or other oral evi- Vol. I 602 ADMISSIOXS. D. Distinction Between Admission oe Law and of Fact. — A distinction is made between an admission of law and an admission of fact, or of the legal eiifect of the instrument, or its contents, it being- held in some cases that the former is not and the latter is admissible.'" E. Cases Holding Sfcii Admissions Competent. — Again there are cases holding, apparently without exception, that admis- sions may be received in proof of what would otherwise have to he established bv a written instrument.''"' dence is inadmissible, i. Where the law requires the instrument to be in writing. 2. To prove any contract which the parties have put in writing. 3. Where the existence of a writing which is material either to the issue between the parties, or to the credit of witnesses and is not merely the memorandum of some other fact, i Greenl. Ev., §§ 86-88. And that such admissions are com- petent. I. Where the writing does not fall within either of the three classes above described, i Greenl. Ev., § 90. 2. Where the record or document appointed by law is not part of the fact to be proved but is merely a collateral or subsequent me- morial of the fact, i Greenl. Ev.. §§86, 56311. Of Right of Way by Married Woman In McGregor v. Wait, 10 Gray 72, 69 Am. Dec. 305, it is held that the admission bv her of facts tending to establish a right of way over the land of a married woman of which she and her husband were seized and possessed were incom- petent because she could not have made a valid grant, and therefore could not do indirectly by her parol admission what she could not have done by a direct grant. 29. I Greenl. Ev., §§96, 563k; Roberts z: Roberts, 82 N. C. 29. 30. Smith V. Palmer, 6 Cush. 513; Hoeriing v. Hambleton, 84 Te.x. 517, 19 S. W. 689 ; Loomis v. Wadhams. 8 Gray 557. See also as bearing on the question, Jackson v. Leek, 12 Wend. 105, 12 N. Y. Com. L. 105. To Prove Contents of Written In- strument In Smith Z'. Palmer. 6 Cush. 513, the court said: "The general principle, as to the produc- tion of written evidence as the best evidence, does not apply to the ad- Vol. I missions of parties ; as what a party admits against himself may reason- ably be taken to be true. The weight and value of the statements and ad- missions will vary according 10 the circumstances and must be deter- mined by the jury. The ruling of the judge in the court below on this point is well supported by the au- thorities. See the case of Slatteric z: Pooley, 6 M. & W. 664, where the distinction between the admissions of parties, and parol statements from other sources, as to written instru- ments, is fully explained and sup- ported. The general doctrine is also found in l Greenl. Ev., §§ 96, 97, and cases there cited. In the pres- ent case, the principal fact was. that the defendant had not performed his contract, in regard to which there could be no doubt that his ad- mission would be important evidence, and the execution reciting the judg- ment assigned by the defendant him- self was produced, in connection with the admissions and statements of the defendant." To Prove Sale of Land In Hoefling v. Hambleton, 84 Tex. 517, 19 S. W. 689, admissions of the party were allowed to show the sale of land which was conveyed by deed. In holding the evidence to have been properly admitted the court said : " It is, we think, a proper case for the application of the doctrine that tlie admissions of a party of the coiitciits of a written instrument may be received in evidence without the production of the writing or account- ing for its absence." Kule Stated. — The rule is thus broadly stated in Loomis v. Wad- hams, 8 Gray 557, quoted from Mr. Justice Parke in Earle i'. Picker, S Car. & P. 542 : " What a party says .IDMISSIOXS. 603 F. As A SuBSTiTL'TE FUR WRITTEN Ex'iDExci';. — Doubtless a party may waive proof by the best evidence and substitute therefor his formal admission of the fact at the trial. •'' G. Competent to Prove Existence and Execution of Instru- ment. — The fact that a writins^ exists, without going into its con- tents, may be proved by oral admissions. '- H. As Secondary Evidence. — If the loss or destruction of a written instrument or that it is out of the jurisdiction of the court, and that it cannot be produced, are shown, the admissions of a party are competent to show not only its existence, but its contents.'^ I. To \'ary Terms of Written IxsTRUiiEXT. — Admissions cannot be used to vary the terms of a written instrument."* 8. Must Be Relevant and Material to the Issue. — The admission, like all other evidence, must be material to the issue.'" is evidence against himself as an ad- mission whether it relates to the con- tents of a written paper, or any- thing else." Depends Upon the Character of tne Admission. — In Cumberland Mut. F. Ins. Co. V. Giltinan, 48 N. J. Law 495, 7 Atl. 424, 57 Am. Rep. 586, the admission sought to be proved was contained in the proof of loss required to be furnished to the company under oath, and to set forth the policies existing on the prem- ises. The admission thus made was held to be competent, but based upon the peculiar character of the admis- sion, the court saying : " But, while the evidence in question is not to be invalidated by force of the theory just criticised and repudiated, we still think it was competent, and had the effect to prove the existence of the policy in question. Such evi- dence was not constituted of an or- dinary admission, but an admission of a character so formal, and, in view of the purpose for which it was designed, so accredited as to put it on a level with admissions in a court of law, and which are intended to dispense with primary testimony. It was a part of the agreement of as- surance that the proof of loss required upon the happening of a fire to be furnished to the company should contain a statement of the several insurances upon the property. Such statement was required to be verified by oath ; and, if it were will- fully false, the claim against the com- pany was to become void ; its object being to afiford to the company a safe basis for its action in dealing with the assured. We think that ad- missions, thus authenticated, were properly received at the trial under the circumstances then present, and that their effect was to prove the policy in question." 31. Niles z: Rhodes, 7 Mien. (3 Cooley) 374- 32. Poole V. Gerrard, 9 Cal. 593; New York Cent. Ins. Co. v. Watson, 23 .Mich. 486. And its e-xecution may also be proved by the admission of the party that he signed it. Nichols v. Allen, 112 Mass. 23. 33. Jackson z: Livingston, 7 Wend. 136; Jackson z'. Vail, 7 Wend. 125; Fralick v. Presley, 29 Ala. (N. S.) 105; Jackson Z'. Hoogland, 7 Wend. 125 ; AUred z'. Kennedy, 74 Ala. 326. 34. Uhler v. Browning. 4 N. J. Law 79; Scott V. Dansby, 12 Ala. (N. S.) 714; Sawyer z\ Grandy, 113 N. C. 42. 18 S. E. 79- 35. Wells V. Alabama G. S. R. Co., 67 Miss. 24, 6 So. 737; Gilbert V. Odum, 69 Tex. 670, 7 S. W. 510; Fail V. McArthur, 31 Cal. 26; Tuttle v. Cone, 108 Iowa 468, 79 N. W. 267; Wilson V. Sax, 21 Mont. 374, 54 Pac. 46. Affecting One's Title to Personal Property Thus it is held in Tuttle V. Cone, 108 Iowa 468, 79 N. W. 267, that declarations made by one in disparagement of his title ro per- Vol. I 604 ADMISSIONS. 9. Made on Previous Trial of Same Action. — The question whether judicial admissions made at the trial of a cause may be proved at a subsequent trial has been fully considered.^" If made by an attorney they are usually held not to be admissible at a subsequent trial.^' But there are cases holding such admissions competent at the second trial of the same case if made generally and without limiting them to the purposes of the present trial.^* If made by the party himself or by an attorney with his authority, and made generally and not for the purpose of the trial, there is no reason why they may not be proved against him at any subse- quent time the same as admissions made out of court. VI. MODE OF MAKING AS AFFECTING ADMISSIBILITY. 1. Generally. — The mode of making the admission is not gen- erally material upon the mere question of its admissibility, how- ever much it may affect its weight. But the fact that the admission is made in an unusual way as, for example, through an interpreter, or through the telephone, has given rise to some interesting ques- tions which should be noted. 2. Through an Interpreter. — A. Designated by the; Party Himself. — Admissions made through an interpreter may be proved by proving what the interpreter said as being the interpreta- tion of what was said by the party in a foreign language.'"' B. Appointed by the Court. — A different rule prevails in case of the appointment by the court of an interpreter for a witness. There the interpreter is himself a witness and not the agent of the witness for whom he interprets, and what he says cannot be proved as admissions of the witness.*" 3. Through the Telephone. — A. Speaking Directly. — It is competent to prove admissions made through the telephone.*' sonal property, made before his title kins, 77 Wis. 9, 45 N. W. 947; Sul- thereto was acquired, were immate- livan v. Kuydendall, 83 Ky. 483; rial and irrelevant. Canierlin !■. Palmer Co., 10 Allen 539; Whether Refers to Hatter in McCormicks 7: Fuller, 56 Iowa 43, Issue ll'hcii question for jury. 8 N. W. 800 ; Wright v. Maseras, 56 Von Reeden t'. Evans, 52 111. App. Barb. 521. 209. Interpreter Ag^ent of Both Par- 36. rlittc, p. 464. ties — Where two parties not speak- 37. Ante. pp. 467, 560; Nichols ing a common language agree to Shepard & Co. v. Jones. 32 Mo. .'\pp. commune through an interpreter, 657; State V. Buchanan. Wright such interpreter becomes the agent (Ohio) 233. of each of them and what he says 38. Hallez v. Young, 68 Me. 215, for each is his admission. Miller 28 Am. Rep. 40; Woodcock v. Calais, i'. Lathrop, 50 Minn. 91, 52 N. W. 68. Me. 244; Wetherill v. Bird, 7 Car. 274. & P. 6, 32 Eng. C. L. 472. 40. Schearer i'. Harber, 36 Ind. 39. Nadau v. White River Lum. 536. Co., 76 Wis. 120, 43 N. W. 1135. 20 41. Illinois. — Miles v. Andrews, .'\m. St. Rep. 291; Blazinsky i'. Per- 153 111. 262, 38 N. E. 644; Oberman Vol. I .WMISSIONS. 605 B. Through an Operator. — And if a conversation is had tlirough an operator who states what is said by each to the other, he is the agfent of both, and what he stated as havin. New England M. Co.. 2 Cnsh. 271. Michigan. — Passmore z'. Passmore, 50 Mich. 626, 16 N. W. 170, 45' Am. Rep. 62; Continental Life Ins. Co. V. Willets, 24 Mich. 268. Minnesota. — Searles v. Thompson, 18 Minn. 316. Mississippi. — Mclntyre ?'. Harris, 41 Miss. 81. Missouri. — Howard v. Newsom, 5 Mo. 523; Burghart -■. Brown, 51 Mo. 600. Nebraska. — Johnson r. Opfer, 58 Neb. 631, 79 N. W. 547. Nevada. — Dalton z'. Bowker, 8 Nev. 190. Nezi' Hampshire. — Moore z: Ross, II N. H. 547. Nezv York. — Thon v. Rochester R. Co., 81 Hun 615, 30 N. Y. Supp. 620; Weinberg z'. Kram, 44 N. Y. St. 126, 17 N. Y. Supp. 535; Humes i'. Proc- tor, 73 Hun 265, 26 N. Y. Supp. 315; Hopkins v. Smith, 11 Johns. 161; Kelsey v. Bush, 2 Hill 440; Schwartz v. Wood, 67 Hun 648, 21 N. Y. Supp. 1053 ; Dorton v. Doug- las, 6 Barb. 451 ; Bearss z\ Copley, 10 N. Y. 93 ; Root z\ Brown, 4 Hun 797- Nortli Carolina. — Steele v. Wood, 78 N. C. 365; Roberts v. Roberts, 85 N. C. 9; Walker r. Featress, i Dev. & B. Law 17. 0/1/0. — Cullen z'. Bimm, 37 Ohio St. 236. Pennsylvania. — Hamsher c'. Kline, 57 Pa. St. 397; Bank v. Donaldson, 6 Pa. St. 179; Stevenson Z'. Hoy, 43 Pa. St. 191. South Carolina. — Devlin v. Kil- crease, 2 McMull. 425; Co.x v. Buck, 3 Strob. 367. South Dakota. — Wendt v. Chicago St. P. M. & O. R. Co., 4 S. D. 476, 57 N. W. 226. Totni-ssee. — Rogers z'. Kincan- non. 3 Humph. 252. J'ermont. — Brown Z'. Munger, 16 Vt. 12 ; Dean z'. Dean, 43 Vt. 337 ; Mattocks V. Lyman, 18 Vt. 98, 46 .^m. Dec. 138. Party Entitled to Prove All That Was Said. _ In Adkins v. Hershy, 14 Ark. 442, it is said: "There is no rule of law better settled, or more consonant with justice, than the one that the party who is sought to be charged by an admission, is entitled to the benefit of all that he said by way of qualification or explanation, during the same conversation, rela- tive to the business in hand. The admission must be taken as a whole, and if the plaintiff proves only a part, the defendant may call for the entire conversation on cross-exami- nation. The rule is, not that the plain- tiff is concluded by the entire admis- sion, but that it is competent evi- dence for the defendant to go to the jury, who are the proper judges of its credibility, and may reject such portions, if any, as appear to be in- consistent, improbable or rebutted by other circumstances in evidence. Where Admission Is Made in Foreign Language. _ Where an ad- mission is made in a foreign language, it is competent to show that the wit- ness, testifying^ to the language used and translating the same, does not give the proper meaning, in English, of the words used. Thon r. Roches- ter R. Co., 81 Hun 615, 30 N. Y. Supp. 620. Must Be Confined to Material Matters. — In RoUands v. Duffey, 18 111. .\pp. 398, it is held that proof of tile conversation must be contined to matters material to the issue and tending to explain or qualify what has been said by the other party and proved as admissions. A dif- ferent rule has been declared in some cases in which it is held that every- thing said in the conversation, whether material to the issue or tend- ing to explain the admission proved on the other side or not. But the better rule is that the balance of the conversation to be competent must be material and in some way afifect that portion of the conversation already proved. Wilhehn v. Connell, 3 Grant (Pa.) 178. Vol. I ()08 .iPMISSlOXS. B. Not What Was Said at Axotiier Time. — But not what was said in a different conversation."'^ To Prove Admission Was Not Made In Continental L. Ins. Co. V. Willets, 24 Mich. 268, it was held to be competent to prove what was said in the same conversation imme- diately after the admission was alleged to have been made if it tended to show that such admission was not made as testified to by a prior wit- ness. As Explainin^f an Act So, where an act has been proved as an admis- sion the party is entitled to prove what was said at the time explaining the act or showing the intent with which it was done or the purpose of it. Goodhue v. Hitchcock. 8 Mete. (Mass.) 62. 53. Alabama. — Roberts r. Tra- wick, 22 Ala. 490. Arkansas. — Hazen v. Henry, 6 Ark. 86. Colorado. — Nutter v. 0"Donnell, 6 Colo. 253. Connecticut. — Stewart i'. Sherman, 5 Conn. 244 ; Robinson ?'. Ferry, 1 1 Conn. 460. Georgia. — Lewis v. Adams. 6t Ga. 559- Illinois. — Hatch v. Potter, 2 Gilm. 725, 43 Am. Dec. 88. ' Indiana. — : Moelering 7'. Smith, 7 Ind. App. 451, 34 N. E. 675. Maine. — Royal v. Chandler, 79 Me. 26s, 9 Atl. 615, I Am. St. Rep. 305; Carter v. Clark, 92 Me. 225, 42 Atl. 398. Maryland. — • Kerschncr ?'. Kersch- ner, 36 Md. 309. Massachusetts. — Adam z\ Eames, 107 Mass. 27s ; Hunt v. Roylance, II Cush. 117, 59 Am. Dec. 140; Bos- ton & W. R. C. V. Dana, i Gray 83. Missouri. — Gunn v. Todd, 21 Mo. 303, 64 Am. Dec. 231. Neiv Hampshire. — Judd v. Brent- wood, 46 N. H. 430; Woods 7\ .\llen. 18 N. H. 28; Barker v. Barker, 16 N. H. 333- Nezi' Jersey. — Lister 7: Lister, 35 N. J. Eq. 49- Pennsylvania. — McPeake i'. Hut- chinson, 5 Serg. & R. 295. South Carolina. — Davis v. Kirk- sey, 2 Rich. Law 176; Ellen r. Ellen, Vol. I 18 S. C. 489; Edwards v. Ford, 2 Bailey 461. South Dakota. — Wendt v. Chicago St. P. M. & O. R. Co., 4 S. D. 476, 57 N. W. 226. Vermont. — Lyman v. Lull, 20 Vt. 349; Burrows v. Stevens, 39 Vt. 378. Parties' Own Declarations Inad- missible The rule on the subject is thus stated in Hunt v. Roylance, n Cush. (Mass.) 117, 59 .\m. Dec. 140: "The defendant had a right to prove any statements of bis own, which made part of those offered in evidence by the plaintiflfs. He could explain and contradict any conversa- tion or declaration which had been first proved against him by the plain- tiffs, because such evidence tended directly and legitimately to control the case made out against him by the plaintiffs. But beyond this he could not go. His own admissions, not offered in evidence against him, had no legal tendency to control the case proved on the other side. To show that a man denied being a member of a copartnership to A today does not prove or in any way tend to show that he did not admit that he was a member of the firm to B yesterday. It is simply an admis- sion in his own favor, having no bearing on the admission proved against him. Nor does it make such testimony any the more competent or relevant because a party seeks to couple it with independent acts and circumstances not proved on the other side, and which of themselves, unaccompanied by the declarations of a party, would not tend to prove the matter in issue." At Another Conversation Inad- missible In Adams v. Eanies, 107 Mass. 27s, a conversation took place between the parties, which was given in evidence as containing certain ad- missions. It appeared that at the end of that conversation, there was an understanding between the parties that they should have another inter- view concerning the same matter, and that such interview was had. The opposite party offered to prove ADMISSIONS. 60<» C. Or Occuring at the Time, if Not Relevant. — Or in the same conversation, but not relating to or connected with the admis- sion proved or tending to explain, modify or otherwise af¥ect it."* D. CoxTAiNED IN Written Instrument, All Must Be Re.\d. If the admission is contained in a writing, the whole instrument, or so much of it as relates to the matter embraced in the admission, must be read.^^ what was said in this subsequent conversation, but it was held to be incompetent. Unless Part of Res Gestae. Roberts v. Trawick, 22 Ala. 490. Must Be Confined to the Same Conversation and the Same Matter. Wendt V. Chicago, St. P., M. & O. R. Co., 4 S. D. 476, 57 N. W. 226. Exception Where Effort Is to Prove a Gift of Property by Declar- ations In Wheaton v. Weld, 28 Tenn. 773, it was held that where declarations of a party were proved to establish the fact of a gift of per- sonal property by him, other dec- larations of his tending to show the contrarj', although made at a differ- ent time, were competent, the court saying: "But in this case, the ques- tion and the only question was whether or not Frederick Christian had given the negro to his niece, Mary C. Christian, and the proof in- troduced by the plaintiff to establish the fact of the gift was declarations to that effect, said to have been made by him. Unquestionably, his dec- larations to the contrary ought to have been heard, as it is upon a proper adjustment of balance, and these declarations and counter-dec- larations, if they were made that the judgment of the jury, must rest in finding the fact thus submitted to them." 54. Miller v. Wild Cat G. R. Co., 52 Ind. 51 ; Clark v. omith, 10 Conn. I, 25 Am. Dec. 47 ; Rouse v. Whited, 25 Barb. (N. Y.) 279; Wilhelm v. Connell, 3 Grant (Pa.) 178. 55. Ante, pp. 423, 448. Nebraska. — Churchill v. White, 58 Neb. 22, 78 N. W. 369, 76 Am. St. Rep. 64; Bartlett v. Clieesbrough, 32 Neb. 339, 49 N. E. 360. Nezii York. — Fisher v. Monroe, 51 39 N. Y. St. 585, -M N. Y. Supp. 995' ; Root V. Brown, 4 Hun 797. Pennsylvania. — Kreiter v. Bom- berger, 82 Pa. St. 59, 22 Am. Rep. 750. Wisconsin. — Hunter v. Gibbs, 79 Wis. 70, 48 N. W. 257; Wisconsin Planing Mill Co. v. Schuda, 72 Wis. 277. .39 N. W. 558. The Rule Stated — In Robeson v. Schuylkill Nav. Co., 39 Grant (Pa.) 186, the rule is thus stated : " Noth- ing in the law is better settled than tne rule that a party cannot pick out such portions of the paper as he thinks will suit his purpose, and then object to the remainder. If the defendants were entitled to the whole of the report because a part of it had been produced, the cross-e.xam- ination was the right way and the right time to bring it out. We can- not sustain the argument of the plaintiff's counsel that the defend- ants were bound to open their case and call these witnesses as their own, before they could put the in- terrogatories objected to. You can- not have one part and suppress another part of a conversation, an admission, a deed, contract, record, a letter, or any other document, and if an attempt be made to do so, the opposing counsel may substitute a thorough search for everything ne- cessarily connected with the evidence in chief, and proper to explain it. The truth in a garbled and mutilated form is as well calculated to mislead as , positive falsehood. To make it round and full is the object of cross-e.xamination." Party Offerings May Disprove Por- tion Against Him As the party offering the whole instrument is bound to do so in order to have the benefit of so much of it as is favor- able to him, he is not estopped to disprove that portion which is un- Vol, I 610 ADMISSIONS. E. In Correspondenck, Whole May Be Required. — If the admission occurs in correspondence, by letter or otherwise, the whole correspondence bearing upon or in any way relating to the admission relied upon is competent, and may be insisted upon I)y either party."" 5. By Party, Foundation for Impeachment Need Not Be Laid. Where the admission is made by a party to the suit, it is substantive and original evidence, and not necessarily for impeachment, and may be proved without laying the foundation by asking him if he made the statement.'" 6. In Pleading, Must Be Read in Evidence. — If a pleading in ani.ither case is relied upon as an admission, it must be offered in evidence the same as any other written admission.^** Whether it is necessary to read in evidence an admission made in a pleading in the case on trial is a disputed question.'''' VIII. WEIGHT TO BE GIVEN TO EVIDENCE OF. 1. Generally. — The weight to he given to evidence of admis- sions may depend upon various matters affecting its accuracy ; as, for example, the liability to mistake what has been said, resulting either from the frailty of human memory, the natural inability to detail v^'hat has been said by another precisely as it was said, and the liability to purposely distort, color or mistake what was said."" favorable. Algase v. Horse Owners' etc. Ass'n, yy Hun 472, 29 N. Y. Supp. lOl ; Cromwell v. Hughes, 12 Misc. 372, 33 N. Y. Supp. 643; Mott V. Consumers' Ice Co., 7^ N. Y. 543 ; Patrick v. Hazen, 10 Vt. 183; Cleve- land C. C. & St. L. R. Co. V. Gray, 148 Ind. 266, 46 N. E. 675. 56. Ante, p. 385 ; Murray v. Great Western Ins. Co., 72 Hun 282, 25 N. Y. Supp. 414. Confined to Matters Pertinent to Admission Proved Edwards v. Os- nian, 84 Tc,\. 656, 19 S. W. 868. Whole Need Not Be Offered in First Instance But the party offer- ing evidence of the admission may offer so much of the writing or correspondence as he desires to use leaving the opposite party to offer the remaining part of it if he desires to do so. Cramer v. Gregg, 40 111. App. 442; Jones t'. Fort, 36 Ala. 449; Hudson V. Howlett, 32 Ala. 478. 57. Alabama. — Crocker z'. Clem- ents, 23 Ala. 296; Callan v. Mc- Daniel, 72 Ala. 96. Connecticut. — Bristol v. Warner, 19 Conn. 7. Vol. I Indiana. — McNut v. Dare, 8 Blatchf. 35. Missouri. — Bompart v. Lucas, 32 Mo. 123 ; Kritzer v. Smith, 21 Mo. 296. Nezv York. — Shrady v. Shrady, 42 App. Div. 9, 58 N. Y. Supp. 546; Garrie v. Schmidt, 25 Misc. 75'3, 55 N. Y. Supp. 703 ; Young -'. Katz, 22 App. Div. 542, 48 N. Y. Supp. 187. Pennsylvania. — Reiter ?'. Morton, 96 Pa. St. 229; Robeson v. Schuyl- kill Nav. Co., 3 Grant 186. South Carolina. — Cohen v. Robert, 2 Strob. 410; Carrier v. Hague, 9 Rich. 454. Texas. — Smith v. Chenault, 48 Tex. 455- 58. Ante, p. 424. 59. Ante, p. 422. But the better rule seems to be that it must be read in evidence. Town of Greenville v. Old Dominion S. S. Co., 104 N. C. 91, 10 S. E. 147; Smith I'. Nimocks, 94 N. C. 243- 60. Arkansas. — Sadler v. Sadler, 16 Ark. 628. Illinois. — Ryder v. Emrich, 104 ADMfSSIONS. 611 A. Should Be Received With Caution. — Consequently the rule is that evidence of admissions, particularly mere verbal admis- sions, should be received with caution."^ B. Strong Extdence When Satiseactorily Proved. — But it is equallv well settleH that admissions deliberately made and clearly 111. 470; Avers v. Metcalf. 3q 111. 307- /oti'O. — Bullard v. Bullard, 112 Iowa 423, 84 N. W. 51.V Kentucky. — Colyer i'. Langford, I A. K. Marsh. 174. Michigan. — Niles v. Rhodes, 7 Mich. 374. Mississippi. — Prewett v. Coop- wood, 30 Miss. 369 ; Parker v. Mc- Neil, 12 Smed. & M. 355. Missouri. — Wolfe z'. M. Pac. R. Co., 97 Mo. 473, II S. W. 49, 3 L. R. A. 539- AVii' York. — Garrison z'. .\kin, 2 Barb. 25. Made Without Knowledge Ad- missions made by a party without personal knowledge on his part of the truth of the fact admitted are competent against him and should be given such weight as they de- serve under all the circumstances. Kitchen v. Robbins, 29 Ga. 713; Sparr z'. Wellman, 11 Mo. 230. 61. United States. — Sunday i>. Gordon, i Blatchf. & H. 569, 23 Fed. Cas. No. 13,616; Smith v. Burnham, 3 Sum. 435, 22 Fed. Cas. No. 13,019. Alabiiina. — Alexander v. Hooks, 84 Ala. 605, 4 So. 417. California. — Mattingly v. Pennie, 105 Cal. 514, 39 Pac. 200, 45 Am. St. Rep. 87. Georgia. — Richmond & D. R. Co. V. Kerler, 88 Ga. 39, 13 S. E. 833. Illinois. — Ray v. Bell, 24 111. 444; Chicago & N. W. R. Co. z: Button, 08 111. 409. loz'.a. — Clark z\ Sarkin, 9 Iowa 39I-. Kentiiclcy. — Higgs v. Wilson, 3 Mete. 3i7. Missouri. — Ringo v. Richardson, 33 -Mo. 385. AVji' York. — Garrison z'. Akin, 2 Barb. 25. Pennsylvania. ■ — Erie & W. Va. R. Co. V. Knowles. 117 Pa. St. 77, 11 Atl. 250. Te.vas. — Portis z: Hill, 14 Tex. 69, 65 Am. Dec. 99. Vermont. — Fenno v. Weston, 31 Vt. 345- H'iseonsin. — Saveland v. Green, 40 Wis. 431 ; Benedict v. Horner, 13 Wis. 285; Dreher v. Town of Fitch- burg, 22 Wis. 675, 99 Am. Dec. 91 ; Durkee v. Stringham, 8 Wis. i ; Haven z'. Cole, 67 Wis. 493. 30 N. W. 720, Weight to Be Given to Admis- sions — In Garrison v. Akin, 2 Barb. N. Y. 25, it is said: "There have been but few judges or elemen- tary writers, who have not had occa- sion to speak of the character of this kind of evidence ; such is the facility with which it may be fab- ricated, and such the difficulty of disproving it, if false. It is so easy, too, by the slightest mistake or fail- ure of recollection, totally to pervert the meaning of the parly and change the efYect of his declarations, that all experience in the administration of justice has proved it to be the most dangerous kind of evidence, always to be received with great caution, unless sustained by corrobo- rating circumstances. Then indeed, the character of this species of evi- dence is changed, and the mind re- ceives it without suspicion." Party Should Be Taken at His Word — In Blackstock v. Long, 19 Pa. St. 340, it is said : " As a gen- eral rule it is not unfair to take a man at his word." See also Robin- son z: Stuart, 68 Me. 61. Not as Satisfactory as That of Witnesses Who Testify from Knowl- edge — O'Riely v. Fitzgerald, 40 111. 310. Weakest Kind of Evidence. Dreher v. Town of Fitchburg, 22 Wis. 675, 99 Am. Dec. 91. May Be the Best or the Weakest. Parker v. McNeill, 12 Smed. & M. (Miss.) 3SS- Vol. I 612 .4DMISSI0\'S. proved are very strong and satisfactory evidence against the party making them."- C. Weight to I'.k DethrminKh 1!v Jury. — The weight tn he given to admissions is to be determined liy the jury under proper instructions by tlie court."'' IX. EFFECT OF WHEN PROVED. 1. When Conclusive. — A. Giii\'KR.\mv XoT Coxci.usixe. — The general rule is that admissions are not conclusive, but may be disproved by other evidence."* 62. Alabama. — Wittick 7'. Keiffer. 31 Ala. igg; Wilson v. Calvert, 8 Ala. (N. S.) 757- Illinois. — Ray v. Bell, 24 111. 444; Alouro V. Piatt, 62 111. 450; Hartley v. Lybarger, 3 111. App. 524; Chicago & N. W. R. Co. v. Button. 68 III. 409; Ayers z'. Met- calf, 39 111. 307. Kentucky. — Milton r. Hunter, 13 Bush 163 ; Colyer v. Langford, I A. K. Marsh. 174; Higgs v. Wilson, 3 Mete. 337. Virginia. — Little v. Slemp (Va.). 27 S. E. 808. Wisconsin. — Saveland v. Green, 40 Wis. 431. When Held to Be Strong Evi- dence. — It is said in Ray v. Bell, 24 111. 444: "The admissions or ac- knowledgments of a party to a civil suit, knowing his rights, are always held as strong evidence against him, but he is, notwithstanding, at liberty to prove that such admissions were mistaken or were untrue, and he is not estopped or concluded by them unless another person has been induced by them to alter his condition — in such a case a party is estopped from dis- puting their truth, with respect to such person, and those claiming under him, but as lo third parties, he is not bound by them." Against Interest Entitled to Pecu- liar Weight. — Levy v. Gillis, I Penn. (Del.) 119, 39 Atl. 78s. 63. Arkansas. — Shinn v. Tucker, 37 Ark. 580. Illinois. — Dufield 7'. Cross, 12 HI. 397; Ingalls V. Bulkley, 15 111. 224; Mouro V. Piatt, 62 111. 450; Hartley v. Lybarger, 3 111. App. 524 ; Ayers v. Metcalf, 39 111. 307 ; Young V. Foutc, 43 111. 33. Vol. I Meiu York. — Stevens v. Vroman, 18 Barb. 250; Roberts v. Gee, 15 Barb. 449; Bearss v. Copely. 10 N. Y. 93- Wisconsin. — Saveland v. Green, 40 Wis. 431. 64. England. — Skaife v. Jackson, 3 Barn. & C. 421, 10 Eng. C. L. I37- Connecticut. — Beers v. Broome, 4 Conn. 247 ; Goodwin v. U. S. An. & L. Ins. Co., 24 Conn. 591. Delazvarc. — Sharpe v. Swayne, i Penn. (Del.) 210, 40 Atl. 113. Illinois. — Mason v. Park, 4 111. 532; Ray V. Bell. 24 111. 444; Ayers V. Metcalf, 39 HI- 307; Young v. Foute, 43 111. a. Indiana. — Thompson v. Thomp- son, 9 Ind. 323, 68 Am. Dec. 638. Kansas. — Solomon R. Co. v. Jones, 30 Kan. 601, 2 Pac. 657. Kentucky. — Thompson v. Thomp- son, 93 Ky. 435, 20 S. W. 373. Michigan. — Eastman v. Lake Shore & M. S. R. Co., loi Mich. 597, 60 N. W. 309. New Hampshire. — Pende.Kter v. Carleton, 16 N. H. 482; Pearson v. Sabin, 10 N. H. 205. Nezc Jersey. — McElroy ?'. Lud- lum, 32 N. J. Eq. 828. Nciv York. — Stephens v. Vroman, 18 Barb. 250; Meister v. Sharkey's M. W., 5 App. Div. 470, 39 N. Y. Supp. 789; Bissell V. Sa.xton. 66 N. Y. 55; Ins. Co. I'. Telfair, 45 App. Div. 564, 61 N. Y. Supp. 322; JMet- ropolitan L. Ins. Co. v. Schaeffer, 16 Misc. 625, 40 N. Y. Supp. 984; Boyd V. L. H. Quinn Co., 18 Misc. l6g, 41 N. Y. Supp. 391. p'ermont. — Reed v. Newcomb. 62 VI. 75', 19 Atl. 367. Wisconsin. — Hurbrook v. Straw- ser, 14 Wis. 403. ADMISSIONS. (,U a. Made Under Oath. — This rule is not affected by the fact that the admission was made under oath as a witness or otherwise. It may still be disproved by other evidence, including the testimony of the party making it."^ B. Exceptions to the Rule. — a. Generally. — There are exceptions to this general rule in case of judicial admissions and those which were intended to be and have been so acted upon as to give rise to the doctrine of estoppel."" b. Jndieial Admissions. — (l.) As Substitute for Evidence. — Such judicial admissions as are made as a substitute for evidence that might lie adduced by the other side are conclusive for the purposes of the trial and proceedings on appeal."' (2.) In Pleading-s. — So a party is conclusively bound, for the same purposes, by an admission in his pleading."* Although Made for a Fraudulent Purpose. ^ Pendexter v. Carleton, i6 N. H. 482. Book Entries Within the Rule. .■\nd are not conclusive. Meister v. Sharkey's M. W., 5 App. Div. 470, 39 N. Y. Supp. 789. By One of Several Executors not conclusive on the others. James V. Hackley, 16 Johns. (N. 1.) 273. 65. Delazvare. — Sharp v. Swayne, I Penn. (Del.) 210, 40 Atl. 113. Kansas. — Solomon R. Co. v. Jones, 30 Kan. 601, 2 Pac. 657. Kentucky. — Louisville & N. R. Co. V. Miller, 19 Ky. Law i66s, 44 S. W. 119. Michigan. — Pelton v. Schmidt, 104 Mich. 345, 62 N. W. 552. AVti' York. — Akers v. Overbeck, 18 Misc. 198, 41 N. Y. Supp. 382. l^ermont. — Whitcher v. Morey, 39 Vt. 459- 66. So public records kept by a principal are held to be conclusive as against the sureties on his bond. Doll V. People, 48 111. App. 418. 67. California. — Hearne v. De Young, III Cal. 373, 43 Pac. 1108. Illinois. — Mason v. Park, 3 Scam. .S32. Indiana. — Thompson v. Thomp- son, 9 Ind. 323, 68 Am. Dec. 638. Kansas. — Central Branch U. P. R. Co. V. Shoup, 28 Kan. 394, 42 Am. Rep. 163. Missouri. — Moling t'. Barnard, 65 Mo. 600. Nezi.' Hampstiire. — Town of AUon V. Town of Gilmantown, 2 N. H. 520. Made on Former Trial cannot be retracted at the second trial of the same case. Owen v. Cawley. 36 N. Y. 600. By One Not a Party to the action not conclusive. Reed v. New- comb, 62 Vt. 75. 19 Atl. 367. Conclusive Only as Between the Parties. — Murphy v. Hindman, 58 Kan. 1 84. 48 Pac. 850. In Bill of Exceptions Not Con- clusive. —In MuUin v. Vermont Mut. F. Ins. Co., 56 Vt. 39, it is held that a bill of exceptions containing a state- ment of facts admitted on the trial while conclusive on appeal is not so upon a second trial of the case in the court below. 68. Ante, p. 398; Goldwater v. Burnside, 22 Wash. 215, 60 Pac. 409; Or. R. & Nav. Co. v. Dacres, i Wash. 195, 23 Pac. 415'; Cal. Elec, Works v. Finch, 47 Fed. 583 ; New Albany V. P. R. Co. V. Stallcup, 62 Ind. 345; Johnson v. Thorn, 27 Misc. 771, 57 N. Y. Supp. 762. But Not Where Pleading Is Aban- doned by Filing Amended Baxter V. N. Y. T. & M. R. Co., (Tex. Civ. App.,) 22 S. W. 1002; Miller v. Nico- demus, 58 Neb. 352, 78 N. W. 618; Fogg V. Edwards, 20 Hun 90. In Confession and Avoidance. May be explained. Oarrie v. Schmidt, 25 Misc. 753, ?■; N. Y. Supp. 703 ; Young v. Katz, 22 App. Div. 542, 48 N. Y. Supp. 187. Vol. I 614 ADMISSIONS. (A.) But Not When Offered in Another Action. — lint tlie rule is different if the admission is offered in another action or for another purpose. Then the admission is not conclusive but may be dis- proved by the party making it.''" (3.) Confession of Judgment. — The confession of a judgment is a conclusive admission of liability for the amount confessed.'" (4.) To Avoid Continuance, Effect Of. ■ — An admission to avoid a continuance that the witness will testify to the facts alleged in the affidavit for the continuance, only admits that such testimony will be given by the witness, and is not conclusive of the fact, but may be disproved. '"^ (5.) Made by Mistake. — A party may be relieved from the conclu- sive effect of a judicial admission where it is shown to have been made by mistake. '- (6.) Procured by Fraud. — So a party may avoid the effect of an admission by a showing that it was procured by fraud.''' c. When Acted Upon. — And an admission made with intent to influence, and acted upon in good faith by another, may be held con- clusive if injury would result to such party if the admission were denied or repudiated.''' 69. :McLcmore v. Nuckolls, 37 Ala. (N. S.) 662; Parsons v. Cope- land, 33 Me. 370, 54 Am. Dec. 628; Rich V. City of Minneapolis, 40 Minn. 82, 41 N. W. 4=;^ ; Tabb's Cur- ator V. Cabell, 17 Gratt. (Va.) 160. 70. Iglehart v. State, 2 Gill. & J. (Md.) 235. Plea of Guilty in Criminal Case Not Conclusive in Civil Case Jones V. Cooper. 97 Iowa 735, 65 N. W. 1000; Young 7'. Copple, 52 111. .\pp. 547; Clark T. Irvin, 9 Ohio 131. Confession by Executor, Effect of. In Iglehart v. State, 2 Gill. & J. (Md.) 23s, it is held that a confes- sion of judgment by an executor is conclusive on him as well as to the debt confessed as to the sufficiency of assets to pay it ; but as to the surety on his bond, not a party to the suit, it is only prima facie evidence as to either. 71. Ante, p. 480; Bestor v. Sardo, 2 Cranch C. C. 260, 3 Fed. Cas. jno. 1363 ; Alden v. Carpenter, 7 Colo. 87, I Pac. 904 ; Brent t. Heard, 40 Miss. 370. Does Not Admit Immaterial or Irrelevant Matter In State v. Eisenmeyer, 94 111. 96, it is held that the court is not bound to admit in evidence an affidavit ff r a continu- Vol. I ancc containing only incompetent evidence because the facts stated have been admitted to avoid a con- tinuance. 72. I Greenl. Ev. §206: Or. R. & Nav. Co. V. Dacres, i Wash. 195, 23 Pac. 415; Hawley 7'. Bennett, e, Paige Ch. (N. Y.) 104; Knight r. New England W. Co., 2 Cush. (Mass.) 271; Jililler v. Jiloore, I E. D. Smith (N. Y.) 739. 73. Reed v. Newcomb, 62 'Vt. 7S. 19 .A-tl. 367. 74. I Greenl. Ev. § 207. California. — Hearne r. De Young, III Cal. 373, 43 Pac. 1 108. Delaware. — Sharp v. S'lvayne, i Penn. (Del.) 210, 40 Atl. 113. Illinois. — Ray v. Bell, 24 111. 444. Minnesota. — Whitacre v. Culver. 8 Minn. 103. Nebraska. — Towne z'. Sparks. 23 Neb. 142, 36 N. W. 375- New York. — Calanan v. McClure, 47 Barb. 206; Joslyn ?■. Rockwell, 59 Hun 129, 13 N. Y. Supp. 311. Admissions Acted Upon. — In Calanan v. McClure. 47 B..:-b. 206, it is held that the admissions of a party of law or of fact, which have been acted upon by another, are con- clusive against the party making them, and between him and the per- ADMISSIONS. 615 C. In Deeds. — The general rule is that admissions in deeds are, as between the parties to them and their privies, conclusive,'^ hut not as affecting strangers.'" D. In Other Writings. — The fact that an admission is in writ- ing does not render it conclusive. It is still open to be disproved." E. CoNTAiNixG Hears.'W. — An admission not founded upon knowledge, but based upon information received from others, should receive but little weight. '* F. Parol Admissions in Pais. — Parol admissions fall within the class that may be explained or disproved unless they are within some of the exceptions above mentioned." 2. Effect of For the Jury. — The effect of an admission when proved nuist be left to the jur_\- and received according to its terms."" son whose conduct he has influenced, and this, whether the admissions are made in the express language to the person himself, or are implied from the open and general conduct of the party. 75. I Greenl. Ev., § 2il. 76. I Greenl. Ev., i6th Ed.. §2il. 77. Solomon R. Co. z'. Jones. 30 Kan. 601, 2 Pac. 657; Chicago B. & Q. R. R. Co. I'. Bartlett, 20 111. App. 96; Insurance Co. v. Telfair, 45 App. Div. 564, 61 N. Y. Supp. 322. 78. Stevens v. Vroman, 18 Barh. (N. Y.) 250; Kitchen v. Rolibins, 29 Ga. 713. Competent But Unsatisfactory. Sparr :■. Wellman. 11 Mo. 2f0. 79. Chicago B. & Q. R. R. Co. v. Bartlett, 20 111. -App. 96; Sharp v. Swayne, i Pcnn. (,Del.) 210, 40 Atl. 113- May Believe Part or Disbelieve Part. — In Roberts v. Gee, 15 Barb. (N. Y.) 449, it is held that the rule as now established in reference to the oral admissions of the party to a suit, permits the court and jury to believe that part of the admission which charges the party who makes it, and to disbelieve that part which discliargcs, when the latter is improb- able on its face or is discredited by the other testimony. See also to the same effect, Bearss v. Copley, 10 N. Y. 93. 80. Ripley v. Paige, 12 Vt. 353 ; Pearson v. Sabin, 10 N. H. 205. ADOPTION OF CHILDREN. — See Parent and Child ; Legitimacy. ADULT.— See Age. Vol. I ADULTERATION. By Clark Ross Mahan. I. ELEMENTS OF THE OFFENSE, 6i6 1. The Fact of the Adulteration, 6i6 A. Certificate of Analysis by Inspector, 6i6 B. Bz'idcnce Other Than Official Analysis, 617 2. Identifying Product Adulterated, 618 3. Mode of Adulteration, 6t8 4. Kuozvledge and Intent, 618 A. Burden of Proof, 618 B. Mode of Proof. See the Titles. " Intent," " Knowledge." 5. Cogency of Proof, 619 II. MATTERS OF DEFENSE, 620 1. In General, 620 2. Absence of Knowledge of Adulteration, 621 3. Exemption From Statute, 621 I. ELEMENTS OF THE OFFENSE. 1. The Fact of the Adulteration. — A. Certificate oe Analysis K\ Inspector. — The statutes of Enpiland and of the various states under which the aduUeration of, or the sale of adulterated food products is prohibited, very generally embrace a provision for tests or analyses of samples by inspectors, the results of which tests are recorded and preserved, to be received as evidence on prosecutions for violations of such statutes, on the question of the fact of adulter- ation.' 1. Constitutionality of Statute. Slate v. Groves, 15 R. I. 208, 2 Atl. A certificate of analysis of milk by 3''^4- an inspector appointed under a statute Purchase of Sample Tested. — The providing that such a certificate when fact that a statute requires as a sworn to shall be admissible in cvi- requisite for using the analysis by an dence in all prosecutions under the inspector or collector as evidence of statute, is not inadmissible on the the fact that the food analyzed was ground that the legislature has no adulterated, that a portion of the power to make it evidence where it sample analyzed must, if desired, be further appears that the inspector sealed and delivered to the owner or was a witness in the case and testified person in charge of the food, is not to all the facts set forth in the cer- ground for excluding the testimony lificate. Com. v. Waite, 11 Allen 01 the inspector who purchased a (Mass.) 264, 87 Am. Dec. 711 ; State sample for analysis without disclosing V. Campbell, 64 N. H. 402, 13 Atl. that he is such an inspector and 58s, 10 Am. St. Rep. 419; Shivers v. witliout giving to the person from Newton, 45 N. J. Law 46Q. See also whom it was purchased an oppor- Vol. I ADULTERATION. ()17 I'.. EviDExci; Uthicr Than Official Axalvsis. — But it is held that the method thus pointed out by the statutes for procuring a sample for analysis to show the fact of adulteration is not exclusive" and does not operate to exclude competent evidence from any other source to show the fact of adulteration.^ And the testimony of anv tunity to ask for a sealed sample ; the requirement of the statute referred to does not apply to such a case to show that the food so purchased was in fact adulterated. Com. v. Coleman, 157 Mass. 460. t,2 N. E. 662. Under the English Statutes, the certificate of analysis given in evi- dence must show in detail the quan- tities of each element in the com- pound substance. Newby v. Sims, (1894') I Q. B. 478. 70 L. T. 105, 10 R. ^96; Fortune v. Hanson. (1896) 1 Q' B. 202. 74 L. T. 14s, 44 W. R. 431, 18 Cox C. C. 2s8; Bridge v. Howard, (1897) I Q. B. 80, 18 Cox C. C. 421, 75 L. T. 300. But where the certificate contains ex- traneous facts unconnected with the analysis, the certificate is not admis- sible as evidence of such facts. Reg. V. Smith, (1896) I Q. B. S96, 18 Cox C. C. 307. 74 L. T. 348. Analysis Made After Lapse of Year Not Admissible Stearns v. Ingraham. i Thonip. & C. (N. Y.) 218. 2. Isenhour v. State. 157 Ind..5i7, 62 N. E. 40; Com. V. Spear. 143 Mass. 172, 9 N. E. 632. A statute providing that in all prosecutions thereunder for adul- terated milk, if the milk be shown upon analysis by the proper officer or inspector therein designated to contain an excess of fluids or not to contain sufficient solids, the milk shall be deemed for the purpose of the act to be adulterated, is not in- tended to operate as a rule of evi- dence by which the act of analysis is to be conclusive of the guilt of the defendant in selling adulterated milk, hut is intended to prohibit the sale of milk under a certain standard of excellence and is a lawful exercise by the legislature of its police power. Shivers v. Newton, 45 N. J. Law 469. See also People v. Cipperly, lOi N. Y. 634. 4 N. E. 107. In State v. Groves, iq R. T. 208. 2 .-\tl. ^84, and State 7'. Campbell. 64 N. H. 402, T^ \t\. ^8q. TO .\ni. St. Rep. 419, the objection was that a statute providing that in prosecutions thereunder if the milk shall be shown upon analysis to contain an e.xcess of fluids or not to contain the neces- sary solids, it shall be deemed for the purpose of that statute to be adulterated, was unconstitutional be- cause it virtually confined the tes- timony to the analysis of the sample taken by the inspector, which sam- ples were destroyed in the making of the analysis, so that the testimony could not be controverted; but the court ruled that the testimony al- though it might not always be prac- ticable to controvert it by another analysis, could be controverted by evidence of collateral facts going to prove that the analysis was incorrect and hence that the act was not un- constitutional on the ground alleged. 3. Test by Lactometer. — On prosecution for unlawfully keeping, offering for sale and selling adul- terated milk, it is proper to allow a witness, who has testified that during the course of several years he had used a lactometer in a great many instances for the purpose of testing the quality and purity of milk, to state that he had applied this lacto- meter to the milk sold by the de- fendant to the prosecuting witness, and what was indicated by the lacto- nieler as the specific gravity thereof and what was the standard specific gravity of pure milk according to the lactometer, although there is no evi- dence as to the character of the in- strtunent. the principles of its con- struction and operation, or its ac- curacy. Tests by means of instru- ments are used in a great varietj' of case'; and are found to be trust- worthy, and for this reason they are admissible in evidence. In each par- ticidar case the value of the test is to be estimated by the jury. Com. V. Xichols. TO .Mien (Mass.1 too. Sample Delivered to Inspector by Purchaser. — Where it appears that the milk analyzed, for whose adul- Vol. I 4k f)18 ADULTERATION. person who has sufficient skill to make an anal\sis, and who has analyzed some of the food jiroduct in question, is admissible.'' 2. Identifying Product Adulterated. — In a prosecution under a statute making it an ofifense to sell, keep or ofifer to sell adulterated milk, or milk to which water or any foreign substance has been added, it is not necessary to prove that the milk sold was cow's milk.'' 3. Mode of Adulteration. — ( )n a prosecution for a violation of a statute against the adulteration of food proilucts defining the vari- ous modes of adulteration prohibited, it is not necessary to show the particular manner by which the adulteration was effected.* 4. Knowledge and Intent. — A. Burden of Proof. — Whenever knowledge of the fact of adulteration is, by the terms of the statute made an element of the offense, it is necessary for the prosecution to show such knowledge on the part of the defendant ;^ but not teration the defendant is being prosecuted, was not taken by the in- spector under the provision of the statute but was delivered to the in- spector for analysis by the purchaser of the milk, the competency of the testimony of the milk inspector as to the results of his analysis is to be determined by the common law. Com. V. Holt, 146 Mass. 38, 14 N. E. 930. Where evidence has been mtro- duced to show that a particular foreign substance had been added to milk, it is proper to permit a chemist who has tested the milk to testify what the milk was inde- Iiendent of the substance added. Com. V. Schaffner, 146 Mass. 512. 16 N. E. 280. On a prosecution for bavmg ui his possession adulterated milk with in- tent unlawfully to sell the same, evi- dence that the wagon belonged to the defendant; that it was at a cer- tain place at a certain time, in charge of his servant, and contained sev- eral cans of milk, from one of which the inspector took a sample without objection from the servant, is proper evidence for the jury. Com. v. Smith, T43 Mass. 169, g N. E. 6,31. In Com. V. Rowell, 146 Mass. 128. 15 N. E. 154, the defendant was charged with having in his posses- sion adulterated milk with intent to sell the same, and it was held tliat evidence that the milk was taken fnnn a can not marked " skimmed milk." out of a wagon on which was painted a license and the name of the firm Vol, I of wliich the defendant was a mem- ber, and on which wagon was the defendant with certain other cans of milk, from which he gave to the chemist in the employ of the milk inspector, a sample for analysis, was competent evidence for the jury upon the issue whether the defendant was in possession of the milk with intent to sell it. 4. Com. V. Holt, 146 Mass. 38, 14 N. E. 9,m 5. " As the statute does not men- tion cow's milk, it must be held to include all the milk of commerce, and this objection is therefore groundless." Com. v. Farren, 9 .Al- len (Mass.") 489. 6. It is enough for the purpose of the prosecution to show that the food in question fails to meet the require- ments of the statute in any one of the particulars specified. State v. Luther. 20 R. I. 472, 40 Atl. 9. See also to the same affect, Vandegrift v. Miehla, 66 N. J. Law 92. 49 Atl. 16. 7. Sanchez v. State, 27 Tex. App. 14, 10 S. W. 756 ; Carter v. State, 27 Tex. App. S3, 10 S. W. 757; Verona Central Cheese Co. ■<'. Murtaigh. 50 N. Y. 314: People v. Dold, 44 N. Y. St. 822. 18 N. Y. Supp. 643; Com. v. Flannelly. 15 Gray CMass.") 195; State V. Snyder, 44 Mo. .App. 429: Dilley v. People, 4 fH- App. 52. It is not necessary to prove that the milk in question was to the knowledge of the defendant below the required standard. It is compe- tent for the legislature to declare ADULTERATION. ()1") where such knowledge is not an element of the offense.' 5. Cogency of Proof. — It is necessary that the prosecution show clearly that the provisions of the statute have been violated ;■' and it the doing of an act shall subject the iloer thereof to a penalty irrespective of his motive or knowledge, and in such case the court has no power to require proof of motive or knowl- edge. Vandegrift v. Miehia, 66 N. J. Law 92, 49 Atl. 16. 8. Reg. V. Woodrow, 15 M. & W. 404; Roberts v. Egerton, L. R. 9 Q. B. 494; Dyke v. Gouer (1892), i Q. B. 220, 17 Co.x C. C. 421 ; State V. Schlenker, 112 Iowa 642, 84 N. W. 698, 51 L. R. A. 347; People V. Schaeffer, 41 Hun (N. Y.) 23; Peo- ple V. Mahaney, 41 Hun (N. Y.) 26; Com. V. Farren. 9 Allen (Mass.) 489; Com. V. Nichols, 10 Allen (Mass.) 199; Com. v. Evans, 132 Mass. 11; State v. Smith, 10 R. I. 258; People V. Eddy, 35 N. Y. St. 146, 12 N. Y. Siipp. 628; Com. V. Warren, 160 Mass. 533, 36 N. E. 308 ; Bissman v. State, 9 Ohio C. C. 226 ; .\ltschul V. State. 8 Ohio C. C. 214. Presumption of Intent From Pos- session Under the New York statute making the doing of anything prohibited thereby, to-wit : the sale, or offer or exposure for sale, of adul- terated milk, evidence of a violation thereof irrespective of the intent of the doer, the mere fact of possession does not raise a presumption of in- tent to sell. People %'. Wright, 19 Misc. 135, 43 N. Y. Supp. 290. Actual Knowledge Need Not Be Shown, or express authority to adulterate the food in any particular manner or to any particular extent. It is sufficient to prove knowledge by the defendant, that his servants and agents did sell an adulterated product or a general authority in them to do so ; and this knowledge and authority may be implied by cir- cumstances. Verona Central Cheese Co. V. Murtaugh, 50 N. Y. 314. 9. People V. Braested, 30 App. Div. 401, 51 N. Y. Supp. 824. In People v. Kellina, 23 Misc. 134, 50 N. Y. Supp. 653, a prosecution under the New York statute to re- cover the penalty prescribed therein for selling adulterated milk, the evi- dence showed that adulterated milk was found by the inspectors in the defendant's milk wagon which was being driven by his employee; but there was no evidence that the driver was engaged in delivering milk to customers at the time, the evidence being merely to the effect that he had just received the milk from the shipper and was taking it to the defendant's place of business. It was held that the evidence did not justify a conviction. But in People V. Koch, ig Misc. 634, 44 N. Y. Supp. 3S7. it was held that evidence that the defendant was delivering milk to regular customers at the time the can of adulterated milk was found in his wagon is sufficient to justify a conviction, although after its analy- sis he returned the milk from where he had bought it and was credited with its price. Testimony that a salesman solicited and obtained an order for pure fruit jelly which he reduced to writ- ing, describing the goods ordered as ahove specified is not sufficient to justify a conviction under the Michi- gan statute (Pub. Acts 1895, Act No. 193 as amended by Pub. Acts 1897; .\ct No. 118 and Pub. Acts 1899, .\ct No. 117), where no further con- nection with the order by the sales- man is shown, although his employer sends adulterated jelly in response to bis order in glasses labeled " Pure Fruit Jelly." People v. Skill- man. (Mich.), 89 N. W. 330. Evidence merely that milk was found in a milk wagon on the street and was intended for delivery down town does not justify a conviction for selling, ofifering or exposing for sale adulterated milk. People v. Wright, rg Misc. 135, 43 N. Y. Supp. 290. In Verona Central Cheese Co. v. Murtaugh, 50 N. Y. 314, a prosecu- tion for selling skimmed niiU<, the evidence was that the defendant was at and about his farm, managing and controlling it, and that his servants prepared and clelivered to the plain- tifif diluted and skimmed milk. It was held that the evidence un- Vol. I 020 ADULTBRAl'ION. lias bt-en said that the jury must be satisfied beyond a reasouable doubt before they can convict." There is, however, authority to the effect that the mere fact that an action to recover a penalty prescribed by statute for adulterating, or selling adulterated food products, is instituted in the name of the people, and other sections ol the statute declare such an act to be a misdemeanor, does not require- that the jury be satisfied of the defendant's guilt beyond a reasonable doubt, but that a preponderance of the evidence is sufii- cient.^' II. MATTERS OF DEFENSE. 1. In General. — A person prosecuted under a statute prohibiting the adulteration of food products may, of course, resort to anv evi- dence otherwise unobjectionable which will establish his innocence of the offense charged. ^- rebuttcd by the proof that the de- fendant had no knowledge and was in no way accessory to the acts complained of, raised a presumption of fact that they were done with his knowledge and consent, and required tiie submission of that question to the jury. 10. In Com. V. Rowell, 146 Mass. 128, 15 N. E. 154, the court instructed ihe jury that if they beheved beyond a reasonable doubt, that the millc was in the possession of the defend- ant at the time the sample was taken from him, with the intent to sell the same, he should be convicted ; but the opinion of the supreme court seems not to have touched Ihe pro- priety of that instruction. In Tsenhour v. State, 157 Ind. 517, 62 N, E. 40. a prosecution under the Indiana statute which reads, " who- ever knowingly . . . has in his possession," etc.. the court said : " It must be conceded that under a plea of not guilty, it was incumbent upon the state to satisfy the jury beyond a reasonable doubt that the defendant knew (that. the milk was adulterated.) But it was not essen- tial that the proof should be positive and direct. It was suflficicnt if the slate had proven a state of facts from which knowledge might be reasona- bly and naturally inferred." 11. In People v. Briggs, 1 14 N. Y. 56. 20 N. E. 820, the court said: " Such an action is no less a civil action because so brought. The pur- pose of the action is not 'punish- Vol. I ment ' of the defendant in the sense legitimately applicable to the term, but such action is brought to recover the penalty as fixed by way of indem- nity to the public for the injury suf- fered by reason of the violation of the statute. The efifect of the recov- ery is merely to charge the defendant with pecuniary liability while a crim- inal prosecution is had for the pur- pose of punishment of the accused, and the consequence of conviction may be more serious to him for the reason, if for no other, that it is held an imputation affecting his moral standing in a degree depending more or less upon the nature of (he crime. There is, therefore, more apparent reason for the application to crim- inal cases of the rule which continues the burden of proof on the prosecu- tion throughout the trial, and re- quires that the evidence be such as to overcome all reasonable doubt as to the guilt to justify conviction." 12. In People v. Richard, 48 App. Div. 408. 63 N. Y. Supp. 165, a prosecution for selling adulterated milk, the evidence as to the milk tested showed that it had stood over night in the can, and after being slirred up, a sample was taken and put into two bottles, one of which the inspector retained, the other be- ing delivered to the defendant. It was held that for the purpose of aid- ing the jury to determine whether the sample taken from the can was a fair sample of the whole can, it was proper for the defendant to show un-i:i'iuiATios. (.21 2. Absence of Knowledge of Adulteration. — When the statute in terms makes proof of the sale of an aihiherated food protkiet pre- sumptive evidence of g;uilt, evidence of ahsence of knowledg-e of the fact of adulteration on the part of the defenilant is not competent to rebut such a presumption.'-' Otherwise, however, where the statute in terms makes knowledtje an element of the offense charged.'* 3. Exemption From Statute. — When the defense to an action to recover a penalty for the unlawful manufacture, possession or sale of adulterated food products is that the product in question was for some reason excepted from the operation of the statute the defend- that by a well-known and universally accepted method of ascertaining but- ter fats in milk, the sample delivered to him showed a greater percentage of butter fats than tliat shown by the chemical tests liy the state. Explaining Result of Analysis. Thus, in an action to recover the penalty for selling adulterated milk in which the analysis of the milk sold by the defendant showed that it was not of the standard required by law. it was held that the defendant had the right to account for the condition of the milk as shown by the analysis, by evidence that the milk had not been tampered with ; that it had re- mained in the can over night ; that the cream had separated from the milk and risen to the top of the can ; that it had not again become per- fectly mi.xed with the milk, and that the sample from which the analysis was made was drawn from the lower part of the can. People v. Hodnett, 51 N. V. St. S95. 22 N. Y. Supp. 8og. Physical Interference With Milk, hi an action to recover the penalty for selling adulterated milk, the de- fendant may give evidence tending to show that there had been no phy- sical interference with the milk after it was drawn from the animals, although the chemical analysis showed an excess of fluids and a lack of the necessary solids. People v. Salisbury, 2 App. Div. 39, S! N. Y. Supp. 420. On a prosecution for the alleged violation of an act prohibiting the adulteration and selling of adulter- ated milk, evidence offered by the defendant to show that his cows were properly fed, is properly ex- cluded when not made for the pur- pose of discrediting the analysis put in by the state. State v. Campbell, 04 N. H. 402, 13 Atl. 585, 10 Am. St. Rep. 419. The defendani may show that he sold the milk as skimmed milk out of a tank duly marked as containing skimmed milk. Com. v. Tobias, 141 Mass. 129, 6 N. E. 217. 13. People V. Mahaney, 41 Hun 26 ; People v. Worden Grocer Co., 118 Mich. 604, 77 N. W. 315; State v. Kelly, 54 Ohio St. 166, 43 N. E. 163. See also, People v. Cippcrly, loi N. Y. 634, 4 N. E. 107. 14. The law will not permit the state to construct about the defend- ant a circumstantial case and then deny him an opportunity to show the circumstances consistent with his in- nocence. And if he used the adulter- ant honestly believing, after making reasonable inquiry and investigation, that it contained no substance inju- rious to health, he may show that fact. What he did to ascertain the facts about it. who he inquired of, what was said to him by others in whom he might reasonably confide, what was explained to him in writing or printing, arc all proper subjects of inquiry to lay before the jury as to his assertion that he did not at the time know the milk was adulterated. Tsenhour v. State, 157 Ind. ?I7. 62 N. E. 40- Like other questions of fact or cir- cumstantial evidence tending to prove a fact, knowledge on the part of the defendant prosecuted for selling adulterated milk may be rebutted by evidence that he did not, in any way, authorize it. and had no knowledge of it. Verona Central Cheese Co. v. Murtaugh. 50 N. Y. 314. Vol. I 622 ADULTERATION. ant has the burden of sliowing that fact.^^ 15. People V. Briggs. 114 N. Y. cepted because niamifactured or in 56, 20 N. E. 820, so holding of the process of manufacture at the time defense that the product was so ex- the act was passed. Vol. I ADULTERY. By D. Modnt.joy Cloud. I. PROOF OF MARRIAGE, 624 1. Necessity Of. 624 2. Method 'Of, 625 A. Strict Proof Required. 625 P>. By Certificate. 625 C. By Celebrant's Record. 625 D. By Testinionv of IVitnesscs, 625 E. By Confessions or Admissions. 626 F. By Marriag,e Contract. 626 3. Presumption of Continuance Of. 626 A. Generally, 626 B. O'irrcoming Presumption, 626 a. By Showing Absence, 626 b. By Shozving Divorce, 626 II. PROOF THAT PROSECUTION WAS INSTITUTED BY CON- SORT, 627 III. MATTERS RELATING IMMEDIATELY TO THE ACT CHARGED. 627 1. Time Not Material. 627 2. Identity of Particeps Criiiiinis. 627 3. Guilty Kno-Li'ledge, 627 4. Potency of Accused, 627 5. Completion of Act. 627 6. Single Adulterous Act, 628 IV. PROVING ACT OF ADULTERY, 628 I. Relez-ancy, 628 A. Direct Proof Not Required. 628 B. Facts Held Relevant. 628 a. Opportunity and Disposition, 629 b. Reputation of female Particeps Crim- inis, 629 c. Other Adulterous Acts, 629 ( r.) Before Indictment, 629 (2.) After Indictment, 630 (3.) In Other Jurisdictions, 631 (4.) Instructions As to Such Evidence. 631 Vol. I 624 ADULTERY d. Birtli, Appearance and Treatment of Cliild. 631 C. Certain Facts Held Irrelevant. ("132 2. Competency, 632 A. Of Particcps Criniinis, 632 B. Of Consort of Accused, 633 C. Confessions and S'lutcments of Accused, 633 3. Weight, 634 4. Sufficiency, 634 CROSS-REFERENCES. Bastardy ; Bigamy ; Criminal Conversation ; Divorce ; Fornication ; Husband and Wife ; Lewdness ; Marriage. I. PROOF OF MARRIAGE. 1. Necessity Of. — The State must establish, beyond a reasonable doubt, that at the time of the act charged, the defendant was the laivful consort of some person other than the one with whom the act was committed.' 1. Alabama. — Buchanan i>. State, 55 Ala. is'4; Smitlierman i'. Slate, 27 Ala. 23; White v. State, 74 Ala. 31; Owens V. State, 94 Ala. 97, 10 So. 669. Georgia. — Bigby v. State, 44 Ga. 344- lo'civ. — State -■. Sanders, 30 Iowa 582. Montana. — Montana z'. Whitcomb, I Mont, 359, 25 Am. Rep. 740. Texas. — Webb v. State 24 Te.\. App. 164, 5 S. W. 651 : Clay v. State, 3 Tex. App. 499 ; Tucker ?'. State, 35 Tex. 11,^. Evidence of Marriage to a Woman Under Age is in,suliFicicnt to establish a legal marriage in the absence of proof that she acquiesced in such marriage upon attaining her majority, and prior to the commission of the ofifcnsc charged. People t. Bennett, 3() .Mich. 208. Invalid Marriage Mary Hcnke married Thomas Sinnett in 1868, and about New Years, 1869, four days after the second marriage, he disap- peared, and she never procured a di- Vol. I vnrcc. She married defendant in i88j. The court instructed the jury that " if the evidence sliows that at the lime of the marriage of the defend- ants, Henry and Mary. Sinnett had . . . been voluntarily absent from Mary for the space of three j-ears, and Mary did not then, to-wit : at the time of her marriage to Henry, know that Sinnett was alive . . . then the marriage of Henry to Mary was legal." The court thus applied to this case the provisions of § 4010 of the Code, enacted in favor of a party contracting a second marriage, whose husband or wife had been continually absent for three years, and was not known to be living at the time of the second marria.ge. Thus by the action of the court a statute which was in- tended to establish innocence in a prosecution for bigamy, is made to establish guilt in a prosecution for adultery. The instruction is clearly erroneous. A presumption of the death of a party does not arise until he has been absent, without intelli- ADULTERY. 625 2. Method Of. — For a complete statement of the methods of proving marriage the Article " Marriagk " should be consulted. A. Strict Proof Required. — Stricter proof is required in prosecutions for adultery than in most other actions. - Marriage may not, in such prosecutions, be established by general reputation.' B. Rv Certificate. — But it may be proved by production of a marriage certificate, accompanied by proof of the identity of the parties.'' C. By Celebrant's Record. — In some states it may be proved by the record of the celebrant. ° D. By Testimony of Witnesses. — It may be established by testimony of persons present at the wedding.'' gence concerning him. for the period of seven years. State v. Henke, 58 Iowa 457, 12 N. W. 477. 2. State V. Annice, Chip. N. (Vt.) 9; State V. Winkley, 14 N. H. 480. 3. Alabama. — Buchanan v. State. 55 Ala. 154. Connecticut. — State v. Roswell, 6 Conn. 446. Maine.' — Wedgwood's Case. 8 Ale. 75; State v. Hodgskins, 19 Ale. 155. 36 Am. Dec. 742; Ham's Case, ir Me. 391- Massachusetts. — Com. v. Norcross. 9 Mass. 492. Missouri. — State v. Cottee, 39 Mo. App. 56. Texas. — Webb v. State, 24 Tex. App. 164, 5 S. W. 651. I'ermont. — State i'. Annice, Chip. N. 9; State V. Rood, 12 Vt. 396. Holding Themselves Out As Hus- band and Wife. — In Ham's Case, 11 Me. 391, where the accused, about twenty years prior to the alleged adultery, in renting a house, stated that his family consisted of " a wife and one child," and afterwards moved into such house with a wo- man whom he called " Miss Ham," with whom he lived for several years as his wife before deserting her, it was held that such evidence was not sufficient proof of marriage to sus- tain a conviction for adultery. Contra. Wood V. State, 62 Ga, 406; Com. v. Holt, 121 Mass. 61. 4. People V. Isham, 109 Mich. 72, 67 N. W. 819; State v. Isenhart, 32 Or. 170, 52 Pac. 569; People v. Broughton, 49 Mich. ■>■>,<), 13 N. W. 621 ; State v. Schweitzer 57 Conn. 40 532, 18 .\1\. 787, 6 L. R. A. 125; State V. Brecht. 41 Alinn. =;o, 42 N. W. 602. Certificate of Marriage in Foreign Country. — State v. Behrman, 114 N'. C. 797, 19 S. E. 220, 25 L. R. A. 449. Discrepancy in Certificate Iden- tity. — -In People v. Stokes, 71 Cal. 263, 12 Pac. 71. there was offered the record of a certain marriage certifi- cate, which showed that Stokes was married to Rebecca G. A witness testified that at the time and place named in the certificate, he was pres- ent at the marriage of the defendant . and Rachael G., performed by the minister signing the certificate. Evi- dence was introduced that defendant and Rachael lived together as man and wife for years. Such evidence was held admissible as tending to prove that defendant and Rachael G. were the persons named in the cer- tificate. Presumption of Validity — It will be presumed that such marriage cer- tificate was made by the proper offi- cer, and contains all that is necessary to make it the authentic evidence of a valid marriage. State v. Potter, 52 Vt. 3i. See State v. Brecht. 41 Minn. 50, 42 N. W. 602. 5. Com. V. Littlejohn, 15 Mass. 163 ; Wedgwood's Case, 8 Me. 75 ; State V. Colby, 51 Vt. 291. Celebrant's Authority to Be Estab- lished. — State V. Winkley, 14 N. H. 480; State V. Hodgskins, 19 Me. 155. 36 Am. Dec. 742. 6. Lord V. State, 17 Neb. 526, 23 N. W. 507; Com. V. Littlejohn, 15 Mass. 163 ; Com. v. Norcross, 9 Mass. Vol. I (>2(> AOriTERV. E. Bv Confessions or Aomissions. — It may be proved by con- fessions or admissions of tbc fact.' Possibility of Untruth of Confession affects its weig^ht bnt not its competency.* Extrajudicial Confession. — An extrajudicial confession, bv the accused, of his marriage, unconnected with the existing prosecu- tion, would be insufficient proof thereof, to sustain conviction." F. l^.v Marri.ac.e Contr.\ct. — Marriage may be established by proving a marriage contract without witness or celebrant, but fol- lowed by cohabitation.'" 3. Presumption of Continuance Of. — A. Generally. — A mar- riage having been established, the continuance thereof is presumed.'^ B, Overcoming Presumption. — a. By Shoiving Absence. — But this presumption is overcome by the presumption of death after one has been absent and unaccounted for for seven years. '- b. By Shozviiii; Divorce. — Or by proving a divorce by the record of such divorce.'''' 492; State V. Marvin, 35 N. H. 22; State v. Winklcy, 14 " N. H. 480 ; Mill.-; V. U. S., I Pinn. (Wis) 7.3. Marriage in Other State or Coun- try People V. lines, no Midi. 250, 68 N. W. 157; Cayford's Case, 7 Me. 57. See also Ham's Case, 11 Me. 391. 7. Alabama. — Owens v. Stale, 94 Ala. 97, 10 So. 669; Cameron t. State, 14 Ala. 546, 48 Am. Dec. iii; Buchanan v. State, 55 Ala. 154. Georgia. — Cook v. State, 11 Ga. 53- 56 Am. Dec. 410; Wood v. State, 62 Ga. 406. Iowa. — State v. Sanders, 30 Iowa 582. .Maine. — Ham's Case, 11 Me. 391; Cayford's Case, 7 Me. 57; State v. I.ibliy, 44 Me. 469, 69 Am. Dec. 115. .Massachusetts. — Com. r. Thomp- son, 99 Mass. 444; Com. v. Holt, 121 Mass. 61. .\Hchigan. — People v. Imes, no Mich. 250, 68 N. W. 157. Missouri. — Slate v. McDonald. 25 Mo. 176. North Carolina. — State r. Behr- man, 1 14 N. C. 797, 19 S. E. 220, 25 I,. R. A. 449. Pennsylvania. — Com. ■;•. Manock. 2 Crim. L. Mag. 239. Rhode Island. — Stale i'. Medbnrv. 8 R. I. 543. Texas. — Boger 1: Stale, 19 To.\. App. 9L Statements to Arresting Officer. Cnni. 7: Moll. i_'i Masv 61. 109 Mich. 72, 36 Neb. 808, Rood, 12 Vl. Behrman, 114 Letter Written by Accused. State z: Horn, 43 Vl. 20. Contra. — Slate -•. Armstrong. 4 Minn. 251. 8. State V. Libby, 44 Me. 469, 69 Am. Dec. ns. 9- People V. Isham, 67 N. W. 819. 10. Bailey v. State, 55 N. W. 241 ; State v. 396. See also State v. N. C. 797, 19 S. E. 220, 25 L. R. A. 449- 11. Defense Must Show Dissolu- tion State V. Wilson, 22 Iowa 364; People i'. Stokes, 71 Cal. 263, 12 Pac. 7L Burden of Proof Where the evi- dence shows that defendant's lus- band was alive fonr or five years pre- vious to the offense charged, the bur- den of proving his death rests upon the defendant. Cameron 7'. State. 14 .WcL. 546. 48 Am. Dec. ni. 12. People V. Stokes, 71 Cal. 263, 12 Pac. 71 ; Cameron v. State, 14 ."Ma. 546, 48 Am. Dec. in. 13. People V. Broughton, 49 Mich. M9, 13 N. W. 621. Invalid Decree of Divorce Not Ad- missible. — Hood r. State. 56 Ind. 263, 26 Am. Rep. 21. In Stale r. Fleak, 54 Iowa 429, 6 N. W. 68g, the defendant offered in evidence a decree of divorce obtained in Utah, it was held that parol evi- dence was admissible on behalf of Vol. I AnULTERY. 627 II. PROOF THAT PROSECUTION WAS INSTITUTED BY CONSORT. It is sometimes provided that prosecutions for adultery can be instituted only on complaint of the consort of the accused. It will depend upon the wording of the statute whether or not evidence is required on this point.''' III. MATTERS RELATING IMMEDIATELY TO THE ACT CHARGED. 1. Time Not Material. — Evidence which establishes the fact that the alleged offense was committed on any day within the time fixed by the Statute of Limitations is sufficient..'^ 2. Identity of Particeps Criminis. — Where the indictment alleges the adultery to have been committed with a certain person, the evidence must establish the identity of that person.'" 3. Guilty Knowledge. — The state need not adduce evidence of a guilty intent.'" 4. Potency of Accused. — Presumptions of Virility. — Until the contrary appears by satisfactory evidence, it will be presumed that a mature, male, hinnan being possesses normal powers of virility.'* The Burden of Proof lies upon him who denies such powers." 5. Completion of Act. — It is not necessary to prove emission.-" the state, going to show that the tribunal granting such divorce was without jurisdiction. 14. Not Required in Minnesota. State V. Brecht. 41 Minn. 50. 42 N. W. 602. In Iowa, the fact that the prosecu- tion was so instituted must be proved. State v. Henke, 58 Iowa 457, 12 N. W. 477. But the fact need not be estabhshed beyond a reasonable doubt. .\ pre- ponderance of evidence is enough. State V. Donovan, 61 Iowa 278, 16 N. W. 130. 15. State c'. Williams, 76 .Me. 480; Com. V. Cobb, 14 Gray (Mass.) 57; Com. V. O'Connor, 107 .Mass. 219. 16. Difference in Names Where the indictment alleged the act to have been committed with one " Lula Hunting." evidence was admitted of the confession of " Lula Hunting- ton, " but none was adduced to show them to be identical. It was held in- sufficient. State -■. Minis, 39 S. C. 557, 17 S. E. 850. In State v. Vittum, 9 N. H. 519, the indictment alleged that adultery was committed with one Levi Wal- lace, without further description. The evidence showed that there were in the same town two persons of that name, father and son, and that the latter was well known and distin- guished from his father by the suf- fix of " junior " to his name. The accused is justified in understanding the adultery to have been committed with the father, and evidence of adultery with the son is inadmissi- ble. Upon an Indictment of Two for Adultery, if one is known by the name charged, the other cannot es- cape by introducing evidence to show that it is, nevertheless, not the true name. State v. Glaze, 9 Ala. 283. 17. Com. V. Elwell, 2 Mete. (Mass.) 190, 35 Am. Dec. 398; Fo.k V. State, 3 Tex. App. 329. 30 Am. Rep. 144: Collum v. State, 10 Tex. .\pp. 708. 18. Gardner r. State. 81 Ga. 144, 7 S. E. 144- 19. Gardner v. State. 81 Ga. 144, 7 S. E. 144- 20. Sexual Act Incomplete — In Com. V. Hussey, 157 Mass. 415, 32 N. E. 362, the joint defendants were dis- Vol. I 628 ADULTERY. 6. Single Adulterous Act. — By statute in some of the states, where the crime consists in living together in adultery or in state of open and notorious adultery, or in an open state of adultery, evidence of a single act of adultery only, is insufficient to warrant a conviction, =' but it tends to prove the offense and, if cohabitation is shown, raises a presumption of continuance.-^ IV. PROVING ACT OF ADULTERY. 1. Relevancy. — A. Dirkct Proof Not Required. — From the nature of the crime it is usuallv impossible to produce direct proof of guilt, hence, direct, positive proof of sexual acts need not be furnished.^'' B. Facts Held Relevant. — It is sufficient if the evidence establishes facts and circumstances from which guilt may be inferred, and which will satisfy a rational and just man beyond a reasonable doubt.-* covered by the officers in bed to- gether, partially undressed, and in the act of sexual intercourse, but were interrupted before completion. It was held sufficient to convict. 21. Miner v. People, 58 III. 59; People V. Gates, 46 Cal 52 ; State v. Coffee, 39 Mo. App. 56; Morrill v. State, 5 Tex. App. 447 ; Searls v. People, 13 111. 597. Relation of Master and Servant. In Carotti f. State, 42 Miss. 334, 97 Am. Dec. 465, it was held that, where the evidence simply showed ihat the parties had lived together under the same roof as master and servant, and there were occasional instances of illicit intercourse between them, such evidence would not be sufficient to convict of unlawful cohabitation. Citing Searls v. People, 13 111. 597- State V. Marvin, 12 Iowa 499: State V. Jolly, 3 Dev. & B. (N. C.) no, 32 ■ .^m. Dec. 656 ; Wright v. State, 5 P.lackf. (Ind.) 358, 35 Am. Dec. 126; Com. V. Calef, 10 Mass. 153. 22. State v. Coffee, 39 Mo. .\pp. 56. 23. State v. Eliason, 91 N. C. 564 ; State V. Green, Kirby (Conn.) 87; State V. Poteet, 8 Ired. (N. C.) 23; Com. V. Bowers, 121 Mass. 45'; Com. V. Gray, 129 Mass. 474, 37 Am. Rep. 378; Richardson v. State, 34 Tex. 142. 24. Alabama. — Gore v. State, 58 Ala. 391 ; State v. Crowley, 13 Ala. 172; Love V. State, 124 Ala. 82, 27 So. 217. Connecticut. — State v. Schweitzer, 57 Conn. 532, 18 Atl. 787, 6 L. R. A. 125. Georgia. — Weaver v. State, 74 Ga. ,S76. Illinois. — Crane v. People, 168 111. 395, 48 N. E. 54. Iowa. — State z\ Wiltsey. 103 Iowa 54, 72 N. W. 415 ; State v. Hen- derson, 84 Iowa 161, 50 N. W. 758. Massachusetts. — Com. v. Gray, 129 Mass. 474, 37 Am. Rep. 378; Com. V. Clifford, 145 }ilass. 97, 13 N. E. 345- Michigan. — People v. Fowler, 104 ^lich. 449, 62 N. W. 572 ; People v. Montague, 71 Mich. 447, 39 N. W. 585; People V. Girdler, 65' Mich. 68, 31 N. W. 624. Mississippi. — Carotti 7-'. State, 42 Miss. 334, 97 Am. Dec. 465. Missouri. — State v. Coffee, 39 Mo. App. 56; State V. Clawson, 30 Mo. App. I39. Nebraska. — State v. Wav, 5 Neb. 283. Nezi< Hampsliirc. — State t'. Wink- ley, 14 N. IT. 480. New Jersey. — State v. Snover, 64 N. J. Law 65. 44 Atl. 850. North Carolina. — State v. Austin, io8 N. C. 780, 13 S. E. 219; State v. Poteet, 8 Ired. 23; State v. Stubbs, 108 N. C. 774, 13 S. E. 90; State V. Waller, 80 N. C. 401- Vol. I ADULTERY. 629 a. Opportunity and Disposition. — In prosecutions for adultery, all evidence is admissible which tends to show a disposition-'^ or opportunity for the adulterous act.-" b. Reputation of Female Particeps Criminis. — On the trial of a man for adultery, evidence of the reputation for chastity of the particeps criminis is admissible, in connection with evidence of facts showing opportunity for committing the offense."' c. Otiicr Adulterous Acts. — (1.) Before Indictment. — Evidence is admissible of sexual acts, between the same parties, before the time laid down in the indictment.-* Pennsylvania. — Com. v. Bell, i66 Pa. St. 405, 31 Atl. 123. Texas. — Swaiicoat v. State, 4 Te.x. App. 105; Stewart v. State, (Te.x.) 43 S. W. 979 ; Bradshaw v. State, (Tex.) 61 S. W. 713; Lenert v. State, (Tex.) 63 S. W. 563; Kahii V. State. (Tex.) 38 S. W. 989. Vermont. — State v. Bridgman, 49 Vt. 202, 24 Am. Rep. 124; State v. Colby, 51 Vt. 291. IVisconsin. — Baker v. U. S., I Pinn. 641. 25. Disposition Shown by Letters Written by paramour and road by accused. State v. Butts, 107 Iowa 653. 78 N. W. 687 ; Boatwrigbt v. State, (Tex.) 60 S. W. 760; People I'. Imes. 1 10 Mich. jjo. 08 X. W. 157. Letters Not So Read Are Not Ad- missible People Z'. Montague, 71 Mich. 447, 39 N. W. 585. 26. (jardner v. State, 81 Ga. 144, 7 S. E. 144; Com. V. Tarr, 4 Allen (86 Mass.) 315-. Occupying Same Room at Night. State V. Ean, 90 Iowa 534, 58 N. W. 898; Com. I'. Bowers, 121 Mass. 45; Richardson v. State, 34 Tex. 142; Com. V. Hosier, 135 Pa. St. 221, 19 Atl. 943; Eldridgc 7: State, 97 Ga. 192, 23 S. E. 832 ; Starke v. State, 97 Ga. 193. 23 S. E. 832 ; State v. Snover, 65 N. J. Law 289, 47 Atl 583. 27. Reputation a Material Fact. In Com. V. Gray, 129 Mass. 474, 37 Am. Rep. 378, I.ord, J., said : " In this case, the precise question pre- sented by the exception under con- sideration is, whether evidence of the character or reputation for chas- tity of the person with whom the adultery of the defendant is alleged to have been committed, is admissi- ble. It is quite true that legally her character or reputation is not in is- sue. No judgment upon this indict- ment can afifect either her or her reputation, and in no proceeding against her would a judgment upon this indictment be admissible in evi- dence. Still, her character or repu- tation may be a material fact, and so evidence upon it be competent and material." Where an indictment was found against a married man for living in adultery with an unmarried woman, it having been duly shown that he frequently visited at night, the house in which such woman lived, and was seen lying in her bed, evidence go- ing to prove her general reputation for want of chastity is relevant. Blackman v. State, 36 Ala. 295. Contra. — Boatwrigbt v. State (Tex.), 60 S. W. 760; Gumn v. State, (Tex.), 65 S. W. 376. 28. Alabama. — Cross v. State, 78 Ala. 430; McLeod v. State, 35 Ala. 395 ; Alsabrooks v. State, 52 Ala. 24- Florida. — Brevaldo v. State, 21 Fla. 789. Illinois. — Crane v. People, 168 111. 395, 48 N. E 54. Indiana. — State z'. Markins, 95 Ind. 464, 48 Am. Rep, 733. lozva. — State v. Smith, 108 Iowa 440, 79 N. W. 115; State V. Briggs, (•8 Iowa 416, 27 N. W. 358. Maine. — State v. Williams, 76 Me. .180; State V. Witham, 72 Me. 531. Massachusetts. — Com. v. Curtis, 97 Mass. 574 ; Com. v. Dacey, 107 Mass, 206; Com, v. Lahey, 80 Mass, (14 Gray) 91; Com, v. Merriam, 14 Pick, 518, 25 Am, Dec, 420; Com, v. Durfee, 100 Mass, 146; Com, v. Pierce, 77 Mass. (11 Gray) 447; Com. r. Thrasher, 77 Mass. (11 Gray) 450. Vol. I f)30 .incf.rnRV. This Rule Obtains without reference to the sufficiency of other evidence tending to authorize conviction,-" and notwithstanchng such evidence, may prove distinct offenses other than the one charged.'"' The Reason of the Rule rests upon the material assistance which such evidence renders the jury in determining the truth as to the matters charged in the indictment.^' (2.) After Indictment. — Evidence of facts of adultery, or indecent familiarity, occurring subsequent to the time named in the indictment is admissible,"- but the opposite view has lieen Michigan. — People v. Davis, 52 Midi. 569, 18 N. W. 362; People ?;'. Heiulrickson, 53 ^licli. 525, 19 N. W. i6g. Missouri. — State v. Coffee, 39 Mo. App. 56; State I'. Clawson, 30 Mo. App. 139. Nebraska. — State v. Way, 5 Neb. 283. Nczi' Jersey. — State v. Jackson, 65 N. J. Law 62, 46 Atl. 767 ; Snover V. State (N. J.), 44 Atl. 850. North Carolina. — State v. Pippin, 88 N. C. 646; State v. Guest, 100 N. C. 410, 6 S. E. 253; State v. Kemp, 87 N. C. 538. Pennsylvania. — Com. v. Bell, 166 Pa. St. 405-, 31 Atl. 123. Tcimcssee. — Cole v. State, 6 Baxt. -'.?9. Texas. — Burnett v. State, 32 Tex. Cr. 86, 22 S. W. 47; Henderson v. State (Tex.), 45 S. W. 707. Acts Eig-hteen Months Before Ad- missible. — State V. Briggs, 68 Iowa 416, 27 N. W. 358; State v. Smith, 108 Iowa 440, 79 N. W. 115. Acts Against Which the Statute of Limitations Has Run. — State v. Potter, 52 Vt. ii', State v. Kemp, 87 N. C. 538; State v. Pippin, 88 N. C. 646; State V. Guest, 100 N. C. 410, 6 S. E. 253. Intercourse With Particeps Criminis Before Her Marriage. — In Stale V. Arnold, 50 Vt. 731, there was evidence to show that the act had been committed on the day al- leged in the indictment. The defend- ant, upon his examination in chief, being asked whether on the day al- leged, or at any time thereafter, he had made improper solicitations, or had intercourse with her, replied, " I never had in my life, nor never made any improper words, nor talked with Vol. I her any way." The state was then permitted to adduce evidence tend- ing to show that he had had con- nection with her before her marriage. It was held that such evidence was admissible both by way of rebuttal, and also to discredit the defendant. Upon a trial for adultery, the in- dictment alleging only one act of sexual intercourse, the state intro- duced evidence showing that defend- ant and the alleged paramour slept in the same bed on one occasion. It was held competent for the state to give evidence of other acts, show- ing an adulterous intercourse be- tween them down to the time named in the indictment. Baker v. U. S., I Pinn. (Wis.) 641 ; State v. Witham, 72 Me. 531 ; People t'. Hendrickson, S3 Mich. 525, 19 N. W. 169; otate V. Snover, 65 N. J. Law 289, 47 Atl. .S83. 29. Cross V. State, 78 .Ala. 4.?o. 30. State V. Bridgniau, 49 \'i. 202, 24 Am. Rep. 124. 31. State V. Guest, 100 N. C. 410, 6 S. E. 253; State V. Potter, 52 Vt. a- 32. Alabama. — .Msabrooks z\ State, 52 Ala. 24. Illinois. — Crane "'. People, 168 111. 39.=;, 48 N. E. 5-4. Io'i.i.'a. — State "'. Briggs, 68 Iowa 416, 27 N. W. 358; State v. Moore (Iowa), 88 N. W. 322. Maine. — State v. Williams, 76 Me. 480. Massachusetts. — Com. ''. Curtis, 97 Mass. 574. Michigan. — People ',•. Hendrick- son, S3 Mich. 525, 19 N. W. 169. Nebraska. — State v. Way, i Neb. -'83. Tennessee. — Cole v. State, 6 l^axt. J.i9- .ADULTERY. 631 taken.-"' (3.) In Other Jurisdictions. — For the same reason evidence of adultery, or acts of indecent familiarity, in another jurisdiction, is admissible. •* (4.) Instructions As to Such Evidence. — \\ hen evidence of other acts than those charged is admitted, its effect should be limited to its proper purpose by appropriate instructions and cautions to the jury.''"' d. Birtli. Aplycarancc and Treatment of Clitld. — It seems that it is admissible to show that the particcl'.s criminis if not married, or if long separated from her husband, gave birth to a child, that might have been begotten about the time of the alleged crime.'"' It is incompetent to adduce evidence of an existing resemblance between the accused and an illegitimate child, in order to determine its paternity in a prosecution for adultery with its mother."' Texas. — Funderbiirg v. State. 2J Tex. App. 392, 5 S. W. 244. U tall. — Stale v. Snowden (Utah), 65 Pac. 47g. ■Vermont. — State v. Bridgman. 49 Vt. 202, 24 Am. Rep. 124. 33. Com. V. Horton, 2 Gray (Mass.) 354; Com. v. Pierce. 77 Mass. (II Gray) 447; State -■. Dono- van, 61 Iowa 278. 16 N. \\\ 130. Acts Eighteen Months After In- dictment Acts occurring eighteen months after the finding of an in- dictment and unconnected with acts charged in the indictment, are inad- missible in evidence, though going to prove an illicit connection. State V. Crowley, 13 Ala. 172. Acts Three Months Subsequent In- admissible. — People V. Fowler, 104 Mich. 449, 02 N. W. ^72. The Error May Be Cured by the withdrawal of such evidence from the jury. State v. Donovan, 61 Iowa 278, 16 N. W. 130. 34. Crane v. People, i68 111. 395, 48 N. E. 54; State v. Briggs, 68 Iowa 416, 27 N. W. 358; Com. v. Nichols, 114 Mass. 285, 19 Am. Rep. 346 ; Funderburg i\ State, 2i Te.\. App. 392, 5 S. W. 244 ; State v. Guest, 100 N. C. 410, 6 S. E. 253; State v. Snover, 65 N. J. Law 289, 47 .\tl. 583. Adulterous Acts in Another State. Com. V. Curtis, 97 Mass. 574; State r. Moore (Iowa), 88 N. W. 322. 35. Funderburg v. State, 2^ Tc.x. App. 392, 5 S. W. 244 ; State v. Wit- ham, 72 Me. 531. 36. Com. V. Morrissey, 175 Mass. 264. 56 N. E. 285. Parties living Together Nine Months Before Birth of Child In Com. V. Curtis. 97 Mass. 574, a prosecution for adultery, it was held, that, evidence might be introduced on cross examination to show that the female fartieeps eriminis had given birth to a bastard child sev- eral months after the act complained of was committed, and that she lived in the house with accused for nine months before the birth of such child ; and also that at, or about the time of the alleged offense, she wished it understood that she was the wife of accused, and said that they had been married for several years. Contra. — In Com. f. O'Connor, 107 Mass. 219, the court said : " The paternity of the child was not the subject of inquiry, and it is diffi- cult to see how the fact or the date of its birth could be material to the question at issue. It had no tendency to show the defendant's guilt on the occasion referred to in the in- dictment, and we cannot say that the evidence of the fact may not have had some effect upon the minds of the jurors to his prejudice." 37. Resemblance to Seven Months Old Child. — Hilton z: State (Tex.), 53 S. W. 113; Barnes v. State, 37 Tex. Crim. 320, 39 S. W. 684. See article " B.-\st.\rdv." Vol. I 632 ADULTERY. But the treatment of tlie child by the accused may be shown. ^' C. Certain Facts Held Irrelevant. — Without attempting to classify irrelevancy, some illustrations are given in the note of facts held inadmissible, in addition to the cases cited in the foregoing section as holding contrary to the text.'"' 2. Competency. — A. Of Particeps Criminis. — One was not, at Common Law, incompetent to testify merely because he or she was the particeps criiiiiiiis named in the indictment.''" The Present Rule, sustained by the decided weight of authority, sanctions the admission of a paramour's testimony, when corrobo- 38. In State v. Chancy, no N. C. 507, 14 S. E. 780, which was an in- dictment of a white man and ncgress for adultery, evidence was admitted that the latter had, since being sep- arated from her husband, given birth to two children, of whom the male defendant was so fond that he had been observed teaching one of them to sing, and had had his photograph taken with such children. A Letter Written by Accused to his alleged paramour, who had lived a year in his house before giving birth to a child, in which letter he threatens to take such child from her, is material evidence in a prose- cution for adultery, and if sufficiently corroborated, will sustain a convic- tion. Powell r. State (Tex.), 44 S. W. 504. 39. Contents of Letter written by particeps criminis to accused, hut not shown to have been read by him. People V. Montague, 71 .Mich. 447, 39 N. W. 585. Statements Made by Paramour in Absence of Accused Whicker v. State (Tex.), 55 S. W. 47; Com. v. Thompson, 99 :Mass. 444; Gore v. State, 58 Ala. 391. The Suspicions of a Witness. McKnight v. State, 6 Tex. App. 158. Neighborhood Rumor — Belcher v. State, 27 Tenn. 63; Buttram v. State, 4 Cold. (Tenn.) 171. That accused is " foolishlv fond " of women cannot be shown in rebut- tal of his evidence of good char- acter. Cauley v. State, 92 Ala. 71, 9 So. 456. Seen Together Early in Morning. In State v. Waller, 80 N. C. 401, the male defendant was 23 years old and Vol. I the female 50, at the time of the alleged crime. A witness testified that one morning, at 4 o'clock, he called at the house and saw the female in one bed, the other bed not being tumbled, and that the male de- fendant was up and dressed, but wit- ness did not know where he had spent the night. The admission of this testimony was held error. Occupying Separate Rooms in Same House — Bradshaw v. State (Tex.), 61 S. W. 713. Jealousy of Consort The sus- picions or jealousy of the wife of one indicted for adultery, cannot be admitted as evidence against him. State V. Crowley. 13 .Ma. 172. Suspicions of Consort Graham v. State, 28 Tex. App. 9, 11 S. W. 781, 19 Am. Rep. 809, was the pros- ecution of a woman for adultery committed with her husband's cousin, then residing in the house durinc the husband's illness. Evidence was ad- mitted to show that the husband, who died soon after, requested the wit- ness to remain with him and admin- ister his medicine, as he dared not trust his wife and cousin M do so. It was held that such evidence, though not objectionable as hearsay, was irrelevant, as being too uncer- tain : the husband's fear was not necessarily for his wife's virtue. 40. Unconvicted Paramour Com- petent Witness In State v. Crow- ley. 13 Ala. 172, Collier, C. J., said: " it is said to be a settled rule of evidence that a particct'S criminis, notwithstanding the turpitude of his conduct, is not on that account an incompetent witness, so long as he remains not convicted and sentenced for an infamous crime." ADULTERY. 633 rated by additional proof of his connection with the crime alleged,*' though the contrary is maintained.''- B. Of Consort of Accused. — At common law and in the absence of a statute, neither husband nor wife may testify in a trial of the other for adultery.*" Where a statute provides that the husband or wife may testify in a criminal proceeding for a crime committed by one against the other, the authorities are in conflict.** Where the paramour is on trial the authorities are in conflict as to the admissibilit}- of testimony of the husband or wife, the weight of authority holding it incompetent.*^ C. Confessions and St.vtements of Accused. — A confession, shown to have been vokmtary, is admissible, or a statement or admission made bv the accused.*" 41. Merritt v. State, lo Tex. App. 402; Wiley V. State, 33 Tex. Cr. 406, 26 S. W. 723 ; Morrill v. State, 5 Tex. .■\pp. 447 ; State v. Colby, 51 Vt. 291 ; State v. Crowley, 13 Ala. 172; Peo- ple z\ Isham. 109 Mich. 72, 67 N. W. 8iq: People z\ Knapp. 42 Mich. 267, 3 N. W. 927. 36 Am. Rep. 438; Mc- Alpine v. State, 117 Ala. 93, 23 So. 42. State v. Rinehart. 106 N. C. 787, II S. E. 512; State I'. McGuire, 50 Iowa 153 ; Rutter v. State, 4 Tex. App. 57 ; State V. Mims, 39 S. C. 557, 17 S. E. 850; State V. Berry, 24 Mo. App. 466; Frost '•. Com., 9 B. Mon. iKy.) 362. 43. Cotton r. State, 62 Ala. 12; Miner z'. People, 58 III 59; Com. v. Jailer, i Grant (Pa.) 218; State v. Gardner, l Root (Conn.) 485; State c'. Jolly, 3 Dev. & B. (X. C.) no, 32 .Am. Dec. 656. Testimony of Divorced Husband of adultery before divorce incom- petent. State V. Jolly, 3 Dev. & B. (N. C.) no, 32 Am. Dec. 656. 44. In State f. Bennett, 31 Iowa 24; Lord V. State. 17 Neb. 526, 23 X. VV. 507, the adultery of the de- fendant was considered an ofifense by one spouse against the other, and the testimony of the consort was admitted. See also State v. Hazen, 39 Iowa 648 ; State v. Sloan, 55 Iowa 217, 7 N. W. 516 (bigamy). Such Was Formerly the Rule in Texas. — Roland v. State, 9 Tex. .\pp. 277, 35 Am. Rep. 743. But that case was expressly overruled in Compton V. State, 13 Tex. App. 271, 44 Am. Rep. 703 (approved in Thomas v. State, 14 Tex. App. 70), holding that the weight of authority in England and in America is against the admission of such testimony. In Michigan, where the statute provides that " in any action or pro- ceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify," it was held that the testimony of the spouse institu- ting the proceeding is not admissible. People Z'. Isham, 109 Mich. 72, 67 X. W. 819; People V. Imes, no Mich. 250, 68 N. W. 157. But the testimony of the husband of a woman, jointly indicted with a mar- ried man, was competent as to his marriage, where the complaint was sworn to by the wife of the co- defendant. People V. Isham, supra. In Pennsylvania, by Statute. Act of March 23d, 1887, upon a trial for the adultery of the husband, the wife is a competent witness to the marriage. Com. v. Mosier, 135 Pa. St. 221, 19 Atl. 943. 45. People z'. Fowler, 104 Alich. 449, 62 N. W. 572; Com. ■:•. Sparks, 7 Allen (Mass.) 534; State v. Welch, 26 Me. 30, 45 Am. Dec. 96 ; Cotton V. State, 62 Ala. 12; State v. Jolly, 3 Dev. & B. (N. C.) no, 32 Am. Dec. 656. Contra. — Morrill v. State, 5 Tex. .\pp. 447; Alonzo V. State, 15 Tex. App. 378, 49 Am. Rep. 207 ; State v. Bridgman, 49 Vt. 202, 24 Am. Rep. 124. 46. Mc.\lpine v. State, 117 Ala. Vol. I 634 ADULTnRV. Statements made by the accused to his wife, re.s^arding his where- abouts on the night in question, are admissible, as are the questions of the wife which led to his statement. •"' The confession of the accused is to be accorded g'reat weight. *° It should be corroborated by a showing of opportunity or access, together with a probability of guilt arising from the surrounding circumstances of each particular case.'"' 3. Weight. — The credence to be given the testimony of the par- ficcps criiniiiis is a matter peculiarly for the jury."'" 4. Siifficiency. — The testimony of one credible witness will sus- tain a conviction.^' The testimony of an eye witness is sufficient.^- The facts and circumstances must be such as to convince, beyond a reasonable doubt, but what circumstantial evidence will suffice for that niust rest very largely with the jury.''-' Whether or not the evidence shows that there was time for the commission of the ofifense, is a question peculiarly for the considera- tion of the jtiry, and must be submitted to them for final decision.'* Where there is circumstantial evidence going to show undue inti- macy, the jury will not be instructed that they must acquit, pro- vided they do not credit a witness who testifies to having seen the adulterous act.^^ It has been held sufficient that accused was the companion of an itinerant peddler,''" or was found in bed with a prostitute,''' but not 93, 23 So. 130; Com. V. Morrissey, i/S Mass. 264, 56 N. E. 285; Com. v. Tarr (4 Allen). 86 Mass. 315-. 47. State z: Austin, 108 N. C. 780, 13 S. E. 219. 48. Com. V. Manock, 2 Crim. Law Mag. (Pa.) 239. 49. Com. ?■. Morrissev, 175 Mass. 264, 56 N. E. 285. 50. State V. Crowley, 13 Ala. 172. 51. Com. i: Cregor, 7 Gratt. (Va.) .=59 1- 52. People f. ^lontague. 71 Mich. 447, 39 N, \V. 585. 53. Illustration — In Crane z'. Peo- ple, 168 111. 395. 48 N. E. 54, the de- fendants moved from the country to a certain town, rented and furnished a house, and, with one or two ser- vants, lived there, the relation be- tween them being ostensibly that of landlady and boarder. Their mode of life had all the appearances of a married couple keeping house in the usual manner. The defendants had become alienated from their families by their infatuation for each other, and prior acts having been Vol. I proved, which reasonably led the jury to believe that adultery had been elsewhere committed, it was held that the above state of facts would justify conviction. 54. State v. Henderson. 84 Iowa 161, 50 N. W. 758; State -■. Green, Kirby (Conn.) 87. 55.' State z: Austin, 108 X. C. 780. 13 S. E. 219. ■Wholly Negative Evidence. Where evidence adduced against the accused, is of a character entirely negative, and not such as to exclude a contrary inference, the jurv should not be charged to consider such evi- dence as tending to show an adul- teroivs intercourse. Hall v. State, 88 .\la. 236, 7 So. 340. 16 \m. St. Rep. 51- 56. Stewart f. Stale (Tex.). 43 S. W. 979- 57. Ellis z: State, 20 Ga. 438. That Accused and Particeps Crim- inis Occupied the Same Room at Night State z\ Ean, 90 Iowa 534, 58 \. \V. 898; Com. V. Bowers, 121 ADULTERY. (.35 the mere fact that a married man kissed his housekeeper.^* Mass. 45; Richardson t'. State, 34 Starke ?■. State. 97 Ga. 193, 23 S. E. Te.x. 142; Com. I'. Mosier. 135 Pa. S,^2. St. 221, 19 Atl. 943; Eldridge r. 58. Kalin r. State (Te.x.), ?8 S. State, 97 Ga. 192, 2H S. E. 832; W. 989. ADVANCEMENTS.— See Descent and Distribution. Vol. I ADVERSE POSSESSION. By a. B. Young. I. POTENT EVIDENCE OF TITLE, 639 1. Is a Legal Conception Based on Fact, 639 2. Practically All a Question of Evidence, 640 3. Available Independent of Any Statute, 640 4. May Invoke Conclusive Presmnptions. 641 II. BURDEN OF PROOF, 642 1. Rests Upon Claimant, 642 2. Same Rule in Ejectment, 643 III. PROOF TO ESTABLISH ADVERSE POSSESSION, 644 1. An Actual Occupancy, 644 2. Intention to Claim Ownership, 644 3. Open and Notoriously Adverse, 645 A. Simple Occupation No Evidence, 646 B. Claim Witlwtit Possession No Evidence, 647 4. Without Interruption, 647 5. Exclusive of All Others, 648 A. Actual Occupancy, 649 a. Ouster of True Owner Essential, 649 b. Ouster Is Question of Fact, 649 6. Residence Unnecessary, 650 7. Inclosure and Improvement Unnecessary, 651 8. Character of Land Important, 652 9. Evidence of Occupation of Part, 653 10. Tenant's Possession Is That of His Landlord, 653 1 1 . Wild Lands, 654 12. Intetruption, 655 A. Abandonment, 656 B. Abandoned Occupancy Cannot Be Retrieved, 637 13. Nature of Occupancy, 658 A. Oral Declarations, 659 B. Evidence of Intent From Acts Must Show Con- tinuous Hostility, 659 C. Secret Intent No Evidence Except As Shoivn by Acts, 659 D. Squatter, 660 14. Proof of Open and Adverse Use, 660 A. Visible Effects, 660 B. Otherivise of Land Not Susceptible of Oecupancv, 661 C. Reputation Incompetent, 661 D. Proof of Actual Knou'ledge Sufficient, 661 15. Continuity, 661 A. Evidence of Permanent Occupancy, 661 Vol. I ADVERSE POSSESSION. 637 B. Successive Possessions May Be Combined. 662 a. Privity of Estate Must Be Sliozm. 662 b. Privity, Hotv Proved. 663 16. Transfer. Hoiv Proved, 664 A. By an Agreement or Understanding Carried Into 'Eifect,'^(^r^4 B. Possessions of Ancestor and Heir Are in Privity. 664 C. Particular Description Not Akvays Necessary, 665 17. Period Need Not Be That Next Preceding, 665 IV. PRESUMPTIVE EVIDENCE, 666 1. Presumptions All in Favor of True Oivner. 666 2. One Seized in Fee Simple Presumed to Be Entitled to Possession, 666 3. Mixed Possession Governed by Same Rule, 667 4. Grant From State May Be Presumed. 667 5. Peaceable Possession. Effect Of, 668 6. Unexplained Possession Shoivs Prima Facie Title. 668 7. Presumption of Same Possession During Intermediate Periods, 669 V. WRITTEN EVIDENCE NOT INDISPENSABLE, 669 1. Written Evidence Not Indispensable to Prove Title or Color of Title, 669 2. Is Akvays of Primary Importance in Fixing Limits. 670 A. Qualification of Rule. 673 B. Mere Trespasser Acquires Nothing Outside His Actual Occupancy. 673 VI. COLOR OF TITLE, 674 1. Is Mere Semblance of Title, 674 2. Void Instruments, Evidence Of, 674 3. Under Void Tax Deed for Government Land, 675 4. Color of Title May Aid Prior Ineffectual Entry, 676 5. Different Kinds of Written Evidence. 676 6. Written Evidence Not Indispensable, 677 7. Facts Shozcing Nature of Entry Max Operate As Color of Title. 677 VII. ADMISSIBILITY OF PARTICULAR CLASSES OF WRITTEN EVIDENCE, 677 1. Judgment Roll in Former Action. O77 2. All Writings Tendinis to Shoiv Nature of Claim Asserted, 678 ^ 3. Deed Monuments of Adverse Claimants, 679 VIII. EVIDENCE OF PARTICULAR ACTS, 679 1. All Acts of an Occupant Tending to Sho-iv Claim of Ozvn- ership Admissible, 679 2. Payment of Taxes Admissible, CiSo Vol. I 638 .inrnRsii f'ossF.ssfoy. IX. DECLARATIONS OF AN OCCUPANT, 680 1. .Idiiiissiblc to E.y plain Character and Extent of Claim, 680 A. Conduct and Admissions After Statutory Period Ensues. 682 B. Admissions Not Prejudicial After Title Acquired, 682 2. Declarations As to Source of Title Incompeteut . 683 3. Althoui:li the Declarant Be Not Liviui::. 683 X. REPUTATION, 083 I. Proof of Particular Land Marks, 683 A. Occupant May Show He Jl'as Reputed Owner of Land in Question. 683 P,. Rule Not Uuiform. 684 XI. WHERE ADVERSE CLAIM IS MADE BY PUBLIC. 684 XII. AS BETWEEN LANDLORD AND TENANT, (.84 XIII. AS BETWEEN CO-OWNERS — PRESUMPTIONS, 685 1. Tins /.? Simply a Rule of Evidence, 085 2. Evidence Must Show Distinct Acts of Adverse Claiui to Oust Co-Owner. 686 3. Entry and Claim Under Deed of Whole by One Co-Owner May Evidence Ouster of Others, 686 4. Conz'eyauce of Whole by One Co-Tenant Not Notice of Exclusive Claim, 688 5. But Such Deed When Recorded Max Hare That Effect, 688 6. Sole Possession Not Evidence of Ouster in Itself . ()88 7. Acts May Operate As Positive Notice, 688 8. Conchisive Presumptions. 689 9. Evidence of Parol Partition. 6yo 10. Exclusizr Possessioii Under livralid Partition Procecd- iui;s. 690 XIV. FRAUDULENT ENTRY, dyo 1. Occupant Gains No Rights by Fraudulent Entry, 690 2. fraudulent Purpose Must Appear From Acts. 691 3. Evideuce of Later Acts May Render Fraudulent Entry Unimportant, 6y 1 4. Knowledge That Claimant's Title L^ Bad I mmaterial. 691 5. Need Not Show Clauiiaiifs Absolute Good Faith. 692 XV. CONFLICTING POSSESSIONS, 693 1. Older Possession Succeeds. 693 2. Eiidcnce to Supplant Must Be Same .Is to Create, (yg^ XVI. CLAIMS UNDER CONFLICTING TITLES, 694 XVII. POSSESSION MAINTAINED BY MISTAKE, (kjs XVIII. ADVERSE POSSESSION AND ACQUIESCENCE DISTIN- GUISHED. (iy3 Vol. I . IDJllRSP. POSSESSION. 639 1. Claiming Ozoicrsliip to Mistaken Ijncs. (xX' 2. Claim of Oivncrsliip Beyond His True Line. 697 3. Grantee Must Shoiv Intent. 698 4. Mistaken Belief That Land Is Public. Abortife. 699 XIX. TITLE ACQUIRED BY ADVERSE POSSESSION, 699 1. Is Ei'idencc Under All Circumstances. 699 2. Surviirs Default in Ejectment. 700 3. Ei'idence of May Be Perpetuated by a Decree in Equity, 7(X) 4. Ei'idencc of I'erbal Surrender Inoperatri-c. 701 CROSS-REFERENCES. Boundaries ; Declarations ; Possession ; Prescription : Title. I. POTENT EVIDENCE OF TITLE. Possession has alwaxs been potent evidence in support of exclu- sive property rights of every nature and description.^ 1. Is a Legal Conception Based on Fact. — In the absence of statu- tory modification of the common law rule, adverse possession is a question of law, but what constitutes adverse possession in the legal sense is a question of fact.-' 1. Earliest Mode of Acquiring Title '■ Possession has always been a means of acquiring title to prop- erty. It was the earliest mode recognized by mankind of the af'fro- t>riatioii of anything tangible by one person to his own use. to the ex- clusion of others, and legislators and publicists have always acknowledged its efficacy in confirming or creating title." Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 260. " The elements of all title are possession, the right of possession and the right of prop- erty." Horback r. Miller, 4 Neb. 31 ; Schall V. Williams Valley R. Co., 35 Pa. St. igi ; McNeely j'. Langan, 22 Ohio St. 32 ; Keith z\ Keith, 104 111. .W7. Applies to Both Real and Personal Property " By the long and undis- turbed possession of tangible prop- erty real or personal, one may ac- quire a title to it, or ownership, su- perior in law to that of another who may be able to prove an antecedent, and at one time paramount title." Campbell r. Holt, 115 U. S. 620, (1 Sup. Ct. 260. 2. United States. — Bradstreet v. Huntington, 5 Pet. 402 ; Anderson v. Bock. 15 How. 323. Alabama, — Woods v. JVIontevallo Coal & Transp. Co., 84 Ala. 560, 3 So. 475, 5 Am. St. Rep. 393; Nash- ville etc. R. Co. 7'. Hammond, 104 .•\la. igi, 15 So. 935. California. — Franz v. Mendonca, 131 Cal. 205, 63 Pac. 361; Clarke v. Clarke, 133 Cal. 667. 66 Pac. 10 ; Baum V. Roper, 132 Cal. 42, 64 Pac. 128. Conneeticut. — St. Peters Church V. Beach, 26 Conn. 355. Florida. — Watrous v. Morrison, a Fla. 261, 14 So. 805, 39 Am. St. Rep. 99. Georgia. — Flannery v. Hightower, 97 Ga. 592, 25 S. E. 371 ; Beverly V. Burke. 9 Ga. 440, 54 Am. Dec. 351 ; Verdery v. Savannah F. & W. R. Co., 82 Ga. 675, 9. S. E. 1133. Illinois. — Weber v. Anderson, 73 111. 4.W- Vol. I 640 ADVERSE POSSESSION. 2. Practically All a Question of Evidence. — It necessarily follows that adverse possession is, practicall}-, all a question of evidence.' 3. Available Independent of Any Statute. — And, adverse pos- session may serve as a niodiiiin for the acquisition of rigKts inde- Maine. — Gardner v. Gooch, 48 Ale. 487; Adams v. Clapp, 87 Me. 316, 32 Atl. 911. Maryland. — Armstrong v. Risteau, 5 Md. 56, 59 Am. Dec. 115. Massachusclts. — Rand v. Free- man, I Allen 517; Eastern Railroad V. Allen, 135 Mass. 13; Wheeler V. Land, 147 Mass. 421, 18 N. E. 212. Michigan. — Sauers v. Giddings, 90 Mich. 50, 51 N. W. 265; Marquette Co. Sg. Soc, 95 Mich. 491, 55 N. W. 384. Minnesota. — Washburn v. Cutter, 17 Minn. 361. Mississififi. — Magce t. Magee, 37 Miss. 138; Huntington v. Allen, 44 Miss. 654. Missouri. — Macklot v. Dubrenil, 9 Mo. 473, 43 Am. Dec. 550. Neiv Hampshire. — Hopkins v. Deering (N. H.), 52 .A.tl. 75. New Jersey. — Foulke v. Bond, 41 N. J. Law 527 ; Cooper v. Morris, 48 N. J. Law 607, 7 Atl. 421. New York. — Barnes v. Light. 116 N. Y. 34, 22 N. E. 441. Pennsylvania. — Bennett v. Mor- rison, 120 Pa. St. 390, 14 Atl. 264, 6 Am. St. Rep. 711. South Carolina. — Few v. Killer (S. C), 41 S. E. 85. Texas. — Gillispie v. Jones, 26 Tex. 343- Vermont. — Adams v. Fullain, 43 Vt. 592. Adverse Possession Defined. " Adverse possession is a legal idea, admits of a legal definition, of legal distinctions, and may be correctly laid down as a rule of law, but the fact of adverse possession, in its legal sense, is a question for the jury." Bradstreet v. Huntington, 5 Pet. 402. 3. United States. — Bradstreet v. Huntington, 5 Pet. 402 ; Ewing v. Burnet, 11 Pet. 41; Ricard z'. Wil- liams, 7 Wheat. 59; Holtzapple v. Phillibaum, 4 Wash. C. C. 356, 12 Fed. Cas. No. 6648. Vol. I Indiana. — Moore v. Hinkle, 151 Ind. 343, 50 N. E. 822. Iowa. — Booth V. Small, 25 Iowa 177. Maine. — School District v. Ben- son, 31 Me. 381, 52 Am, Dec. 6i8. Missouri. — Draper v. Shoot, 25 Mo. 197, 69 Am. Dec. 462. Neiv York. — Baker v. Oakwood, 123 N. Y. 16, 25 N. E. 312. Pennsylvania. — Groft v. Weakland, 34 Pa. St. 304. South Carolina. ■ — Mole v. Folk, 45 S. C. 265. 22 S. E. 882. Washington. — Balch v. Smith, 4 Wash. 497, 30 Pac. 648. IV est Virginia. — Parkersburg In- dustrial Co. v. Schultz, 43 W. Va. 470, 27 S. E. 255. Wisconsin. — Illinois Steel Co. v. Budzisz, T06 Wis. 499, 81 N. W. 1027, 80 Am. St. Rep. 54, 48 L. R. A. 30. Foundation of Doctrine " What the primary owner has lost by his laches, the other party has gained by continued possession, without question of his right. This is the foundation of the doctrine of prescription, a doctrine which, in the English law, i.s mainly applied to in- corporeal hereditaments, but which, in the Roman law, and the codes founded on it, is applied to property of all kinds." Camobell v. Holt. 115 U. S. 620, 6 Sup. Ct. 260. Every Element Must Exist. Every element in the definition of adverse possession must exist, other- wise the possession will not confer title. Groft V. Weakland, 34 Pa. St. 304. " The title is created by the existence of the facts, and not by the exhibition of them in evi- dence." School District v. Benson, 31 Me. 381, =12 .Am. Dec. 618. What Are the Tests. — When- ever this defense is set up the idea • of a rightful title is excluded ; the fact of possession, and the quo animo it was commenced and continued, are the only tests. Jackson v. New- ton, I Johns. (N. Y.) 355. lOrnRSB POSSESSION. 641 lemleiit of statutes of limitations. 4. May Invoke Conclusive Presumptions. will also invoke pri.'.^ sumptions absoluteh- conclusive.^ Adverse possession 4. i'liitcd Slates. — Ricard v. Wil- liams, 7 Wheat. 59; Barclay v. Howell, 6 Pet. 498; Pratt v. Vattier, 9 Pet. 405 ; Goodin v. Hobart, 2 Sun. 401, 10 Fed. Cas. No. 5609; Miller V. Alclntyre, 6 Pet. 61 ; U. S. r. Chaves, 159 U. S. 452, 16 Sup. Ct. 62; Jackson v. Porter, i Paine 457, i,^ Fed. Cas. No. 7143; Fletcher v. Fuller, 120 U. S. 534, 7 Sup. Ct. 667; Oaksmiths' Lessee 7'. Johnston, 92 U. S. 343 ; Armslroug ?■. Morrill, 14 Wall. 120. Alabama. — Mc.\rthur v. Carrie, 32 Ala. 75, 70 Am. Dec. 529. California. — Bryan v. Tormey (Cal.). 21 Pac. 725. Connecticut. — Browncll i'. Palmer, 22 Conn. 106. Nortli Carolina. — Bryan ■;'. Spivey, 109 N. C. 57, 13 S. E. 766. South Carolina. — Trustees v. Jennings. 40 S. C. 1(58, 18 S. E. 257, 42 .^m. St. Rep. 854; Trustees v. McCullv. II Rich. Law 424; Few v. Killer (S. C), 41 S. E. 85. Wisconsin. — Schenher ?'. Held, 47 \\'is. 340, 2 N. W, 770. Thirty Years Adverse Possession. Grant Presumed. — "It is well set- tled that an adverse possession of land for thirty years raises a pre- sumption of a grant from the state, and that it is not necessary even that there should be a privity or con- nection among the successive ten- ants." Davis V. McArthur, 78 N. C. 357; Reed v. Earnhart, 10 Ired. ( N. C.) 516; Wallace v. Maxwell, II Ired. (N. C.) no, 51 .\m. Dec. 380; Fitzrandolph v. Norman, Tayl. (N. C.) 127. "This presumption," says Smith. C. J., in the case first cited, " arises at common law, and without the aid of the act of 1791, and it is the duty of the court to instruct the jury to act upon it as a rule of the law of evidence. Simp- son V. Hyatt, I Jones (N. C.) 517." Bryan r. Spivey, 109 N. C. 57, 13 S. E. 766. Under Long Possession Grant From Government Presumed. Under some circumstances, grants will be presumed from the govern- 41 ment. in support of a long continued possession, not merely from the pos- sibility of the loss of documents by the common accidents of time, but from the general experience of men that property is not usually suffered to remain for long periods in the quiet possession of any one but the true owner, and that no other person will (Iclilicrately add to the value ol the property by permanent improve- ments. Oaksmiths' Lessee v. John- ston, 92 U. S. 343- Grant May Be Presumed From Shorter Possession Than Statutes Fix ■ If it were necessary, an un- molested possession for thirty years would authorize the presumption of a grant. Indeed, under peculiar cir- cumstances, a grant has been pre- sumed from a possession less than the number of years required to bar the action of ejectment by the stat- ute of limitations." Barclay v. Howell, 6 Pet. 498. Although the legislature may ex- clude lands from the operation of statutes of limitation enacted by it, presumption of title or grant arising from twenty years adverse posses- sion, not rebutted by facts incon- sistent with such presumption, may be invoked on behalf of a claim of adverse possession. Trustees v. Jen- nings, 40 S. C. 168, 18 S. E. 257, 42 .\m. St. Rep. 854. 5. England. — .'Knges ?'. Dallon, 4 Q. B. Div. 162. United States. — \J. S. r. Dever- caux, 90 Fed. 182 ; Barclay v. Howell, 6 Pet. 498; U. S. V. Chaves, 159 U, S. 452, 16 Sup. Ct. 62: Oaksmiths' Lessee v. Johnston, 92 XJ. S. 343. Alabama. — McArthur z'. Carrie, 32 Ala. 75, 70 Am. Dec. 529. Connecticut. — Sherwood z>. Bar- low, 19 Conn. 471. Georgia. — Georgia R. & Banking Co. V. Gardner, 113 Ga. 897, 39 S. E. 299. Kentucky. — Howes v. Kirk fKy. .\pp.), 35 S. W. 1032; Woodson v. Scott, I Dana 470; Terrill v. Her- ron, 4 J. J. Marsh. 519; Marshall v. McDaniel, 12 Bush 378. Vol. I M2 ADVERSE POSSESSION. II. BURDEN OF PROOF. 1. Rests Upon Claimant.. — In the absence of statutory modifica- tion of the rule, a claim of title or right by virtue of 'the adverse possession of property, real or personal, can only be rendered effec- tive by affirmative evidence establishing all the constituents of such possession." Massiichusetts. — Church in Brattle Square v. Bullard, 2 Mete. 363 ; Tufts V. Charleston, 117 Mass. 401. Ncxv Jersey. — Spottiswoode v. Morris & E. R. Co., 61 N. J. Law 322, 40 Atl. 505; Lehigh Valley R. Co. V. McFarlan, 43 N. J. Law 605. Ne%i' York. — Jackson v. Diffen- dorf , 3 Johns. 269 ; Jackson v. Har- der, 4 Johns, 202, 4 Am. Dec. 262 ; In re City of New York, 63 Hun 630, 18 N. Y. Supp. 82; Moon v. Green, 19 How. Pr. 69. North Carolina-. — Baker v. Mc- Donald, 47 N. C. 244 ; Freeman v. Loftis, 6 Jones 524; Yount v. Miller, 91 N. C. 331 ; Graham v. Houston, 15 N. C. 232. South Carolina. — McLeod v. Rogers. 2 Ricli. Law 19; Trustees etc. V. McCully. II Rich. Law 424; Few V. Killer (S. C), 41 S. E. 85. Tennessee. — Cannon v. Phillips, 2 Sneed. 21. Te.xas. — Herndon v. Vick, 89 Tex. 469, 35 S. W. 141 ; Paul v. Perez, 7 Tex. 338. ■Vermont. — Sellick v. Starr, 5 Vt. 25s; University of Vermont v. Rey- nolds, 3 Vt. 542, 23 Am. Dec. 234. Wisconsin. — Scheuber v. Held, 47 Wis. 340, 2 N. W. 779. Thirty Years Adverse Possession Good, Regardless of Disabilities. In a case where adverse possession for over thirty years was estab- lished by the proof, the court said : " This court, as evidence held the thirty years' statute to be a com- plete bar to actions for the recovery of real estate regardless of dis- abilities and we are not inclined to depart from the rule so well estab- lished." Howes V. Kirk (Ky. .\pp.), 35 S. W. 1032. Without going at length into the subject, it may safely be said that by the weight of authority as well as by the preponderance of (ipinion, it is the general rule of American Vol. I law that a grant may be presumed upon proof of an adverse, exclusive and uninterrupted possession for twenty years, and that such rule will be applied as a prcsumptio juris ct dc jure, whenever, by possibility, a right may lie acquired in any man- ner known to the law. U. S. v. Chaves, 159 LI. S. 452, 16 Sup. Ct. 62. Presumption Operates as Evidence of Owner's Relinquishment of Right. Presumption does not operate like the statute of limitations, and bar the right which is known to exist; or like laches, which deprives one of a right which did exist. It op- crates as evidence and establishes the conclusion that the right which did exist has been duly relinquished by the possessor of it. t^. S. v. Devereaux. 00 Fed. 182. Presumption of Prior Grant One of Fact And it is for the jury to determine the effect of the evidence in support of that presumption. Herndon v. Vick, 89 Tex. ^,6g. 35 S. W. 141. 6. United States. — Shuffleton v. Nelson, 2 Sawy. 540, 22 Fed. Cas. No. 12,822 ; Braxton v. Rich, 47 Fed. 178. Alabama. — Newton v. Louisville & N. R. Co., no Ala. 474, 19 So. 19; I^ucv t'. Tennessee & C. R. Co., 92 .\la.' 246, 8 So. 806; Beasely v. Howell, 117 Ala. 499. 22 So. 989. California. — Thompson z'. Pioche, 44 Cal. 508 ; De Frieze v. Quint, 94 Cal. 6=;3," 30 Pac. I. 28 Am. St. Rep. 151; Ball V. Kehl, 95 Cal. 606; Tuffrec v. Polhemus, 108 Cal. 670, 41 Pac. 806. Colorado. — Evans v. Welsh (Colo.), 68 Pac. 776. Connecticut. — Huntington v. ■ Whaley, 29 Conn. 391. Florida. — Wilkins 7: Pensacola City Co., 36 Fla. 36. 18 So. 20. Illinois. — Bryan v. East St. Louis, 12 III. App. 390. ADVERSE POSSESSION. 043 2. Same Rule in Ejectment. — The same rule as to burden of proof applies in actions of ejectment whetlu-r the title be asserted by a plaintiff, or merely as a defense/ Maryland. — Trustees of Sharp St. Station M. E. Church v. Rother, 83 .Md. 289. Michigan. — Beecher v. Ferris, no ^rich. 537, 68 N. W. 269. AffKi York. — Bissing v. Smith, 85 Hun 564, 33 N. Y. Supp. 123; Howard v. Howard, 17 Barh. 663; Lewis V. N. Y. & H. R. Co., 162 N. Y. 202, 56 N. E. 540; Jackson v. Sharp, 9 Johns, 163, 6 Am. Dec. 267- . , North Carolina. — Bryan v. Spivey, 109 N. C. 57, 13 S. E. 766. Oregon. — Rowland v. Williams, 23 Or. 515. 32 Pac. 402. Pennsylvania. — De Haven i'. Lan- dell, 31 "Pa. St. 120. Tennessee. — Fuller i'. Jackson (Tenn. Ch. App.), 62 S. W. 274; Tubb f. Williams, 7 Humph. 367. Te.vas. — Beall i'. Evans, i Tex. Civ. App. 443, 20 S. W. 945 ; Smith V. Estill, 87 Te.x. 264. 28 S. W. 801. Virginia. — Atkinson v. Smith (Va. App.), 24 S. E. 901. West I 'irginia. — Maxwell v. Cun- ningham, 50 W. Va. 298, 40 S. E. 499-^ Wisconsin. — Kurz v. Miller, 89 Wis. 426, 62 N. W. 182 ; Fuller v. Worth, 91 Wis. 406, 64 N. W. 995; Ryan v. Schwartz, 94 Wis. 403, 69 N. W. 178. Burden of Proof Rests Upon One Claiming by Adverse Possession. Evidence of adverse possession is always to be construed strictly, and every presumption is to be made in favor of the true owner. The bur- den of establishing it is upon him who asserts it, and it is not to be made out by inference nr pre- sumption, but by clear and positive proof. Kurz v. Miller, 89 Wis. 426, 62 N. W. 182. Evidence Must Be Clear and Satis- factory. — It is incumbent on one who relies upon an adverse posses- sion to extinguish the legal title, to establish the necessary facts by clear and satisfactory evidence. .\11 presumptions are in favor of the legal holder. and the burden of overcoming them rests with him who assails the legal title. Evans V. Welsh (Colo.), 68 Pac. 776. Burden of Proving the Possession Adverse That it was taken and held under a claim of title hostile to the title of the true owner rests upon the party asserting it. Newton V. Louisville & N. R. Co., no .Ala. 474. 19 So. 19. The burden of proving all the essential elements of an adverse possession, including its hostile character, is upon the party relying upon it. De Freize "•. Quint, 94 Cal. 653, 30 Pac. i, 28 .Am. St. Rep. 151. 7. California. — Sharp v. Daug- ney, 33 Cal. 505. Colorado. — Evans v. Welsh (Colo.), 68 Pac. 776. Indiana. — State Trustees v. Vin- cennes LTniversity, 5 Ind. 77. lozi'a. — Montgomery v. Chad- wick, 7 Iowa 114. Kentucky. — Smith i\ Frost, 2 Dana 144. Michigan. — Highstone v. Bur- dette, 54 Mich. 329, 20 N. W. 64. Nebraska. — Weeping Water v. Reed, 21 Neb. 261, 31 N. W. 797. Nevada. — McDonald v. Fox, 20 Nev. 364, 22 Pac. 234, Pennsylvania. — Hawk v. Sense- man, 6 Scrg. & R. 21 ; De Haven v. Landell, 31 Pa. St. 120; Union Canal Co. v. Young, I Whart. 410. West Virginia. — Maxwell v. Cun- ningham, 50 W. Va. 298, 40 S. E. 499- Burden of Proof in Ejectment. The entry of the owner of land is only barred by an actual, continued, visible, notorious, distinct, and hos- tile possession for twenty-one years. It is not necessary, to entitle him to recover in ejectment, that he should prove, that he, or those under whom he claims, have been in possession within twenty-one years before bring- ing suit. Hawk !■. Senseman, 6 Serg. & R. (Pa.) 21. Defendant pleading adverse possession in actions of ejectment has burden of proof on such issue. McConnell z\ Day, 61 .\rk. 464, 33 S. W. 731. Vol. I <,44 ADVERSE POSSESSION. Distinction in Actions of Ejectment. — This is not to be confounded with the rule, however, that a defendant in possession of land when sued in ejectment is entitled to stand upon his possession alone tnitil the plaintiff shows a prima facie title and present right of recovery.* III. PROOF TO ESTABLISH ADVERSE POSSESSION. In the absence of statutorj' provision to the contrary, the con- stituents necessary to be proved to establish adverse possession are : 1. An Actual Occupancy." 2. Intention to Claim Ownership. — The intent to assert owner- ship must be evinced in some affirmative manner.'" Must Prove Every Element If a plaintiff in ejectment claims title by twenty-one years' adverse posses- sion, he must prove every element necessary to constitute a title under the statute of limitations ; otherwise, it is the duty of the court to in- struct the jury, that there is not suffi- cient evidence to entitle him to re- cover. De Haven v. Landell, 31 Pa. St. 120. Proof of Ouster of Possession. In this case both parties relied upon an ouster, and it was incumbent upon the plaintifif to prove it within the statute of limitations, and if he introduced evidence tending to prove it within that period, the burden was shifted upon the defendants to prove an actual ouster which occurred an- terior to that period. Highstone v. Burdette. 54 Mich. 329, 20 N. W. 64. 8. Atkinson v. Smith (Va. App.), 24 S. E. 901. 9. United States— Ward v. Coch- ran, 150 U. S. 597, 14 Sup. Ct. 230. California. — De Freize v. Quint, 94 Cal. 653, 30 Pac. i, 28 Am. St. Rep. 151. Connecticut. ■ — Huntington v. Whaley, 29 Conn. 391. Kentucky. — Ohio & B. S. Co. v. Wooten (Ky.), 46 S. W. 681. Minnesota. — Village of Glencoe v. Wadsworth, 48 Minn. 402, 51 N. W. :>,yy\ Murphy v. Doyle, 37 Minn. 113, 33 N. W. 220. Mississifipi. — Davis v. Bouncau. 55 Miss. 671 ; Dixon v. Cook, 47 Aliss. 220. Missouri. — Draper v. Shoot. 25 Mo. 197, 69 Am. Dec. 422. Vol. 1 Nebraska. — Horbach v. Miller, 4 Neb. 31 ; Crawford v. Galloway, 29 Neb. 261, 45 N. W. 628. Tennessee. — Fuller v. Jackson (Tenn. Ch. App.), 62 S. W. 274. Te.ras. — Polk v. Beaumont Pas- ture Co. (Tex. Civ. App.), 64 S. W. 58; Wheeler v. Moody, 9 Tex. 372 ; Phillipson v. Flynn, 83 Tex. 580, 19 S. W. 136; De Las Fuentes v. "McDonald. 85 Tex. 132, 20 S. W. I'irginia. — Overton v. Davisson, i C.ralt. 211, 42 Am. Dec. 544. 10. United States. — Faggost v. Stanberry, 2 McLean 543, 23 Fed. Cas. No. 13.724; Harvey v. Tyler, 2 Wall. 328; Ewing v. Burnet. II Pet. 41 ; Shuffleton v. Nelson, 2 Sawy. 540, 22 Fed. Cas. No. 12,822; F.llicott 7'. Pearl, 10 Pet. 412; Fussell '.: Hughes, 8 Fed. 384. California. — Millett v. Logamar- sino (Cal.), 38 Pac. 308; Thompson r. Pioche, 44 Cal. 508. Connecticut. — Huntington v. Whaley, 29 Conn. 391. Georgia. — Flannery v. Hightower, 97 Oa. 592, 25 S. W. 371. Illinois. — Bryan v. East St. Louis, 12 111. App. 390; Hayden v. Mc- Closkey, 161 111. 351, 43 N. E. 1091 ; Scott V. Delaney, 87 111. 146. Indiana. — Pierson v. Turner, 2 Ind. 123. lo'av. — Litchfield v. Sewall, 97 tiiwa 247. 66 N. W. 104; Jones v. Hockman, 12 Iowa loi ; Booth v. Small, 25 Iowa 177. Kentucky. — Taylor !■. Buckman, 2 A. K. Marsh. 18, 12 Am. Dec. 354; Badlcy 7'. Coghill, 3 A. K. Marsh. 614; Smith V. Morrow, 5 Litt. 211. ADVERSE POSSESSION. 645 3. Open and Notoriously Adverse. — And the acts of the occupant must be proved to have Ijeen of a character reasonably calculated ;c imply his adverse attitude towards the true owner." Louisiana. — Roe r. Bundy's Heirs, 45 La. Ann. i, 12 So. 759. Maine. — Bethum f. Turner, I Greenl. iii, 10 Am. Dec. 36. Michigan. — Beecher z'. Ferris, no Mich. 537, 68 N. W. 269; McGee v. McGee, 37 Mich. 138; Smeberg v. Cunningham, 96 Mich. 378, 56 N. \V. 73, 35 Am. St. Rep. 613. Minnesota. — Todd z'. Weed, 84 Minn. 4, 86 N. W. 756. Mississifpi. — Davis •;•. Boimeau, 55 'Siisi. 671 ; Magee f. Magee, 37 Miss. 138; Ford i'. Wilson, 35 Miss. 490, 72 Am. Dec. 137. Missouri. — Ivy v. Yancy, 129 Mo. 501, 31 S. W. 937; Spencer v. O'Neill, 100 Mo. 49, 12 S. W. 1054; Pharis v. Jones, 122 Mo. 125, 26 S. W. 1032; Pitzman !■. Boyce, III Mo. 387, 19 S. W. 1104, 33 Am. St. Rep. 536. Oregon. — Swift z: Mulky, 14 Or. 59, 12 Pac. 76; Rowland v. Williams, 23 Or. 515, 32 Pac. 402. Pennsylvania. — Long v. Mast. 11 Pa. St. "189. South Carolina. — Trustees v. Jennings, 42 S. C. 265, 18 S. E. 275, 42 Am. St. Rep. 854. Tennessee. — Kirkman v. Brown, 93 Tenn. 476, 27 S. W. 709; Bon .\ir Coal & Lnm. Co. z: Parks. 94 Tenn. 263. 29 S. W. 130. Te.ras. — Peterson v. Ward, 5 Tc.^. Civ. App. 208, 23 S. W. 637 ; Ivev v. Petty, 70 Te.x. 178, 7 S. W. 798. Virginia. — Atkinson v. Smith (Va.). 24 S. E. 901; Kincheloe v. Tracewells, 11 Gratt. 587; Earley v. Garland, 13 Gratt. r. H'asliington. — Blake v. Shriver (Wash.), 68 Pac. 330. West Virginia. — Maxwell v. Cunningham, 50 W. Va. 298, 40 S. W. 499. Wisconsin. — Link v. Doerfin, 42 Wis. 391 : Avers v. Riedel, 84 Wis. 276. 54 N. W. 588. Intention to Claim Title Must Be Shown. — Inasmuch as the whole doctrine of adverse possession may he said to rest upon the presumed acquiescence of the party against whom it is held the intention to claim against the true owner must be shown. Litchfield v. Sewall, 97 Iowa 247, 66 N. W. 104, Possession Unexplained. Impotent. Simple possession creates neither a legal right in the occupant, nor a bar to the assertion of the owner's title. Jones Z'. Hockman, 12 Iowa loi. The overwhelming w-eight of authority is that the basis of an ad- verse possession is a claim of title or right. Blake r. Shriver (Wash.), 68 Pac. 330. The Intention to Claim Title Is a Question of Fact. — Whether the in- tention existed in the mind of the occupant to claim title during the time of his possession is a question of fact. Todd v. Weed, 84 Minn. 4, 86 N. W. 756. Intention is a guide denoting the character of the entry. Ew-ing V. Burnet, 11 Pet. 41. What constitutes an adverse possession is a question of law ; but the intention of the possessor, which is always material in determining questions of adverse possession, is a fact which can be ascertained only by a jury. Magee v. Magee, 37 Miss. 138. Evi- dence which simply shows possession, but not how title was claimed, im- plies nothing adverse to the lawful owner. Pierson v. Turner, 2 Ind. 123. Claim of Entire Title It must be made to apl>ear that the possession was under a claim or color of title, hostile to the title of the true owner, and a claim of 'the entire title. Huntington v. Whaley, 29 Conn. 391. The affirmative acts of the party claiming rights of adverse posses- sion, not those of the party against whom they are asserted, are materinl. Beecher v. Ferris, no Mich. 537. 68 N. W. 269. 11. United States. — Bracken v. Union Pac. R. Co., 75 Fed. 347; Ward V. Cochran, 150 U. S. 597, 14 Sup. Ct. 230; Pillow V. Roberts. 13 How^ 472. Alabama. — Eureka v. Norment, 104 Ala. 625. 16 So. 579; Doe v. Clayton, 81 .'\la. 391, 2 So. 24: Black I'. Tennessee Coal, Iron & R. Co.. Vol. I 640 ADVERSE POSSESSION. A. Simple Occupation No Exidence. — Simple occupancy unaccompanied by any indicia of claim of ownership avails nothing in support of a claim of adverse possession.^' 93 Ala. 109, 9 So. 537 ; Murry v. Hoyle, 92 Ala. 559, 9 So. 368. California. — Brumagim v. Brad- shaw, 39 Cal. 24; Thompson v. Fel- lon, 54 Cal. 547 ; Mauldin v. Cox, 67 Cal. 387, 7 Pac. 804; Alta Land & Water Co. v. Hancock, 85 Cal. 219, 24 Pac. 645, 20 Am. St. Rep. 217; Thompson v. Pioche, 44 Cal. 508; Davis V. Baugh, 59 Cal. 568. Connecticut. — St. Peter's Church v. Beach, 26 Conn. 354; Turner v. Baldwin, 44 Conn. 121. I'lorida. — Watrous v. Morrison, 33 Fla. 261, 14 So. 805, 38 Am. Dec. 139- Georgui. — Carrol v. Gillion, 33 Ga. 539- Illinois. — Bryan v. East St. Louis, 12 111. App. 390. Iowa. ■ — Booth V. Small, 25 Iowa 177- Kentucky. — Buford i: Cox, 5 J. J. Marsh. 582. Louisiana. — Simon it. Richard, 42 La. Ann. 842, 8 So. 629. Maryland. — Beathy v. Mason, 30 Md. 409. Massachusetts. — Sparkhawk v. Bullard, I Mete. 95 ; Poignard j'. Smith, 6 Pick. 172. .Michigan. — Yelverton v. Steele, 40 Mich. 538; Paldi v. Paldi, 95 .Mich. 410, 54 N. W. 903; Bird v. Stark, 66 Mich. 654, 33 N. W. 754. Minnesota. — Washburn v. Cutter. 17 Minn. 361. Mississippi. — Magee v. Magee, 37 Miss. 138; Wilson v. Williams, 52 Miss. 487. Missouri. — Bowman i'. Lee, 48 ^lo. 335 ; Crispen v. Hannover, 50 Mo. 536; Kansas City v. Scarrett (Mo.), 69 S. W. 283. Nebraska. — Horback v. Miller, 4 Xeb. 31 ; Ballard v. Hanson, 33 Neb. 861, 51 N. W. 295. Oregon. — Curtis v. Water Co., 20 Or. 34, 23 Pac. 808. Pennsylvania. — Hawk t. Sense- man, 6 Serg. & R. 21. South Carolina. — Trustees v. Jen- nings, 40 S. C. 168, 18 S. E. 257. 42 Am. St. Rep. 854. Vol. I Tennessee. — Fuller v. Jackson (.Tenn.), 62 S. W. 274. Te.vas. — Polk v. Beaumont Pas- ture Co. (Tex. Civ. App.), 64 S. W. 58; Gillispie v. Jones, 26 Tex. 343. IVest -lirginia. — Heavner v. Mor- gan, 41 W. Va. 428, 23 S. E. 874- IVisconsin. — Link i'. Doerfin, 42 Wis. 391. Acts to Establish Peais Possessio. They must not only carry with them the usual indicia of ownership, but they must be open, notorious and un- equivocal, so as to notify the public that the land is appropriated. Brum- agim V. Bradshaw, 39 Cal. 24. Effect of Decided Cases The effect of all the cases is that there must be continuous evidence upon the land of the assertion of an active domination and control by the person claiming. Fuller j'. Jackson (Tenn.). 62 S. W. 274. 18. United States. — Jackson z'. Porter, i Paine 457, 13 Fed. Cas. No. 7143- Alabama. — Bernstein v. Hinnes, 78 Ala. 134; Doe v. Beck, 108 Ala. 71, 19 So. 802. California. — Thompson v. Felton, 54 Cal. 547 ; Rix v. Horstman, 93 Cal. 502, 29 Pac. 120. Connecticut. — Russell z'. Davis, 38 Conn. 562. Georgia. — Wade v. Johnson, 94 Ga. 348, 21 S. E. 569. Indiana. — Maple v. Stevenson, 122 Ind. 368, 23 N. E. 8S4- loii'a. — Jones v. Hockman, 12 Iowa lOi ; Clagett v. Conler, 16 Iowa 487; Larum z'. Wilmer, 35 Iowa 244; McCarthy v. Rochel, 85 Iowa 427, 52 N. W. 361 ; Doolittle v. Bailey, 85 Iowa 398, 52 N. W. 337. Mississippi. — Adams v. Grice, 30 Miss. 397 ; Davis v. Bouneau, 55 Miss. 671. Missouri. — Pease v. Larson, 33 Mo. 35; Kansas City Milling Co. V. Riley, 133 Mo. 574, 34 S. W. 835; Bakewell ?'. McKee, loi Mo. 337, 14 S. W. 119- New Hampshire. — Little v. Downing. 37 N. H. 355. APVllRSE POSSESSION. •647 L!. Claim Without I'osskssion No Evidence. — And, on the other hand, mere claim of title unsupported by actual occupancy is no evidence of an adverse claim. '^ 4. Without Interruption. — The possession thus characterized must appear to have been maintained continuously for the period necessary to ripen into title. ^* .V«i' York. — Humbert v. Trinity Clnirch, 24 Wend. 587; Howard f. Howard, 17 Rarb. 663; Andrews v. Delhi & Stanford Tel. Co., 36 Misc. 23. 72 N. Y. Supp. 50. Tennessee. — Story v. Saunders, 8 Humph. 663; Turner v. Turner, 34 Tenn. 27. / irgiiiia. — .\tkinson v. Smith (\'a.), 24 S. 1{. 901 ; Kinchelve v. Tracewells, 11 Gratt. 587. Mere Possession Creates Nothing Adverse It is not possession alone. but that it is accompanied with the claim of the fee, that by construction of law, is deemed prima facie evi- dence of such an estate. Jackson v. Porter, I Paine 457, 13 Fed. Cas. No. 7143- 13. Alabama. — Lipscomb v. Mc- Cellan. 72 Ala. 151 ; Beasley v. Clarke, 102 .Ala. 254, 14 So. 744; Elylon Land Co. v. Denny, 108 Ala. 553, 18 So. 561 ; Bonhani v. Loeb, 107 Ala. 604, 18 So. 300. Arkansas. — Shark v. Johnson, 22 Ark. 79. California. — San Francisco v. Fulde, iy Cal. ,149, 99 Am. Dec. 278 ; Howell V. Slauson, 83 Cal. 539. Georgia. • — Eagle 7'. Phoenix Mfg. Co. V. Bank cif Brunswick, 55 Ga. 44; Walker r. Hughes, 90 Ga. 52, 15 S. E. 912 ; Anderson j'. Dodd. 65 Ga. 402. Illinois. — Slalford v. Goldsing (111.), 64 N. E. 395. Iowa. — Moore -r. .\ntill, =?■? Iowa 612, 6 N. W. 14. Kentucky. — Wicklitf v. Ensor, 9 B. Mon. 253; Myers v. McMillan, 4 Dana 485; Strange v. Spaulding iKy. App.), 29 S. W. 137. Maine. — Thayer v. McLellan, 23 Me. 417; Tilton v. Hunter, 24 Me. 29; Welsh V. Wheclright (Me.), 52 Atl. 243. Massachusetts. — Bates v. Norcross, 14 Pick. 224. Michigan. — Campau -■. Lafferty, 50 Mich. 114. Minnesota. — Washburn v. Cutter, 17 Minn. 361. Missouri. — Tayon i'. Ladew, 33 Mo. 205 ; Avery v. Adams, 69 Mo. 603 ; Lynde v. Williams, 68 Mo. 360. Neiv Hampshire. — Linen v. Max- well, 67 N. H. 370, 40 Atl. 184; Fowle V. Ayer, 8 N. H. 57; Bailey V. Carleton, 12 N. H. 9, 37 Am. Dec. 190. North Carolina. — Wallace v. Max- well, II Ired. no, 51 Am. Dec. 380; Hamilton v. Icard, 114 N. C. 532, 19 S. E. 607; Shaffer v. Gaynor, 117 N. C. 15. 23 S. E. 154- Oregon. — Willamette Real Es- tate Co. V. Hindrix, 28 Or. 485, 42 Pac. 514, 32 Am. St. Rep. 800. Pennsylvania. — Wheeler v. Winn, 53 Pa. St. 122, 91 Am. Dec. 186. Tennessee. — Gass v. Richardson, 2 Cold. 28; Hicks V. Fredricks, 9 Lea. 491 ; Sequatchie Val. Coal & Iron Co. V. Coppinger, 95 Tenn. 526, 32 S. W. 465. Texas. — Hill v. Harris (Tex. Civ. App.), 64 S. W. 820; Mason v. Stapper (Tex.), 8 S. W. 598- Claim TTnaccompanied by Posses- sion Ineffective to Confer Right. Mere claim of title unaccompanied by adverse possession furnishes no right of action to the person against whom it is asserted, and his rights are unaffected. Campton v. Laf- ferty. so Mich. 114. The survey, al- lotment and conveyance of a tract of land and registration of the deed will furnish no evidence of a disseizin, without any open occu- pation. Thayer v. McLellan, 23 Me. 4Tr; Tilton v. Hunter, 24 Me. 29. 14. Alabama. — Alabama State Land Co. V. Kyle, 99 Ala. 474, 13 So. 43 ; Ross V. Goodwin, 88 Ala. 390, 6 So. 682. Arkansas. — Cunningham v. Brum- back. 23 Ark. 336. California. — LTnger v. Mooney, 63 Cal. 586, 49 Am. Rep. 100; San Vol. I 648 ADVERSE POSSESSION. 5. Exclusive of All Others. — And to the exclusion of all others.'^ Francisco f. Fulde, 37 Cal. 349, 99 Am. Dec. 278. Georgia. — Holconibe v. Austell, 19 Ga. 604. Indiana. — Peck v. Louisville N. A. R. & C. R. Co., loi Ind. 366; Doe V. Brown, 4 Ind. 143. Iowa. — Booth V. Small, 25 Iowa 177. Kentucky. — Wickliffe v. Ensor, 9 B. Mon. 253. Louisiana. — Lane i'. Cameron, 37 La. Ann. 250. Maine. — Roberts v. Richards, 84 Me. I, 24 Atl. 425 ; School District V. Benson, 31 Me. 381, 52 Am. Dec. 618. Maryland. — Stump v. Henry, 6 Md. 201, 61 Am. Dec. 300. Mississippi. — Davis v. Bouneau, 55 Miss. 671. Missouri. — Harrison v. Cochclin, 23 Mo. 117. New Jersey. — Cornelius v. Giber- son, 25 N. J. Law I. Nezv York. — Bliss v. Johnson, 94 N. Y. 235 ; Cleveland v. Crawford, 7 Hun 616. North Carolina. — Williams v. Wal- lace, 78 N. C. 354; Ruffin v. Overby, 105 N. C. 78, II S. E. 251. Pennsylvania. — Groft v. Weak- land, 34 Pa. St. 304; Overfield v. Christie, 7 Serg. & R. 177. Tennessee. — Fuller v. Jackson (Tenn.), 62 S. W, 274- Texas. — Ivey v. Petty, 70 Tex. 178, 7 S. W. 798. I'irginia. — Atkinson v. Smith (Va.), 24 S. E. 901; Stonestreet v. Doyle, 75 Va. 356, 40 Am. Rep. 731. ll'est Virginia. — Oney v. Clen- denin, 28 W. Va. 34. Possession Must Be Continuous. ■\dversc possession is not a matter open to presumption, but its con- tinuance for the statutory period un- der a claim or color of title is re- quired to be proved. Atkinson v. Smith (Va.), 24 S. E. 901. 15. United States. — Ward v. Cochran, 150 U. S. 597, 14 Sup. Ct. 230; Hordpenning v. The Reformed etc. Church, 16 Pet. 455. Alabama. — Bank v. New Orleans M. & T. R. Co., 55 Ala. 480. Vol. I California. — Spotts v. Hanley, 85 Cal. 155, 24 Pac. 738; Silverder v. Hansen, 77 Cal. 579, 20 Pac. 136. Connecticut. — Tracy v. Morwick & W. R. Co., 39 Conn. 382; Hunt- ington V. Whaley, 29 Conn. 391. Georgia. — McCook v. Crawford, 114 Ga. 337, 40 S. E. 225. Illinois. — Ambrose v. Raley, 58 111. 506; Shaw c'. Schoonover. 130 111. 448, 22 N. E. 589. Maryland. — Stump v. Henry, d Md. 201, 61 Am. Dec. 300. Nevada. — McDonald v. Fox, 20 Nev. 364, 22 Pac. 234. New York. — Humbert v. Trinity Church, 24 Wend. 587; Heller v. Cohen, 154 N. Y. 299, 48 N. E. 527. Xortli Carolina. — Gilchrist i'. Mc- Laughlin, 7 Ired. 310; Avent v. Ar- rington, 105 N. C. 377, 10 S. E. 991. Pennsylvania. — Long v. Mast, II Pa, St. "189. Te.vas. — Gillispie v. Jones, 26 Tex. 343 ; Richards v. Smith, 67 Tex. 610, 4 S. W. 571. Vermont. — Spear v. Ralph, 14 Vt. 400. ll'est Virginia. — Ketchum v. Spiirlock, 34 W. Va. 597, 12 S. E. 832 ; Core v. Fanpel, 24 W. Va. 238. IViscoHsin. — Illinois Steel Co. v. Bilot, 109 Wis. 418, 85 N. W. 402. Right Asserted Must Have Been Exclusive The fact that the plain- tiffs and their predecessors in title were in the undisturbed possession of the land for twenty years and up- wards does not show that the pos- session was adverse.- It does not necessarily follow therefrom tjiat their entry was under the deed men- tioned, exclusive of any other right ; and this was essential to constitute an adverse holding under a written conveyance, which would devest the title of the true owner. Heller v. Cohen, 154 N. Y. 299, 48 N. E. 527. .And such possession must be proved, and not left to mere conjecture; and it must be open, and of such a char- acter as to clearly show that the occupant claims the land as his own. exclusively. Ambrose v. Ralev. 58 111. 506. ADVERSE POSSESSION. 649 A. Actual Occupancy. — a. Ouster of True Oioncr Essential. But, an occupancy will not be deemed adverse until such time as the. evidence may show acts from which an ouster of the true owner may be assumed."' b. Ouster Is Question of Fact. — The question of ouster of the true owner is one of fact to be established by evidence sufficient to import an actual ouster, or from which an ouster may be pre- sumed." 16. United States. — Bradstreet v. Huntington, 5 Pet. 402; Ewing v. Burnet, 11 Pet. 41. Alabama. — Polly v. McCall, yj Ala. 20. Georgia. — Georgia Pac. R. Co. v. Strickland, 80 Ga. 776, 6 S. E. 27. Iowa. — Robinson v. Lake, 14 Iowa 421. Kentuctiy. — Humphrey v. Jones, 3 Mon. 261. Massacliiisetts. — Pray v. Pierce, 7 Mass. 381, 5 Am. Dec. 54; Small z: Proctor, 15 Mass. 495. Minnesota. — Ramsey v. Glenny, 45 Minn. 401, 48 N. W. 322. Mississipfi. — Huntington v. Allen, 44 ^Hss. 654. Missouri. — Ivey v. Yancy, 129 Mo. 501, 31 S. W. 937. Nezv Hampsliire. — Waldron v. Tuttle, 4 N. H. 371. New Yort!. — Smith v. Burtis. 6 Johns. 197. Te.ras. — Galveston Land & Im- provement Co. V. Perkins (Tex. Civ. .\pp.), 26 S. W. 256. l!'asliiiigtoii. — Blake v. Shriver (Wash.), 68 Pac. 330. Disseizin Must Be Shown There must be a disseizin before another can become legally possessed of the lands, and this, of course, can only be done by some act which works a disseizin of the original owner, for the seizin cannot abide in two claimants at the same time. Blake !■. Shriver (Wash.), 68 Pac. 330. 17. United States. — Elder v. Mc- Closkey, 70 Fed. 529; Bradstreet v. Huntington, 5 Pet. 402 ; Ewing v. Burnett, 36 U. S. 41. Alabama. — Trufant f. Hudson, 99 Ala. 526, 13 So. 83. California. — Carpentier f. Ven- denhall. 28 Cal. 484, 87 Am. Dec. 135; Winterburn v. Chambers, 91 Cal. 170. 27 Pac. 658. Connecticut. — Johnson v. Gnrham, .58 Conn. SI 3. Indiana. — Manchester v. Dodd- ridge, 3 Ind. 360. Massachusetts. — Steel v. Johnson, 4 Allen 425 ; Cummings v. Wyman, 10 Mass. 465 ; Parker v. Locks & Canals, 3 Mete. 91, ^y Am. Dec. 121. Michigan. — Highstone v. Burdette, 54 Mich. 329, 20 N. W. 64. M ississipfii. — Harmon v. James, 7 Smed. & M, iii. Penns^'lvania. — O'Hara v. Rich- ardson, 46 Pa. St. 38s ; Blackmore V. Gregg, 2 Watts. & S. 182. Tennessee. — East v. Lainer, 9 Humph. 762; Copeland v. Murphy, 2 Cold. 64. Uerniont. — McFarland v. Stone, 17 Vt. 165. 44 Am. Dec. 325; Wing v. Hall. 47 Vt. 182. I'irginia. — Taylor v. Hill, 10 Leigh. 457 ; Purcell i'. Wilson, 4 Gratt. 16. Assertion of Title Important. " The result of the cases is that as- sertion of title by the possessor is an important circumstance indi- cating adverse possession and ouster of the real owner, and the absence of such assertion may be an im- portant circumstance, and often very important, as indicating that the possession is not adverse ; yet the question of ouster is one that must depend upon all the circumstances of the case, and it is not therefore strictly true, as stated in the charge under consideration, that it is essen- tial that the possessor should hold the land claiming it as his own, and denying the right of everybody else." Johnson ?'. Gorham, 38 Conn. 513. Disseizin, Evidence Constituting. .A daughter was put in possession of certain premises in consideration of a written release to the owner, her father, of all claim in and title to Vol. I 650 ADVERSE POSSESSION. 6. Residence Unnecessary. — It is not indispensable to prove that a claimant resided upon the land, or that he held possession through a tenant.^* any part of his real or personal es- tate. The court said: "If no deed of the estate was then made to her, of which no evidence has been pro- duced, her entry upon and exclusive occupation of it under these circum- stances constitutcil ,1 (li^)Sci in of Levi Steel." Steel i'. Johnson, 4 Allen (Mass.) 425. Actual Ouster Unnecessary In order that an efifectual adverse pos- session may be initiated it is not necessary to show an actual ouster of the true owner. liradstrcet 1'. Huntington, 5 Pet. 402. 18. United States. — Latta v. Clif- ford, 47 Fed. 614; Zeilin v. Rogers, 21 Fed. 103 ; Harris ?'. McGovern, 99 U. S. 161 ; Fletcher v. Fuller, 120 U. S. 534, 7 Sup. Ct. 667 ; Coal Co. v. Doran, 142 V. S. 417, 12 Sup. Ct. 239 ; Boyrean v. Campbell, I Mc- All. 119, 3 Fed. Cas. No. 1760; Ewing v. Burnet, 11 Pet. 41; Elliott v. Pearl, i McLean 206, 8 Fed. Cas. No. 4386. Alabama. — Bell v. Denson, 56 Ala. 444. Arkansas. — Dorr v. School Dis- trict No. 20, 40 Ark. 237; Mooney v. Cooledge, 30 Ark. 640. California. — Webber v. Clarke, 74 Cal. II, 15 Pac. 431; Barstow v. Newman, 34 Cal. 90. Dcla'i^vrc. — Bartholomew v. Ed- wards, I Houst. 17. Illinois. --Scon <■. Delany, 8; HI. 146; Coleman v. Billings, 89 111. 183; Zirngibl v. Calumet & C. Canal & Dock Co., 157 111. 4.W 42 N. E. 431 ; Horner v. Renter, 152 111. 106, 38 N. E. 747- Indiana. — Moore v. Hinkle, 151 Ind. 343, 50 N. E. 822; Worthlcy 7\ Burbanks, 146 Ind. 534, 45 N. E. loifo. — Dice V. Brown. 98 Iowa 297, 67 N. W. 253; Langworthy v. IVIeyers, 4 Iowa 18. Kansas. — Anderson v. Burnham, 52 Kan. 455, 34 Pac. 1056; Gilmore -■. Norton, 10 Kan. 491. Krutucky. — Hook v. Joyce, 94 Ky. .\pp. 450, 22 S. W. 651, 21 L. R. .\. 96; Singleton z'. School Dis- Vol. I trict No. 34, (Ky. App.,) 10 S. W. 793- .Massacliusetts. — Eastern Railroad '■. Allen, 135 Mass. 13; Tufts v. Charleston, 117 Mass. 401. Michigan. — Murry i>. Hudson, 65 Mich. 670, 32 N. W. 889; Whittacre i'. Erie Shooting Club, 102 Mich. 454, (10 N. W. 983. Minnesota. — Swan v. Munch, 65 Minn. 500, 67 N. W. 1022, 60 Am. St. Rep. 491, 35 L. R. A. 743. Missouri. — Turner v. Hall, 60 Mo. 275 ; Goltermore v. Schiermeyer, III Mo. 404, 19 S. W. 484. Neiv Jersey. — Foulke v. Bond, 41 N. J. Law 527. Pennsvlvania. — Susquehanna it \V. V. R. & C. Co. V. Quick, 68 Pa. St. 189; Stephens -•. Leach, 19 Pa. St. 262; Thompson j'. Philadelphia & R. Coal & Iron Co.. 133 Pa. St. 46, 19 Atl. 346. Tennessee. — Fuller v. Jackson, (Tenn.,) 62 S. W. 274; Hornsby v. Davis, (Tenn.,) 36 S. W. 159; Ma- con V. Shepard, 12 Humph. 335 ; Copeland v. Murphy, 2 Cold. 64. Texas. — Polk v. Beaumont Pas- ture Co., (Tex. Civ. App.,) 64 S. W. 58; Hodges V. Ross, 6 Tex. Civ. .App. 437. 25 S. W. 975; Cantagrel V. Von Lupin, 58 Tex. 570; Kimbro V. Hamilton, 28 Tex. 560. Virginia. — Lemmings v. White, ( Va.,) 20 S. E. 831 ; Taylor v. Burn- sides, I Graft. 165. Jl'ashington. — Bellingham Bay Land Co. J'. Dibble. 4 Wash. 76.1, 31 Pac. 30. West Virginia. — Oney v. Clen- denin, 28 W. Va. 34. IViseonsin. — Moore v. Chicago M. & St. P. R. Co., 78 Wis. 120, 47 N. W. 273; Ratz V. Woerpel (Wis.,) 89 \. W. 516. Ownership, Claim of How Evi- denced. — Public acts of ownership, such as the owner would exercise over property claimed in his own right, and would not exercise over property which he did not claim will be competent evidence in support of a claim by adverse possession of prcipcrty so situated as not to admit ADVERSE POSSESSION. 651 7. Inclosure and Improvement Unnecessary. — Acts may be of such character respecting a particular tract of land as to ripen into a title by adverse possession, even though no inclosure or improve- ment be erected upon it by the claimant.'" of use or residence. Harris v. Mc Govern, 99 U. S. 161. Actual Occupation Not Indispen- sable — Actual occupation is not always indispensable, but its absence should be supplied by some act done on or about the land. Turner v. Hall, 60 Mo. 275. Any Acts Evincive of Exclusive Claim of Ownership Sufficient. Possession may e.xist without actual residence on the land, and be denoted by enclosed fields, or, in fact, by any open, visible and continuous acts or evidence of claim of ownership or possession, or the exercise of domin- ion that will show or indicate that they were done in the character of owners, and not by occasional tres- passers. Hornsby f. Davis, (Tenn.,) ,^6 S. W. 159. .Actual residence un- necessary, nor is it incumbent upon adverse possessor to make oral dec- larations of his adverse claim. Swan V. Munch, 6s Minn. 500, 67 N. W. 1022, 60 Am. St. Rep. 491, 35 I.. R. A. 743- Actual Occupancy Not Indispen- sable — Acts of ownership done upon the land which are of such a nature as to manifest a notorious claim of property and are continued lor the period of twenty years, with- out interruption or interference by the true owner, may. under the cir- cumstances and the situation of the property, be sufficient evidence of an ouster and of an adverse possession to support a claim of title by adverse possession without any residence, cultivation or enclosure. Foulke v. Bond. 41 K. J. Law 527. Occupancy in Customary Manner Sufficient If the land is constantly used and enjoyed for the only pur- pose for which it is possible and profitable, it is sufficient possession to be prima facie evidence of title. Moore v. Chicago M. & St. P. R. Co., 78 Wis. 120. 47 N. W. 273. The possession of a church by its officers fills all the requirements of actual possession. Macon 7'. Shepard, 2 Humph. 335. 19. United Stales. — Zeilin v. Rogers, 41 Fed. 103 ; Ewing v. Bur- net, II Pet. 41; Quindor Tp. v. Squier, 51 Fed. 152; Boyreau v. Campbell, i Mc.\ll. 119, 3 Fed. Cas. No. 1760. Alabama. — Goodson v. Brothers, III Ala. 589, 20 So. 443. .Arkansas. — Hames v. Harris, 50 Ark. 68, 6 S. W. 233. California. — Goodwin v. McCabe, 75 Cal. 584, 17 Pac. 705; Kockeman V. Bickel. 92 Cal. 665, 28 Pac. 219; Webber v. Clarke, 74 Cal. II, 15 Pac. 431 ; Marshall 7'. Beysser, 75 Cal. 544, 17 Pac. 644: McCreery v. Everding, 44 Cal. 246. Georgia. — Flannery z'. High- tower, 97 Ga. 592, 25 S.' E. 371. Illinois.- — Brooks v. Bruyn, 18 111. 539; Kerr v. Hitt. 75 111. 51. Iowa. — Booth V. Small. 25 Iowa 177; Dice V. Brown, 98 Iowa 297, 67 N. W. 253; Brett v. Farr, 66 Iowa 684, 24 N. W. 275. Kentucky. — Webbs v. Hynes, g B. Mon. 388, 50 Am. Dec. 515. Michigan. — Beecher v. Calvin. 71 Mich. 391, 39 N. W. 469; Green v. Anglemier, 77 Mich. 168, 43 N. W. 772; Saners 7'. Giddings, 90 Mich. 50, 51 N. W. 265 ; Chabert v. Russell, 109 Mich. 571, 67 N. W. 902. Minnesota. — Costcllo v. Edson, 44 Minn. 135, 46 N. W. 299. Missouri. — Merchants' Bank of St. Louis V. Clovin, 60 Mo. 559. Nevada. — Eureka Mining Co. v. Way, II Nev. 171. Ncii' Jersey. — Foulke v. Bond. 41 N. J. Law 527 ; Yard v. Ocean Beach .A.ss'n., 49 N. J. Eq. 306, 24 Atl. 729; Cooper V. Morris, 48 N. J. Law 607, 7 Atl. 427. North Carolina. — Tredwell v. Reddick, i Ired. 56; Burton v. Car- ruth, I Dev. & B. 2. Tennessee. — Hornsbv v. Davis (Tenn.,) 36 S. W. 159; West v. Lanier. 9 Humph. 762. Wisconsin. — Batz 7: Woerpel. Vol. I 652 . ini'F.RSE POSSESSION. Distinction Where Claim Is by Occupancy Alone. — But, where no claim is asserted save through occupancy, the evidence must show an exchisive possession b\- inclosure in order to establish title, as against one having the constructive possession."" 8. Character of Land Important. — Ihe uses to which the land may be shown susceptible will be important in determining the question of actual occupancy. -"^ (.Wis.,) 89 N. \V. 516; Wilson v. Hevey, 35 Wis. 24; Moore v. Chicago M. & St. P. R. Co., 78 Wis. 120, 47 N. W. 273. Boundaries May Be Partly Ar- tificial and Partly Natural. — The boundaries may be artificial in part and natural in part if the circurn- stances are such as to clearly indi- cate that the inclosure partly arti- ficial and partly natural marks the boundaries of the adverse occu- pancy. Illinois Steel Co. v. Bitot, 109 Wis. 418, 85 N. W. 402; Becker V. Von Valkenberg. 29 Barb. (N. Y.) 319; Trustees v. Kirk, 84 N. Y. 215; Claney v. HondleUle, 39 Me. 451; Bruniagim v. Bradshaw, ,-59 Cal. 24. 20. California. — Polack v. Mc- Grath, 32 Cal. 15. Kentucky, — Griffith v. Huston, 7 J. J. Marsh. 385; Caskey v. Lewis, 15 B. Mon. 27; Degman v. Elliott, (Ky..) 8 N. W. 10. Louisiana. — Ellis v. Pervosl, 19 La. 250. Maryland. — Armstrong v. Ris- teau, 5 Md. 256, 59 Am. Dec. 115. Massachusetts. — Kennebec Pur- chase V. Springer, 4 Mass. 416, 3 .\m. Dec. 227. Nezv Hampshire. — Hale v. Glid- den, 10 N. H. 397. New Jersey. — Saxton v. Hunt. 20 N. J. Law 487. Nciv York. — Jackson 7'. Schooua- ker, 2 Johns. 230. Pennsylvania. — Wheeler v. Winn, 33 Pa. St. 122, 91 .\m. Dec. 186. South Carolina. — Bailey z\ Ivev, 2 \ott & xMcC. 343- Tennessee. — Dyche i'. Gass, 3 Yerg. 397. 21. United States. — Holtzman v. Douglass, 168 U. S. 278; Fletcher v. Fuller, 120 U. S. 534, 7 Sup. Ct. 667; Elliott I'. Pearl, 10 Pet. 442; Ewing !'. Burnet, 11 Pet. 41; Quindor Tp. -'. Squier. 51 Fed. 152; Merrill v. Tnliiii, 30 Fed. 738. Vol. I .Irkansas. — Brown v. Bocquin, 57 Ark. 97, 20 S. W. 813. California. — Plume i'. Seward, 4 Cal. 94. Illinois. — Brooks -'. Bruyn, 18 111. 539; Hubbard v. Kiddo, 87 111. 578. Indiana. — Moore v. Hinkle, 151 Ind. 343, 50 N. E. 822. Iowa. — Booth V. Small, 25 Iowa 177; Colvin z'. McCune, 39 Iowa 502. Kansas. — Giles r. Ortman, 11 Kan. 59- Louisiana. — Chamberlain r. .Mia- die, 48 La. Ann. 587, 19 So. 574. Minnesota. — Murphy v. Doyle, i~ Minn. 113, 33 N. W. 220; Backins v. Burke, 63 Minn. 272, 65 N. W. 45. Missouri. — Benne v. Miller, 149 Mo. 228. 50 S. W. 824; Turner v. Hall, 60 Mo. 275. Nebraska. — Twohig v. Learner, 48 Neb. 247, 67 N. W. 152; Omaha & Florence L. & T. Co. v. Parker, ii Neb. 775. 51 N. W. 139, 29 Am. St. Rep. 506. Nczc York. — East Hampton v. Kirk. 84 N. Y. 215, 38 Am. Dec. 505. North Carolina. — Tredwell v. Reddick. I Ired. 56; Williams v. Buchanan, i Ired. 535, 35 Am. Dec. 760; Smith V. Bryan, i Busb. 180; Bynum v. Carter. 4 Ired. 310. Tennessee. — Cowen v. Hatcher, (Tcnn.,) 59 S. W. 689. Wisconsin. — Moore v. Chicago .M. & St. P. R. Co.. 78 Wis-. 120, 47 N. W. 27^: Wilson t'. Hevey, 35 Wis. 24. Acts Necessary to Show Adverse Possession Acts of ownership dis- played upon land naturally indi- cating a notorious claim of property in it, continued for the rec|uisite time, with the knowledge of the adverse claimant, without interruption or adverse entry by him will be evi- dence of an actual ouster of a for- mer owner, and an actual adverse possession against him, provided the jury shall think the property was not A D J 'E RSn P OSSESSIOX . ()53 Burial Lot. — This rule of evidence applies with peculiar force as resjiects adverse claims asserted to burial lots.-- 9. Evidence of Occupation of Part. — If there be unity of char- acter in location, acts of dwnersliii) in places upon a tract will be ciinipetent evidence of possession of the whole.-"' Qualification of Rule. — Conveyance of the portion in actual pos- session of a claimant aljrogates his constructive possession of the remainder, miless he takes actual ])Ossession of some part of it.^'' 10. Tenant's Possession Is That of His Landlord. — Successive hoklings of a landlord and his tenant, if adverse to all others, are to be treated as evidence of a continuous possession of the land- lord.-" susceptible of a more .strict or definite pos.session than had been so taken and lield. Ewing v. Burnet, n Pet. 41. Character of Real Estate Con- trolling' Factor The character of real estate is of controlling influence ill determining what acts of owner- ship, use, or occupancy are adverse. Neither actual occupancy, cultivation nor residence is necessary ; and occu- pation of a part of a tract under color of title, is constructive occu- pancy of the whole. Moore v. Hinkle, 151 Ind. 343. 50 N. E. 822. Acts Sufficient to Evidence Ad- verse Possession — Cranberry cul- ture sufficient occupancy of marsh land fit only for such purpose. Moore v. Chicago, M. & St. P. R. Co.. 78 Wis. 120, 47 N. VV. 273. Mining land near the surface for lead yearly by lessees of the claimant during mining season. Wilson v. llevey. 35 Wis. 24. Use of Lot by Stone Cutter. Use of an uninclosed lot by a tenant in conducting his business of marble and stone cutting, although not all covered by material is evidence of ;ulver-^e possession. Holtzman v. Douglass. 168 U. S. 278. Use so Far as Susceptible to Ex- clusion of All Others Sufficient. To constitute an adverse possession it is not necessary that the evidence show actual occupancy or inclosure of the land where it was subjected to such uses as it was susceptible of to the exclusion of others. Fletcher -'. Fuller, 120 U. S. S34, 7 Sup. Ct. 667. 22. Hook V. Jovcc, 94 Kv. App. 450. 22 S. W. 651.' 21 L. R.'.A.. 96; Zirngibl V. Calumet & C. C. & D. Co., 157 111. 430, 42 N. E. 431- 23. Foulke v. Bond, 41 N. J. Law 527; Moore v. Hinkle, 151 Ind. 343, 50 N. E. 822; Mason v. Calumet Canal & Imp. Co., 150 Ind. 699, 50 N. E. 8s ; Holtzman v. Douglass, 168 U. S. 278; Worthley v. Bur- banks, 146 Ind. 534, 45 N. E. 779; Kirkman v. Mays (Miss.), 12 So. 443- Acts on Part Sufficient Where There Is Unity of Character of Location. — Acts of ownership in places upon a tract are competent evidence of possession of the whole where there is unity of character in location. " If competent evi- dence of possession, such acts of possession must necessarily be suffi- cient to maintain title by adverse possession without occupation by residence, cultivation or enclosure. ])rovided they be continued for the lull period of twenty years, with such notoriety as that the true owner may reasonably be expected to have had notice of the nature and extent of the title being acquired there- under." Foulke V. Bond. 41 N. J. Law 527. 24. Sharp z'. Shenandoah Fur- nace Co. (Va.), 40 S. E. 103; Trotter V. Cassady, 3 A. K. Marsh. (Ky.) 365, 13 Am. Dec. 103 ; Cunningham V. Robinson Lessee, i Swan (Tenn.) 138; Chandler v. Rushing, 38 Tex. sgi : West -'. McKinney, 92 Ky. 638, 18 S. W. 633. 25. United States. — Scaife v. Western N. C. Land Co., 90 Fed. 238; U. S. V. Sliney, 21 Fed. 894. Alabama. — Jay v. Stein, 49 Ala. Vol. I 654 ADVERSE POSSESSION. 11. Wild Lands. — In order to sustain a claim of title by adverse possession of wild land, a more stringent rule of evidence obtains.-'' 514; Alabama State Land Go. v. Keyle, 99 Ala. 474, 13 So. 43; Good- son V. Brothers, 11 1 Ala. 589, 20 So. 443; Barrett v. Kelly (Ala.), 30 So. 824; Zendel z'. Baldwin, 114 Ala. 328, 21 So. 420. Arkansas. — Cox v. Dougherty, 62 .\rk. 629, 36 S. W. 184. California. — San Francisco v. Fiilde, 37 Cal. 349. 99 .\m. Dec. 278. Illinois. — Riggs v. Girard, 133 111. 619, 24 N. E. 1031. Kansas. — Deetjen v. Richtcr, 33 Kan. 410, 6 Pac. 595. Kentucky. — Chiles r. Conley, 9 Dana 385; Lee v. McDaniel, i A. K. Marsh. 234. Michigan. — Rayner r. Lee, 20 Mich. 384. Neni York. — Sherman v. Kane, 86 N. Y. 57. North Carolina. — .\Iexandcr v. Gibbon, 118 N. C. 796, 24 S. E. 748, 54 Am. St. Rep. 757; Ruffin v. Overby, 105 N. C. 78. n S. E. 251. South Carolina. — Johnson v. Mc- .Mullan, I Strob. 143. Tennessee. — Sims v. Eastland, 3 Head 368; Massengill i'. Boyles, 11 Humph. 112. Te.xas. — Dawson v. Ward, 71 Tex. 72, 9 S. W. 106; Heflin v. Burns, 70 Te.x. 347, 8 S. W. 48; Read v. Allen, 63 Tex. 154; Mc- Manus v. Matthews (Tex. Civ. ■'^PP-), 55 S. W. 589. Washington. — McAuliff v. Par- ker, 10 Wash. 141, 38 Pac. 744. When the evidence shows the suc- cessive holdings of a land owner and his tenant to be adverse, they are to be treated as continuous. Cox V. Dougherty, 62 .\rk. 629, 36 S. W. 184. Actual residence, as required by an act of limitation, may be established by occupation by a tenant of the owner of the title, or by one in possession, under a con- tract purchase. Riggs v. Girard, 133 111. 619, 24 N. E. 1031. 26. United States. — Bump v. Butler Co., 93 Fed. 290; Win- nipisisgee Paper Co. v. New Hamp- >;liire Co., 59 Fed. 542. Mitchell. 78 Kinswur- 90 Ga. V. Living- Thompson. V. Burhans, Hopkin<, I Hulsev. 71 V. Alabama. — Burks Ala. 61. Arkansas. — Conway v. thy, 21 Ark. 9. Georgia. — Scott v. Cain, 34, 15 S. E. 816. Massachusetts. — Richmond Iron Works V. Wadhains, 142 Mass. 569, 9 N. E. I ; Parker v. Parker, i .\llen 245. Michigan. — McKinnon v. Meston. 104 Mich. 642, 62 N. W. 1014. New Jersey. — Saxton v. Hunt. 20 N. J. Law 487. Nexc York. — People stoii. 8 Barb. 253; Doe v. 5 Cow. 371 ; Thompson 79 N. Y. 93. Tennessee. — Pullen v. Lea 741. Texas. — Boone v. Tex. 176, 9 S. W. 531. Virginia. — Harman v. Ratliff, Va. 249, 24 S. E. 1023 ; Koiner Rankin, 11 Graft. 420; Overton v. Davisson, i Gratt. 211, 42 Am. Dec. 544; Turpin v. Saunders, 32 Gratt. 27. Evidence to Show Appropriation of Wild Lands — Acts of ownership exercised over wild and unoccupied lands, to constitute adverse posses- sion against the true owner of the legal title of record, must be of a character so open, notorious and un- equivocal that the true owner cannot fail to know them. Bimip -■. Butler Co.. 93 Fed. 290. Notice of Surveys and Lines Must Be Shown The doctrine of title by adverse possession is fraught with danger, as applied to wild lands, and its application should be made with great caution ; and it may be doubtful whether it should be ap- plied upon constructive notice, or in any case, unless the evidence is clear and unmistakable that the owner had notice of the surveys and lines, as well as the character and extent of the claims. Winnipisisgee Paper Co. V. New Hampshire Land Co., 59 Fed. 542. Vol. I ADVERSE POSSESSION. 655 12. Interruption. — An interniption sufficient to defeat such claim iiuist be shown to have arisen under such circumstances as mate- rially to alter the relations of such claimant to the premises.-' 27. United Stales. — Fuller v. Fletcher, 44 Fed. 34 ; Armstrong v. Morn. I. 14 Wall. 20; Smith v. Trahue, i McLean 87, 22 Fed. Cas. Xo. 13,116. Alabama. — Barron z: Barron, 122 Ala. 194, 25 So. 55 ; Beasley v. Howell, 117 Ala. 499, 22 So. 989. Arkansas. — Brown v. Hananen, 48 Ark. 277, 3 S. W. 27. California. — Bree v. Wheeler, 129 Cal. I4t ; Borel v. Rollins, 30 Cal. 408; M~cGrath v. Wallace, 85 Cal. 622, 24 Pac. 793; Spotts i'. Hanley. 85 Cal. 155; Riverside L. & R. Irr. Co. I'. Jenson, 108 Cal. 146, 41 Pac. 40; Lacoste I'. Eastland, 117 Cal. ^73, 49 Pac. 1046; Cox v. Clough, 70 Cal. 345. 1 1 Pac. 732 ; Baldwin -■■ Durfee, 116 Cal. 625, 48 Pac. 724; Breon z'. Robrechl. 118 Cal. 469. 50 Pac. 689, 62 .\m. St. Rep. 247; Hes- peria Land & Water Co. i'. Rogers, 83 Cal. 10, 23 Pac. 196, 17 .'Vm. St. Rep. 209. Connecticut. — Conner z: Sullivan. 40 Conn. 26, 16 Am. Rep. 10; Bur- rows V. Gallup, 32 Conn. 493, 87 Am. Dec. 186. Georgia. — Byrne v. Lowry. 19 Ga. 27- Illinois. — O'Flakerty z'. .Mann (111.), 63 N. E. 727; Peoria P. U. R. Co. V. Taniplin, 156 111. 285, 40 N. E. 960; Nickrans v. Wilk, 161 III. 76, 43 N. E. 741 ; Downing v. .Mayes, 153 111- 330, 38 N. E. 620, 46 Am. St. Rep. 896. /ou'fl. — Litchfield z\ Sewell, 97 Iowa 247, 66 N. W. 104; Menden- hall V. Price, 88 Iowa 203, 55 N. W. 321; Pella V. Scholte, 24 Iowa 283, 95 Am. Dec. 729. Kansas. — Ard v. Wilson, 60 Kan. 857, 56 Pac. 80; Corby v. Moran, 56 Kan. 278, 49 Pac. 82. Kentucky. — Middlesborough Water Works Co. z'. Neal, 20 Kv. Law 1403, 49 S. W. 428; Turner v. Thomas, 13 Bush. 518; Webbs v. Hynes, 9 B. Mon. 388, 50 .^.m. Dec. 515; Hord V. Walker, 5 Litt. 22. 15 .\ni. Dec. 39. Massaehusctls. — Harrison z>. Do- lan, 17-' Mass. 395, 52 N. E. 513; Thacker z\ Guardenicr, 48 Mass. 484 ; Brickett i'. Spofford, 14 Gray .SI4- .Michigan. — Shearer v. Middleton, 88 Mich. 621, so N. W. 7i7. Minnesota. — Swan t'. Munch, 65 Minn. 500, 67 N. W. 1022, 60 .^m. St. Rep. 491, 35 L. R. A. 743; St. Paul M. & M. R. R. Co. v. Olsen (Minn.), 91 N. W. 294; Ricker v. Butler. 45 Minn. 545, 48 N. W. 407. Mississil'l'i. — Massey v. Rinimer, 69 Miss. 667, 13 So. 832. Missouri. — Wilkinson v. St. Louis Sectional Dock. Co., 102 Mo. 130, 14 S. W. 177; Snell t'. Harrison, 131 .Mo. 495, 32 S. W. 37, 52 Am. St. Rep. 642; Pim i'. St. Louis, 122 Mo. 654, 27 S. W. 525. Montana. — Casey v. Anderson, 17 Mont. 176, 42 Pac. 761. A'c-6/-a.f^o. — Webb v. Thiele, 56 .\cb. 752, 77 N. W. 56; Oldig V. Fisk, 53 Neb. 156, 73 N. W. 661. Xezc Hampshire. — Gage f. Gage, 30 N. H. 420. Nez<.' Jersey. — Lehigh Valley R. Co. r. McFarlan, 43 N. J. Law 605. Nezi.' York. — Lewis v. N. Y. & H. R.^ Co., 162 N. Y. 202, 56 N. E. 541 ; Simpson v. Downing, 23 Wend. 316; Landon z\ Townsend, 129 N. Y. 166, 29 N. E. 71 ; Sherman ?•. Kane, 86 N. Y. 57. North Carolina. — Mallett :, Simp- son, 94 N. C. 37, 55 Am- Kep. 594. Oregon. — Oregon Const. Co. v. Allen Dutch Co. (Or.), 69 Pac. 455; Barren z: Title Guar. & T. Co., 27 Or. 77, 39 Pac. 992. Pennsylvania. — HoUingshead v. Naurven, 48 Pa. St. 140; Sheik v. McElroy, 20 Pa. St. 25. Tennessee. — Hornsby v. Davis (Tenn.), 36 S. W. 159; Cowan v. Hatcher (Tenn,), 59 S. W. 689. Texas. — -\ndcrson v. Carter (Tex. Civ. App.), 69 S. W. 78; Spoflford z'. Bennett, 55 Tex. 293 ; Jacks v. Dillon, 6 Tex. Civ. .Vpp. 192, 25 S. W. 645; Smith Z'. Garza, 15 Tex. Vol. I 656 ADVERSE POSSESSION. A. AbaiVdonment. — And, evidence of equal cogency will be required to show the abandonment of an adverse possession once initiated.-' 150; Robinson Z'. Bazoor.. 79 Tex. 524, 15 S. W. 585; Moore v. Mc- Cown (Tex. Civ. App.), 20 S. W. 1112; Thompson v. Dutton (Tex. Civ. .-\pp.), 69 S. W. 641; Kirkpat- rick z: Tarlton (Tex. Civ. App.), 69 S. W. 179. ]'criiwiit. — Buck V. Squires, 23 Vt. 498; Wing V. Hall, 47 Vt. 182; Webb '■. Richardson, 42 Vt. 465 ; Perkins v. Blood, 36 Vt. 273. West I 'irginia. — Swann v. Young. 36 W. Va. 57, 14 S. E. 426. U'isccusin. — Warren v. Putnam, 63 Wis. 410, 24 N. W. 58. Absence From State No Inter- ruption if Possession Is Maintained by Tenants. — Evidence showing that a defendant claiming by ad- verse possession was absent from the state as was his grantor also, but the land was in possession of tenants during such absences, will operate as possession of such adverse claimant, so as to prevent any break in the possession. Ard v. Wilson, 60 Kail: 857, 56 Pac. 80, citing Corby r. Moran, 56 Kan. 278, 49 Pac. 82. Vacancy During Change of Ten- ants Not Evidence of Relinquish- ment. — .\ mere vacancy in the oc- cupancy of agricultural land for a reasonable time necessary to change tenants, will not necessarily interrupt a landlord's possession, in the ab- sence of anything tending to show an intention on his part to relin- (|uish a possession. Beasley z: Howell. 117 Ala. 499. 22 So. 089. Faithless Acts of Agent Will Not Break Continuity of Possession. The continuity of a claimant's possession will not be deemed to have been interrupted by evidence that one who took possession at his request and agreed to maintain it for him afterwards yielded it to another in violation of his promise, the claimant having rcsmiicd posses- sion directly upon learning such fact. Middlesborough Water Works Co. f. Neal 20 Kv. Law 140s, 49 S. W. 428. 28. United States. — Fletcher v. Fuller, 120 U. S. 534, 7 Sup. Ct. 067 ; Holtzapple v. Phillabaum, 4 Wash. C. C. 356, 12 Fed. Cas. No. 6648. Alabama. — Perry v. Lawson, 112 .Via. 4.80, 20 So. 611. California. — Baldwin v. Durfee, 116 Cal. 625, 48 Pac. 724; Roberts I'. Unger, 30 Cal. 676. Georgia. — King z'. Sears, 91 Ga. 577, 18 S. E. 830. Illinois. — Downing v. Mayes, 153 111. 330, 38 N. E. 620, 46 Am. St. Rep. 896. Kentneky. — Middlesborough Water Works Co. z'. Neal, 20 Ky. Law 1403. 49 S. W. 428; Smith z'. Mor- row, 5 Litt, 211; Myers z\ McMillan, 4 Dana 485. Maine. — Schwartz ;'. Kuhn, 10 Me. 274, 25 Am. Dec. 239; School District No. 4 in Winthrop v. Ben- son, 31 .Me. 381, 52 Am. Dec. 618. Michigan. — Rayner v. Lee, 20 .\licli. 384; Lamoreaux v. Creveling, 103 Mich. 501, 61 N. W. 783. Mississil'f'i. — Ford v. Wilson, 35 Miss. 490, 72 Am. Dec. 137; Hooper z: Topley, 35 Miss. 506. Missouri. — Crispen v. Hannavan, 50 .\lo. 536; Hamilton v. Boggess, 63 Mo. 233 ; Western z\ Flanagan. 120 Mo. 61, 25 S. W. 531 ; Fugate v. Pierce, 49 Mo. 441. Nebraska. — Webb z'. Thiele, 56 Neb. 752, 77 N. W. 56; Oldig z: Fisk, 53 Neb. 156, 73 N. W. 661. jVt'Ti' Hampshire. — Jones v. Meri- niack River Lumber Co., 31 N. 11. 381. Nezv York. — Lewis v. N. Y. & H. R. Co., 162 N. Y. 202, 56 N. E. 541 ; Sherman v. Kane, 86 N. Y. 57; Northrop v. Wright, 7 Hill 476; Second Methodist Episcopal Church. 66 Hun 628, 21 N. Y. Supp. 89. North Carolina. — Hamilton z'. Icard, 114 N. C. 532, 19 S. E. 607. Pennsylvania. — Susquehanna & R. R. Co. V. Quick, 68 Pa. St. 189; Stephens z'. Leach, 19 Pa. St. 262; Schall V. Williams Val. R. Co., 35 Vol. I AD VERSE POSSESSION. 057 B. Abandoned Occupancy Cannot Be Retrieved. — But, the continuity once severed h\ acts equivalent to an abandonment can- not be retrieved.--' Pa. St. 191; Byers v. Sheplar (Pa.), 7 Atl. 182. Tennessee. — Fuller v. Jackson (Tenn.), 62 S. W. 274; Hornsby v. Davis (Tenn.), 36 S. W. 159. Texas. — De La Vega v. Butler, 47 Tex. 529. I'ermont. — Patcliin v. Stroud, 28 Vt. 394; Aldrich v. Griffith, 66 Vt. 390, 29 Atl. 376. Absence of Statutory Require- ment to Fence — Evidence as to Abandonment. — Where the land in controversy is situated in territory where land owners are no longer required to keep lawful fences around their cultivated lands, the possession is not deemed abandoned when it is shown that the plaintiff used the land from year to year as is customary among farmers. Hamil- ton f. Icard, 114 N. C. 53J, 19 S. E. 607. Loose Talk Will Not Relinquish Rights Rights acquired by ad- verse possession cannot be devested by loose talk of the occupant Byers '•. Sheplar (Pa.), 7 Atl. 182. Evidence Not Showing Abandon- ment of Possession. — Evidence showing that one having entered upon land under color of title cul- tivated it except for one year, during which he pastured it, and kept up the farm fences, will not be treated as an abandonment of the possession. Perry v. I^awson, 112 Ala. 480, 20 So. 611. Where claim of title to land by adverse possession is based upon thu alleged substantial enclosure of the land by a fence for more than the statutory period, such title is not defeated by showing that the fences were down at intervals in conse- quence of floods. Baldwin v. Dur- fee, 116 Cal. 625, 48 Pac. 724. Abandonment — The possession of an ancestor will not avail if the premises are abandoned by the heir, but merely leaving them after im- provements are destroyed, unimo rcvertcndi, is not an abandonment. F\igate V. Pierce, 49 Mo. 441. 42 Replacing of Structure No Aban- donment. — The removal of one railroad structure followed imme- diately by the erection of an- other, in the same place and for the same purpose, is not evi- dence of abandonment of the pre- scriptive right to have a railroad structure in the street. Lewis v. N. Y. & H. R. Co., 162 N. Y. 202, 56 N. E. 540. Purchase of Outstanding Title Does Not of Itself Break Continuity of Possession. — The purchase or at- tempted purchase of an outstanding title by one in adverse possession is not alone sufficient evidence to break the continuity of the posses- sion or divest it of its adverse char- acter. Webb V. Thiele, 56 Neb. 752, 77 N. W. 56. 29. United Stales. — Armstrong V. Morrell, 14 Wall. 120 ; Potts v. Gilbert, 3 Wash. C. C. 475. Arkansas. — Sharp v. Johnson, 22 Ark. 79. Georgia. — Thursby v. Myers, 57 Ga. 155; Byrne v. Lowry, 19 Ga. 27. Kentucky. — jNIyers v. McMillan, 4 Dana 485. Maine. — Hamilton v. Paine, 17 Me. 219; School District No. 4 in Win- throp V. Benson, 31 Me. 381, 52 Am. Uec. 618. Mississippi. — Nixon v. Porter, 38 Miss. 401. Missouri. — Hickman v. Link (Mo.), 7 S. W. 12; Menkins v. Blumenthal, 27 Mo. 198; Crispen v. Hanover, 50 Mo. 536. Nezc Hampshire. — Blaisdell v. Martin, 9 N. H. 253 ; Linen i\ Max- well, 67 N. H. 370, 40 Atl. 184. New York. — Poor z: Horton, 15 Barb. 485 ; Jackson v. Harder, 4 Johns. 202, 4 Am. Dec. 262. North Carolina. — Andrews v. Mulford, I Hayw. 320; Holdfast v. Shepard, 86 N. C. 251; Malloy v. Bruden, 86 N. C. 251. Pennsylvania. — Susquehanna & W. V. R. Co. V. Quick, 68 Pa. St. 189. Tennessee. — Free v. Fine (Tenn. App.), 59 S. W. 384. Vol. I 658 ADVERSE POSSESSION. 13. Nature of Occupancy. — Evidence of intention to Claim Ownership. The nature of the demonstrative acts of occupancy may be such as to show an intent to claim ownership independent of any oral state- ments bv a claimant.''"' Texas. — Ivey i\ Petty, 70 Tex. i;8, 7 S. W. 798; Collier v. Couts, 92 Tex. 234, 47 S. W. 52s; Sette- gast V. O'Donnell, t6 Tc.x. Civ. App. 56, 41 S. W. 84. Vermont. — Winslow v. Newell, 19 Vt. 164. Virginia. — Taylor's Devisees v. Burnsides, I Gratt. 165. ]Vest I'irginia. — Jarrett v. Stev- ens. 36 W. 'Va. 445, 15 S. E. 177; Parkerburg Industrial Co. v. Schnltz, 43 VV. 'Va. 470, 27 S. E. 255. Jl'isconsin. — Whittlesey z\ Hoppen- yan. 72 Wis. 140. 39 N. W. 355. Effect of Abandonment If pos- session be abandoned the seizin of the true owner reverts and he may assert his right within the statutory period. Jarrett z'. Stevens, 36 W. Va. 445, 15 S. E. 177. When one quits possession, the siezin of the owner is restored. Hickman v. Link (Mo.), 7 S. W. 12. 30. Alabama. — Goodson v. Bro- thers, III Ala. 589, 20 So. 443. California. — Lick i'. Diaz, 44 Cal. 479- Georgia. — ]SIorrison t. Hays, 19 Ga. 294. Illinois. — James z'. Indianapolis St. L. R. Co., 91 111. 554; Falcon i'. Sinishauser, 130 111. 649. 22 N. E. 835 ; Brooks z: Bruyn, 24 111. 373. Indiana. — Webb z'. Rhodes (Ind. .•Vpp.), 61 N. E. 735- /oTi'a. — Wilbur v. Cedar Rapids & M. R. Co. (Iowa), 89 N. W. loi. Kansas. — Stockton v. Geisslcr, 43 Kan. 613, 23 Pac. 612. Miehigan. — Shearer v. Middleton, 88 Mich. 621, 50 N. W. 737. Minnesota. — Dean v. Goddard, 55 Minn. 290, 56 N. W. 1060; Village of Glencoe v. Wadsworth, 48 Minn. 402, 51 N. W. ^77; Butler v. Drake, (12 .Minn. 229, 64 N. W. 559. Mississippi. — Magee v. Magee, 37 Miss. 138; Davis t'. Bounean, 55 Miss. 671. Nebraska. — Fitzgerald v. Brew- ster, 31 Neb. 51. 47 N. W. 475. Vol. I ■ .Veil' Jersey. — Johnston v. Fitz George, 50, 14 Atl. 762. 5 N. J. Law 470. -VcK' York. — Barnes -•. Light. 116 N. Y. 34, 22 N. E. 441 ; La Fram- bois V. Smith, 8 Cow. 589 ; Dominy V. Miller, 33 Barb. 380" Oregon.- — Swift v. Mulkey, 14 Or. 59, 12 Pac. 76. Tennessee. — Cowen z: Hatcher (Tenn.), :;9 S. W. .689; Hornsby z: Davis (Tenn.). 36 S. W. 159. I'irginia. — Brock z'. Bear (Va.), 42 S. E. 307. Evidence of Claim of Title. " The possession of real estate and its use and improvement by one as other persons are accustomed to use and improve their estates continued for twenty years, without recog- nizing title in anyone else or dis- claiming .it in himself, raise a presumption of entry and holding as owner, and unless rebutted by other evidence will establish the fact of claim of title." Webb z'. Rhodes (Ind. App.), 61 N. E. 735- Acts May Operate as Oral Dec- larations — ■'Ci:>ntinuc>us and unin- terrupted possession will not alone establish a claim of right ; neither will payment of taxes ; but when, with these circumstances, it also ap- pears that the party has set out trees, erected a house and outbuild- ings, inclosed the premises by fence, cultivated the land, and in all respects treated it precisely as his own. a claim of right may be in- ferred, and treated as fully estab- lished as though shown by oral declarations of such claim." Wilbur z: Cedar Rapids & M. R. R. Co. (Iowa), 8g N. W. loi. " There is no express parol evi- dence that the defendant claimed the title to the premises uninclosed by him. but that is to be inferred from the fact that the grant to his father was a grant in fee, and from the manner of his occupation, and the uses to which he applied the prem- ADVERSE POSSESSION. 659 A. Oral Dbclakations. — The intent may also lie shown by the oral declarations of the claimant made in connection with the pos- session.'" B. EviDENCic OF Inticnt From Acts Mt.:sT Snow Continuous Hostility. — But, evidence of such intent by acts must show con- tinuous hostility to all adverse claims. ''- C. Secret Intent No Evidence, Except As Shown By Acts. The intent which determines the character of the possession is not the secret purpose of the occupant, except as manifested by his acts when sufficiently firought to the notice of the person to be affected. ^^ ises." Dominy v. Miller, 33 Barb. 386. " The intent to claim may be in- ferred from the nature of the oc- cupancy. Oral declarations are not necessary. Possessory acts, so as 10 constitute adverse possession, must necessarily depend upon the char- acter of the property, its location, and the purposes for which it is ordinarily fit or adapted." Dean v. Goddard, 55 Minn. 290, 56 N. W. 1060. " A claim of title may be made by acts alone quite as effectually as by the most emphatic assertions." Bar- nes V. Light, 116 N. Y. 34, 22 N. E. 441- It IS competent to show that one through whom claim is made per- formed work on the land during his lifetime, as tending to prove that he asserted title to it. Lick v. Diaz, 44 Cal. 479. 31. Patterson v. Reigh, 4 Pa. St. 201. 45 Am. Dec. 684; Blakely v. .Morris, 89 Va. 717, 17 S. E. 126. 32. United States. — Bradstreet v. Huntington, 5 Pet. 402. California. — Thompson v. Pioche, 44 Cal. 508; De Frieze v. Quint, 94 Cal. 653, 30 Pac. I, 28 Am. St. Rep. 151. Georgia. — Denhani t'. Holeman, 26 C.a. 182, 71 .\m. Dec. 198. Illinois. — McClellan v. Kellogg, 17 111. 498. Mississit't'i. — Gordon v. Sizer, 39 -Miss. 805. Missouri. — Lyndc v. Williams, 68 Mo. 360. Scbraska. — Ballard v. Hansen, ii Neb. 861, 51 N. W. 295. • Tennessee. — Hornsbv t'. Davis (Tenn.), 36 S. W. 159. 7V.ra.j. — Clark v. Keirby (,Tex. Civ. App.), 25 S. W. 1096. t//a/i. — Toltec Ranch Co. v. Bab- cock (Utah), 66 Pac. 876. Hostility in Technical Sense Un- necessary " The possession, as ap- pears from the evidence, was open, notorious, uninterrupted and peace- able, and under a claim of right. It must, therefore, necessarily be deemed to have been adverse to the holder of the legal title, and such long continued possession may be deemed to have been adverse though not in its character hostile." Toltec Ranch Co. v. Babcock (I'tah). 66 Pac. 876. Whilst one period of occupancy may be inadmissible as evidence of adverse possession it may be coin- petent so far as exhibiting the char- acter and intention of other holdings. Hornsby v. Davis (Tenn.), 36 S. W. 159- " Wherever the proof is that one in possession holds for himself, to the exclusion of all others, the pos- session so held must be adverse to all others, whatever relation in point of interest or privity he inay stand in to the others.* Bradstreet V. Huntington, 5 Pet. 402. 33. .4/a/>owia. — East Tenn. V. & G. R. Co. V. Davis, 91 Ala. 615, 8 So. 349. Arkansas. — Sharp v. Johnson, 22 Ark. 79. California. — Gage Z'. Downey, 94 Cal. 241, 29 Pac. 635 ; Winterburn V. Chambers, 91 Cal. 170, 27 Pac. 658. Connecticut. — French v. Pearce, 8 Conn. 440, 21 Am. Dec. 680. Kentucky. — Myers v. McMillan, 4 Dana 485. Vol. I 660 ADVERSE POSSESSION. D. " Squatter." — This rule applies with all its force as against persons denominated " Squatters," who neither by acts on the land, nor otherwise, present any indicia of an adverse occupancy .^^ 14. Proof of Open and Adverse Use. — A. A'isiblE Effects. Visible effects naturall_\ implying the use of the land by some one may also afford sufficient notoriety of an occupancy adverse to the true owner. '^ Missouri. — Comstock v. East- wood, io8 Mo. 41, 18 S. W. 39. Oregon. — Rowland v. Williams, 23 Or. 515, 32 Pac. 402. Vermont. — Soiile f. Barlow, 48 Vt. 132. 34. Blake v. Shriver (Wash.), 68 Pac. 330; Sackett v. !\IcDonald, 8 Biss. 394, Fed. Cas. No. 12,202 ; Bell V. Fry, 5 Dana (Ky.) 341 ; Parkers- burg Industrial Co. v. Schultz, 43 W. Va. 470, 27 S. E. 255 ; Smeberg V. Cunningham, 96 Mich. 378, 56 N. W. 73, 35 Am. St. Rep. 613; Gay v. Mitchell, 35 Ga. 139, 89 Am. Dec. 278; In re City of New York, 63 Hun 630, 18 N. Y. Supp. 82. " A strolling struggling occupancy will not constitute notice of adverse possession." Blake v. Shriver (Wash.), 68 Pac. 330. 35. United States. — Quindor Tp. V. Squier, 51 Fed. 152; Florida Southern R. Co. v. Loring, 51 Fed. Alabama. — Goodson ■;■. Brothers, III Ala. 589, 20 So. 443. California. — Silvarer v. Hansen, 77 Cal. 579, 20 Pac. 136. Connecticut. — St. Peter's Church V. Beach, 26 Conn. 354. IlliHois. — Sullivan v. Eddy, 154 111. 199, 40 N. E. 482; St. Louis A. & T. H. R. Co. V. Nugent, 152 111. 119, 39 N. B: 263. lozva. — Teabout v. Daniels, 38 Iowa 158. Louisiana. — Michel ?■. Stream. 48 La. Ann. 341, 19 So. 215. Maryland. — Armstrong v. Ris- teau, 5 Md. 256, 59 Am. Dec. 115. Massachusetts. — Tufts v. Charles- ton, 117 Mass. 401. Mississippi. — Huntington v. Al- len, 44 Miss. 654. Nebraska. — Omaha Florence Land & Trust Co. v. Hansen, 32 Neb. 449, 49 N. W. 456 ; Tourtelotte f. Pearce, 27 Neb. 57, 42 N. W. 915. Vol. I A'«t' Jersey. — Foulke %■. Bond, 41 N. J. Law 527. Washington. — Flint v. Long. 12 Wash. 342, 41 Pac. 49. West Virginia. — Jarrett ;'. Ste- vens, 36 W! Va. 445, 15 X. E. 17;. Visible Evidence Imparting No- toriety of Claim Openness and notoriety and exclusiveness of pos- session are shown by such acts in respect to the land in its condition at the time as comport with owner- ship. Such acts as would ordinarily he performed by the true owner in appropriating the land or its avails to his own use and in preventing others from the use of it as far as reasonably practicable. Goodson v. Brothers, in Ala. 589, 20 So. 443. " The open and notorious use of this land as a public park, under claim of title, constituted a posses- sion as effectual to bar the plain- tiff's action as if it had been en- closed by a stone wall. The boun- daries of the park were distinctly marked on the plat of the town which dedicated it to the public use as a park. The only possession of which it was susceptible was a pos- session consistent with its use as a park, and its open, public, and notorious use for that purpose was all the possession requisite to sup- port the defendant's plea. The court erred in excluding the evi- dence offered ; and for this error the judgment must be reversed, and the case remanded for a new trial." tjuindor Tp. 1: Squier, 51 Fed. 152. What Sufficient Evidence of Ad- verse Use. — Adverse occupation will be evidenced by such use of the premises in question by the occu- pant and his privies as would in- dicate to a passerby, and to the owner if he went to them, that they were used and claimed by some one. Omaha Florence Land & Trust Co. ADVERSE POSSESSION. (y(A B. Othkrwisk, Of Land Not Susceptiblk of OccurANCV. The rule last stated applies only in cases where the land is suscepti- ble of being the means of such evidence.'"' C. Reputation Inco.mpKTKXt. — Notoriety cannot be proved by reputation." D. Proop of Actu.vl Knowledge Sufficient. — If it appear that the true owner has actual knowledge that an occupation is under claim adverse to himself, openness and notoriety become unim- portant.^* 15. Continuity. — A. Evidence of Permanent Occupancy. The possession must be shown to have been permanent in the prac- tical sense. ^" z: Hansen, 32 Neb. 449, 49 N. W. 456. 36. When Land Cannot Be Vis- ibly Occupied. — If the evidence show an impossibility of inclosing, cultivating or otherwise employing land in any manner so notorious as may tend to attract the attention of opposing claimants, title cannot be acquired by adverse possession, Mc- Cook '■. Crawford, 114 Ga. 337, 40 X. E. 225. 37. Notoriety of Occupation Not Proved by Reputation. — " It is notorious occupation which is one of the elements necessary to con- stitute a title by adverse possession. It is not proved by reputation. Xotoriety of occupation is not to be inferred from notoriety of claim." Carter v. Clark, 92 Me. 225, 42 Atl. 398. 38. Dausch v. Crane, 109 Mo. 323, 19 S. W. 611; De Frieze v. Quint, 94 Cal. 653, 30 Pac. I, 28 Am. St. Rep. 151. Notoriety; Qualification of Rule. Possession taken under a parol gift is adverse in the donee against the donor, and if continued for fifteen years perfects the title of the donee as against the donor. The donor in such cases not only knows that the possession is adverse, but intends it to be, and there is no occasion for any notoriety. Clark z'. Gilbert, 39 Conn. 94. 39. United States. — Zeilen v. Rogers, 21 Fed. 103. California. — Hespera L. & W. Co. -'. Rogers, 83 Cal. 10, 23 Pac. 196, 17 Am. St. Rep. 209; De Frieze z: Quint, 94 Cal. 653, 30 Pac. i, 28 .\m. St. Rep. 151. Georgia. — Flannery v. Hightower, 97 Ga. 592, 25 S. E. 371- Illinois. — Bums v. Edwards, 163 111. 494. 45 N. E. 113. Indiana. — Mason z'. Calumet Canal & Imp. Co., i=;o Ind. 699, 50 N. E. iMasscichusctts. — AW^n v. Helton, 37 Mass. 458. Michigan. — Cornwell Mfg. Co. v. Swift, ^ Mich. 503, 50 N. W. looi. Minnesota. — Swan v. Munch, 65 Minn. 500, 67 N. W. 1022, 60 Am. St. Rep. 491, 35 L. R. A. 743- No Unvarying Rule as to Nature of Possession. — " As to adverse possession there can be no abso- lutely unvarying rule with reference to every kind of real estate. The requirement as to the kind of oc- cupancy of or dominion over land to show adverse possession in the case of a cultivated farm, a town lot or a residence in a populous city may be quite inapplicable or even impossible in the case of a piece of desert land, a mining claim, a non- navigable lake, a prairie or a forest." Mason z'. Calumet Canal & Imp. Co.. 150 Ind. 699, 50 N. E. 85. Use Need Not Be Constant — Oc- cupation and use of a right of flow- age or poundage in order to create a prescriptive right, need not be constant in the sense of a daily oc- cupancy or use. It must be con- tinuous and uninterrupted, but not necessarily constant. Cornwell Mfg. Co. V. Swift, 8g ^lich. 503, 50 N. W. looi. Vol. I 662 ADVERSE POSSESSIOX. B. Slccessixe Possessions May Be Combined. — Distinct pos- sessions of the same nature may be united successively in order to complete the requisite period.'"' a. Privity of Estate Must Be Slwicii. — To effectually connect such distinct possessions it must appear that the actual relationship subsisting between such successive occupants was equivalent to a privit\- of estate.*^ What Use Sufficient When the claimant needs the use of the ease- ment from time to time, and so uses it, there is a sufficient contin- uous use to be adverse although it is not constant. Swan z\ Munch, 65 Minn. 500. 67 N. W. 1022, 60 Am. St. Rep. 491, 35 L. R. A. 743. " An omission to use when not needed does not disprove a con- tinuity of use, shown by using when needed." Hespera L. & W. Co. z: Rogers, 83 Cal. 10, 23 Pac. 196. 17 Am. St. Rep. 209. 40. United States. — W'alden v. Gratz, 14 U. S. 292, 4 L. Ed. 94; Walden v. Gratz, i Wheat, 292. Alabama. — Smith J'. Roberts, 62 Ala. 83. Connecticut. — Fanning v. Will- cox, 3 Day 258. Illinois. — Weber -e. .Anderson, 73 111.439. Kentucky. — Shannon v. Kinny, i A. K. Marsh. 3, 10 Am. Dec. 705. Massacliusctts. — Leonard v. Leon- ard, 7 Allen 277. Mississippi — Benson v. Stewart, 30 Miss. 57; Harvey v. Briggs, 68 Miss. 60, 8 So. 274, 10 L. R. A. 62. Missouri. — Cooper v. Ord, 60 Mo. 420; Bakewell v. McKee, lOi Mo. 337, 14 S. W. 119. North Carolina. — Alexander v. Gibbon, 118 N. C. 796, 24 S. E. 748, 54 Am. St. Rep. 757; Miller v. Bumgardncr, 109 N. C. 412, 13 S. E. 935- Ne'a' Jersey. — Colgan v. Pellens, 48 N. J. Law 27, 2 Atl. 633. Nczi.' York. — Reformed Church v. Schoolaraft, 65 N. Y. 134. Oregon. — Clark v. Bundy, 29 Or. I go, 44 Pac. 282. South Carolina. — McLeod v. Rogers. 2 Rich. Law 19 ; Johnson v. .McMullan, i Strob. 143. Tennessee. — Sins x'. Eastland, 3 Head 368. Vol. I Tacking Successive Possessions. It is immaterial whether the posses- sion be held for the entire period by one party, or by several parties in succession, provided the possession be continued and uninterrupted. Benson v. Stewart, 30 Miss. 57. 41. United .9^ii;c.s. — Christy v. Aloord, 58 U. S. 601 ; Patterson v. Games, 47 U. S. 550; Shuffleton v. Nelson, 2 Sawy. 540, 22 Fed. Cas. No. 12,822. Alabama. — Ross f. Goodwin, 88 .A.la. 390, 6 So. 682; Louisville & N. R. Co. V. Philyaw, 88 Ala. 264, 6 So. 837 ; Carter -e. Chevalier, 108 Ala. 563, 19 So. 798. California. — Allen z'. McKay, 120 Cal. 332, 52 Pac. 828 ; San Fran- cisco V. Fulde, 37 Cal. 349, 99 Am. Dec. 278 ; Pulliam v. Bennett, 55 Cal. 368. Colorado. — Evans v. Welsh (Colo.), 68 Pac. 776. Florida. — Kendrick v. Latham, 25 Fla. 819, 6 So. 871. Georgia. — Burch v. Burch, 96 Ga. 133, 22 S. E. 718; Morrison z'. Hays, 19 Ga. 294. Indiana. — Doe S'. Brown, 4 Ind. 143; McEntire -•. Brown. 28 Ind. 347- Kentucky. — Winn ?'. Wilhite, 5 J. J. Marsli. 521 ; Bell 'e. Pry. 5 Dana 341. Maine. — Cornville i'. Hutchins, 73, Me. 227. Maryland. — Armstrong v. Ris- teau, 5 Md. 256, 59 Am. Dec. 115. .Massachusetts. — Haynes v. Bord- man, 119 Mass. 414; Wade r. Lind- sey, 6 Mete. 407. Minnesota. — Witt t'. Railway Co., 38 Minn. 122, 35 U. W. 862; Rani- sey 7'. Glemiy, 45 Minn. 401. 48 N. W. 322. Mississippi. — •Huntington ;•. Al- len, 44 .Miss. 654. Missouri. — AdUins i'. Tonilinson, ADVERSE POSSESSION. 665 b. Privity, How Proi-cd. — Privity may be established b\' oral proofs- Distinctions Respecting^ Actual and Constructive Possessions. — In some jurisdictions the doctrine appears to obtain, that written evidence is necessary to effect the required privity between successive occu- pants ; except as to so niucli (,z> C. Particulak Description Not Always Necessary. — If land not included in a deed description, but lying contiguous to that actually described, be occupied in like manner as the other, it will pass by a deed following the original description.'"' 17. iPeriod Need Not Be That Next Preceding. — The period requisite to confer title by adverse possession need not be that imme- diately preceding a given date.'"' Vermont. — Alexander v. Stewart, 50 Vt. 87. West Virginia. — Ketchum v. Spurlock, 34 W. Va. 597, 12 S. E. 832. 46. Rights of Successive Dis- seizors May Be Transferred in Pais. If tlie successive owners of a lot of land for a continuous period of twenty years occupy and use a strip of land adjoining, the possession of which is transferred to each suc- cessive grantee but described in none of the deeds, the right of the owner of the record title will be barred. Wishart v. McKnight, 178 Mass. 356, 59 N. E. 1028. Acts Evidencing Privity of Pos- session If one holding the legal paper title to a piece of land, in enclosing it, include within the en- closure a piece of adjoining land, enters into possession of the entire enclosed tract and then transfers his legal paper title to another, who goes into possession of the entire tract, this is sufficient evidence of a transfer of possession to create a privity and tack the two possessions together to make out an adverse possession of twenty years. Davock v. Nealon (X. J.), 32 Atl. 675. Rights Under Adverse Possession Transferable in Pais — It is set- tled that one who has the possession of land is thereby invested with the right to that land, which in the absence of a better title will be enforced by law . . . and this possession, and the right arising out of it may be transferred /// pais to another." Wishart v. McKnight, 178 Mass. 356, 59 N. E. 1028. Possession of Land Outside of Deed Limits Cannot Be Tacked. A claimant of land by adverse pos- session cannot tack to the time of his possession that of a previous holder, when the land is not in- cluded in the boundaries in the deed from such holder." Vicksburg & Pac. R. Co. V. Le Rosen, 52 La. Ann. 192, 26 So. 854. 47. Alabama. — Echols v. Hub- bard, 90 Ala. 309, 7 So. 817; Hoff- man V. White, 90 Ala. 354. 7 So. 816. California. — Unger v.. Mooney, 63 Cal. 586, 49 .\m. Rep. 100; Can- non V. Stockmon, 36 Cal. 535. 95 .\m. Dec. 205; Webber r. Clarke, 74 Cal. II, IS P^c. 431. Minnesota. — Dean v. Goddard, 55 Minn. 290, 56 N. W. 1060. Mississippi. — Geohegan r. Mar- shall, 66 Miss. 676, 6 So. 502. .Missouri. — Allen v. Mansfield, 82 Mo. 688; Crispen v. Hannovan, 50 .\lo. 536. iVfti' York. — Sherman v. Kane, 86 N. Y. 57- North Caro/ino. — Chnstenbury v. King. 85 N. C. 229. Pennsylvania. — Union Canal Co. f . Young, I Whart. 410, 30 Am. Dec. 212. r^ra.5. — Branch 1: Baker, 70 Tex. 190, 7 S. W. 808. Need Not Be Ten Years Imme- diately Preceding. — " On the con- trary we understand the law to be that any ten years of continuous adverse possession before suit brought will vest title in the holder as efficiently and absolutely, for all purposes as would an absolute con- veyance from the holder of the fee." f.chols V. Hubbard, 90 Ala. 309, 7 So. 817. The ten years relied on need not be those next before the action brought. Allen v. Mans- field, 82 Mo. 688; Unger v. Mooney, 63 Cal. 586, 49 Am. Rep. 100. Need not be twenty years iinmediately pre- ceding the date upon which an amended act shortening the time to Vol. I 666 -iDI 'ERSf. POSSESSIOX. IV. PRESUMPTIVE EVIDENCE. 1. Presumptions All in Favor of True Owner. — The weight of authorit}' supports the rule that every presuni]5tiou is in favor of a possession in subordination to the title of the true owner.** 2. Owner Seized in Fee Simple Presumed to Be Entitled to Pos- session. — And, that in the absence of C(>unter\ailing proof, one shown to be seized in fee simple is deemed in constructive pos- session and rightfully entitled to the actual possession.*'' fifteen years, went into effect. Dean J'. Goddard, 55 Minn. 290, 50 N. W. 1060. 48. United States. — McClurg v. Ross, 5 Wheat. 116. Colorado. — Evans v. Welsh (Colo.), 68 Pac. 776. Plorida. — Barrs r. Brace, 38 Fla. 265, 20 So. 991. Georgia. — Gay r. Mitchell, 35 Ga. 139, 89 Am. Dec. 278; English v. Register, 7 Ga. 387. Illinois. — Bryan v. East St. Louis, 12 111. App. 390. Mississippi. — Davis v. Bouneau, 55 Miss. 671. Missouri. — Meylar ;'. Hughes, 60 Mo. 105. New York. — Jackson v. Sharp, 9 Johns. 163, 6 Am. Dec. 267 ; Doherty V. Matsell, 119 N. Y. 646, 23 N. E. 994; Heller v. Cohen, 154 N. Y. 299, 48 N. E. 527; Lewis V. N. Y. H. R, Co., 162 N. Y. 202, 56 N. E. 540. Tennessee. — Marr v. Gilliam, i Cold. 488. U'iseonsin. — Fuller j'. Worth. 91 Wis. 406, 64 X. W. 995. Possession Presumed To Be Under That One of Two Instruments Which Is Subservient. — When the evi- dence shows an occupant to be in possession under two separate in- struments ; one subservient and the other hostile to the true owner, such possession, in the absence of positive notice to the contrary, will be regarded as subservient only ; the law raising a presumption in favor of an honest and against a dis- honest purpose. Lewis v. N. Y. H. R. Co., 162 N. Y. 202, 56 N. E. 540. Presumptive Evidence. — " And this doctrine of adverse possession is to be taken strictly, and nnist be made out by clear and positive proof, and not by inference ; every pre- sumption being in favor of a posses- sion in subordination to the title of the true owner." Marr v. Gil- Ham, I Cold. (Tenn.) 488. " The presumption is that the pos- session is in subordination to the actual title." Heller z'. Cohen, 154 N. Y. 299, 48 N. E. 527. 49. United States. — Brownsville r. Cavazos, 100 U. S. 138; Lamb V. Burbank, i Sawy. 227, 14 Fed. Cas. No. 81 12; Thomas v. Hatch, 3 Sum. 170, 23 Fed. Cas. No. 13.899: L'. S. V. .\rredondo, 6 Pet. 691 ; Lanvell r. Stevens, 12 Fed. 559. Arkansas. — Miller v. Fraley, 23 Ark. 735 ; Scanlan v. Gulling, 63 Ark. 540, 39 S. W. 713. Massaehusetts. — Kennebeck r'ur- chase v. Call, i Mass. 483. Minnesota. — Washburn z\ Cutter, 17 Minn. 361. Neii' Jersey. — Sa.xton z\ Hunt, 20 N. J. Law 487. Nezv York. — Howard i'. Howard, 17 Barb. 663. I'ermont. — HoUey v. Hawley, 39 Vt. 525, 94 Am. Dec. 350. Washington. — Balch v. Smith, 4 Wash. 497, 30 Pac. 648. Seizin Presumes Possession. Where it appears that the parties are seized in fee simple this gives them constructive possession and the right to actual possession, which will be presumed until the contrary appears. Lamb z\ Burbank, i Sawy. 227, 14 Fed. Cas. No. 81 12. Where evidence shows that there has never been any possession, ad- verse or otherwise, the possession follows the legal title by construction. Scanlan z\ Gulling, 63 ."Krk. S40, 3(> S, W. 71.?. Ownership and Seizin Presumed to Vol. I ADVERSE POSSESSJOX. ()()7 3. Mixed Possession Governed by the Same Rule. — The principle applies also in case of a mixed possession.'"' 4. Grant From State May Be Presumed. — In support of a claim !)}• adverse povsessiun, a tyrant from the state may be presumed from facts and circumstances.^' Continue. — Wliere ownership and seizin are once shown it will be presumed to have continued until such presumption is overcome by allegation and proof of adverse pos- session in some one else. Balch z'. Smith, 4 Wash. 497, 30 Pac. 648. legal Owner Presumed in j^osses- sion Every person is presumed to be in the legal seizin and possession of the land to which he has a per- fect title, until ousted by an actual possession in another under a claim of right. U. S. V. .A.rredondo, 6 Pet 691. ^50. United States. — Linveii z: Stevens, 12 Fed. 559; Brownsville v. Cavazos. 100 U. S. 138; National Water Works Co. v. Kansas City, 78 Fed. 428. Kentucky. — AlcConnell z: Wil- born (Ky. App.). 24 S. W. 627; PoUit T'. Bland ( Kv. .\pp.), 22 S. W. 842. Louisiana. — Wafer v. Pratt, i Rob. 41, 36 Am. Dec. 681. Marvlanil. — Cheney f. Ring-ejciUl. 2 Har. & J. 87. Massachusetts. — I.each z\ Woods. 14 Pick. 461. Missouri. — Crispen v. Hannovan, 50 Mo. 536 ; Robert z'. Walsh, 19 Mo. 452. Nezv Hampshire. — Bailey v. Car- leton, 12 N. H. 9, ij Am. Dec. 190. Nezu Fo;7^ — Culver z: Rhodes, 87 N. Y. 348. Pennsylvania. — Union Canal Co. I'. Young, 1 Whart. 410, 30 .-Vm. Dec. 212. Tennessee. — Fancher v. De Alon- tegre, i Head 40. South Carolina. — Lloyd v. Rawl (S. C), 41 S. E. 3r2. Neither Concurrent Occupant Ac- quires Title Adversely Evidence showing several to have held con- temporaneous use and occupation of property devolves the title upon the holder of the legal title. Wafer z'. Pratt. I Rob. 41. 36 .^m. Dec. 681. In Mixed Possessions Legal Right Controls Where two persons are in mi.xed possession of the same land, one by title the other by wrong, the law considers the one who has the title as in possession to the extent of his right, so as to pre- clude the other from taking advantage of the statute of limitations. Cheney '■. Ringgold, 2 Har. & J. (Md.) 87; Crispen v. Hannovan, 50 Mo. 536. " Where actual possession is claimed by both the law presumes it to have been with him who has the right." Pollit V. Bland (Ky. App.), 22 S. W. 842. Mixed Possession The posses- sion follows the title, and if the owner and others are in possession, the law considers the owner to have the possession. Lanvell v. Stevens, 12 Fed. 559. Where there has been a mi.xed pos- session of the parties, continued con- test and litigation for a long time before suit and no actual possession ))y either claimant of a large por- tion of the property, no prescriptive rights can be claimed. Brownville z\ Cavazos, 100 U. S. 138. " And this rule applies as strongly in favor of the children and other members of the father's family as strangers." Fancher v. De Mon- tegre, I Head. 40. 51. United States. — Jackson v. Porter, I Paine 457, 13 Fed. Cas. No. 7143; Barclay v. Howell, 6 Pet. 498. Alabama. — Stodder v. Powell, I Stew. 287. Kentucky. — Jorboe v. Mc.\tee, 7 B. Mon. 279. Maine. — Crooker v. Pendleton, 23 Me. 339. Maryland. — Casey z'. Inloes, I Gill. 430, 39 .\ni. Dec. 658. Michigan. — State j'. Dickinson (.Mich.), 88 N, W. 621. Missouri. — McNair z\ Hunt. 5 Mo. 300. Vol. I 068 ADVERSE POSSESSION. This Presumption May Be Rebutted by Contrary Presumptions. — But the presunipticn of a .i^rant nia\- l)c rebutterl by cdiitrarv presump- tions.''- 5. Peaceable Possession, Effect Of. — Proof of Peaceable Possession Establishes Prima Facie Right. — And, evidence merely showing one to be in peaceable possession of land establishes a prima facie title which will defeat an adversary who neither asserts title in himself nor shows it t(.i be in another.''" When Possession Presumed to Be Adverse. — Possession accom- panied by the usual acts of ownership is presumed to be adverse until shown to he subservient to the title of another. ^^ 6. Unexplained Possession Shows Prima Facie Title. — And, an unexplained possession will be sufficient pniiia jacic evidence of title by adverse possession. '^^ Xorth Car, lima. — Rogers v. Mabe, 4 IJcv. i8o ; Reed v. Eanihart, lo Ired. 5l6; Pliipps V. Pierce, 94 N. C. 514; Hamilton v. Icard, 114 N. C. 532, 19 S. E. 607. Tennessee. — Scales v. Cockrill, 3 Head 432 ; Hanes v. Peck, Mart. & Y. 228; Gilchrist v. McGee, 9 Yerg. 455- ]'erinont. — Victory v. Wells, 39 Vt. 488. Grant Presumed Against the State. A grant to land may be presumed against the state from facts and cir- cumstances in cases where the original grant cannot be produced and no record of it can be shown. State V. Dickinson (Mich.), 88 N. VV. 621. " In order to raise a presumption of grant from the state it is not necessary to show a continuous and unceasing possession. A break of two or three years in the chain of possession or a failure to show a connection between successive occu- pants, is not a fatal defect in the proof, where in the aggregate, the actual possession has extended over the statutory period." Hamilton v. Icard, 114 N. C. 532. 19 S. E. 607. 52. Hurst V. McNeil, i Wash. C. C. 70, 12 Fed. Cas. No. 6936. Presumption of Grant May Be Rebutted by Contrary Presumptions. Tile presumption of a grant arising from lapse of time may be rebutted by contrary presumptions, and can never arise where all the circum- stances are entirely consistent with the non-existence of the grant, nor Vol. I where the claim is at variance with the supposition of a grant. Randale V. Grove, 4 McLean 282, 20 Fed. Cas. No. 11,570. 53. Reed v. C. M. St. P. R. Co., 71 Wis. 399, 27 N. W. 225; Moore V. Chicago M. & St. P. R. Co., 78 Wis. 120, 47 N. W. 273; Record v. WilHams, 7 Wheat. 59. Possession Prima Facie Title. " A defendant in possession of land, when sued in ejectment, stands upon his possession, and the law requires nothing at his hands in defense until the plaintiff has made out a prima facie title and shown a present right under it to recover the land." At- kinson :•. Smith (Va.), 24 S. E. 901. 54. Barnes v. Light, 116 N. Y. 34, 2> N. E. 441 ; Neei v. McElheny, 69 Pa. St. 300; Gillispe v. Jones, 26 Tex. 543 ; Black ?'. Tennessee Coal & Iron Railroad Co., 93 Ala. 109, 9 So. 537. Open and Notorious Possession and Cultivation Presumed To Be Ad- verse. — In the absence of evidence lo the contrary open and notorious possession of realty by occupancy and customary cultivation will be pre- sumed to be adverse. Hammond v. Crosby, 68 Ga. 767. Such actual possession, being an open and patent fact, furnishes evi- dence of its own existence, and is the equivalent of actual notice of the claim under which it is held. Murray r. Hoyle, 92 Ala. 599. 9 So. 368. 55. Woolman v. Ruehle, 104 Wis. (K)3. 80 N. W. 919; Bryan t'. Spivey, ADVERSE POSSESSION. (if)' York. — Kent 7'. Harcourt, 33 Barb. 491. Tennessee. — Dyche v. Gass, 3 Yerg. 397. Te.vas. — Shepard v. Galveston R. Co. (Tex. Civ. App.), 22 S. W. 267. J'irginia. — Kincheloe v. Trace- wells. II Graft. 587. Heir of Patentee Has Color of Title One who enters upon land as an heir of the patentee, from whom no conveyance is shown, has color of title although the patent was not in his possession. Miller v. Davis, 106 Mich. 300, 64 N. W. 338. 69. Rannels r. Rannels, 50 Mo. hi; Miller v. Davis, 106 Mich. 300, 64 N. W. 338; Dyche v. Gass, 3 Yerg. (.Tenn.) 397. Color of Title by Possession Under Parol Agreement — Color of title may be made through conveyances Vol. I 678 ADVERSE POSSESSIO.y. forcible entry case involving; the disputed premises, is admissible on behalf of the one in whose favor judjjnient was rendered, as tending to show that such party had maintained an adverse possession for the statutory period."" 2, All Writings Tending to Show Nature of Claim Asserted, — Any writing- tending; to show the nature of the claim asserted to the land will be admissible whether recorded or not.'^ or bonds and contracts, or bare pos- session nnder parol agreements. Ed- gerton z'. Bird, 6 Wis. 527, 70 Am. Dec. 473. 70. United States. — Sharon i'. Tncker, 144 U. S. 533- Alabama. — Bishop v. Tructt, 85 Ala. 376, 5 So. 154; Barron v. Barron, 122 Ala. 194, 25 So. 55. California. — Unger :■. Roper, 53 Cal. 39; Fredricks v. Judah. 73 Cal. 604, 15 Pac. 305; Spotts V. Hanley, 85 Cal. 155, 24 Pac. 738; Dillon 7'. Center, 68 Cal 561, 10 Pac. 176. Missouri. — Hickman v. Link (Mo.), 7 S. W. 12. North Carolina. — Faulcon v. John- ston, 102 N. C. 264, 9 S. E. 394. Texas. — Rodrignez z: Lee, 26 Tex. 32; Thonvernin v. Rodrignez. 24 Tex. 468. Vermont. — Hollister r. Yonng, 42 Vt. 403. " Though in an action of unlaw- ful detainer the title to the land can- not be inquired into, a judgment in .such action is an adjudication that the defendant therein did not have and hold adverse possession at the time the action was instituted, that his possessory interest, whatever may be its character and extent, had ter- minated, and that the plaintiff therein is lawfully entitled to possession." Bishop V. Truett, 85 Ala. 376, 5 So. '54- In an action in which there was evidence tending to show that the adverse possession of the land by one of the claimant's grantors had been interrupted and broken by the entry of another person, it was com- petent in a rebuttal of this to intro- duce the record in an unlawful de- tainer suit brought by the claimant against such intruders which had been prosecuted successfully. Barron T. Harron. 122 Ala. 194, 23 So. 55. Equitable Action to Confirm Title Vol. I by Adverse Possession " The title by adverse possession, of course, rests on the recollection of witnesses ; and by a judicial determination of its validity against any claim under the former owners, record evidence will be substituted in its place." Sharon 'I'. Tucker, 144 U. S. 533. 71. Alabama. — ^\ob\\3 S. E. 154- General Notoriety of Fact Once Established May Be Shown. Whilst the existence of the fact can- not be proved by reputation or noto- riety, it is competent after a fact has been shown to exist to show the gen- eral notoriety of it in the neighbor- hood, in order to charge the resident of the vicinity with notice of it. Tennessee Coal Iron R. Co. !■. Linn, 123 .\la. 112, 25 So. 245. Reputed Boundaries " The first town plat was filed si.xty years ago. The streets have been recognized as public highways ever since, and cer- tainly evidence of general repute as to the location of the boundaries of these streets is admissible." Klinker r. Schmidt. (Iowa), 87 N. \V. 661. t2. Mc.\uliff i: Parker, 10 Wash. 141, 38 Fac. 744. Generally Reputed To Be Owner. It is competent to prove that it was generally understood in the neighbor- hood not only that one pastured his cattle on lands, but that he did so under claim of ownership, and that his claim and the character of his possession were such that he was generally reputed the owner, as hav- ing an important bearing upon the notoriety of his possession. Max- well Land-Grant Co. v. Dawson, i^i U. S. 586, 14 Sup. Ct. 458. Reputation of Claim of Ownership. " Defendant having shown liis pos- Vol. I ()«4 ADVERSE POSSESSION. \>. Klle Kot Uniform. — This rule is not of uniform recoeni- tion."-^ XI. WHERE ADVERSE CLAIM IS MADE BY PUBLIC. Evidence Must Show Definite Use. — Where adverse claim is made by the pubhc, the evidence must be such as to fix the character and extent of the use with practical certainty.** XII. AS BETWEEN LANDLORD AND TENANT. By Tenant Against Landlord Evidence of Disclaimer Known to land- lord Initiates Adverse Occupancy. — A tenant nia\ initiate an adverse occupancy against his landlord by the denial of all subserviency to him brought distinctly to his knowledge.*'^ session for the requisite length of time, under tax titles which are now conceded to be invaHd, was sulTered to prove that the land was generallj- understood to be and called his. in the neighborhood. Exception was taken to this evidence, but we think it was competent. It tended to es- tablish the notoriety of defendant's possession, and claim of title, whicli were important facts in his defense." Sparrow f. Hovey, 44 Mich. 63. In an action of ejectment it was held competent for the defendant to show that during a given period, it was generally understood and known in the vicinity of llic lands in dis- pute that they were claimed by a company as its own. Woods i'. Mon- tevallo Coal & Transp. Co.. 84 .Ma. 560, 3 So. 475, 5 Am. St. Rep. 393. 83. .A.twood V. Caiirike, 86 Mich. 99, 48 N. W. 950; Walker v. Hughes. 90 Ga. 52. 15 S. E. 912; Casey z>. In- loes, I Gil! (Md.) 430, 39 Am. Dec. 658; Beecher v. Galvin, 71 Mich, 301. ,^9 X. W. 460, Ownership Cannot Be Proved by Reputation. — It is not competent to ^hcl^v liy reputation and general un (lerstanding in the neighborhood that the plaintiffs in this class of actions owned or had title to the land ; and it is error to permit a witness to testify that " the land was generally known and considered as belonging to the plaintiff;" that, "it was understood and known in the community as plaintiff's land." Goodson v. Brotli- ers. III Ah. 589, 20 So. 443. Testimony that the claimant was generally understood to be the owner Vol. I of the land in controversy is inadmis- sible in support of claim of title by adverse possession. Preston v. Hil- burn, (Tex. Civ. App.), 44 S. W. 698. 84. Wyman v. State, 13 Wis. 663; Stephens v. Murrv, 132 Mo. 468, 34 S. W. 56. Evidence Must Establish the Use With Practical Certainty " Where tile public have acquired the right to a public highway by user, they are not limited in width to the actual beaten path. The right carries with it such width as is reasonably neces- sary for the public easement of travel, and the width must be deter- mined from the facts and circum- stances peculiar to each case. The highway having been permanently fenced the usual width of highways in the locality, and the width recog- nized by the owner of the fee and the public, when there has been such recognition, are permanent facts from which, in connection with other evidence, width may be inferred." Whitesides v. Green, 13 Utah 341, 44 Pac. 1032. Change of Roadway, When Will Not Impair Right " Tne track by reason of washing or other causes, by consent of the traveling public who use it changes a few feet some- times to one side of the 33 feet and sometimes to the other, but the road remains substantially the same. Sucli a change in a roadbed acquired by prescription would not destroy the right." Kurtz ■:■. Hoke, 172 Pa. St. 16.1, 3.^ Atl. 549. 85. Alahatna. — I)c Jarncttc v. Mcnanicl, ()3 .\la. 215, 9 So. 570. ADVERSE POSSESSION. (i.S.T XIII. AS BETWEEN CO-OWNERS — PRESUMPTIONS. Presumption That Possession of One Is for Benefit of All. — The pos- session of the whole by one co-owner will be presumed to be for the benefit of all, agreeably to their several rights, until notice of a different intent on his part is imparted to them.*'^ 1. This Is Simply a Rule of Evidence. — The presumption of amicable relations between tenants in common is merely a rule of evidence, liable to be overcome by the circumstances of any particu- lar case involving the question whether in fact the possession was adverse, and is not a rule of law denying the application of the California. — Thompson i'. Pioche, 44 Cal. 508; Abbey Homestead Ass'n V. Willard. 48 Cal. 614. Florida. — Wilkins v. Pensacola City Co., 36 Fla. 36, 18 So. 20; Winn V. Strickland, u Fla. 610. 16 So. 606. Illiiwis. — Lowe v. Emerson, 48 111. 160. Michigan. — Ryerson v. Eldred, 18 Mich. 12. Mississil>l>i. — Jones v. Madison Co., 72 Miss. 777, 18 So. 87 ; Greenwood V. Moore (Miss.), 30 So. 609. Missouri. — Cook v. Farrah, 105 Mo. 492, 16 S. W. 692 ; Pilaris v. Jones, 122 Mo. 125. 26 S. W. 1032; Hamilton v. Boggess, 63 Mo. 233. Nebraska. — Shields v. Harbach, 49 Neb. 262, 68 N. W. 524. xVi'ti' Jersey. — Horner v. Leeds, 2$ N. J. Law 106. Neic York. — Bedlow v. New York Floating Dry Dock Co., 112 N. Y 263, 19 N. E. 800, 2 L. R. A. 629. Oregon. — Nessley v. Ladd, 29 Or. 354, 45 Pac. 904. South Carolina. — Trustees v. Jen- nings, 40 S. C. 168, 18 S. E. 257, 42 Am. St. Rep. 854. Vermont. — Sherman v. Transp. Co., 31 Vt. 162. IVest Virginia. — Swann v. Young, 36 W. Va. 57, 14 S. E. 426 ; Swan v. Thayer, 36 W. Va. 46, 14 S. E. 423 ; Voss I'. King, 3i W. Va. 236. 10 S. E. 402. Evidence of Repudiation of Ten- ancy. — •• The law is well seuled that a tenant, after the e.xpiration of his lease, may disavow and disclaim his title and the title of his landlord. and drive the landlord to his action for the recovery of the possession within the period of the statute of limitations, but before any foundation can be claimed for the operation of the statute in such a case, a clear, positive and continued disclaimer and disavowal of the landlord's title, and assertion of an adverse right must be brought home to the landlord by clear, positive and distinct notice." Wilkins i'. Pensacola City Co., 36 Fla. 36, 18 So. 20. 86. United States. — Elder z'. M. Claskey, 70 Fed. 529; Zellers Lessee V. Eckert. 4 How. 289. California. — Brown r. McKay. 125 Cal. 291, 57 Pac. looi ; Reed v. Smith, I2t Cal. 491, 58 Pac. 139; Scadden Flat G. M. Co. v. Scaddcn. 121 Cal. 33, 53 Pac. 44°- Missouri. — Stevens i'. Martin (Mo.>, 68 S. W. 347- Pcnnsylz'ania. — Watson ;■. Gregg. 10 Watts 289, 36 Am. Dec. 176. Tennessee. — Woodruff i: Roysden, 105 Tenn. 491, 58 S. W. 1066. So .\m. St. Rep. 905. Vermont. — Holley v. Hawley, 39 Vt. 525, 94 Am. Dec. 330; Roberts I'. Morgan, 30 Vt. 319; Leach z'. Beattie, 33 Vt. 195. One Tenant in Common Holds for Benefit of All. — "Under auiliority above cited" (Mo. cases) "where a tenant in common takea possession of a tract of land, in which he has an undivided interest, unless he man- ifests a contrary intention he is presumed to hold possession as well for his co-tenants as for himself." Stevens v. Martin (Mo.), 68 S. W. M7- Vol. I 686 AD I 'ERSE POSSESSION. statute of limitations to persons sustaining- the relations of tenants in common.'" 2. Evidence Must Show Distinct Acts of Adverse Claim to Oust Co- Owner. — And, in order to avoid such fiduciary relation and estab- lish one inimical to the rights of his co-tenants the evidence must show distinct acts of repudiation and assertion of an adverse claim brought home ti) his co-tenants.^' 3. Entry and Claim Under Deed of Whole by One Co-Owner May 87. United States. — Zcllers r. Eckerl. 4 How. 289 ; Clymers' T^essec i'. Dawkins. 3 How. 674. California. — Trenouth v. Gilbert, 86 Cal. 584, 25 Pac. 126; Unger v. Mooney, 63 Cal. 586. 49 Am. Rep. 100; Packard v. Moss, 68 Cal. 123. 8 Pac. 818. Connecticut. — Newell 7'. Wood- ruff, 30 Conn. 492. Massachusetts. — Cummings v. Wy- man. 10 Mass. 465; Leonard v. Leonard, 7 Allen 277. New Jersey. — Foulke v. Bond, 41 N. J. Law 527. Nev.' York. — Baker v. Oakwood, 123 N. Y. 16, 25 N. E. 312; Zaph v. Carter, 70 App. Div. 395, 75 N. Y, Te.vas. — Beall v. Evans, i Tex. Civ. App. 443, 20 S. W. 945; Puckett z: .McDaniel, 8 Tex. Civ. App. 630, 28 S. W. 360. Distinction Between Strangers and Tenants in Common "In the acquisition of title by adverse pos- session the distinction between strangers and tenants in common relates to the character of the evi- dence necessary to prove that the pos- session was adverse." Foulke z\ Bond, 41 N. J. Law 527. Evidence to Show Adverse Posses- sion of Tenant in Common. — " The only distinction in this class of cases and those in which no privity be- tween the parties existed when the possession commenced is in the degree of proof required to establish the adverse character of the posses- sion. The statute, therefore, does not begin to operate until the pos- session, before consistent with the title of the true owner, becomes tortious and wrongful by disloyal acts of the tenant, which must be open, notorious, so as to preclude all doubt as to the character of the holding or want of knowledge on the part of the owner." Zellers v. Eckert, 4 How. 289. " It is true that the entry and possession of one ten- ant, in common of and into land held in common is ordinarily deemed the entry and possession of all the ten- ants, and this presumption will pre- vail in favor of all until some noto- rious act of ouster or adverse pos- session by the party so entering into possession is brought home to the knowledge or notice of the others." Clvmers' Lessee v. Dawkins, 3 How. Pr. (N. Y.) 674- 88. England. — Doe v. Taylor, 5 Barn. & A. 575. United States. — Prescott i'. Nevers, 4 Mason 330, 19 Fed. Cas. No. 11,- 390; Zellers v. Eckert, 4 How. 289. Arkansas. — McNeely z\ Terry, 61 Ark. 527, 3.3 S. W. 953- California. — Brown v. McKay, 125 Cal. 29, 57 Pac. looi ; Packard v. Johnson. 57 Cal. 180; Gage r. Dow- ney, 94 Cal. 241. 29 Pac. 635: Seaton T. Son, 32 Cal. 48T ; Gregory v. Greg- ory, 102 Cal. 50, 36 Pac. 364. Connecticut. — Newell i'. Woodruff, 30 Conn. 492: White r. Beckwith, 62 Conn. 79, 25 Atl. 400. Delaware. — Mulbourn v. David, 7 Houst. 209. 30 At\. 971. Florida. — Coogler v. Rogers. 25 Fla. 8s3, 7 So. 391. /«i)io/.!. — Ball r. Palmer, 81 111. 370; Nickrans '<.■. Wilk. 161 111. 76, 43 N. E. 74'- /Hrfffliia. — Price v. Hall. 140 Ind. 314, 39 N. E. 941. Kentucky. — Ws.rd v. Ward, 15 Ky Law 706, 25 S. W. 112. Maine. — Mansfield v. McGinniss. 86 Me. 118. 29 Atl. 956. Michigan. — Pierson v. Conley, 95 Mich. 619, 55 N. W. .187. Vol. I A I) I -RRSH POSSESSION. ()87 Evidence Ouster of Others. — And. an entry and claim of owiiciship under a deed from one co-tenant ])urporting- to convey the entire estate in fee may evidence an adverse possession amounting to a dis- seizin of the other co-tenants.*" Mississifpi. — Bentley v. Callaghan (Miss.), 30 So. 709; Alsobrook v. Eggleston, 69 Miss. 8.^3, 13 So. 850. Xeu.' Jersey. — Foulkc v. Bond, 41 N. J. Law 527. Neiv FoW^. — Culver r. Rhodes. 87 N. Y. 348. Ohio. — Youngs f. Heffner, 36 Ohio St. 232. Pennsylvania. — Forward f. Deetz. 32 Pa. St. 69: Hawk r. Senseman, 6 Serg. & R. 21. Texas.— Tea] v. Terrell, 58 Tex. 257 ; Baily i'. Trammel, 27 Tex. 317 ; Beall V. Evans, t Tex. Civ. App. 443. 20 S. W. 945. Virginia. — Pillow r. Southwest Va. Imp. Co., 92 Va. 144, 23 S. E. 32. Wisconsin. — Sydor 7\ Palmer. 29 Wis. 226. Ouster of One Tenant in Common by Another In order ihat pos- session by one tenant in common shall operate as an ouster of his co- tenants the evidence must be such as to justify them in bringing eject- ment against him. Bentley z\ Cal- laghan (Miss.), 30 So. 709. " As betw-een tenants in common. adverse possession begins with an actual ouster. Nothing short of an actual ouster will sever the unity of possession." Seaton v. Son, 32 Cal. 481. Tenancy in Common. — Repudia- tion of co-tenancy nurst always ap- pear clear, for acts and declarations of the party in possession are con- strued much more strongly against him than when there is no privity of title. Teal 1'. Terrell, 58 Tex. 257. A higher degree of proof is required to show an ouster of one tenant in common by another than in cases where this relation does not subsist. Newell V. Woodruff, 32 Conn. 492. 89. Arkansas. — Brown v. Boc- quin, 57 Ark. 97, 20 S. W. 813. California. — Packard j'. Moss, 68 Cal. 123. 8 Pac. 818. Councclicut. — Clark r. Vaughn, 3 Conn. 191. Mississippi. — Harvey ■;: Briggs, 68 Miss. 60. 8 So. 27=;, 10 L. R. A. 62. Neiv Hampshire. — New Market Mfg. Co. v. Pendergast, 24 N. H. 54. Neiv Jersey. — Foulke r. Bond, 41 N. J. Law 527. Next.' York. — Jackson v. Smith. 13 Johns. 40(j; Bogardus f. Trinity Church, 4 Paige 178; Clapp z: Bro- maghan, 9 Cow. 5J0 ; Sweetland v. Buell, 69 N. Y. St. 733, 35 N. Y. Supp. 346. Nortli Carolina. — Ross ?'. Durham. 20 N. C. 54. Pennsylvania. — Longwell v. Bent- ley, 23 Pa. St. 99; Culler t'. Motzer, 13 Serg. & R. 356. Tennessee. — Marr v. Gilliam, i Cold. 488; Weisinger v. >[urphy, 39 Tenn. 674. IVest Virginia. — Bennett v. Pierce. 50 W. Va. 604, 40 S. E. .395. Grantee of One Tenant in Common of \viioIe Estate May Oust Other Tenants. — " But when one tenant in common assumes to sell and convey the entire estate in the premises, and apparently does so by warranty deed, and his grantee takes it as such, and goes into possession, claiming title to the whole, the possession thus taken by the grantee and held by him may be treated as an ouster of the co-tenants, and constitutes an ad- verse possession, and by its con- tinuance for the requisite time will ripen into a title as against them. Clapp V. Bromagham. 9 Cow. 530; Bogardus v. Trinity Church, 4 Paige 178; Town V. Needham, 3 Paige 545; Florence v. Hopkins, 46 N. Y. 186; Baker v. Oakwood, 123 N. Y. 16, 25 N. E. 312." Sweetland v. Buell, 69 N. Y. St. 7iZ, 35 N. Y. Supp. 346. Presumption that the entry of one co-tenant is for the benefit of all does not apply where the grantor's con- veyance is of the whole estate by one of the co-tenants, such an entry being a disseizin of the other co-tenants. Foulke c'. Bond, 41 N. J. Law 527. Vol. I 688 . [iniiRSE POSSESSION. 4. Conveyance of Whole by One Co-Tenant Not Notice of Exclusive Claim. — The conveyance by one joint tenant, or tenant in common, of all his interest in real estate, though the land is described in such manner as to pass the whole under the deed, if the grantor had owned the whole is not notice of itself to the other joint owner of any such exclusive claim to the land as w'ill oust him of his legal seizin in the hind.'"' 5. But Such Deed When Recorded May Have That Effect. — But if duly recorded, such deed may operate to such effect.''^ 6. Sole Possession Not Evidence of Ouster in Itself. — Sole pos- session will not operate as evidence uf an ouster unless supported by claim of exclusive right. "- 7. Acts May Operate As Positive Notice. — iJiit the acts of an occu])anl ma\' create such notorious evidence of his adverse claim Claiming Under Deed of One Ten- ant in Common Adverse to Others. Sale or conveyance of the entire estate by one tenant in common to a stranger who enters into possession under a deed claiming title to the entirety, and openly exercises acts of exclusive ownership works a dis- seizin, and makes the possession of such purchaser adverse to his ven- dor's co-tenants. Bennett v. Pierce, 50 W. Va. 604, 40 S. E. 395- 90. Roberts v. ^lorgan, jo Vi. 320; Hardee z/. Wcathington (\. C. ). 40 S. E. 855. 91. Deed of Whole by One Tenant in Common. — Policy of Recording Acts, — The policy of recording acts substitutes the constructive notice arising from the publicity of record in the place of notoriety of investi- ture by livery of seizin at common law. Foulke v. Bond, 41 N. J. Law 527- Possession Under Deed of All Irom One Tenant in Common Is Adverse. " It does not appear that Tyler had notice or knowledge of the defect in his title. But whether he had such knowledge or not, it is very clear that he was in possession, claiming the entire title; and this undoubtedly was an adverse possession, which, being open and notorious, amounts to a disseizin. To constitute a disseizin, it is not necessary, at the present day, to prove the forcible expulsion of the owner; nor is it necessary for a tenant in common to prove an actual Vol. I ouster of the co-tenant. If he enters, claiming the whole estate, the entry is adverse to the other tenants. The intention so to hold the estate must be manifest, as it is in the present case; and the open and notorious possession of Tyler was constructive notice of a claim adverse to those heirs of Moore who had not conveyed their title. If they had notice by the deeds to Hale, and by him to Tyler (which were duly recorded), they must have known that the latter never entered as tenant in common, but that he entered as purchaser of the entire estate." Parker v. Pro- prietors, 3 iMetc. (Mass.) 91. 92. Parker v. Locks & Canals, 3 Mete. (Mass.) 91; Bentley v. Calla- ghan (Miss.), 30 So. 709. Mere Occupancy of One Tenant in Common Not Evidence of Adverse Claim "But the sole silent occu- pation by one, of the entire property, claiming the whole and taking the wliole profits, with no account to, or claim by the others, accompanied with no act which can amount to an ouster, or give notice to nis co- tenant that his possession is adverse, cannot be construed into an adverse possession." Marr v. Gilliam, i Cold. (Tenn.) 488. Ouster of One Tenant in Common, " An ouster or disseizin is not to bo presumed from the mere fact of sole possession ; but it may be proved by such possession, accompanied b,v a notorious claim of e.xclusive right.'' Bradstreet v. Huntington, 5 Pet. 402. ADVERSE POSSESSfON. 689 as to render it unnecessary to show either positive notice to a co- tenant, or facts showing a probable actual knowledge on his part."^ 8. Conclusive Presumptions. — And, from such acts conclusive presumptions mav arise in favor of an occupant, as against all adverse claimants."'' 93. United States.— Ek\er v. Mc- Claskey, 74 Fed. 581. California. — Packard v. Johnson, 57 Cal. 180; Unger v. Mooney, 63 "Cal. 586, 49 Am. Rep. 100. Illinois. — Dugan v. Follett, 100 111. 581. Massachusetts. — Sullivan v. Holmes, 8 Cush. (Mass.) 252. Missouri. — Warfield v. Lindell, 30 Mo. 272; Lapeyre v. Paul, 47 Mo. 586. Neu' York. — Culver v. Rhodes, 87 N. Y. 348. Tennessee.— W?irx v. Gilliam, i Cold. 488- Actual Ouster of Tenant in Com- mon Not Indispensable — " While mere possession alone, except pos- sibly in very extreme cases, will not be sufficient of itself to establish an adverse holding by one tenant in common against another, yet in such case other circumstances, short of an ouster, may be sufficient for that purpose." Dugan v. Follett, 100 111. 581. Notice of Ouster of Co-Tenant May Be From Acts " It is not necessary that he should give actual notice of his ouster or disseizin of his co-tenant to him. He must, in the language of the authorities, bring it home to his co-tenant. But he may do this by conduct, the implication of which cannot escape the notice of the world, or of any one, though not a resident of the neighborhood, who has an interest in the property, and exercises that degree of attention in respect to what is his that the law presumes in every owner." Elder v. McClaskey, 74 Fed. 529. One Tenant in Common Acquires Title by Adverse Possession " It appears, then, that by consent of the other heirs, Mr. and Mrs. Richard Snllivan entered on the estate as owners, claiming, whether by valid title or not is immaterial, but in fact claiming to hold the whole estate in 44 severalty. This was done with full notice to John L. Sullivan, and there- fore as against him, amounted to a constructive disseizin. After such entry by Richard Sullivan, his ex- clusive, adverse and uninterrupted possession, as stated in the facts, and the entire acquiescence of John L. Sullivan, under circumstances of embarrassment and insolvency, with- out claim, are sufficient proof both of a non-appearing grant, and also of an ouster, continued until all right of entry was barred, before the levy of the tenant's execution." Sullivan v. Holmes, 8 Cush. (Mass.) 94. Van Dyke v. Van Buren, 1 Caines (N. Y.) 464; Cummings v. Wynian, 10 Mass. 465. Conclusive Presumptions — " It is, how-ever. well settled that the ex- clusive and uninterrupted possession by one tenant in common, of land for a great number of years — say for twenty or more — claiming the same as his own, without any ac- count with his co-tenants, or claim on their part — they being under no disability to assert their rights — be- comes evidence of a title to such sole possession ; and the jury are authorized to presume a release, an ouster, or other thing necessary to protect the possessor; and the actioti of ejectment by his co-tenants, in such case, is barred. The pre- sumption is an inference of fact to be dravv'n by the jury, to whom the evidence is to be submitted. 4 Dev. 223-290; Cowper 217; 6 Cowen 632; I Sneed 279. It is made without any reference to our statute of lim- itations, and in no analogy to it." Marr v. Gilliam, 1 Cold. ( Tenn. ) 488. Evidence From Possession and Acts Where one of several heirs had taken exclusive possession of land to which all were entitled as tenants in common, and had im- Vol. I 690 ADVERSE POSSESSION. 9. Evidence of Parol Partition. — Tlie exclusive possession in severalty by co-parceners of the various parts of the common land acquiesced in for a great number of years will authorize an infer- ence of parol partition, unless other circumstances rebut such pre- sumption."^ 10. Exclusive Possession Under Invalid Partition Proceedings. Exclusive possession of one tenant in common under ])artition pro- ceedings invalid against his co-tenant may ripen into title of the entire estate. °° XIV. FRAUDULENT ENTRY. 1. Occupant Gains No Rights by Fraudulent Entry. — A posses- sion taken and held in such manner as to evince a fraudulent pur- pose of concealing the existing conditions of the premises from the true owner, will riOt ripen into title by adverse possession.'"' proved it without interference from tlie others, though they Hved in the immediate neighborhood, and no pos- sessory action was brought by them, or by their heirs or representatives for more than twenty-five years after their death, it was held that no pos- session could probably be found that was not adverse and exclusive within the* statutory period of limitation, and that there could be no recovery in tlie right of the excluded owners. Campan v. Dubois. 39 Mich. 274. When Parol Demise of One Co- Grantee Will Be Presumed One of three joint grantees paying no part of the purchase moncj'. nor claiming any possession or title under the deed during a period of more than forty years, during which exclusive possession of the real estate has been with his co-grantees, will be con- sidered as having made a parol demise of all his interests in the property to such co-grantees, and they will be deemed to hold a valid title to the property as against any claim that he might afterwards assert. Webster v. Holland, 58 Me. 168. 95. Berry "'. Seawell. 65 Fed. 74J Evidence of Parol Partition. ■ We think that, in the absence of ividcnce to the contrary, the fact that co-tenants of a tract of land have occupied the several portions in severalty for more than fifty years, with the knowledge and consent of each other, and have exercised ex- clusive ownership and control over the respective shares, without ob- jection or claim on the part of the other co-tenants, raises a strong pre- sumption of fact that there was a mutual division by agreement, ex- press or tacit, of the land, between the co-tenants according to the lines of exclusive occupancy." Allen r. Seawell. 70 Fed. 561. Evidence of an Executed Parol Partition " Under this agreement Polhemus selected a section which he gave to his daughter, the plaintiflf herein. She entered into the pos- session thereof, claiming the same ; has had the exclusive possession for more than fifteen years ; has culti- vated the same and has made im- provement thereon to the value of seven thousand dollars ; and said cul- tivation and making of improve- ments were known to Robinson and all the co-tenants. This is a strong showing and clearly indicates an ex- ample of an e.xecuted parol par- tition." Tuflfree v. Polhemus. 108 Cal. 670, 41 Pac. 806. 96. Elder v. McClaskey, 70 Fed. 529; Clymess' Lessee v. Dawkins, 3 How. Pr. (N. Y.) 674. 97. California. — Thompson v. Pioche, 44 Cal. 508; Reay v. Butler, 95 Cal. 206, 30 Pac. 208; Walsh v. Hill, 38 Cal. 481. Georgia. — Parker r. Salmons, loi Ga. 160, 28 S. E. 681. Indiana. — Pennington v. Flock, 93 Ind. 378. Vol. I ADVERSE POSSESSION. 6.' Jersey. — Foulke v. Bond, 41 N.J. Law 527. Texas. — Te.xas Land Cn. v. Wil- liams, 51 Tex. 51. Possession by One Fraudulently Withholding Knowledge of True Owners The grandfather of an in- fant three years old conveyed a tract of land to her, in consideration of love and aflfection, by a deed which he placed in the custody of her father, who took possession of the land, occupying it until long after she became twenty-one years old, and assimiing ownership, rented a por- tion of the land to her, keeping her in ignorance of such deed. It was held that such possession was not of the character to ripen into title by adverse possession. Parker :•. Salmons, lOi Ga. 160, 28 S. E. 681. Actual Knowledge of Invalidity of Claim Destroys It "Now, while it is true that a void deed, or one given without right or title by the grantor, or even a tax deed void on its face, may be sufficient to give color of title, yet, such a rule has no application to one who actually knows that he has no claim, or title, or right to a title." Litchfield v. Sewell, 97 Iowa 247, 66 N. W. 104. " Adverse possession, to avoid a deed by the true owner, must be bona fide under a claim of title and belief by the tenant that the land is his." Pennington 7'. Flock, 93 Ind. 378. The e.xtent of the constructive possession acquired under color of title, whether by the owner in person or by his tenants, depends upon whether it is bona fide, and under such color of right, that others can understand its character and extent. Te.xas Land Co. v. Williams, 51 Te.x. 51. 98. California. — Wilson v. At- kmson, 77 Cal. 485, 20 Pac. 66. Georgia. — Parker v. Salmons, JOi Ga. 160, 28 S. E. 681 ; Hall v. Gay, 68 Ga. 442; Brady v. Walters, 55 Ga. 25. Illinois. — Dickenson v. Breeden, 30 111. 279; Hodgen t: Henrichsen, 85 111. 259. •Vt'zc Jersey. — Foulke v. Bond, 41 N. J. Law 527; Saxton v. Hunt, 20 N. J. Law 487 ; Cornelius v. Giberson, 25 N. J. Law 1. Fraud In order that a grantor shall be deprived of the legal ad- vantages attending an entry under color of title upon the ground of bad faith, the evidence must clearly show his knowledge of the invalidity of the title and an intent to defraud the real owner. Foulke :■. Bond, 41 N. J. Law 527. Fraud Must Be Brought Home to Occupant "Adverse possession is one of intention, and it turns upon the good faith of the person setting it up. The facts must be such as to affect his conscience and they must be brought home to him." Parker V. Salmons, 101 Ga. 160. 28 S. E. 681. 99. San Francisco v. Fulde, 37 Cal. 349, 99 Am. Dec. 278; Strange v. Durham, i Brev. (S. C.) 83. Possession, Although Obtained by Trick, Is Notice of Adverse Claim, " One may enter clandestinely or by a trick; but when he is once in, and continues there, claiming to hold the land as his own, the possession, it would seem, cannot, in its nature, be secret, but is necessarily visible. There can be no question of the object of the defendant in taking possession, nor of its character throughout — that it was adverse." Lenoir v. Smith, 32 N. C. 237. Vol. I 692 ADVERSE POSSESSION. will knowledge that his title is invalid prevent an nccnpant from acquiring a good one by adverse possession.^ 5. Need Not Show Claimant's Absolute Good Faith. — The rule fixed by the weight of anthority is, that it is not necessary to establish a title by adverse possession that the evidence show entire good faith upon the part of such occupant. - 1- United States. — Gaines v. Ag- nelly, i Woods 238. 9 Feci. Cas. No. 5173; Alexander t'. Pendleton. 8 Craneh 462. Alabama. — Alexander r. Wheeler, 69 .\la. 332; Baucum v. George, 65 Ala. 259; Manly v. Turnipseed, ^y Ala. 522. Georgia. — Wood v. McGuire, 17 Ga. 303 ; Lee z: Ogden, 83 Ga. 325, 10 S. E. 349- Illinois. — Russell t'. Mandcll, 73 III. 136; Bnrgett z: Taliaferro. 118 111. 503, 9 N. E. 334. Massacluisetts. — Warren z\ Bow- dran, 156 Mass. 280, 31 N. E. 300. Nezc Jersey. — Cornelius v. Giber- son, 25 N. J. Law I. Nezv York. — Bogardus z: Trinity Church, 4 Sandf. Ch. 633. North Carolina. — Den z\ Leggat, 7 N. C. 539; Whitfield V. Hill, 58 N. C. 316. Pennsylvania. — Brown z'. Mc- Kinney. 9 Watts 565. 36 Am. Dec. 1.39- Tennessee. — Love v. Love, 10 Tcnn. 288. West I'irginia.— Jones v. Lemon, 26 W. Va. 629; Swann z: Young, 36 W. Va. 57, 14 S. E. 426. Knowledge of Bad Title Not In- imical to Right by Adverse Holding. Knowledge that a man's title is bad will not prevent his getting a good one in twenty years. Warren z'. Bowdran, 156 Mass. 28a. 31 N. E. 300. 2. United States. — OVw-vr V. Pul- man, 24 Fed. 127. Alabama. — Smith v. Roberts. 62 .-Ma. 83; Murray z\ Hoylc, 97 Ala. 588, II So. 797. California. — San Francisco v. Fuldc, y/ Cal. 349, 99 Am. Dec. 278. Illinois. — Hardin v. Gouveneur, 69 111. 140. Indiana. — Moore v. Ilinkle, 151 Ind. 343, 50 N. E. 822. Vol. I Kansas. — .\nderson v. Burnham, 52 Kan. 454, 34 Pac. 1051. Massaehusetts. — Warren v. Bow- dran, 156 Mass. 280, 31 N. E. 300. Missouri. — Wilkerson v. Filers. 114 Mo. 245, 21 S. W. 514. Nebraska. — Lantry z: Wolff, 49 Neb. 374. 68 N. W. 494; Fitzgerald z: Brewster, 31 Neb. 51. 47 N. W. 475- Nezi.' York. — Humbert v. Trinity Church, 24 Wend. 587 : Sands z'. Hughes, Si N. Y. 287. Oregon. — Morrison z\ Holladay, 27 Or. 175, 39 Pac. HOC. South Carolina. — Strange v. Dur- ham, I Brev. 83. Tennessee. — Love's Lessee v. Shields, 3 Yerg. 405 ; York v. Bright, 2^ Tenn. 312. ll'iseonsin. — McCaiui z\ Welch. 106 Wis. 142, 81 N. W. 996; Lamp- man Z'. 'V'an .-Mstyne, 94 Wis. 417, 69 N. W. 171. Fraud of Occupant No Excuse for Laches of Owner — Xeitiier fraud in obtaining nor continuing the pos- session, nor knowledge on the part of a claimant that his claim is un- founded, wrongful and fraudulent will excuse the negligence of tlie owner in not bringing his action within the prescribed period ; nor will his ignorance of tlie injury, until the statute has attached, excuse him, though such injury was fraudulently concealed by the contrivance of the wrongdoer. Humbert z\ Triiiilv Church, 24 Wend. CN. Y. ) 587. Fraudulent Deed, Grantee May Lawfully Hold TJnder. — '' Even a fraudulent deed may be color of title and become a good title if the fraudulent grantee holds actual ad- verse possession for seven years against the owner, who has a right of entry and a right of action to recover possession, and is under no disability mentioned in the statutes." Oliver z: Pullum. 24 Fed. 127. " The ADVERSE POSSESSION. 693 Contrary Doctrine. — In some jiirisdictioiis the distinction is main- tained that whilst void instruments may confer color of title, if the evidence show that an occupant knows his paper title is void, it will avail him nothing.'' XV. CONFLICTING POSSESSIONS. 1. Older Possession Succeeds. — If neither claimant has the true title, the older yiosscssion will succeed.* 2. Evidence to Supplant Must Be Same As to Create. — And, the rights acquired will not be destroyed by a subsequent entry and fact that defendant procured a deed by fraud if it were so, and fraud- ulently obtained possession, would make no difference. The statute makes no exception for fraud, and will run in favor of a possession ob- tained by fraud." York v. Bright, 23 Tenn. 312; .McCann v. Welch, 106 Wis. 142, 81 N. W. 996. 3. Litchfield t'. Sewell. g- Iowa 274, 66 N. W. 104; Kopp I'. Kerman, 82 Md. 339, i^, Atl. 646; Saxton v. Hunt, 20 N. J. Law 487. Knowledge Must Be Actual But It is held that the knowledge must be actual and not such as would arise from the legal construction of the instrument. Wilson v. .\tkin- son, 77 Cal. 485. 20 Pac. 66. 4. United States. — Green v. Liter. 8 Cranch 229; Hunt z: Wickliffe, 2 Pet. 201. .■llalwDia. — Reddick i\ Long, 124 .\la. 260, 27 So. 402 ; Pavne t. Craw- ford (Ala.), 30 So. 824". Georgia. — Flannery v. Hightower. 97 Ga. 592. 25 S. E. 371 ; King v. Sears, 91 Ga. 577, 18 S. E. 830. Illi)wis. — Brooks f. Bruyn, iS III. 539; Riverside Co. v. Townsend, 120 111. 9, 9 N. E. 65; Bowman v. Wet- tig. 39 111. 416; Herbert v. Herbert, I 111. 354, 12 Am. Dec. 192. Louisiana. — Michel f. Stream. 48 La. 340. 19 So. 215. Massachusetts. — Pettigill v. Boyn- ton (Mass.), 29 N. E. 655; Institu- tion of Savings 7: Burnham, 128 .Mass. 458; Perry !■. Weeks, 137 -Mass. 584; Thoreau r. Pallies, i Allen 425. Mississil^t'i. — Kerr 'c\ Parish, 52 .Miss. 101. Missouri. — Mather i'. Walsh, 107 .\lo. 121, 17 So. 755; Fugate v. Pierce, 49 Mo. 441 ; Farrar v. Hein- rich, 86 Mo. 521. Nebraska. — Ballard z\ Hansen, ;}3 Neb. 861, 51 N. W. 295. Neiv York. — Smith v. Burtis. 6 Johns. 197 ; Smith v. Lorillard, 10 Johns. 338 ; Jackson v. Harder, 4 Johns. 202, 4 Am. Dec. 262 ; Thomp- son V. Burhans, 79 N. Y. 93. North Carolina. — Graham v. Hous- ton, 15 N. C. 232. Pennsylvania. — Green t. Killum. 2,^ Pa. St. 254. rt-niiofi/. — Wing v. Hall. 47 Vt. 182; Hughes V. Graves, 39 Vt. 359, 94 Am. Dec. 331. Prior Possession Short of Twenty Years Defeats an Intruder Who Has Held Less Than Twenty Years. Evidence showing a prior possession short of twenty years under claim of right will defeat a subsequent possession of less than twenty years when no other evidence of title is adduced on either side. Smith v. Lorillard, 10 Johns. (N. Y.) 338. " The proof here adduced was prima facie evidence, both of title and of right of possession, and was sufficient to put the defendant on his defense. It was not necessary that the plaintiff should have shown a possession of twenty years, or a paper title. L'pon this state of the case, the mere naked possession of the defendant could not prevail against it." Herbert v. Herbert, I 111. 354. 12 Am. Dec. 192. Evidence insufficient to establish a title by adverse possession against a true owner may be valid as against a mere intruder having no pretense of title. Pettigill v. Boynton, (Mass.), 29 N. E. 655. Vol. I 694 IDFERSU POSSESS f OX. occupation by the opposing claimant until it has ripened into a title' by adverse possession.^ XVI. CLAIMS UNDER CONFLICTING TITLES. Overlapping Grants — \\'herc there is an interlock between two tracts of land claimed under different titles, the fact of actual pos- session under such respective titles will practically determine the rights of adverse claimanti; tu the disputed territory." 5. Alabaiua. — Reddick v. Long. 124 Ala. 260, 27 So. 402; JMills r. Clayton, 73 Ala. 359: Strange 7'. King. 84 Ala. 212, 4 So. 600; .An- derson z: Melear. 56 Ala. 621 : Mnr- ray v. Hoyle, 92 Ala. 559. 9 So. 368. California. — Longford v. Poppe, 56 Cal. 7.3- Mississifyfti. — Harper i\ Tapley. 35 Miss. 506. Xew Jersey. — Spottiswoode v. Morris & E. R. Co., 61 N. J. Law 322, 40 .\tl. 505. Neiv York. — Sherman ?'. Kane, 86 N. Y. 57. Pennsylvania. — Schall v. Williams Valley R. Co., 35 Pa. St. 191. Te.ras. — Spofford v. Bennett, 55 Tex. 293. Actual possession of a part of a tract under patent from the state in 1862, was held sufficient to e.xtend constructive possession over a dis- puted tract, as against one claiming under a patent from the United States who had not taken actual possession of such disputed strip un- til in the year 1874. Longford r. Poppi, S6 Cal. 73. 6. United Stales. — llunnicull t'. Peyton, 102 U. S. 333. California. — Davis v. Perley, .30 Cal. 630; Kimball i'. Stormer, 65 Cal. 116, 3 Pac. 408; Labory v. Los .'\ngeles Orphans' Asylum, 97 Cal. 270, 32 Pac. 231. Kentucky. — SwafFord i\ Herd, (Ky.), 65 S. W. 803; Kruth v. Kahn. (Ky.), 65 S. W. 18; .McDowell r. Kenny, 3 J. J. Marsh, 516; Flynn v. Sparks, 10 Ky. Law 960, 1 t S. W. 206. Maryland. — Hammond ■;•. War- field, 2 Har. & J. 151. Missouri. — Schultz t. Lindell, 30 Vol. I Mo. 310; Crispen v. Hannavan, 50 Mo. 536 ; Ozark & Plateau Land Co. z'. Hay, 105 Mo. 143. 16 S. W. 957. North Carolina. — Green z: Har- mon, 15 N. C. 158; McLean z'. Smith, 106 N. C. 172, II S. E. 184: Boomer v. Gibbs, 114 N. C. 76, 19 S. E. 226; .\sbury z: Fair, lii N. C. 251, 16 S. E. 467- Pennsyk'onia. — .'^rden z'. Grove, 18 Pa. St. 377; Beaupland v. Mc- Keen, 28 Pa. St. 124. 70 .\m. Dec. 115- Tennessee. — Milchcll z\ Church- man, 4 Hiiniph. 218; Berry z: Wal- den, 4 Hayw. 175; Creech z'. Jones, 37 Tenn. 631 ; \Vhitc z'. Lavender, 37 Tenn. 648 ; Peck z'. Houston, 5 Lea 227; Coal Creek Mining Co. r. Heck, IS Lea 497. Te.ras. — Parker z: Baines, 65 Tex. 605; Evitts z: Roth, 61 Tex. 81 ; Cook z'. Lister, 15 Tex. Civ. App. 31, 38 S. W. 380; Roach V. Fletcher, II Tex. Civ. App. 225, 32 S. W. iS, ; Porter v. .Miller, (Tex.), 13 S. W. 555- I'ernwiit. — Ralpli z\ Bavlev, 11 Vt. 521. / irginia. — Shanks v. Lancaster, 5 Gratt. no, 50 .\m. Dec. 108; Clinc V. Catron, 22 Gratt. 378; Harnian v. RatlifT, 93 Va. 249, 24 S. E. 1023; Fry V. Stowers. 98 Va. 417, 36 S. E. 232 ; Sulpliur Mines Co. v. Thomp- son's Heirs, 93 Va. 293, 25 S. E. 232; Stull V. Rich Patch Iron Co., 92 Va. 253, 23 S. E. 293. West Virginia. — Congrove z\ Bur- dett, 28 W. Va. 220; White v. Ward, 35 W. Va. 418, 14 S. E. 22; Wilson V. Braden, 48 W. Va. 196, .^6 S. E. 367; Ilsley V. Wilson, 42 W. Va. 757, 26 S. E. 551. Wisconsin. — Wilson z\ Henry, 40. Wis. 594. ADVERSE POSSESSION. W; XVII. POSSESSION MAINTAINED BY MISTAKE. Mistaken Boundaries Possession Restricted to True Line, When. Possession maintained, however long, to a given extent under the mistaken behef that it corresponds with the true boundary line, beyond which it was not intended to assert any claim, will not be competent evidence in support of a claim of title by adverse pos- session to anything not actually embraced by the true boundary.' XVIII. ADVERSE POSSESSION AND ACOUIESCENCE DISTINGUISHED. This doctrine, however, is to be distinguished from that appar- 7. Alabama. — Humes v. Bern- stein, 72 Ala. 546; Brown v. Cocker- ell, 33 Ala. 38; Alexander v. Wheeler, 69 Ala. 32,2 ; Davis v. Caldwell, 107 Ala. 526, 18 So. 103. California. — Quinn v. Windmiller, 67 Cal. 461, 8 Pac. 14; Gordon v. Booker, 97 Cal. 586, 32 Pac. 593 ; Woodward z'. Farris, 109 Cal. 12, 41 Pac. 781; Smith v. Roberts (Cal.), 9 Pac. 104; Powers ''. Bank of Oro- ville, 136 Cal. 486, 69 Pac. 151. Connecticut. — Huntington v. Whaley, 29 Conn. 391. Florida. — Watrous v. Morrison. 33 Fla. 261. 14 So. 805, 39 .\m. St. Rep. 99. Georgia. — Howard v. Reedy, 29 Ga. 152, 74 Am. Dec. 58. Indiana. — Silver Creek Cement Corp. t'. Union Lime & Cement Co., 138 Ind. 297. 35 N. E. 125. Iowa. — Miller v. Mills Co., in Iowa 654, 82 N. W. 1038; Palmer v. Osborn (Iowa), 87 N. W. 712: Goldsborough i'. Pidduck. 87 Iowa 599^ 54 N. W. 431. Kansas. — Winn v. .\beles, 35 Kan. 85, 10 Pac. 443. Kentucky. — Smith v. Morrow, 7 J. J. Marsh. 442. Maine. — Worchester v. Lord, 56 Me. 265. 96 Am. Dec. 456 ; Preble v. Maine Cent. R. Co.. 85 Me. 260, 27 Atl. 149. Maryland. — Davis v. Furlow, 27 Md. 536. Missouri. — Crawford v. Ahrens, 103 Mo. 88. 15 S. W. 341 ; Finch v. Ullman, 105 Mo. 255, 16 S. W. 863; McWillianis v. Samuel, 123 Mo. 659. 27 S. W. 550; Handlan ?'. McManiis, TOO Mo. 124, 13 S. W. 207; .'\dkins V. Tomlinson, 121 Mo. 487, 26 S. W. 573- New Hampshire. — Smith v. Hos- mer, 7 N. H. 436, 28 Am. Dec. 354. Oregon. — King v. Brighani, 23 Or. 262, 31 Pac. 601. Wisconsin. — Fuller v. Worth, 91 Wis. 406, 64 N. W. 995. Possession Under Mistake as to True Line Not Admissible — The possession of two co-terminous pro- prietors under mistake or ignorance of the true line dividing their prem- ises, and without intending to claim beyond the true line, when discovered, will not work a disseizin in favor of either. Crawford v. Ahrens, 103 Mo. 88, IS S. W. 341. "But neither they nor their grantors have ever claimed land between the true boundary as we have found it, and this ridge, save as a part of said lots. It is the case of a mistake in the boundaries, and the doctrine of Grube v. Wells, 34 Iowa 148, and the long line of cases following it, must be applied." Palmer z'. Os- borne (Iowa), 87 N. W. 712. One making no claim of ownership to land beyond description of his deed is not holding adversely. Ross v. Gould. 5 Me. 204. If one place his enclosure not claiming that his fences are upon the true line, but eX-pecting to move them to the true line when it should be determined, he is not claiming adversely. Wood- ward v. Farris, 109 Cal. 12, 41 Pac. 781. Party Wall Mere belief of an adjoining occupant and owner that he owns to the center of a divisional wall wholly on the adjoining land Vol. I 696 ADVERSE POSSESSION. cntly recognized by the current of authority respecting the location of permanent boundary lines by long acquiescence of the co-termin- ous land owners, which it is not deemed practical to consider dis- tinctively in connection with adverse possession.* 1. Claiming^ Ownership to Mistaken Lines. — Although mere occu- pancy by one co-terminous owner coincident with what is erro- neously believed to be the true boundar\- line is not presumed to be adverse, it will be impressed with that character by evidence that a claimant asserting it to be the true lino, held the premises up to it claiming them as his own." without anything evincing it af- firmatively will not constitnle adverse possession. Huntington ?■. Whaley. 29 Conn. 391. 8. Sec article " Boundaries." California, — Quinn %■. Windmiller, (37 Cal. 461, 8 Pac. 14; Irvine v. --\dler, 44 Cal. 559. Florida. — Watrous z'. Alorrison, 33 Fla. 261, 14 So. 805. 39 Am. St. Rep. 99. Illinois. — Kerr v. Hilt, 75 111. 51. Ioii.'a. — Klinker v. Schmidt (Iowa), 87 N. W. 661; Palmer v. Osborne (Iowa), 87 N. W. 712; Mil- ler V. Mills Co., Ill Iowa 654. 82 X. W. 1038. Kansas. — Zimmerman v. Gunther (Kan. App.), 63 Pac. 657. Michigan. — Carpenter v. Monks, 81 Mich. 103, 45 N. W. 477. Neiv York. — Sherman v. Kane, 86 N. Y. 57. Pennsylvania. — Reitcr !■. Mc- Junkin, 173 Pa. St. 82. 33 Atl. 1012. l/isconsin. — Illinois Steel Co, v. Budzisz, 106 Wis. 499, 82 N, W. S.U- Adverse Possession, and Acquies- cence Distinguished. — " We appre- hend the distinction between the doctrine of the cases which deny efficacy to an occupancy founded on mistake and those which recognize occupancy to a line established by ac- quiescence, to be this : that in the one case the assertion of title . is presumed to be limited to the prem- ises covered by the grant under which the possession is claimed, while in the other case there is a wholly in- dependent basis for the assertion of title, to wit : acquiescence of the ad- joining owner." Klinkner r. Schmidt (Iowa). 87 N. W. 661. Vol. I Acquiescence Not Presumed. " This acquiescence is not to be pre- sumed from the mere fact of no- torious possession by the adverse claimant to a line which himself established. It must be shown by proof of an express agreement or of facts from which an agreement may be implied." Klinkner ?■. Schmidt (Iowa). 87 N. W. 661. This doc- trine is substantially one of prac- tical location by acquiescence. Sher- man 7'. Kane. 86 N. Y. 57. Fence Concedes Title by Adverse Possession After Twenty-one Years. " The maintenance of a line fence between owners of adjoining lands by their acts, up to which each claims and occupies, is a concession by each of the open, adverse pos- session by the other of that which is on his side of such division fence, which, after twenty-one years, will give title, though subsequent sur- veys may show that the fence was not exactly upon the surveyed line." Reiter v. Mcjunkin, 173 Pa. St. 82, 33 Atl. 1012. " Where owners of adjacent lands liave a resurvey of their dividing line made, readjust their fences, cul- tivation, and occupancy of their re- spective premises to the line just established, and they and their gran- tees acquiesce in the correctness of the lines as established by such sur- vey for more than fifteen years, such occupancy is sufficient to start and uphold the statute of limitations to the lands thus occupied." Zimmer- man v. Gunther (Kan. App.), 63 Pac. 657. 9. United Slates. — Brown v. Lette, 2 Fed. 440; Harvy r. Tyler, 2 Wall. 349; Probst z'. Trustees. 129 U. S. 191, 9 Sup. Ct. 263. ADVERSE POSSESSION. (>'»7 2. Claim of Ownership Beyond His True Line. — .\nd, the same doctrine obtains where a land owner, by mistake, incloses and holds beyond his true boundaries, claiming the premises as his own.'" .4/a6a»ia.— Barrett v. Kelly (.Ma.). 30 So. 824. California. — Woodward v. Farris. 109 Cal. 12, 41 Pac. 781 ; Lucas v. Provinces, 130 Cal. 270, 62 Pac. 509; Powers V. Bank Oroville, 136 Cal. 486. 69 Pac. 151. Connecticut. — French v. Pearce. 8 Conn. 440, 21 .^m. Dec. 680. Florida. — Watrous v. Morrison. 33 Fla. 261, 14 So. 805, 39 Am. St. Rep. 99. Illinois. — McNaniara v. Seaton, 82 111. 498. Indiana. — Dyer v. Eldridge, 136 Ind. 654, 36 N. E. 522. /ozt'a. — Miller 7'. Mills Co., ni Iowa 654, 82 N. W. 1038. Kansas.- — Conrad r. Sockett. 8 Kan. App. 635, 56 Pac. 507. Kentucky. — Louisville & N. R. Co. z: Quinn, 94 Ky. 310, 22 S. W. 221. Maine. — .\bbott <■. Abbott, 51 Me. 575; Hitchings f. Morrison, 72 Me. 331 ; Preble v. Elaine Cent. R. Co., S5 Me. 260, 27 Atl. 149. .Michigan. — Bunce 1: Bidwell, 43 Mich. 542, 5 N. \V. 1023 ; Van Der Groef I'. Jones, loS ^Iich. 6^, 65 N. W. 602. Minnesota. — Ramsey v. Glenny. 45 Minn. 401, 48 N. \V. 322, 22 Am. St. Rep. 736. Missouri. — Battner ■:■. Baker, 108 Mo. 311. 18 S. W. 911: McWilliams V. Samuel, 123 Mo. 659, 27 S. W. 550; Brutnmel r'. Harris, T48 Klo. 4,^0. 50 S. W, 93; Mather r. Walsh, 107 Mo. 121. 17 S. W. 755. Nebraska. — Obernalte z\ Edgar. 28 Neb. 70. 44 N. W. 82; Levy z\ Yerga, 25 Neb. 764. 41 N. W. 773. Ohio. — Yetzer z: Thoman, 17 Ohio St. 130, 91 Am. Dec. 122. Te.vas. — Blisso v. Casper, 14 Tex. Civ. App. 19, 36 S. W. 345. ll'isconsin. — .^vers z'. Reidel. 84 Wis. 276, 54 N. W. 588. Claiming by Mistake Effectual. " It is the fact that possession is held, and that title is claimed, which make it adverse possession, or claim, or both, though they may have re- sulted from a mistake; hut it is their existence and not their cause that the law considers, and existing, they constitute adverse possession." Met- calfe z\ McCutchen, 60 Miss. 145. Claiming to an Erroneous Divi- sion Line May Ripen Into Title. Possession by a co-terminous owner up to a line erroneously believed to be the true line is not presumably adverse, but may be rendered so if the claimant claims it as the true line and holds the property up to it, claiming it as his own. Barrett "'. Kelly (Ala.). 30 So. 824. Doctrine of Intent When Claim- ing to Erroneous Line " No ques- tion is raised as to the extent, du- ration or continuity of the defend- ant's occupation. If it was not ac- companied by a claim of title, but was merely inadvertence or mistake as to the extent of his land, without intention to claim title to the extent of his occupation, but only to the bounds described in his deed, then the verdict is against law. Lincoln z: Edgecomb, 31 Maine 354; Abbott z'. Abbott, 51 Maine 584; Worchester V. Lord, sniyra, and the earlier cases therein cited : Dow z\ McKenny, 64 Maine 138; but if, on the contrary, he did claim title clear to the fence which was not on the true line as described in the deed, although he by mistake supposed it was, the ver- dict is not against law. Abbott v. .'\bbott, supra. If. however, the evi- dence is not sufficient to warrant the jury in finding such claim to title, tlien the verdict is against evidence, and should be set aside for that cause ; otherwise there should be judgment on the verdict." Hutchings z\ Morrison, 72 Me. 331. " If, however, such possession, though taken by mistake, is with the intention to claim title to the divi- sion line, and thus, if necessary, acquire title by prescription, it may ripen into title." Miller z'. Mills Co., Til Iowa 654, 82 N. W. 1038. 10. United States. — Brown z: Lette. 2 Fed. 440. .Uabama. — Hofifman z'. White. 90 Vol. I 698 ADVERSE POSSESSION. 3. Grantee Must Show Intent. — But, in such conflict between a boundary adhered to and the line fixed by the deed of an occupant, the evidence to sustain his claim to the disputed strip must be of a character to overcome the presumption that his entry and pos- Ala. 354, 7 So. '816; Taylnr r. Fomby, 116 Ala. 621, 22 So. 910. California. — Grimm v. Curley, 43 Cal. 250; Woodward v. Karris, log Cal. 12. 41 Pac. 781 ; Silvarer v. Han- sen, yy Cal. 579, 20 Pac. 136. Connecticut. — French v. Pearce, 8 Conn. 440, 21 Am. Dec 680. Illinois. — McNamara v. Seaton, 82 III. 498. Indiana. — Riggs v. Riley, 113 Ind. 208, 15 N. E. 253. lozva. — Meyer v. Weigman, 45 Iowa 579; Crapo v. Cameron, 61 Iowa 447, 16 N. W. 523. Kansas. — Moore v. Wiley, 44 Kan. 736, 25 Pac. 200. Kentucky. — Smnmers v. Green, 4 J. J. Marsh. 137. Maine. — Hitchings v. Morrison, 72 Me. 331. Massachusetts. — Harrison v. Do- Ian, 172 Mass. 395, 52 N. E. 513; Beckman v. Davidson. 162 Mass. 347, 39 N. E. 38; Thacker v. Gnar- denier, 48 Mass. 484. Michigan. — Bunce v. Bidwell, 43 Mich. S42, S N. W. 1023. Minnesota. — Seymour v. Carli, 31 Minn. 81, 16 N. W. 495; Vandell v. St. Martin, 42 Minn. 163. 44 N. W. 525; Brown j'. .Morgan, 44 Alinn. 432, 46 N. W. 913. Mississit't'i. — Metcalf ?■. McCut,- chen, 5o Miss. 145. .Missouri. — Cole v. Parker, 70 Mo. 372; Mather v. Walsh, 107 Mo. 121, 17 S. W. 755; Hamilton v. West, 63 Mo. 93; Keen v. Schnedler, 15 Mo. App. 590; Battner v. Baker, 108 Mo. 311. 18 S. W. 911. Nebraska. — Levy v. Yerga, 25 Neb. 764, 41 N. W. 773 ; Obernalte i: Edgar, 28 Neb. 70, 44 N. W. 82. Nexv Hampshire. — Wendell -•. Moulton, 26 N. H. 41. Tennessee. — Erck r. Church, 87 Tenn. 575, 11 S. W. 794. Te.vas. — Bisso 1'. Casper, 14 Tex. Civ. App, 19, 36 S. W. 345: Daught- rey v. New York & T. Land Co. CTcx. Civ. App.), 61 S. W. 947. Vol. I It is clear that appellant believed, when he erected his fence along La Parita creek, and still believes, that the land in controversy was and is a portion of the Segura grant, and he claimed and held it for over ten years as a part of that grant. The fact that it was not a part of that grant would not affect his adverse holdings, because he placed his fence along La Parita creek with the intention of claiming and hold- ing all within his inclosure as his own. Danghtrev v. New York & T. Land Co. (Tex. Civ. App.), 61 S. W. 947- If one, by mistake, inclose the land (if another, and claim it as his own to certain fixed monuments or boundaries, his actual and uniuterrup- ted possession as owner for the statutory period will work a disseizin and his title will be perfect. Levj' z'. Yerga, 25 Neb. 764, 41 N. W. 773. If, by a mistake in a deed, a por- tion of tlie premises intended to be included be omitted, and the grantor occupies the portion so omitted, un- interruptedly and under claim of right for the statutory period, he will acquire a prescriptive title. Vandell v. St. Martin, 42 Minn. 163, 44 N. W. 525. Claiming All Within Fence Gives Title One purchasing land en- closed by a fence, who claims title to all within such enclosure, holds adverse possession as to the entire tract, although he may believe he is only claiming to the extent of the boundaries of his deed, which do not as a matter of fact embrace all the land so fenced. Bisso z'. Casper. 14 Tex. Civ. App. 19, 36 S. W. 345; citing Hand 7'. Swann, i Tex. Civ. .•\pp. 240, 21 S. W. 282. Where one through mistake takes possession under a deed of more land than it conveys, he may, not- withstanding, begin later an adverse occupancy of the excess. Mather V. Walsh, 707 Mo. 121, 17 S. W. AD]' ERSE POSSESSION. (i. Munsou, 34 Wis. 579, 17 Am. Rep. 461. In Redemption Proceedings. " The affidavit on which the right of the original purchaser was sought to he acquired, was, in my opinion, defective in the manner of stating the amount due upon the mortgage. It says : ' That there is actually due or to become due on said mortgage, at this, the time of claiming a right to purchase or redeem thereon, over and above all payments, the sum of $6433, as claimed by this deponent.' " The statute requires an affidavit, stating the true sum due, or to be- come due, over and above all pay- ments. The sum thus stated is the amount which any other person seek- ing, in pursuance of the statute, to subsequently acquire the same right, must pay. There is, therefore, good reason for saying that the statement shall be made in such manner as to have the direct and positive sanction of the party's oath to its truth ; and that, not only so as to bind his conscience by the solemnity of an oath, but also to subject him to the penalties of the law in case the state- ment is untrue." People v. Becker, 20 N, Y. 354. 4. Alabama. — Graham v. Rufif, 8 Ala. 171; Ware v. Todd, I .-Ma. 199; Vol. I Free v. Ilukill, 44 Ala. 197; Hafley !■. Patterson, 47 Ala. 271. Arkansas. — Mandel v. Peet, 18 Ark. 236. Georgia. — Chambers v. Sloan, 19 Ga. 184; Kennon v. Evans, 36 Ga. 89. Indiana. — Story v. Story, 32 Ind. 137- /oK'O. — Wiltse V. Stearns, 13 Iowa 282. Louisiana. — Parmele v. Johnston, IS La. Ann. 429; Sawyer v. Arnold, I La. Ann. 315. Maryland. — Stanhope v. Dodge, 52 .Aid. 483. Michigan. — Cross v. McMaken, 17 Mich. 511, 97 Am. Dec. 203; Mathews v. Densmore, 43 Mich. 461, 5 N. W. 669. Mississippi. — Wallis v. Wallace, 6 How. 254; Lee r. Peters, I Smed. 6 Al. 503; Dandridge z: Stevens, 12 Smed. & M. 723; Commercial Hank v. Ullman, 10 Smed. & M. 411. .Missonri. — Curtis '■. Settle, 7 Mo. 4.S2- Ne'u' York. — Schwartz f. Allen, 7 N. Y. Supp. 5; Van Kirk v. Wilds, I I Barb. 520. IVisconsin. — Oliver v. Town, 28 Wis. 328 ; Russell v. Ralph, 53 Wis. 328, 10 N. W. S18. In Affidavit of Claim Against Estate Where a claim filed against an estate contained a statement of debits and credits and closed with the statement "Amount due $741.50" and the affidavit verifying the ac- count was as follows: "I, Harriet H. Story, of Underbill, in the County of Chittenden, and State of Ver- mont, of lawful age, on oath depose and say that the within is a correct account of the number of weeks that I worked for my stepfather, in his family, which was done at his special request, since I arrived at the age of 18 years, giving correct statenie}if of the debit and credit, AFFIDAVITS. 705 insufficifiit.^ 3. Immaterial Words Omitted. — The omission of words, not material to the sense, will not vitiate an affidavit, if, by those remain- ing-, the sense and scope of, the law are fulfilled. ° 4. Clerical or Grammatical Errors. — Where the meaning clearly appears an affidavit is not vitiated by mere clerical or grammatical errors.' according to the best of my knoivl- edgc and belief." Held, that the words itaHcized in the affidavit, taken in connection with the fact that the claim showed the " amount due," was a substantial comphance with the statute requiring the claimant to attach to tlie claim an affidavit, " to the effect that the same is justly due and wholly unpaid," and that it was not necessary to follow the words of the statute; the affidavit be- ing to the effect that the claim was justly due and wholly unpaid was sufficient. Story v. Storv, 32 Ind. 137- 5. Miller ?■. Munson, 34 Wis. 579, 17 Am. Rep. 461 ; Klenk v. Schwalm, 19 Wis. 124: Goodyear Rubber Co. V. Knapp, 61 Wis. 103, 20 N. W. 651 ; Spring f. Robinson, 2 Finn. (Wis.) 97. In Affidavit for Attachment. Where the statute authorized an at- tachment upon affidavit that defend- ant has assigned, disposed of, or concealed, or is about to assign, dispose of or conceal any of his property with intent to defraud his creditors, and the affidavit was in the precise language of the statute the court said : " This is sometimes sufficient, but not so in all cases. We must look for some other test by which to determine its sufficiency. The proceeding by attachment is very summary and violent. The purpose of the law which requires that a certain affidavit be made before the writ can issue, is to protect the alleged debtor from so severe a process, unless the creditor or some person in his behalf, under the responsibilities of an oath, shall assert the existence of certain facts which the law adjudges good grounds for issuing the writ. This requirement of the law would afford the debtor no protection whatever, unless the affiant is liable to be pun- 45 ished criminally if he willfully swears falsely in such affidavit. Hence, although the affidavit be in the very words of the statute, it is not sufficient, unless perjury could be assigned upon it." The affidavit was held insufficient as the words "any of his property" following the language of the statute rendered the affidavit meaningless. ^Tiller v. Munson, 34 Wis. '^79, 17 .\m. Rep. 461. 6. Omission of Immaterial Words. Jean f. Spurrier, 35 Md. no. Where the word " the " was omitted in the statement, he says that " statements in the foregoing petition are true," the court held that it was manifest that it was a mere omission of the draughtsman, and that being the case, it was sub- stantiallv sufficient. Clark t'. Miller, 88 Ky. 108, 10 S. W. 277. The omission of the words. " In some manner " from an affidavit for attachment under a statute requiring an affidavit to state that the defend- ant " is in some manner about to dispose of his property with intent to defraud his creditors," was held not to vitiate the attachment. Drake v. Hager, 10 Iowa 556. Where in alleging the defendant's indebtedness, the word " is " was omitted before the word '' indebted," it was held that without that word the language plainly alleged indebt- edness. Buchanan v. Sterling, 63 Ga. 227. But where the grounds upon which an attachment is sought are to be written in a blank space in the printed form, and the space is not filled in, so that by the omission of the words the grounds are not al- leged, the omission is fatal to the affidavit. Black Z'. Scanlon, 48 Ga. 12. 7. Bromley 7'. Foster, i Chit. 562, 18 Eng. C. L. ,307. note. Vol. I ro6 AFFIDAVITS. 5. Should State Facts, Not Conclusions. — As it is the office of an affidavit to present to the court the evidence from which it may draw its conclusions, the facts upon which such conclusions are to be drawn must be stated. An affidavit containing only opinions and conclusions of affiant is insufficient and cannot be considered.' Where the Affidavit for Publica- tion uf citation stated that tlie resi- dence of the defendant was " known to affiant" (instead of unknown,) " and that in consequence personal service cannot be had on him," the mistake was held immaterial. Pier- l)ont i: Pierpont, 19 Tex. 227. On Appeal by several executors from the decision of the probate court, allowing a claim against the estate of their testator, one of them filed an affidavit, stating that " affiant is aggrieved " instead of " affiants are aggrieved." Held to be a cleri- cal misprision, and that the affidavit was substantially good. Ross v. Davis, 13 Ark. 293. Chattel Mortgage. —Where it was contended that a chattel mortgage was void because the affidavit to the mortgage stated that the instrument "was" made in good faith instead of " is " made in good faith, the court held that there was no merit in the contention. Vincent v. Sno- qualmie ]\Iill Co., 7 Wash. 566, 35 Pac. 396. Attachment A' clerical error in stating, as the ground for attach- ment, that defendant " his " disposed of his property with intent to de- fraud creditors, is no ground for quashing the attachment, when the context clearly shows that " has " was intended. Corrigan v. Nichols, 6 Tex. Civ. App. 26. 24 S. W. 952. 8. Dreyfus v. Otis, 54 How. Pr. (N. Y.) 405; Morris z: Talcott, 96 N. Y. 100; Hecht v. Levy, 20 Hun (N. Y.) 54; Baker v. Akerman, 77 Ga. 89; Hinman ?'. Wilson, 2 How. Pr. (N. Y.) 27; Markey t'. Diamond, 46 N. Y. St. 283, 19 N. Y. Supp. 181 ; Brown v. Keogh, 39 N. Y. St. 225, 14 N. Y. Supp. 915; Cattaraugus Cutlery Co. v. Case, 30 N. Y. St. 961, 9 N. Y. Supp. 862; Mechanics' Bank r. Loucheim, 5= Hun 396, 8 N. Y. Supp. 520 ; Westervelt v. .\grumaria Sicula Societa, etc., 58 Hun 147, II N. Y. Supp. 340; Hodgman v. Barker, 60 Hun 156, 14 N. Y. Supp. 574; Perkins v. Gibbs, I Baxt. (Tenn.) 171 ; Delaplain v. .'Vrmstrong, 21 W. Va. 211. Facts Must Be Stated. •— Where a complaint and affidavit upon which an order of arrest was granted set forth that the defendant represented to plaintiff that said " Maria N. Winne was solvent and in good credit, and worth the sum of one hundred thousand dollars over all her debts and liabilities." and that she owned real estate in the City of New York, free and unincumbered, worth over fifty thousand dollars ; that said representations as to the solvency of Maria N. Winne were false and fraudulent and un- true, and were made with the pre- conceived design and intent of de- frauding this plaintiff, and as a mat- ter of fact, said Winne was insolvent, and was a woman without means, and deponent has since ascertained from persons who know said Maria N. Winne that she was residing at 226 First street, Albany, on the top floor of a tenement, at a rental of $9 per month, and that she had been supported in part, for past years, by the Toadies' Aid Society of St. Paul's Church, in the City of Albany." Held, that the affidavit was insuffi- cient ; that affiant should have stated when, and how, and from whom, and what were the facts upon which he predicated his conclusiims that said Winne was insolvent, etc. To authorize an order of arrest, facts and not conclusions must be stated. Iron Co. V. Baudman. 2 Wkly. Dig. 591 ; Dreyfus v. Otis, 54 How. Pr. 405. If the conclusions of the affi- davit are to be drawn from com- munications, whether written or verbal, the communications must be set forth in order, that the court may see that the deductions of affiant are well founded. Any other rule would make the affiant the sole judge as to whether the evidence which ho had Vol. I AFFiD.unrs. 7(17 III. THE OATH. 1. Necessity Of. — An affidavit is not admissible as such for any purpose unless it appears that the party making; the declaration did so under the sanctity of a le,s;al oath.'' 2. How Administered. — The oath necessary to the declaration may be adiuinistered according to the religious belief of the affiant, and no particular ceremony is required to make a legal oath ; it being sufficient that both the affiant and the officer understand that the declaration is in fact sworn to by the party making it.'" in his possession was sufficient to entitle him to the relief sought. In the case at bar, affiant swore to notliing but conclusions. Such alle- gations may be good in a complaint, but are entirely useless in an affidavit whose office is to place before the court the evidence from which it may draw its conclusions. JMarkey V. Diamond, 46 N. Y. St. 283, 19 N. Y. Supp. 181. Office of the Affidavit. — "The office of an affidavit is to set forth the evidence from which the court may draw conclusions of fact, differ- ing in this respect, radicallj', from a complaint, which should only set forth conclusions of fact, and not the evidence of the correctness of these conclusions." ^Mechanics' Bank v. Loucheim, 55 Hun 396, 8 N. Y. Supp. 520. Affidavit for Injunction A mere statement of a conclusion in an affi- davit is not sufficient to make it ap- pear that plaintiff will be unduly prejudiced if an injunction is not issued without notice, but the facts from which such conclusion is to be drawn should be staled. Brough v. Schanzenbach, 59 III. App. 407. 9. Illinois. — Keboe v. Rounds, 69 III. 3SI ; .McDermaid v. Russell, 111. 489. Indiana. — Cantwell v. State. Ind. 505. Mississifpi. — Carlisle z'. Gunn, 68 }iliss. 243, 8 So. 743. Xezi- York. — People v. Suther- land, 81 N. Y. I ; Ladow v. Groom, I Demo 429; Thompson f. Fuller, 28 N. Y. St. 4, 8 N. Y. Supp. 62. South Carolina. — Doty '■. Boyd, 46 S. C. 39. 24 S. E. 59- r.-.ra.?. — Hardy r. Beaty, 84 Tex. 41 27 562, 19 S. W. 778, 31 Am. St. Rep. 80. Jl'est Virginia. — Hudkins v. Has- kins, 22 W. Va. 645 ; Cosner v. Smith, 36 W. Va. 788, 15 S. E. 977- Oath of Assessor Where the oath of the County Assessor to the assessment roll was signed by him, but it did not appear that the oath was actually taken, the court held the assessment void. Merriam v. Coffee, 16 Neb. 450, 20 N. W. 389. Where the affidavit for publication of a summons did not appear to have been sworn to before any officer, it was held to be no affidavit, and gave no authority to the court to enter an order of publication. McDermaid v. Russell, 41 111. 489. Certificate Insufficient A mere recital of the facts averred by the affiant in the form of a certificate of the officer which does not state that the facts stated were sworn to is not an affidavit. Hudkins v. Haskins, 22 W. Va. 645. Cannot Be Sworn to by Separate Affidavit. — An affidavit in which the affiant swears that the facts stated in another paper, to which he refused to be sworn, are true, will not give that paper validitv as an affidavit. Thompson f. Eullcr, 28 N. Y. St. 4, 8 N. Y. Supp. 62. 10. Newman 1: Newman. 7 N. J. Eq. 26 ; Matthews v. Reid, 94 Ga. 461. IQ S. E. 247; Dunlap !■. Clay. 65 Miss. 454. 4 So. 118. Oath' Believed to Be Taken by Affiant Only. — A justice of the peace prepared the affidavit, writ and bond, and handing them to affiant asked him " if it was all right," and the party replied that it was. The affidavit was not signed by the affiant, nor was the jurat signed by the jus- Vol. I 708 AFFIDAVITS. 3. How Shown. — A. By Jurat. — The certificate or jurat of tlie officer l)y whom the affidavit was taken containing a statement that the affiant was sworn is prima facie evidence that the affiant made the declaration under oath.'' Necessity of Showing by Jurat. — The jurat has been held to be essential, and proof aliunde of the administration of the oath inad- missible;^^ but the weight of authoritv is to the contrary.'" lice. The affiant testifieil that he considered that what has been de- tailed was swearing to the affidavit. The magistrate testified that he was positive that no oath was athninis- tered, and no attempt to make an oath was made. Held, that the in- strument was no affidavit. Carlisle V. Gunn, 68 Miss. 243, 8 So. 743. To the Same Effect, see Matthews V. Reid, 94 Ga. 461, 19 S. E. 247, where an attorney laid a paper on the desk of the clerk of the superior court, at the same time remarking to the clerk, " Here is an affidavit. I want to swear to it. I have already signed it. The facts stated in it are true," and there was no evidence that the clerk heard what was said, and the paper was not certified by the clerk till long afterwards, it was held that the affidavit was not duly made. Holding Up the Hand It is not necessary that one should " hold up his hand and swear " to make his act an oath to the truth of the matters set out for grounds of attachment, where the affiant and the officers both understand that what is done is all that is necessary to complete the oath. Dunlap v. Clay, 65 Miss. 454, 4 So. 118. II- Hitsman v. Garrard, 16 N. J. Law 124; Crosier v. Cornell Steam- boat Co., 27 Hun (N. Y.) 215. Office of Jurat. — The jurat or cer- tificate is no part of the oath or affi- davit, but is simply evidence that the oath was made or the affidavit was sworn to. It is like the acknowledg- ment of a deed, which is no part of the deed itself, but authorizes the deed to be recorded and read in evi- dence without proving the signatures to the deed. And so here the jurat or certificate attached to an affidavit, if the officer making such jurat or certificate had authority to adminis- ter oaths, enables sucli affidavit to be Vol. I read in evidence as the oath of the party, whom the officer certifies made such oath.' Bantley 'e. Finney, 43 Neb. 794, 62 N. W. 213. 12. Metcalf v. Prescott, 10 Mont. 283, 25 Pac. 1037; Gordon v. State, 29 Te.x. App. 410, 16 S. W. 337 : Cas- ner's Adm'r. v. Smith, 36 W. Va. 788, 15 S. E. 977; Blake Crusher Co. V. Ward, 3 Fed. Cas. No. 1505. 13. Alabama. — McCartney v. The Branch Bank, 3 .Ala. 709. Arkansas. — Fnrtenheim v. Clafiin. 47 Ark. 49, 14 S. W. 462. Georgia. — Smith v. Walker, 93 Ga. 252, 18 S. E. 830; Veal v. Perk- erson, 47 Ga. 92; Matthews v. Reid, 94 Ga. 461, 19 S. E. 247. Illinois. — Kruse v. \\'ilson. 79 111. 233- Indiana. — Williams v. Stevenson, 103 Ind. 243, 2 N. E. 728. Iowa. — Stout V. Folger, 34 Iowa 71, II Am. Rep. 138; Cook f. Jen- kins, 30 Iowa 452. Nebraska. — Bantle}' v. Finney. 43 Neb. 794, 62 N. W. 213. Ne'i.i' Jersey. — Hitsman v. Gar- rard, 10 N. J. Law 124. NeiK' York. — T^adow v. Groom, i Denio 429. Pennsylvania. — Borough of Potts- ville V. Curry, 32 Pa. St. 443. IVashington. — Taconia Grocery Co. 7'. Draham, 8 Wash. 263, 36 Pac. 31. 40 Am. St. Rep. Q07. Absence of Jurat; Parol Evidence. Where the affidavit was in the usual form of an affidavit against a non- resident debtor, and was unexcep- tionable in all its statements, but the jurat was not signed by the officer taking it, and the writ of attach- ment issued the same day recited the fact that the affiant named in the affidavit complained on oath to the clerk issuing the writ, and the affi- ant testified that he signed the affi- davit, and swore to it at the time in AFFIDAVITS. 709 B. No Particular Words Necessary to Show. — No particular wording is necessary to show that the declaration was sworn to. It is a valid affidavit if it can be reasonably inferred from the language used that the oath was duly administered by the officer before whom tlie affidavit purports to have been taken.'* tlie clerk's office, liefore tlie deputy clerk, it was held that the aflidavit was sufficient and could not be assailed in a collateral proceeding. Kruse v. \\'ilsoii. 79 III. 233. Amendment. — Where no jurat was attached to an affidavit as to the posting of notices, it was held that parol evidence was admissible to prove that such affidavit was in fact sworn to at the proper time before the clerk, and that the affidavit might be amended to conform to such evi- dence by attaching the proper jurat. That the jurat of the officer is not the affidavit nor any part of it, but is simply evidence of the fact that the affidavit was properly sworn to by the affiant, Williams v. Stevenson. 103 Ind. 243, 2 N. E. 728. Omission of Jurat no Ground for Plea in Abatement. — In Hytle v. .'\dams, 80 -Ala. iii. it was held that if an affidavit for an attachment is in fact made before the officer who is- sues the writ, it is not necessary that it shall be signed or certified by him; and a plea in abatement " because it wa'; not signed by the clerk " pre- sents an immaterial issue. Court May Order Jurat Affixed. Where an affidavit contained no jurat it was held in Williams v. Stevenson, 103 Ind. 243, 2 N. E. 728, that it is proper for the court to hear evidence upon the question whether the affi- davit was sworn to, and if the fact is thus established, to order the officer to affi.x his jurat to the affidavit. Affiant May Give Evidence. Where an objection was made at the trial that the affidavit in question was void for the reason that the jurat of the officer was not signed by him, the affiant was sworn and testified that he signed the affidavit and swore to it at the time in the clerk's office before the deputy clerk. Kruse "'. Wilson, 79 111. 233. By Other Facts and Circumstances. Where the jurat was not signed by Mie officer, but the affidavit was filed in the clerk's office and a writ of at- tachment issued which recited that the plaintiff had complained on oath to the clerk, it was held that the facts and circumstances justified the presumption that the affidavit had been sworn to, and that the clerk could not be presumed to have made a false statement in tlie writ, or that he would have issued the writ with- out the oath. Kruse v. Wilson, 79 111. 233. By the Record. — In Borough of Pottsville T. Curry. 32 Pa. St. 443, where the jurat to the affidavit was not signed by the officer, but the rec- ord on appeal recited that an affidavit had been " filed with the award," the court said : " The attestation is con- venient. It affords evidence that the oath was taken, but it is not the only possible evidence. When, therefore, the paper filed, being in form an affi- davit, was found without attestation, it was competent for the appellant to show by other evidence that the oath was made. This was shown by the record, as we have seen, at least sufficiently to warrant an allowance to the prothonotary to attest by his signature, nunc pro tunc the admin- istration of the oath." 14. Barhydt v. Alexander, 59 Mo. App. 188; Sargent v. Townsend, 2 Disney (Ohio) 472; Kleber v. Block, 17 Ind. 294. Form of Jurat Where the peti- tion, signed by the appellant, had appended to it the following words. " Sworn to before me this 3rd day of April, i860. H. C. Wibble. Cl'k," it was held sufficient. Allen v. C.illum, 16 Ind. 234. To an affidavit made before a jus- tice of the peace, the justice appended his jurat in this form: "Subscribed and sworn to," giving the date, and officially signing his name. The jurat was held sufficient. Hosea v. State, 47 Ind. 180. In Trice v. Jones, 52 Miss. 138, the court say: "An inspection of the Vol. I 710 AFFIDAVITS. 4. Where Affidavit Is Used As Foundation of Proceedings. — It has been held that the faikire of the officer to state in his certificate tliat the oath was administered or the affidavit sworn to, will not render the affidavit invalid or vitiate proceedings in which the affi- davit is an essential prerequisite." 5. Where Administered. — A. In General. — As the jurisdiction of the officer competent under the law to administer the oath is generally confined to certain territorial limits, it must be admin- istered at some place within the limits of his jurisdiction, and where it appears from the affidavit itself that it was taken outside of his jurisdiction it is a nullity, and can not be read.^° B. Necessity oE Showing. — In some jurisdictions it is insisted that an affidavit is a nullity unless the venue or place where the affidavit was sworn to is mentioned in the affijdavit.^' affidavit made by Trice for his ap- peal, shows nothing unusual in it ex- cept that instead of the stereotyped formula, ' sworn to and subscrilicd before me,' the justice certified the making of the affidavit by these words, viz., ' Given under my hand and seal,' etc. To sustain such an objection would justly bring judicial proceedings into contempt, and we cannot suppose that it was on this ground that the motion to dismiss the appeal was sustained. The affi- davit conforms to the statute, and we fail to discover why it was held in- sufficient, and, if insufficient, why it was not permitted to be amended." See also Clement v. Bullens, 159 Mass. 193, 34 N. E. 173, wherein it was held that the words, " then per- sonally appeared," meant personal^' appeared before the signer. 15. Hyde ?■. Adams, 80 Ala. in; McCartney v. Branch Bank, 3 Ala. 709. 16. Byrd z: Cochran, 39 Neb. lOg, 58 N. W. 127. ^ 17. Missouri. — Barhydt v. Alex- ander, 59 Mo. App. 188. Nebraska. — Blair v. West Point Mfg. Co., 7 Neb. 146. New York. — Brooks T. Hunt, 3 Caines 128; Cook v. Staats, l8 Barb. 407 : Vincent v. People, 5 Park. Crini. 88; Saril v. Payne, 24 N. Y. St. 486, 4 N. Y. Supp. 897 ; Thompson v. Burhans, 61 N. Y. 52; Thurman t. Cameron, 24 Wend. 87 ; Lane r. Morse, 6 How. Pr. 394. Utah. — Smith v. Richardson, i I'tah 194. Wisconsin. — Burns v. Doyle, 28 Wis. 460. Where it appeared that the county was stated in the affidavit, but the letters " ss. "(scilicet) omitted, it was held that the affidavit was sufficient. ATcrcantile Co. v. Glenn, 6 Utah 139. 21 Pac. 500. Venue Should Appear on Face of Affidavit An affidavit verifying the plaintiff's complaint purported to have been made before a commis- sioner of deeds. There was no venue to the affidavit, and nothing upon its face to show where it was taken, nor of what place or county the commis- sioner was appointed. Held, that the venue is an essential part of every affidavit, and is prima facie evidence of the place wh^re it was taken, .^n affidavit should show upon its face that it was made before some officer competent to take affidavits, and within some place where he was au- thorized by law to administer an oath. For aught that appears, the affidavit was made in Canada, or in some other State, where the oath ad- ministered was extrajudicial and void. No presumption arises that an affidavit ha< been made at any par- ticular place within the state; nor, in- deed, that it was made within the limits of the state, where no place is mentioned. The affidavit did not, therefore, contain enough to show that the plaintiff, in verifying his complaint, had been legallv sworn. Lane v. Morse, 6 How. Pr. (N. Y.) 394. See also State v. Green, 15 N. J. Law 88, wherein it is held that an Vol. I .IFFIDAVITS. 711 C. How Shown. — It is the usual practice to set forth in the form of a caption to the afifidavit the place where it was taken ; but this is not material as it is sufficient if the venue appears anywhere on the face of the instrument. ^^ D. PRESLTMrTiON As TO Ji'RiSDiCTioN. — It has been held in most jurisdictions that if an affidavit appears to have been taken before an officer authorized to administer oaths, the omission of the venue will not invalidate it. It will be presumed to have been made within his jurisdiction,''' provided the contrary does not appear.-* E. Venue, Matter in Pais. — But the venue stated in an affi- davit is by no means conclusive evidence that the oath was taken at the place mentioned."^ affidavit when offered to be read in evidence, must appear on the face of it to be, what an affidavit ought to be, to entitle it to be read. It must ap- pear to have been taken before the proper officer, and in compliance with all legal requirements. The court cannot stop to inquire into the competency of the officer or the place where it was taken. 18. Venue Stated in Caption Sufl- cient. — Where the caption of the affidavit was " State of Illinois, Car- roll County," and it was contended that there was no evidence tending to prove the oath was administered in the county of Carroll, it was held that in all affidavits and other papers requiring a venue, it is for the very purpose of indicating the place where the act was done. Finding such a venue in the caption of the affidavit, the proof, until overcome by other evidence, was ample of the fact that the oath was administered in Car- roll county. Van Dusen v. People, 78 111. 645. 19- Canada. — McLean v. Cum- niings, Tayl. 184. United States. — Ornisby v. Ott- man, 85 Fed. 492, 29 C. C. A. 295. California. — Reavis v. Cowell, 56 Cal. 588. Illinois. — Stone v. Williamson, 17 111. App. 175- Iowa. — Stoddard v. Sloan, 65 Iowa 680, 22 N. W. 924 ; Stone v. Miller, 60 Iowa 24,^, 14 N. W. 781 ; Snell V. Eckerson, 8 Iowa 284. Kansas. — Baker t'. Agriculture Land Co., 62 Kan. 79, 61 Pac. 412. Minnesota. — Young v. Young, 18 Minn. 90. Nebraska. — Merriam v. Coffee, 16 Neb. 450, 20 N. W. 389; Miller v. Hurford, 13 Neb. 13, 12 N. W. 832; Crowell V. Johnson, 2 Neb. 146. Oregon. — Dennison v. Story, i Or. 272. South Dakota. — State v. Henning, 3 S. D. 492, =14 N. W. 536. Where Notary is State Oflcer. A notary public being a state officer under the laws of ^lichigan, and his official acts not being limited to the county in which he resides, it is held that a logger's lien is not invalid be- cause the affidavit of claim does not show the county where the oath was administered. Sullivan v. Hall, 86 Mich. 7, 48 N. W. 646, 13 L. R. A. 556. See also Perkins v. Collins. 3 N. J. Eq. 482, and State v. Henning, 3 S. D. 492, 54 N. W. 536. 20. Parker z\ Baker, 8 Paige Ch. (N. Y.) 428; Mosher v. Stowell, 9 Abb. N. C. (N. Y.) 456; Crosier v. Cornell Steamboat Co., 27 Hun (N. Y.) 215. 21. Smith V. Richardson, i Utah 194 ; Barhydt v. Alexander, 59 Mo. App. 188;' Cook V. Staats, 18 Barb. (N. Y.) 407; Van Dusen v. People, 78 111. 64s ; Lane v. Morse. 6 How. Pr. (N. Y.) 394; Babcock z: Kuntzsch, 85 Hun 33, 32 N. Y. Supp. 587. Venue as Matter in Pais — It is no doubt very proper for officers, especially, if they have only limited territorial jurisdiction, to certify in affidavits taken before them, the place or county ; first that it may appear on the face of the document, that it was taken within his jurisdiction; and secondly, that perjury may be Vol. I ri2 AFFIDAVITS. F. May Be Established by Parol. — Where the omission of the venue is not regarded as a fatal defect, the place where the oath was administered may be established by parol. -- G. \'arl\nce Between Venue and Jurat. — Where the formal venue of an affidavit is laid in one county, but it appears from the jurat to have been sworn to before an officer in another county, it is presumed that the officer taking the affidavit administered the oath within the limits of his jurisdiction.-" But there are cases contrary' to this doctrine."* properly assigned, should it become necessary. But the place where an affidavit was actually made is a mat- ter in pais. If the officer certifies it to have been made in A, it may be shown to have been actually sworn to in B. Otherwise perjury might be committed with impunity, if the offi- cer by design or accident, inserted a wrong place. Peltier r. Banking Co., 14 N. J. Law 257. See also Van Dusen v. People, 78 111. 645. 22. Alosher z'. Heydrick. 45 Barb. (N. Y.) 549; Miller v. Hurford, 13 Neb. 13, 12 N. W. 832; Babcock 7: Kuntzsch, 85 Hun 33, 32 N. Y. Supp. 587; Reedy Elevator r. American Grocery Co., 48 N. Y. Supp. 619 ; People z: Stowell, 9 Abb. N. C. (N. Y.) 456; People z: Cady, 105 N. Y. 299, 308, II X. E. 810. Waiver of Venue, Parol Evidence. In People v. County Canvassers, 20 N. Y. Supp. 329, where an affidavit for an order to show cause was ques- tioned on appeal for the reason that it contained no venue, the court said : '' An affidavit must show upon its face that it vi'as taken within the jurisdiction of the officer before whom it was verified and. if taken in any other part of the county of Poughkeepsie, the affidavits would have been nullities. Had the objec- tion been taken upon the return of the order to show cause, the proceed- ings should have been dismissed, but the objection was not raised, and the respondent answered to tlie merits ; evidence being taken. I think this waived the irregularity. The only present effect of this defect, if not cured, would be that such affidavits could not be considered in disposing of the questions of fact involved in the application. But it has been proved that the affidavits were taken Vol. I williin the jurisdiction of the com- missioner and the irregularity is cured." Amendment After Proof. — In Babcock z\ Kuntzscli, 85 Hun 33. 32 N. Y. Supp. 587, the court say : " The weight of authority in this state seems to be to the effect that the venue of an affidavit is prima facie evidence of the place where it was sworn to, and in the absence of a venue or statement in the jurat as to where it was taken, it would contain no evidence that it was sworn to within the jurisdiction of the officer administering the oath, and, without evidence, that it was taken by a proper officer within his jurisdiction, would be regarded as a nullity, unless the presumption would be that it was taken within his jurisdiction. But the omission does not invalidate the oath, or render the affidavit a nullity, when it is shown, as in this case, that it was duly administered by a proper officer within his jurisdiction, and the omission of the venue may be supplied bv amendment." Citing, Smith z: Collier, 3 N. Y. St. 172; People z: Stowell, 9 Abb. N. C. (N. Y.) 456; People z: Cady, 105 N. Y. 299, -508, II N. E. 810; Saril v. Payne, 24 N. Y. St. 486, 4 N. Y. Supp. 897 ; People z:. County Can- vassers, 20 N. Y. Supp. 329. 23. Goodnow z: Litchfield, 67 Iowa 691, 25 N. W. 882: Goodnow z: Oakley, 68 Iowa 25, 25 N. W. 912. 24. Variance Fatal Where the venue in the affidavit stated it to be " Albany Co. ss," and the affidavit was sworn to before " Abrani B. Ollin, Recorder of the city of Troy" (Rensselaer County,) it was held that the affidavit could not be read on motion, as the officer had no iurisdiction to take it. Davis v. AFFIDAVITS. 713 H. Appearance of Affiant Before Officer. — It has been held in some cases that the appearance of the affiant before the officer taking the affidavit mnst be sliown by the certificate or jurat of the officer;-^ but the omission of words in the jurat showing such appearance is not generally held to be fatal to the affidavit,"" espe- cially where the appearance is sufficiently shown in the body of the affidavit.-' IV. AUTHORITY OF OFFICER. 1. Officer Must Have Authority. — In order that an affidavit may be admissible for an}- purpose, it is essential that it be sworn to before an officer authorized by law to take it,-* and where it appears upon the face of the affidavit that it was not taken before such an officer it cannot be received.-" Rich, 2 How. Pr. (N. Y.) 86; Cook f. Staats, i8 Barb. (N. Y.) 407; Sandland v. Adams, 2 How. Pr. (N. Y.) 127; Snyder v. Olmsted, 2 How. Pr. (N. Y.) 181. 25. Affidavits Before Commis- sioner. —In Reg. V. Blo.xam, 6 Ad. & E. (N. S.) 528, it is held that the jurat to an affidavit to obtain a cer- tiorari, sworn to before a commis- sioner, should contain the words '■ before me." Before Judges of Courts of Record. In Enipey v. King, ij M. & W. 518, it is said that the jurat to an affi- davit taken before a judge of a court of record need not contain the words " Before me." In Iowa, under § 2913 of the re- vision of i860, it was held that it was necessary for the officer to cer- tify that the affidavit was sworn to before him, and that an affidavit to which was attached a jurat in the following words : " subscribed in my presence and sworn to by Freedom Way, this 3rd day of December, A. D. 1862, at my office in Toledo, Tama County, Iowa," was insuffi- cient. Way V. Lamb, 15 Iowa 79. 26. Clement v. Bullens, 159 Mass. 193, 34 N. E. 173- Omission of Stereotyped Formula. In Trice v. Jones, 52 }iliss. 138, it is said that the use of the words, " Given under my hand and seal," etc. instead of the usual stereotyped formula : " Subscribed and sworn to before me," is sufficient. 27. Showing in Body of Affidavit. Where the complaint shows in the body thereof that it has been taken before the proper justice, it is not necessary that the words " before me " should be contained in the jurat. Cross v. People, 10 Mich. 24. See also In the IMatter of Edwin P. Teachout, 15 !Mich. 346, wherein it was held that where an affidavit was used before the officer who ad- ministered the oath, the omission in the jurat of the words. " Before me " does not vitiate it. 28. United States. — BsiXghK v. Morris Aqueduct, 4 Wash. C. C. 601, n Fed. Cas. No. 5902, Arkansas. — Edmondson v. Car- nall. 17 Ark. 284. Micliigan. — Greenvault ;'. Farm- ers and Mechanics' Bank, 2 Doug. 498. Nexc York. — Stanton z: Ellis, 16 Barb. 319; Berrien ?'. Westervelt, 12 Wend. 194. Te)incssee. — Baker Z'. Grigsby, 7 Heisk. 627. 29. United States. — Atkinson v. Glenn. 4 Cranch C. C. 134, 2 Fed. Cas. No. 610. Arkansas. — Hammond 7'. Free- man, 9 Ark. 62. Colorado. — Anderson z'. Sloan, i Colo. 33 ; Martin z\ Skehan, 2 Colo. 614; Frybarger z\ McMillen, 15 Colo. 349, 25 Pac. 713. Kansas. — Schoen v. Sunderland, 39 Kan. 758, 18 Pac. 913 ; Warner v. Warner. 11 Kan. 121; Tootle v. Smith, 34 Kan. 27, 7 Pac. 577. Nebraska. — Collins j'. Stewart, 16 Neb. 52, 20 N. W. 11; Horkey v. Vol. I 714 AFFIDAVITS. 2. Necessity of Showing. — It is necessary to the validit)- of an affidavit that it contain somewhere on its face a statement of the official character of the officer before whom it was taken."" 3. How Shown. — A. By Jurat or Certific.vte of Offickk. The authority of the officer taking an affidavit, may, and usually does, appear by his official designation affixed to the signature sub- scribed to the jurat. ^^ B. Anywhere on Face of Instrument. — But if it appears anywhere on the face of the paper that the person before whom it was sworn was an officer authorized to take affidavits, it is suffi- cient. ''- C. By Extrinsic Enidence. — But in the absence of any show- ing of the officer's authority on the face of the affidavit itself, it is held permissible to establish the fact of his authority by parol ;'''■ Kendall, 53 Neb. 522, 73 N. \V. g^i, 68 Am. St. Rep. 623. Nezv Jersey. — Den v. Geiger. 9 N. J. Law 225; Pnllen v. Pullen, 17 Atl. 310. Nezii York. — Taylor v. Hatch, 12 Johns. 340; Bliss v. Molter, 58 How. Pr. 112; Davis v. Rich, 2 How. Pr. 86. 30. Hart v. Grigsby, 14 Bush (Ky. ) 542; Blanchard v. Bennett, I Or. 329; Edmondson v. Carnall. 17 -■^rk. 284; Knight T'. Elliott. 22 Minn. Officer's Authority Should Appear on Face. — "An affidavit when of- fered to be read in evidence, ninst appear on the face of it to be what an affidavit ought to be, to entitle it to be read. It must appear to have been before the proper officer, and in compliance with all legal require- ments. The court cannot stop to in- quire into the competency of the offi- cer or the place where it was taken. State z'. Green, 15 N. J. Law 88. 31. Bandy v. Chicago etc. R. Co., .^.^ Minn. 380, 23 N. W. 547. 32. Bandy v. Chicago etc. R. Co., 33 Minn. 380, 23 N. W. 547. May Appear in Body of the Affi- davit. — When a cerliticatc of acknowledgment of a deed or cer- tificate of a notary, clerk or other officer states in its body the official character of the officer certifying, it is unnecessary and utterly useless to again certify it by full designation or significant letters following the signature. Heffcrman v. Harvey, 41 W. Va. 766. 24 S. E. 592. Vol. I 33. By Parol. — English r. Wall, 12 Rob. (La.) 132; Maples z'. Hicks. Brightly (Pa.) 56; Hunter z: Le Conte, 6 Cow. (N. Y.) 728: People f. Rensselaer. 6 Wend. (N. Y.) 343: JilcKinney ?■. Wilson, 133 Mass. 131 : Jackman z\ City of Gloucester. 143 Mass. 380, 9 N. E. 740. Prima Facie Evidence of Au- thority Where a statute required an affidavit to be made before a " Justice of the Peace or other mag- istrate in said city and county, au- thorized to administer oaths," etc., and it did not appear by the affidavit that the officer before whom it was taken was a inagistrate authorized to administer oaths, nor was the fact proved or offered to be proved or disproved in the court below, the court said : " It is fairly inferable that the fact of his being a justice was conceded, but it was contended that his official character should ap- pear affirmatively. We think that the fact of Mr. Abcll's taking an affi- davit, and of the clerk's receiving and filing it, were prima faeie suffi- cient ; and threw on the other side the burden of proving Ihe want of authority." Hunter 7'. Le Conte, 6 Cow. (N. Y.) 728. See also Mc- Kinney v. Wilson, 133 Mass. 131, wherein it was held that the burden of proving that the officer was not legally empowered to take deposi- tions was on the partv objecting. Omission Does Not Render Void. Where a justice of the peace omit- ted to add to his signature to the jurat the title of his office, the court AFFIDAVITS. 715 or it may be presumed from evidence afforded by otber pajiers in the cause." D. Judicial Notice of Official Character. — It is held in some jurisdictions that courts should take judicial notice nf the said : " We think that this omission did not render the filing of the state- ment void, and that the fact that the person by whom the oath was ad- ministered was authorized to admin- ister it may be proved by evidence. There is nothing in the statute that in terms requires any certificate of the oath, although the statute con- strued with reference to well known usages undoubtedly impHes that the statement shall have a jurat attached. Affidavits lawfully taken by a per- son authorized to take them are not to be treated as unsworn statements because the magistrate has not added to the certificate signed by hitu the name of his office. Courts permit the certificate to be amended, or, without an amendment, admit evi- dence of the authority of the person by whoin they are taken, if they do not take iudicial notice of it. In this case, if the statement appeared on its face to have been sworn to. we think that it could be filed; and if, in fact, it was sworn to before a person authorized to administer an oath, we think that there was a compliance with the statute." Jackman v. City of Gloucester, 143 Mass. ,380, 9 N. E. 740. 34. By Other Papers in the Cause. Where the jurat to an affidavit for a writ of attachment showed that the affidavit was sworn to before " Henry L. Webb," and the writ of attachment was tested and signed by " Henry I^. Webb, clerk of the Alex- ander Circuit Court," it was held that the court would presume that the aflidavit was sworn to before the clerk. Singleton v. Wofford, 3 Scam, fill.) 576. To the same efl^ect see Ede f. Johnson, 15 Cal. 53. By Affidavit People v. Rensse- laer, 6 Wend. (N. Y.) 543. Reference in Writ of Attachment. In Bank 7'. Gettinger. 4 W. Va. 305, where the jurat was not signed by the officer, but the writ of attach- ment based on the affidavit recited the fact of its having been made, it was held that the accidental omis- sion of the clerk to sign it at the time could not vitiate when the fact was made to appear. Valid Unless it Appears that it Was Not Taken by Proper Officer. Where an affidavit oflfered in evi- dence was objected to upon the ground that it did not appear to be properly verified, no evidence that the notary public before whom it was taken and subscribed was a no- tary, or was authorized by the laws of his state to administer an oath to the affiant, and render the afii- davit evidence in the case, and it did not appear he was in fact a notary except l)y his signature and seal, nor when, where, for what term, or by what authority he was appointed, for what purpose, nor that the act was in the scope of his duties. Held, that it did not appear that it was not made before a notary public in the state, and that there was no er- ror in overruling the objections to its admissibility in evidence. Rich- ardson r. Comer, 112 Ga. 103. 37 S. E. 116. Affidavit of Bona Fides to Chattel Mortgage. — The affidavit of bona fides in a chattel mortgage pur- ported to be sworn before " T. B. F." without any addition. The affidavit of execution was sworn before the same officer, his name being fol- lowed by the words : " .\ Commis- sioner in B. R." Held, no objection to the affidavit of bona fides. Ham- ilton ?■- Harrison, 46 Q. B. 127. By Seal. — In Iowa it is held that an affidavit is not proved to have been made unless the jurat is au- thenticated by both seal and signa- ture. Tunis V. Withrow, 10 Iowa 305, 77 Am. Dec. 117. See also Chase v. Street. 10 Iowa 593 : Steph- ens V. Williams, 46 Iowa 540 : Stone 7'. Miller, 60 Iowa 243, 14 N. W. 781 : Gage v. D. & P. R. R., 11 Iowa 310, 77 Am. Dec. 145; Goodnow v. Litchfield, 67 Iowa 691, 2^ N. W. 882. Vol. I rif. AFFIDAl'ITS. signatures of their officers,"^ and of tlie ol^cial cliaracler of officers empowered to administer oaths within their juristhctions.''^' E. Foreign AFinDAViTS. — The authentication of the official cliaracter of the officer taking an affidavit in a foreign state must conform to the requirements of the statutes of the state where it is intended to be used.'" V. THE AFFIANT. 1. Identification of Affiant. — A. In General. — An affidavit, in 35. Sec ■■ JiDici.\L Notice." Brooster 7'. State. 15 Incl. 190; Mountjoy v. State, 78 Ind. 172; Hipes ZK State. 7;^ Ind. 39; .\Ilen v. Gilhim. 16 Ind. 2,34 ; Simon v. Stet- ter, 25 Kan. 155. Presumption on Appeal Courts take jndicial knowledge of the sig- natures of tlieir officers, and where the signature affixed to the jurat in the affidavit on which the informa- tion is based, was; " Rufus P. Wells. C. P. C. C," the supreme court will presume that the court in which such information was filed knew such signature to be that of its clerk. Buell V. State, 72 Ind. 523. 36. In Illinois it is held that the signature of the officer taking the affidavit need not be followed by a description of his authority wliere the afifidavit is taken in the county in which it is used, as the court takes judicial notice of the official charac- ter of officers authorized to admin- ister oaths in the county in which the court has jurisdiction: but where the affidavit is taken in some other county or state, the authority of the officer must be shown. Dyer V. Flint, 21 111. 80, 74 .\m. Dec. 73; Thoinpson v. Haskell, 21 111. 215, 74 .\m. Dec. 98; Stout v. Slattery, 12 111. 162; Rowley v. Berrian, 12 III. 198; Shattuck V. People, 5 111. 477. To the same efifect sec Ede v. John- son, IS Cal. 53. 37. Georgia. — Behn i\ Young, 21 Ga. 207 ; Charles i\ Foster, 56 Ga. 612. Illinois. — Trever v. Colgate, 181 111. 129. 54 N. F. 909; Smith V. Lyons, 80 111. 600. Nni.' Jersey. — Whitehead v. Ham- ilton Rubber Co., 53 N. J. Eq. 454, 32 All. 377; Magowan v. Baird. 53 N. J. E(|. 656. 33 Atl. 1054. Vol. I Neic York. — Cream City Furni- ture Co. V. Squier, 51 N. Y. St. 118, 21 N. Y. Supp. 972 ; Phelps v. Phelps, 6 Civ. Proc. 117, 32 Hun 642. North Carolina. — Miazza v. Cal- loway, 74 N. C. 31. U'cst I'^irginia. — Bohn v. Zeigler, 44 W. Va. 402, 29 S. E. 983. In New York, where by § 844 of the Code of Civil Procedure it is provided that an affidavit taken in another state may be used here, pro- vided it was taken before an officer authorized by the laws of the state to take and certify the acknowledg- ment and proof of deeds to be re- corded in the state, it is held that an affidavit can not be received in evi- dence which contains a certificate that the notary public was author- ized to administer oaths, but fails to state that he was authorized to take acknowledgments of deeds. Stanton V. U. S. Pipe Line Co., 90 Hun 35, 35 N. Y. Supp. 629. In New Jersey, a statute respect- ing oaths, which directs that "any oath required to be taken. . . . when taken out of this state, may be taken before any notary public of the state ... in which the same shall be taken . . and a recital that he is such notary or offi- cer in the jurat or certificate of such oath, affirmation or affidavit, and his official designation annexed to his signature and attested under his official seal shall be sufficient proof that the person before whom the same is taken is such notary or offi- cer," is held not to make the recital of official character in the jurat or certificate essential to the validity of the affidavit, or prohibit other proof, or deny to the ordinary jurat and certificate its prima facie cflfect. Magowan v. Baird, 53 N. J. Eq. 656, 33 Atl. 1054. AFFIDAVITS. "i; order to be a valid instrument of evidence, should have that in or about it which identifies the party making- it, and which furnishes proof of his having uttered the matter of it under oath.'''* B. By Signature. — Where written. — The omission of the name of the affiant from the jurat will not make the affidavit invalid pro- vided the name and signature appear in the body of the instrument.-''' Place of Signature. — While it is proper and usual to place the signature of the deponent before the officer's certificate or jurat, the 38. AiSant Must Be Identified. Where an affidavit, indorsed on the appeal bond, commenced as follows ; " J. Gaddis and Pierson, the appel- lants named in the within bond, be- ing duly sworn, upon oath, say " etc., and there was nothing further in the affidavit showing wliich of the parties actually made and signed the affidavit, the affidavit being signed, "J. Gaddis and Pierson," the court said: "If but one of the appellants made the affidavit, it ought to ap- pear which of them it was, so that perjury, if it has intervened, though none is apprehended in this case, might be assigned on the affidavit. \.e do not decide that it was neces- sary to the validity of the affidavit, that it should be signed by the person making it; but this is signed in the partnership name, and as the part- nership could not make an affidavit, the whole matter is rendered am- higuous and uncertain. The manda- mus is therefore refused." Gaddis T'. Durashy, J,i N. J. Law 324. Affidavit Sufficient if Witness is Identified. — In People v. Suther- land, 81 N. Y. I, a well considered case, the court say : " 'What more is there to legal evidence, in any case where it is taken, relied on and acted upon by courts, than that it is rendered in such form and under such sanctions as that the witness takes on responsibilities and incurs liability to the criminal law if he utters willful falsehood? An affi- davit is instead of the presence of the person who makes it, and of his testimony given orally. If the written paper has that in or about it which identifies him as the witness as well as does his presence, and which furnishes proof of his having uttered the matter of it under oath, as well as does his kissing the book and speaking in the witness-box, it is formally as sufficient for evidence as his oral testimony to the same matter." 39. Omission of Name From Jurat Where affiant's name was mentioned in the body and was also subscribed to the affidavit, but was not contained in the jurat, the court said: "The proof of service is said to be deficient in that the jurat does not contain the name of the affiant ; but the jurat shows that what was written for an affidavit was sub- scribed and sworn to by one, although the name is not given. They pur- port, however, to have been sub- scribed by Frank Pierce, and no one else. If Frank Pierce's name had been written by some one with- out authority, the words written for an affidavit could not, in any proper sense, be said to be subscribed. We think, then it is expressly shown that they were subscribed by Frank Pierce, and the fair inference is that they were sworn to by the same person. In the absence of a statute expressly requiring the jurat to con- tain the name of the affiant, we think that we must hold the jurat in ques- tion sufficient." Kirby v. Gates, 71 Iowa 100, 32 N. W. 191. To the same efifect see -Stoddard v. Sloan, 65 Iowa 680, 22 N. W. 924. In Taylor z: State, 48 Ala. 180, 'the following jurat was held suffi- cient where the paper was signed by 27 persons : " State of Ala- i I do hereby ccr- bama. Mobile ^ tify that the per- County. ) sons whose names are signed above were duly sworn to it before me, Hiram Carver, No- tary Public in and for Mobile County, this 26th day of March, J872. Hiram Carver, N. P. and ex-officio J. P.. M. C." Vol. I 718 AFFIDAVITS. affidavit will not be rendered invalid by placint;- the signature below the certificate or jurat.'"' C. By Jurat. — In the absence of a rule of court or statute requiring it, affiant's signature is not necessary to the validity of an affidavit, provided the jurat sufficiently identifies the affiant.''^ 2. When Must State Capacity of Affiant. — Where an affidavit is required to be made by a certain person, acting in a certain capacity, both name and capacity must be stated, and the capacity of affiant must be declared in the bodv of the affidavit. ■*- 40. Place of Signature Launius V. Cole, 51 Mo. 147 ; Kohn v. Washer, 69 Tex. 67, 6 S. W. =;=;i, 5 Am. St. Rep. 28. In Affidavit or Certificate to An- swer When the authentication of the answer is in the form of an affidavit, the name of the deponent must be subscribed on the affidavit ; when in the form of a certificate for the officer who administered the oath, the name of the deponent should be subscribed to the answer. Pincers V. Robertson, 24 N. J. Eq. 348. 41. Alabama. — Watts v. Wo- mack, 44 Ala. 605. California. — Ede v. Johnson, 15 Cal. 53. Indiana. — Turpin v. Eagle Creek etc. Road Co., 48 Ind. 45. lo'uv. — Bates v. Robinson, 8 Iowa 318. Michigan. — Bloomingdalc v. Chit- tenden, 75 Mich. 305, 42 N. W. 836. Minnesota. — No.rton z'. Hauge, 47 Minn. 405, 50 N. W. 368. .Mississipj)i. — Redus v. Wofford, 12 Miss. 579 ; Brooks 7: Snead, 50 Miss. 416. New Jersey. — Hitsman v. Garrard. 16 N. J. Law 124. New York. — Haff r. Spicer, 3 Caines 190; Jackson 7'. Virgil, 3 Johns. 540; MilUus v. Shafer, 3 Denio 60. North Carolina. — Alford v. Mc- Cormac. 90 N. C. 151. .^outh Carolina. — Armstrong v. Austin, 45 S. C. 69, 22 S. E. 763, 29 I,. R. A. 772 ; Fuller v. Missroon, 35 S. C. 314, 14 S. E. 714. Texas. — .Alford v. Cochrane, 7 Tex. 485; Crist v. Parks, 19 Tex. 234- Contra. — Crenshaw f. Taylor, 70 Iowa 386, 30 N. W. 647 ; T^ynn v. Vol. I Morse, 76 Iowa 665, 39 N. W. 203; Hargadine v. Van Horn, 72 Mo. 370. Neither Signature Nor Jurat. Where the affidavit to the notice of location of a mineral claim, required by the statute, is not signed by tlie locators and there is no jurat show- ing it to have been subscribed and verified, the affidavit and notice are insufficient and no evidence of loca- tion. Metcalf V. Prescott, to Mont. 283, 25 Pac. 1037. 42. 'People v. Sutherland, 81 N. Y. I ; Whipple f. Hill, 36 Neb. 720, 55 N. W. 227. 38 Am. St. Rep. 742. 20 L. R. A. 313- Affidavit of Publication by Printer, Foreman, or Principal Clerk. Whore an affidavit of publication of summons commenced in this way : " H. B. principal clerk, etc., being duly sworn, deposes " it was lield insufficient to give the court jurisdic- tion of the person of defendant, the court saying : " The fact that an order of publication has been com- plied with, is to be proved by ' the affidavit of the printer, or his fore- man, or principal clerk.' that the atliant is one of the three, is itself a substantive fact, and must he proved as such before the court in which the action is pending can proceed to render judgment against the parties to whom notice is in- tended to be given. In the affidavit now in question, the affiant swears to nothing except to the matters set forth after the word ' deposes.' He names himself as principal clerk, but he does not swear that that was his position in fact. . . . The result is, that as the record in Stcin- bacli 7\ Leese is made up. judgment was rendered against Jones without any pruof that the order of publica- AFFIDAVITS. 719 3. Name May Be Omitted From the Body. — The omission of tlie name of the affiant from the bod_v of the affidavit does not make the same invahd or inadmissible, provided it is signed by the party making the declaration.*^ But it has been held that when an affi- davit to be elTectual must be made by one having- a certain character or personal capacity wherein he acted or is to act in doing the mat- ters averred therein, the paper ought to state that the deponent has that character or capacity, and this statement should be sworn to.'*'' 4. Agents and Attorneys. — It is now generally held that an attorney may make an affidavit for his client where the facts are within his knowledge :*^ and an agent may make the affidavit for his principal under like circumstances.**^ But this relationship must tion had been complied with." Stein- bach z: Leese, 27 Cal. 295. In Supplementary Proceedings. An aflSdavit in supplementary pro- ceedings is insufficient, where it fails to show that it is made by the judg- ment creditor or his attorney, or some one authorized to make it in his behalf. Brown v. Walker, 28 N. Y. St. 36, 8 N. Y. Supp. 59. By Officer or Agent of Corporation. Where a statute required an affi- davit to be made by the " president, secretary. general superintendent, managing agent of the corporation, or some managing agent thereof within the county ;" it was held that an affidavit beginning " John Corn- ing of the Central Pacific Railroad Company, being duly sworn, says." etc.. and containing no further des- cription of the affiant's authority, or agency, or connection with said rail- road company, was insufficient in that it did not show that the party making the affidavit was one of the persons made competent to make the affidavit under the statute. State v. Washoe County, 5 Nev. 317. 43. People v. Sutherland, 81 N. Y. I ; Cunningham i'. Doyle. 5 j\Iisc. 2ig. 25 N. Y. Supp. 476. Variance Between Signature and Name in Body \^'here the affidavit for the publication of the order for the appearance of defendants was signed by Charles H. Lee, but it began by the recital that " Fred B. Lee, of said county being duly sworn." etc. it was held that the recital of the name of Fred B. Lee in the beginning of the affidavit was apparently a clerical error, and to be overlooked as such, and that the affidavit was in legal effect the same that it would have been if in the body of it there had been no recital of any name as that of an affiant. Torrans v. Hicks. 32 Mich. 307. 44. Bx parte Bank of Monroe, 7 Hill (N.Y.) 177; E.x- parte Shumw^y, 4 Denio (N. Y.) 258; Cunningham V. Goelet, 4 Denio (N. Y.) 71; Cunningham z: Doyle, 5 Misc. 219, 25 N. Y. Supp. 476; People v. Suth- erland. 81 N. Y. I ; Steinbach v. Leese. 27 Cal. 295 ; Payne r. Young, 8 N. Y. 158. 45. United States. — The Harriet, II Fed. Cas. No. 6096. California. — Byrne r. Alas. 68 Cal. 479. 9 Pac. 8=;o; Will v. Lytle Creek Water Co.. 100 Cal. 344. 34 Pac. 830. /iirfmHU.— Abbott r. Leigler, 9 Ind. 511. Louisiana. — Hardie r. Colvin, 43 La. .'Vnn. 851, 9 So. 745; Fulton v. Brown, 10 La. Ann. 350; Dwight v. Weir, 6 La. Ann. 706 ; Williams r. Brashear, 16 La. 77. A'eu- York. — Tim v. Smith, 93 N. Y. 87; Pittsburg Bank i: Murphy, 64 Hun 632, 18 N. Y. Supp. 575- Te.vas. — McAlpin v. Finch, 18 Tex. 831 ; Doll v. Muldine, 84 Tex. 315. 19 S. W. 394- 46. Murray v. Cone. 8 Port. (Ala.) 252; Wetherwax Z'. Paine, 2 Mich. 555; McAlpin v. Finch, 18 Tex. 831 ; Nicholls v. Lawrence, 30 Mich. 395 ; Allen v. Champlin, 32 La. Ann. 511; Deering z'. Warren, I S. D. 35, 44 N. W. 1068; School Directors v. Hentz, 57 111. App. 648; Vol. I 720 aFFIDAJ'ITS. exist at the time the affidavit is made/' It has also been held that such affidavits are receivable only when circumstances exist which would excuse the party himself from making- it, such as sickness or absence from the county ;^'* in which case such disability should be alleged.''" 5. Presumption of Authority to Make. — Where an affidavit is made on behalf of a party by his attorney or agent, a recital of such relationship is usually held sufficient,'''" it being presumed in such case that the affidavit is made on behalf of the principal. ^"^ Stringer v. Dean, 6i ^[icli. 196, 27 N. W. 886. 47. Relation of Attorney or Agent Must Exist. — A statute providing that an affidavit may be made by the attorney or agent of the party when the parly is ab.sent from the county is confined to cases where the relation of attorney and chent or agent and principal exists at the time the affidavit is made and a subsequent ratification by the party of an unauthorized affidavit is not sufficient. Johnson 1'. Johnson. 31 Fed. 700. 48. People v. Spalding, 2 Paige (N. Y.) 326; Cross T'. Nat. R Tns. Co., 53 Hun 632, 6 N. Y. Supp. 84; Johnson i'. Johnson, 31 Fed. 700. 49. People z'. Spaldins;'. 2 Paige (N. Y.) 326: Talbert v. Storum, 66 Hun 63s, 21 N. Y. Supp. 719; Van Ingen 7<. Herold, 64 JJun 637, 19 N. Y. Supp. 456. Reason for the Rule " It has never been held that no one but the defendant can make the affidavit of defense. Cases may arise where it would be physically impossible for the defendant to make such an affidavit. Under such and similar circumstances we have no doubt that an affidavit of defense may be made on behalf of defendant by an attor- ney at law or other person duly authorized, but the reason why it is not made by the defendant should be set forth in the affidavit. The court can then judge of the suffi- ciency of such reason. It would never do to allow a stranger to the record to intermeddle in this man- ner. The correct rule would seem to be that, when a defendant puts in a stranger's affidavit, it must show upon its face sufficient reason why it was not made bv the defendant himself; that a real disability existed, which prevented him from making it, and the circumstances giving rise to the disabilitv." Griel v. Buckius, 114 Pa. St. 187, 6 Atl. 153. 50, Alabama. — Murray t'. Cone, 8 Port. 250. Arkansas. — Mandel :■. Pcct, 18 Ark. 236. Massacliusctts. — Wright f. Coles, 52 Mass. (11 Mete.) 293. Michigan. — Nicholls :'. Lawrence, 30 Mich. 395 ; Forbes Lithograph 'Mfg. Co. '•. Winter, 107 Mich. 116, 64 N. W. 1053; Stringer v. Dean, 61 Mich. 196, 27 N. W. 886 ; Wether- wax V. Paine, 2 Mich. 555. Minnesota. — Smith v. Victorin. 54 Minn. 338, 56 N. W. 47. Missoui-i. — White Sewing Mach- ine Co. 1'. Betting, 53 Mo. App. 260; Ring V. Chas. Vogcl & Glass Co., 46 Mo. App. 374; Remington Sewing Machine Co. <■. Cushen, 8 Mo. App. 528. Texas. — Evans z'. Lawson, 64 Tex. 199. 51. Stringer z\ Dean, 61 Mich. 196, 27 N. W. 886: XiehoUs v. Lawrence, 30 Mich. 395; Wright V. Coles, 52 Mass. (11 Mete.) 293; Smith V. Victorin. ^4 Minn. 338, 56 N. W. 47. Affidavit Presumed to Be Uade on Behalf of Plaintiff. — Where an affidavit for attachment was objected to upon the ground that it contained no allegation that it was made on behalf of plaintiff the court said: ;■ It is a mailer of formal con- sequence whether the affidavit does or does not show wdiether tlie person who made it, made it for the plain- tiffs. Whether it is or is not so stated, it will be so intended, for it is not presumed that one in no wise inter- ested in I he suit would make such Vol. I .IFF I DAVITS. J2\ 6. Where Statute Designates Affiant. — The parlicular persuii competent to make a certain affidavit ^uch as is required in proof of service of summons,''- change of venue,'*" and the like,^* is some- times pointed out by statute, and in such cases the affidavit of a person other than the one designated as competent can not be received as evidence in ]5roof of the facts required by the statute. VI. IDENTIFICATION OF CAUSE. 1. Cause or Proceeding Must Be Identified. — it is lield in some jurisdictions that an affidavit made to be used in a pending cause an affidavit without it was done by him as the agent of the party in interest, or done for him, for ac- commodation." Mandel t'. Peet. i8 Ark. 236. But see Wiley v. .\ultni:in, 53 Wis. 560, II N. W. 32. wherein it is lield that an affidavit for an attachment is insufficient which fails to allege the relationship of affiant to plain- tiff and that it is made on behalf of the plaintiff. See ahso Miller z: Chicago etc. Ry. Co., 58 Wis. 310, 17 N. W. 130, to the same effect. 52. Publication of Summons. In Steinbach !■. Lecse, 27 Cal. 295, it was held that under the statute pro- viding that proof of the publication of a summons may be made by the affidavit of the " printer, foreman or principal clerk " an affidavit begin- ning, " H. W. F. Hoffman, principal clerk in the office of the California Chronicle, a daily newspaper pub- lished in said city and county, being duly sworn, deposes and says " etc.j is insufficient to give the court juris- diction. That the affiant is one of the three persons pointed out by the statute as competent to make the affidavit is itself a substantive fact and must be proved as such. That affiant swears to nothing except to the matters set forth after the word deposes, and that the affidavit not appearing to have been made by one of the persons pointed out by the statute was no.t sufficient. Affidavit for Order of Publication of Summons. — Under Code of Colo- rado 1887 §41 requiring an affidavit for the publication of a summons to be made by a party to the action it was held that such statutes must he 46 strictly construed and that such af- fidavit made by the attorney of the party could not be received. Davis V. John !Mouat Lumber Co., 2 Colo. -App. 381, 31 Pac. 187. 53. In Western Bank v. Tallman, 15 Wis. 92, it is held that an ap- plication under § 8, ch. 123, R. S. 11858, for a change of venue in a civil action on account of the prejudice of the judge before whom the action is pending, must be veri- fied by the oath or affirmation of a '' party " to the action, and cannot be verified by his attorney even in the absence of the agents or offi cers qualified to make an affidavit for the corporation under the gen- eral provisions of law. But see Shattnck 7'. Myers, 13 Ind. 46, 74 .A.m. Dec. 236, wherein it is held that while it should be the usual practice to require the affidavit for a change of venue to be made by the party himself, the affidavits of others might be received in the exercise of a sound legal discretion. 54. Suits and Affidavits in Forma Pauperis. — I hidden i'. Larned, 83 Ga. 630, 10 S. H. 2yf:; Railroad Co. v. Tyson, 48 Ga. 351 ; Elder 7'. White- head, 25 Ga. 262 ; Lester -■, Haynes, 80 Ga. 120, 5 S. E. 250. In Redemption Proceedings. Upon an application liy an assignee of a junior judgment to redeem land sold under execution under a statute requiring the affidavit of assignment to be made by the assignee or some witness to the assignment, it was held that an affidavit made by another person describing himself as the agent of the assignee was insuffi- cient. Ex parte Aldrich, I Denio (N. Y.) 662. Vol. I •22 AFFIDAVITS. must be identified by containing the title of the cause in whicli it is intended to be used or it cannot be received. ■'"'•'* 2. Where Cause Clearly Appears. — The want of the formaUty of a title is of no consequence, provided the affidavit has been other- wise fullv identified as bavins^ lieen made to be used in that cause. ^'' 55. United States. — Goldstein v. Whelan, 62 Fed. 124. Illinois. — Watson v. Reisig, 24 111. 281. 76 Am. Dec. 746. Michigan. — Whipple v. Williams, 1 Mich. 115. Mississippi. — Saunders v. Erwin, 2 How. 732. New York. — Higham v. Hayes, 2 How. Pr. 27; Burgess v. Stitt, 12 How. Pr. 401 ; Irrov v. Nathan, 4 E. D. Smith 68. West Virginia. — ^'inson v. Nor- folk, 37 W. Va. 598, 16 S. E. 802. Effect of Omitting Title In Buerck v. Imhaeuser, 4 Fed. Cas. No. 2107a, it was held that an affi- davit not entitled in the cause was merely an extrajudicial oath, and not admissible in evidence. Where Title Must Appear. Every affidavit must bear upon its face, either at the commencement of it or in its body the title of the suit in which it is taken and the pro- ceedings to which it is intended to apply. Saunders v. Erwin, 3 Miss. (2 How.) •;:i2. On Motion for Injunction In Goldstein v. Whelan, 62 Fed. 124, it is held that affidavits not entitled in the cause cannot be considered in opposition to a motion for an in- junction. 56. Dunham v. Rappleyea, 16 N. J. Law 75 ; Hays v. Loomis, 84 111. 18; Harris v. Lester, 80 111. 307; Beebe v. Morrell, 76 Mich. 114, 42 N. W. 1 1 19, 15 Am. St. Rep. 288; Kearney v. Andrews, 5 Wis. 23 ; Yard v. Bodinc, 18 N. J. Law 490; King V. Harrington. 14 Mich. 532. Where Affidavits Are Forwarded to Counsel — In Shook v. Rankin, 21 Fed. Cas. No. 12,804, where af- fidavits to support an application for a writ of injunction were with- out title, but were forwarded to counsel in the case, the court say: " It affirmatively appears, I think, that these affidavits were made for the purpose of being used in Vol. I this case ; and conceding that they did not at the time contain the proper title of the cause, still they were made and forwarded to counsel, who may be presumed to be authorized by the parties to give the proper character to them by stating the name of the cause in which they were to be used. It seems to me that it would be adopt- ing a very rigid rulcj and one hardly in accordance with the liberal prac- tice of the present day, to 3eclare that the affidavits should be rejected because at the tiine when the affi- davits were made and signed by the parties, the name of the cause was not stated, provided they knew that they were to be used in the cause, although they did not know the tech- nical description of the title to the same." Identity on its Face Where an affidavit shows on its face that it is intended to be used in the suit it is not necessary that it should be entitled. Dunham v. Rappleyea, 16 N. J. Law 75. Rut see Saunders v. Erwin, 2 How. (Miss.) 732, wherein it was held that every affidavit must bear upon its face, either at the com- mencement of it or in its body, the title of the suit in which it is taken and of the proceedings to which it is intended to apply. In Kearney v. Andrews, 5 Wis. 23, it was held that it is not necessary that an affidavit for appeal from a judgment of a justice of the peace should be entitled of the cause and court. If it substantially conform to the statute, and properly describe the parties to the suit, it is good by relation to the other papers which arc properly entitled, and is .sufficient. In Case of Appeal, if the justice certifies on his docket that an affi- davit has been filed with him, sends up his transcript and appeal bond> and affidavit made by the appellant, before him or any other justice, AFFIDAJ'ITS. 723 So where the affidavit contains a reference to or is attached to other papers in the cause which are properly identified :''' or where it follows or is indorsed upon other papers correctly identified in the cause. '^ even where it is wrongly entitled.^" 3. Identified With Wrong Cause. — But a wrongl}- entitled affi- tlavit which has the effect of identifying the affidavit with a cause other than the one in which it is intended to be used, cannot be read."" stating in substance, what the stat- ute requires, it is sufficient evidence to the court that the affidavit, thus sent up, was inade in that cause; and it is not necessary that the affi- davit should be entitled in the cause, or even show upon its face who are the appellees, or . the style of the action ; unless it appears by its cap- tion or on the face of it, to have been made in a different cause, or is other- wise shown to have been so made, it ougfit to be received and acted on. Yard v. Bodine, i8 N. J. I^aw 400. Affidavit of Due Examination of Witness. _ In McLi'<>. Attorney General, 2 Russ. & M. 147. But when better evidence is shown to be accessible, they are excluded by the rule that excludes the secondary when primary evidence can be obtained. When ad- mitted, it is in general, as the dec- laration of the persons by whom they are made. But they cannot be received, where the father, mother, or other declarant is present in court, or within the reach of process. Taylor v. Hawkins, i McCord 165." In Woodard v. Spiller, i Dana (Ky.) 180, 25 Am. Dec. 139, it was held that the court properly per- mitted to be given in evidence, to prove the age of the plaintiff, a register of the births of his father's children, made out in the handwriting of the father, who had been dead thirty years. 14. Smith V. Geer, 10 Tex. Civ. .'\pp. 252, 30 S. W. 1 108. See also Leggett V. Boyd, 3 Wend. (N. Y.) 376; Taylor v. Hawkins, i McCord (S. C.) 165; People V. Mayne, 118 Cal. 516, 50 Pac. 516, 62 Am. St. Rep. 256. Kobbe V. Price. 14 II un (N. Y.) 55, so holding of a family record shown to be in the father's hand- writing, who was living abroad at the time, containing the births of his AGE. 735 C. Testimony of tiii; Pkrson Himsblf. — Age may be proved by the testimony of the person whose age is in question ;" and the fact that his knowledge is derived from statements of his parents, or from family reputation, does not render his testimony inadmissi- ble." 2. Age As a Fact, Not of Pedigree. — But when the fact of age is not one of pedigree to be established, but it is necessary to be established for cither jiurposes, hearsa\' evidence can not be received in proof thereof.'^ children, upon the gronnd that it was not a public record and the father's testimony could have been procured. 15. California. — ?iIorrill v. Mor- gan, 65 Cal. 575, 4 Pac. 580. Georgia. — Cent. R. Co. ■?'. Coggin. 73 Ga. 689. Kansas. — Stale z\ McCIain. 49 Kan. 730. 31 Pac. 790. Massachusetts. — Com. •:'. Steven- son, 142 Mass. 466. 8 N. E. 341 ; Com. V. HoUis, 170 Mass. 433, 49 N. E. 632 ; Com. V. Phillips, 162 Mass. 504, 39 N. E. 109. Michigan. — Cheever z\ Congdon. 34 Mich. 296 ; Morrison z: Einslev. 53 Mich. 564, 19 N. W. 187. Minnesota. — Houlton v. Manteuf- t'el, 51 Minn. 185, 53 N. W. 541. Montana. — State v. Bowser, 21 Mont. 133. 53 Pac. 179. Xew York. — DeWht r. Barly, 17 X. Y. •?40 ; Stevenson z: Kaiser, 59 N. Y. St. Rep. 515. 29 N. Y. Supp. 1 122. Texas. — Reed 7'. State (Tex. Crim. App.), 29 S. W. 1074. JViseonsin. — Dodge z'. State, 100 Wis. 294, 75 N. W. 954. Contra. — Doe z\ Ford. 1, V. C. Q. B. (Can.) 353- " It Would Shook the Common Sense of the Community to Hold Otherwise." said the court in Pcarce v. Kj'zer, 16 Lea (Tenn.) 521, 57 Am. Rep. 240, " and there is no rea- son why it should be held otherwise after he has been rendered com- petent by statute to testify on his own behalf, and when his knowledge is obtained in precisely the same way as the public obtains it so as 'to constitute general repute. His tes- timony is not hearsay in the legal sense, but the original evidence. And nn part of his evidence should have been excluded upon the grounil that better evidence might be produced." In Gunter z: State. 11 1 Ala. 2^, 20 So. 632, 56 Am. St. Rep. 17, a prosecution for assault with intent to murder, the prosecutor was per- mitted to state that he was about eighteen years of age at the time of the assault, in order to show the relative condition of the parties. 16. People V. Ratz, 115 Cal. 132. 46 Pac. 915; Bain v. State, 61 Ala. 75; State V. Best, 108 N. C. 747, 12 S. E. 907 ; Hill V. Eldridge, 126 Mass. 75. See also Cheney v. Ward, 68 Ala. 29, so holding although the witness testified that his reason for his knowledge of his age was " that his mother told him so, and that it was written down in a book which his father had in his pocket, in the court house." 17. Peterson c'. State. 83 Md. 194, 34 All. 934- Family Reputation Thus, tes- timony of the brother and brother-in- law of a person suing for personal injuries, that each knows the family reputation as to his age, and that he was under twenty-one at the time of an alleged settlement with the defendant, is inadmissible as hearsay. Rogers v. De Bardelaben Coal & I. Co., 97 Ala. 154. 12 So. 81. Statement by Mother of Party. A witness cannot testify that he heard the mother of a grantor in a deed say that he was an infant at the lime of its execution, unless it is first affirmatively show'U that the declaration was made ante litem niotani. and that the declarant is dead. Hodges v. Hodges, 106 N. C. 374, II S. E. 364. Compare David v. Settig, i Mart. (La.") T47. T4 .\m. Dec. 179. holding Vol. I .-iGH. Infancy As a Defense. — Thus, hearsay evidence can not be received in proof of age, where the purpose of the evidence is to establish infancy as a defense.^* V. INSPECTION BY JURY. It is competent for the jury to consider the ai^pearance of the person whose age is in question, in determining his age.'" declarations of a parent concerning the age of his child, made before the controversy arose, are competent. See also State v. Marshall, 137 Mo. 463, 39 S. W. 63. Information From Sister Living at Time of Trial. — A witness cannot testify to the age of another, on information from the latter's sister, where it does not appear 4hat the sister is dead. State ?■. Parker, 106 N. C. 711, II S. E. 517. Age as an Element of Crime. In People i'. Sheppard, 44 Hun (N. Y.) 565, it was held that age conld not be established by hearsay, where the purpose of the evidence was to prove infancy as an element of the crime of abduction. Compare Laws 1888, p. 201, ch. 14s, amending Pen. Code, § 19. People 7'. Mayne, 118 Cal. S16, 50 Pac, 516, 62 Am. St. Rep. 256, holding entry in Bible not admissible to prove age of prosecu- trix in case of rape; the entry had been made bv one present at the trial Age as Element of Damages In Greenleaf v. Dubuque & S. C. R. Co., ,?o Iowa 301, an action to recover damages for negligence in causing the death of a person, the plaintiff, lor the purpose of establishing the age of the decedent as an eknnont m determiping the amount of dam.igcs, was allowed to show the date of his birth from an entry in the family Bible. This was held to be error on the ground that it was not shown that the person who made the entry was dead. Age as Fact Sustaining Plea of Statute of Limitations In Robin- son Z'. Blakely, 4 Rich, L. (S. C.) 586, 55 Am. Dec. 703, the family register of births and deaths was held inadmissible to show the age of the plaintiff for the purpose of de- Vol. I termining whether the action was barred by the statute of limitations, upon the ground that the father, who made the entry, was still alive. 18. Haines r. Guthrie. L. R. 13 Q. B. Div. 818: Plant v. Taylor. 7 H. & N. 227; Connecticut Mut. L. Ins. Co. 7'. Schwenck, 94 U. S. 593. See also Leggett v. Boyd, 3 Wend. IN. Y.) 376; Campbell v. Wilson, 23 Tex. 252, 76 Am. Dec. 67. Passport as Hearsay In Kobbe v. Price. 14 Hun (X. Y. ) 55, it was held that a passport alleged to have been given when the defendant left Germany, and containing a statement of his age at that time, and offered by him to prove his infancy, was properly excluded as mere hearsay. " Although an official document." said the court. " it was made up from the statements of the defendant him- self, or some person in his behalf, and is not by any statute made evi- dence of the correctness of its con- tents." 19. Com. V. Hollis, 170 Mass. 433. 49 N. E. 632; Herman v. State, 7i Wis. 248, 41 N. W. 171, 9 Am. St. Rep. 89; People e.v ret Zeigler i'. Special Session Court Justices, 10 Hun (N. Y.) 224. See also State r. Arnold, 13 Ired. Law ( N. C.) 184. and Com. r. Enmions, 98 Mass. 6, so holding, wherein the court said that " there arc cases where such an in- spection would be satisfactory evi- dence of the fact." Compare Bird ?■. Stone, 104 Ind. 384, 3 N. E. 827, holding otherwise on the authority of Ihinger v. State. 53 Ind. 251 ; the court stating, how- ever, that if the question could have been properly considered as an open one in that state, some of the mem- bers of the court would have been inclined to hold as slated in the text. AGE. VI. COMPETENCY OF WITNESSES. 1. Witness Having' Knowledge. — Again, age mav be proved by the testiinoiiy of any jierson baving proper sources of knowledge of tbe fact.=" 2. The Attending Physician. — The attending pbysician ij a com- petent witness to testify to the fact and date of l)irlb, for the pur- pose of i>roving tbe age of a person."' 3. Witness Testifying From Appearance of a Person. — An ordi- nary witness, baving fully testified to the appearance of a person, may give bis opinion as to tbe age of that person."" But it is not 20. Testimony of the Person's Mother is competL-nt undt-r this rule. Herman ;■. State, 73 Wis. 248, 41 N. \V. 1 7 1, 9 Am. St. Rep. 789. See also Smith v. Geer, 10 Te.x. Civ. App. 252, 30 S. W. 1 108; State v. Woods. 49 Kan. 237, 30 Pac. 520; so holding of the testimony of the person's parents. A Witness Who Has Known a Person for Over Twenty Years may testify to the age of such person, to the hcst of his knowledge. Winter 7'. State, 123 Ala. i, 26 So. 949. In Uogen v. Mut. Aid & A. Ass'n, 75 Hun 271, 26 N. Y. Siipp. 1081, a witness was allowed to state the age of his hrotli«r who was a few years younger, hecause he remembered him from infancy, l2. 22. .(/„/h/»,<,. — Weed 7'. State, 55 Ala. 13; .Mayshall v. State, 49 .A.la. 21. Connecticut. — Morse v. State, 6 Conn. 9. Indiana. — Benson t. McFadden, 50 Tnd. 431. linva. — State v. Bernstein. 99 Iowa 6. 68 i\. W. 442. Kansas. — State 67S. 41 Pac. 951 aiuhnrities ). MassacIiHsctts. — 134 Mass. 198. !■. Grulib. 55 Kan. (citing numerous Com. V. O'Brien, Missouri. — State t. Douglass, 48 Mo. App. 39. South Carolina. — Robinson v. Blakeley, 4 Rich. Law 586, 55 Am. Dec. 703. Te.vas. — Jones v. State, i2 Tex. Crim. App. 108, 22 S. W. 149. Contra. — 'Valley Life Ins. Ass'n <', Terwalt. 79 Va. 421. Effect of Testimony of Parent, The fact that the parents of the person whose age is in question have testified thereto does not preclude others from giving their opinion as to her age. State v. Grugg. 55 Kan. 678. 41 Pac. 951. Physician Acquainted with Physi- cal Appearance In Bice f. State, :^7 Tex. Crim. App. 38, 38 S. W. 803, it was held that a physician might testify that he rwas well acquainted with the prosecutrix on a prosecution for rape of a girl under fifteen years of age, at or about the time of the alleged outrage; that he knew her physical appearance with reference to her size and development, and that judging therefrom he would say she was seventeen or eighteen years old. Comparison with Child of Known Age. — A witness may testify that from the appearance of his brother's wife's child, whose age he knew to l)e four or five months, and the ap- pearance of the child in question, he knew the latter to be four or five months old. Bice v. State. 37 Te.x. Crim, App. 38, 38 S. W. 803. Impression Produced by Appear- ance A witness may testify to the efifect produced on his own mind by the physical appearance of the person whose age is in question. Garner 1: State, 28 Tex. App. 561, 13 S. W. Vol. I 738 .IGE. error to exclude such testiuiony where the persou wliose age is in questiein is |)rosent iu court.-" 4. Experts and Non-Experts. — It lias l^een lield that a non-expert witness is not competent to give his opinion as to the age of another.-'' It is sometimes expressly provided by statute, however, that an fexpert, who has examined the person, may give his opinion as to the age of that person, based on such examination.-^ 5. Testing Capacity of Witness. — For the purpose of testing the capacity of a witness who has stated his opinion as to the age of another, he may, on cross-e-Kamination, be requested to give his opinion as to the age of a bystander, and the bystander may then be called to testify to his age.-" VII. ftUESTIONS OF FACT. ^^'hen the age of an insured as stated in his application is contro- verted, and the evidence in relation thereto is conflicting, the ques- tion is one of fact for the jm-y to determine.-' VIII. AGE OF HORSE. The age of a horse may be established by an impression or cast of the mouth of the horse, proved by the person who took the impression.-* 1064. But not as to how others were 7: Falvey, 104 liul. 409, 3 N. E. 389, impressed by such appearance. Kob- 4 N. E. 908. lenschleg v. State, 23 Te.x. App. 264, 27. Corbetl i'. Metropolitan L. 4 S. W. 888. Ins. Co., 38 App. Div. 623, 55 N. Y. Supp. 775. 28. Earl v. Lener, 4O Hun (X. Y.) 9. Such an impression in plaster, wax or other suitable sub- stance, may be classed as a species of evidence with diagrams, draw- ings and photographs. Vol. I 23. State I '. Robinson, ,32 Or . 4.^. 48 P; ic. 3.V- 24. Martin 1', State, 90 Ala. 702. 8 So. 858. 25. Thus in New Y. Drk. See Pen. Code. § 19- 26. Louisvi illc, N. A. & C. R. Co. AGENCY.— See Principal and Agent. AGGRAVATED ASSAULT.— See Assault and Battery. AGGRAVATION.— See Damages. AGNOSTIC.-See Atheist. AGREED CASE.— See Admissions. AGREEMENT.— See Contracts. AIDERS AND ABETTORS.— See Accessories. ALCOHOLIC LIQUORS.— See Intoxicating Liquors. Vol. I ALIBI. r,Y A. B. YoDNti. I. DEFINITION, 741 II. NATURE OF THE DEFENSE, 741 1. May Be Shown in Rebuttal. 741 2. Not An Affirmative Defense. 741 3. Is Not a Plea, 743 4. No Pleading Necessary, 743 5. Is a Traverse, 743 6. Not An Extrinsic Defense, 743 7. Notliiu;:^ Admitted by Defendant, 743 III. BURDEN OF PROOF, 743 1. General Rule Applies to Alibi, 743 2. Alibi Relie'-c'cs State of Nothing. 744 3. What Burden on Defendant, 745 _^ 4. Qualified Burden. 745 IV. EVIDENCE ADMISSIBLE, 747 I. On Be/ialf of the Accused. 747 A. Presumptions, 747 r>. Facts and Circumstances, 747 V. WEIGHT AND SUFFICIENCY, 747 1. Not Covering Exact Time, 748 2. Insufficient to Establish, 748 3. Sufficiency for the Jury, 749 4. JJ'hoIe E^'idcnee Must Be Considered. 750 VI. EVIDENCE IN REBUTTAL BY STATE, 751 r. State May Rebut Evidence of Alibi, 751 2. State May Rebut by Proving Another Crime, 751- VIL ALIBI A LEGITIMATE DEFENSE, 752 1. Attempt to Prove Does Not luslifx Suspicion of Gnilt, A. Court Max Not Cic'c Disparaging Instructions, , 753 " . 2. Omissions on Part oj Defendant. 754 A. Failure to Make Defense at Preliminary Exami- nation, 754 3. False Testiinouy in Support of Alibi, 754 A. False Alibi. Effect Of. 734 4. Hozc Truth of Defense Tested, 755 A. The Evidence of the State Not to Be Used As a Standard, 755 Vol. I AIJBl. 741 I. DEFINITION. The word " alibi " signifies elsewhere, and one on trial is said to set up an alibi when he asserts that at the time when such offense was committed he was " elsewhere " than at the place where it was committed/ II. NATURE OF THE DEFENSE. 1. May Be Shown in Rebuttal. — In rebuttal of the testimony tending to show defendant's presence at the time and place material to the accusation ( excluding those cases where he is charged as an absent principal or accessory) he may show that he was then at some other place. - 2. Not an Affirmative Defense. — The rule sustained by the weight of authority is, in effect, that alibi is not an independent, affirmative defense.'' 1. Bouvier's Law Diet.; Ander- son's Diet, of Law. 2. Payton f. State, 54 Neb. 188, 74 N. W. 597; State v. Taylor. 118 JNIo. 15,^, 24 S. W. 449. Rebuttal by the State One accused of burglary testified that on the night the crime was committed, he was at another cily. On cross- examination he stated that he saw a procession there, without being able to describe it very fully. It was held competent for the state to show, in rebuttal, the extent of the pro- cession, as these witnesses saw it, as bearing more or less upon the question of the truth of the state- ment of the accused that he was there and saw it. People v. Gibson, 58 Mich. 368. 25 N. W. 316; State v. Lewis, 69 Mo. 92. 3. California. — People v. Roberts, 122 Cal. 377, 55 Pac. 137, 138; People V. Winters, 125 Cal. 325, 57 Pac. 1067. Colorado. — McNamara v. People, 24 Colo. 61, 48 Pac. 541. Montana. — State v. McClellan, 23 Mont. 532, 59 Pac. 924, 75 Am. St. Rep. 558. New Icrscy. — Sherlock v. Slate, 60 N. J. Law 31, 37 Atl. 435. O/iio. — Toler V. State, 16 Ohio St. 583. Oregon. — State 7'. Chee Gong, 16 Or. 534, 19 Pac. 607. Te.vas. — Ayres ■:■. State, 2i Tex. App. 399, 17 S. W. 253. Not an Independent AiRrmative Defense — Alibi is not an affirmative and independent defense with the burden of proof resting upon the accused to establish, but is in the nature of a traverse of a fact that it is incumbent on the prosecution to establish, namely, the presence of the accused at the lime and place of the crime. McNamara v. People, 24 Colo. 61, 48 Pac. 541. Not a Plea It is by no means true in law, that the defense of alibi admits the body of the crime or offense charged. It is an admission of nothing that is charged in the in- dictment and denied by the plea of not guilty. By this defense the pris- oner does not allege that he was elsewhere when the crime was com- mitted, but that he was elsewhere when it is charged to have been committed. Foler v. Slate, 16 Ohio St. 583. Not an Independent Exculpatory Fact. — Ayres v. Slate, 21 Tex. App. 399, 17 S. W. 253. Not a Defense in the Legal Sense. " We find many courts and law writers referring to an alibi as matter of defense, and also stating that it must be proved by defendant. We doubt the strict legal propriety of using either one of these expressions in those jurisdictions where it is held that an alibi is sufficiently es- tablished when a reasonable doubt is raised in the minds of the iurors as to the presence of the defendant at the scene of the crime. Yet these terms are used and held unobjec- tionable in all those instructions where the jury are clearly and fully Vol. I 742 ALIBI. But merely a species of evklence tending to rebut the case made bv the state.* told that a reasonable doubt in their minds as to the presence of the de- fendant at the scene of the homicide entitles him to an acquittal. In all those cases the word ' proved ' is held to mean the production of suffi- cient evidence to raise a reasonable doubt." People v. Winters, 125 Cal. 325, 57 Pac. 1067. Evidence of, Not a Defense. " It is, as said by Mr. Bishop, mere ordinary evidence in rebuttal ; and any charge to the jury that it is not — as, that the law looks with disfavor upon it. or that it should be tested differently from other evidence — is erroneous. Section 1062, i Bish. Crim. Pr. (3d Ed.)" State v. Chee Gong, 16 Or. 534. 19 Pac. 607. Not a Special Defense •■ There is no prima facie case without show- ing the presence of the defendant ; therefore defendant may rebut the evidence of the fact of his presence by evidence of the fact that he was not present. Alibi is not a special defense changing the presumption of innocence, or relieving the state of its burden of proving the guilt of the defendant beyond a reasonable doubt." Schultz V. Territory (Ariz.), 52 Pac. 352; State v. McClellan, 23 i\Iont. 532, 59 Pac. 924. 75 Am. St. Rep. 558. Citing State v. Spotted Hawk, 22 Mont. 2^,, 55 Pac. 1026. 4. England. — Foster's Crown Law, 368. Alabama. — RatlifT v. State, 122 Ala. 104, 26 So. 123. Iowa. — State v. Reed, 62 Iowa 40, 17 N. W. 150. Mississippi. — Pollard v. State, 53 Miss. 410, 24 Am. Rep. 703. Missouri. — State v. Taylor, 118 Mo. 153, 24 S. W. 449. Montana. — State v. McClellan, 23 Mont. 532, 59 Pac. 924, 75 Am. St. Rep. 558. ^ North Carolina. — State v. Free- man, 160 N. C. 429, 5 S. E. 921. Texas. — Walker v. State, 42 Tex. 360 ; Johnson v. State, 21 Tex. App. 368, 17 S. W. 252; Padron v. State (Tex. Crim. App.), 55' S. W. 827. IVesl Virginia. — State ''. Lowry, 42 W. Va. 20s, 24 S. E. 561. Vol. I Is Testimony Against Testimony. " The defense known as an alibi is operative as disproving the charge, and impairing, if not destroying, the credit of the witnesses who testify to the identity of the party accused — an essential element of the case," State V. Freeman, too N. C. 429, 5 S. E. 921. Evidence in Rebuttal. — " The somewhat confused question of how the defense of an alibi relates to the whole case in criminal law simplifies itself when we discard the illogical doctrine that it is an affirmative de- fense, to be proved by the defend- ant, and substitute therefore the doc- trine, which easily flows from the premises already stated, that it is but one of the many defenses offered in rebuttal of the state's evidence, carrying with it to the defendant no burden of proof other than the obligation to introduce evidence sufhcienl to raise a reasonable doubt. This he may do by evidence sufficient to raise a reasonable doubt of his presence at the place where the act was done, and this doubt may arise without its springing from an affirma- tively proved fact that he was some- where else at the time, and could not have committed it." State v. McClellan, 23 Mont. 532, 59 Pac. 924, 75 Am. St. Rep. 558. Direct Evidence Not Necessary to Raise Issue — " Appellant requested the court to charge on alibi. The judge, in approving the bill present- ing the matter, insists that the issue of alibi is not raised by the evidence. Appellant testified to a state of facts showing clearly, if true, that he was not at the place where the homicide is alleged to have been committed. This being the case, we think the issue of alibi is raised. We held in Wilson V. State, 51 S. W. 916, that the charge on alibi should be given where defendant swears that he was at another place at the time of the alleged crime. We do not under- stand it is necessary for the defend- ant, or any witness testifying for ap- pellant, to swear in so many words that he was at another and diff'ercnt ALIBI. T4i 3. Is Not a Plea. — Alibi is not a plea in the legal sense, but a defense nnder the plea of not gnilty.'' 4. No Pleading Necessary. — And no formal affirmative pleading is necessary to render it available." 5. Is a Traverse. — Or as quite often defined it is a traverse of the crime charged.' 6. Not an Extrinsic Defense. — And is not an extrinsic defense.^ 7. Nothing Admitted by Defendant. — There is no dissent from the doctrine that the accused admits nothing whatsoever by under- taking to establish an alibi." III. BURDEN OF PROOF. 1. General Rule Applies to Alibi. — The rule tliat in criminal phice than that of the homicide, in order lo raise the issue of alibi. But, if the evidence shows that he was at another or different nlace from the scene of the homicide, then the issue of ahbi is raised, regardless of how this statement is made. It is the province of the jury to pass upon tlie sufficiency and truthfulness of the defenses urged by appellant. It is the province of the court to charge, under the statute, all the law ap- plicable to the facts. We do not think this was done in this instance. Smith V. State (Te.x. Cr. App.), 49 S. W. 583; Smith r. State (Te.x. Cr. App.), 50 S. W. 362." Padron v. State (Tex. Crim. App.), 55 S. W. 827. 5. Toler V. State, 16 Ohio St. 583; State Z'. Ardoin, 49 La. Ann. 1145, 22 So. 620, 62 .\m. St. Rep. 678. Traverse of Crime Charged. Proof of an alibi is, therefore as nuich a traverse of the crime charged as any other defense. People v. Fong Ah Sing, 64 Cal. 253, 28 Pac. 253- 6. State i: Ward, 61 Vt. 153, 17 Atl. 483; Westbrook v. State, 91 Ga. II, 16 S. E. 100; State v. Mc- Clellan, 23 Mont. 532, 59 Pac. 924, 75 .\ni. St. Rep. 558; I Archibalds' Ciini. Pro. p. 400. Evidence Competent Under Plea of Not Guilty " Evidence of an alibi is competent under the defendant's plea of not guilty. No special aver- ment need be made to warrant the introduction of testimony in support Vol. I of it." State v. McClellan, 23 jMont. i32, 59 Pac. 924, 7t Am. St. Rep. 558. 7. Albritton v. State, 94 Ala. 76, 10 So. 426 ; People v. Fong Ah Sing, 64 Cal. 253, 28 Pac. 2-t; AIcNamara T'. People, 24 Colo. 61, 48 Pac. 541; Watson V. Com., 95 Pa. St. 418. Traverses Charge. — ' An alibi is not. in the strict and accurate sense, a special defense, but a traverse of the material averment in the indict- ment that the defendant did, or par- ticipated in, the particular act charged, and is comprehended in the general plea, ' Not guilty.' " Albrit- ton V. State, 94 Ala. 76, 10 So. 426. 8. Not an Extrinsic Defense. '■ Alibi is not an extrinsic defense. It is a traverse of the material aver- ments of the indictment that the de- fendant did then and there the par- ticular act charged." i Bishop Crim. Pro. (2 ed.) 1062; Whart. Crim. Ev. 333; State v. Taylor, 118 Mo. 153, 24 S. W. 449. 9. State V. Collins, 20 Iowa 85; Toler V. State, 16 Ohio St. 583; Briceland v. Com., 74 Pa. St. 463. Not Confession and Avoidance. '■ An alibi is not a defense of con- fession and avoidance, but if estab- lished merely negatives the guilt of the defendant." Albritton v. State, 94 Ala. 76, 10 So. 426. Admits Nothing — " It is by no means true in law, that the defense of alibi admits the body of the crime or offense charged." Toler v. State, lO Ohio St. 583. 744 ALIBI. cases the burden never shifts from the state is applicalile to the proof of ahbi.'" 2. Alibi Relieves State of Nothing. — And the assertion of an alibi in no wise changes the presnmptions of innocence, or relieves the state of its burden of proving the guilt of the defendant beyond a reasonable d(_iul)t." 10. .lri:oim. — Scliultz v. Terri- tory (Ariz.), 52 Pac. 352. California. — People v. Roberts, 122 Cal. .S77, 55 Pac. 137. Colorado. — McNaiiiara ?■. People, 2.1 Colo. 61, 48 Pac. 541. Idaho. — State v. Webb (Idaho), 55 Pac. 892. Illinois. — Hopps j'. People, 31 III. 385, 83 Am. Dec. 231. Indiana. — Parker v. State, 136 Ind. 284, 35 N. E. 1105. Kansas. — State v. Comvay, 56 Kan. 682. 44 Pac. 627. Montana. — State 7'. McClclIaii, 23 Mont. 532, 59 Pac. 924, 75 Am. St. Rep. 558. Nebraska. — Gravely r. State, 38 Neb. 871, 57 N. W. 751. North Carolina. — State .z'. Free- man, 100 N. C. 429, 5 S. h. 921, Oregon. — State z\ Cbee Gong, 16 Or. 534, 19 Pac. 607. Pennsylvania. — Turner v. Com., 86 Pa. St. 54, 27 Am. Rep, 683 ; Wat- son V. Com., 95 Pa. St. 418; Brice- land V. Com., 74 Pa. St. 463 ; Rudy V. Com., 128 Pa. St. 500, 18 Atl. 344. Te.vas. — Walker z'. State, 42 Tex. 360. 11. Burden Not on Defendant. An instruction placing the burden of proof on the defendant to establish the fact to the satisfaction of the jury that he was at some other place when the crime was committed was held to imply that in such cases the burden was shifted ; a doctrine to which the court declined assent. State V. Freeman, 100 N. C. 429, 5 S. E. 921. Evidence Raising Reasonable Doubt "If the evidence is sutifi- cient to raise a reasonable doubt in the minds of the jury as to whether he was or was not present at the commission of the crime he is en- titled to an acquittal." McNamara I'. People, 24 Colo. 61, 48 Pac. 541. Pennsylvania. — "Where the com- monwealth rests upon positive and undouliled proof nf the prisoner's guilt, it should not l)e overcome by less than full, clear and satisfactory evidence of the alleged alibi. But the evidence tending to establish an alibi, though not of itself sufficient to work an acquittal, shall not be e.Kckided from the case, for the burden of proof never shifts, but rests upon the commonwealth throughout, upon all the evidence given in the cause taken together, to convince the jury, bej'ond a rea- sonable doubt, of the prisoner's guilt. Turner v. Com., 5 Norris 54." Watson V. Com., 95 Pa. St. 418, 422. " The burden of proving it was clearly on the prisoner. If he failed to do so to the satisfaction of the jury, the alleged alibi, as a substan- tive defense, was valueless ; but that did not deprive him of the benefit of his evidence on that subject, so far as it, in connection with other testimony in the case, may have had a tendency to create a reasonable doubt as to his guilt." Rudy v. Com., 128 Pa. St. 500, 18 All. 344, 346. Aricona. — Schultz v. TTerritory (Ariz.), 52 Pac. 352. Colorado. — McNamara v. State, 24 Colo. 61, 48 Pac. 541. Kansas.- — State v. Child, 40 Kan. 482, 20 Pac. 275. Mississippi. — Pollard v. State, 53 Miss. 410, 24 Am. Rep. 703. Missouri. — State v. Ilale (Mo.), 56 S. W. 881. Montana. — Slate i'. McClellan, 23 Mont, s'32, 59 Pac. 924, 75 Am. St. Rep. SS8. South Carolina. — State t'. Jack- son, 36 S. C. 487, 15 S. E. 559, 31 Am. St. Rep. 890. Texas. — Gallaher t'. State, 28 Tex. App. 247, 12 S. W. 1087. Virginia. — Thompson f. Com., 88 Va. 45, 13 S. E. 304. The later authorities hold it to be an essential averment of the indict- ment that the accused was present Vol. I ALIBI. 745 3. What Burden on Defendant. — Yet there are cases holding the burden to l)e r>n the defendant to estabhsh the alibi. ^- 4. Qualified Burden. — lUit, where this is held, it is usually and coininittcil or participated in the commission of the offense. Hence this averment niu.st be established by the prosecution lieyond a reasonable doubt, ^[c\amara v. State, 24 Colo. 6r. 48 Pac. 541. " For the defendant to say lie was not there is not an affirmative proposi- tion ; it is a denial of the existence of a material fact in the case. He meets the evidence of the prosecution by denying it. If a consideration of all the evidence in the case leaves a reasonalile doubt of his presence, he must be acquitted." Schultz v. Territory (Ariz."), 52 Pac. .^52. Burden on State. — Tlie defense of alibi is peculiar in that tlic stale is bound to prove in making its case, that the defendant was present at the commission of the crime, and this material fact it must prove beyond any reasonable doubt. State i'. Child, 40 Kan. 482, 20 Pac. 27;. 12. State V. Thornton, to S. D. 349, 73 X. W. 196, 41 I- R- A. 530; Thompson r. Com., 88 \'a. 45, 13 S. E. 304; Towns 7'. Slate 11 1 Ala. I, 20 So. 528; Holley f. Stale^ 105 Ala. 100, 17 So. 102; Miles 7'. State, 93 Ga. 117, 19 S. E. 805, 44 .\m. St. Rep. 140; Carlton i'. People, 150 111. 181, 37 N. E. 244, 41 Am. St. Rep. 346. Burden on Accused. — The burden of making out the defense of alibi was upon the accused. In order to maintain it he was bound to estab- lish in its support such facts and cir- cumstances as were sufficient when considered in connection with all the other evidence in the case, to create in the minds of the jury a reasonable doubt of the truth of the charge against him. Carlton v. People, 130 III. 181, 37 N. E. 2JJ. 41 Am. St. Rep. 346, The court holding it error to in- struct that, tlie burden was on the defendant to satisfy the jury beyond a reasonable doubt that the alibi was true, said : " To make an alilii avail- able as a defense, it must be proved of course; but if the proof offered for this purpose is sufficieiu to satisfy the jury with reasonable certainty that the accused was not present when the crime was committed, no more should be required.'' Miles v. State, 93 Ga. 117, 19 S. 1".. 805. 44 Am. St. Rep. 346." The doctrine seems fixed in Ala- bama, that an alibi (as a sul)stantive defense) must I)c establislied to the reasonable satisfaction of the jury Holley V. State, 105 Ala. too, 17 So. 102. All the autliorities agree upon the proposition, that proof of the facts and circumstances tending to estab- hsh the ali1)i must be made by the defendant. " If this be so. is it not a mere distinction without a dift'erence to contend tliat a court may say that the proof of such a defense must come from the defendant. Iiut that it would be error for the court to say the burden of proving these facts is upon the defendant?" State v. Thornton, 10 S. D. 349, 73 X. W. 196, 41 I-. R. A. 530. In the same case it is said: "It is manifest that the term ' burden of proof ' as used in these decisions, by the text writers, and in the instructions of the court in the case at bar, does not imply that the defendant nuist prove his defense by a preponderance of the evidence, or by such evidence as will satisfy the jury that his de- fense is true, but only that after the state has made out its case, it devolves on the accused to introduce evidence, if he has any, to prove his alibi, if he relies upon such a de- fense." The following instruction was held proper : "The burden rests upon the coin- monwealth to make out its case against the accused to the exclusion of a reasonable doubt, but, where tlie accused relies upon or attempts to prove an alibi in his defense, the burden of proving the alibi rests upon him ; but upon other questions in the case the burden still rests upon the commonwealth," Thomp- son r. Com., 88 Va. 45, 13 S. E. 304. Vol. I 746 ALIBI. declared to be a qualified burden. That is to sa}', it is only necessary to make such proof as will raise a reasonable doubt of guilt.'" Thus, in Iowa the rule would now seem to be, that whilst the jury cannot acquit on the defense of alibi unless it be supported by a preponderance of the evidence, if the evidence upon that defense considered alone, or in connection with all the other evidence leaves a reasonable doubt in the minds of the jury as to tlic ,c;uilt of the defendant, they cannot convict." In Illinois tire rule has been supposed to require that proof in support of an alibi must preponderate in order to yield practical 13. Alabiiiiia. — Towns i'. State, III .\la. 1, 20 So. 528; Prince f. State, 100 Ala. 144. 14 So. 409, 46 Am. St. Rep. 28; Pate v. State, 94 Ala. 14, 10 So. 665. Ari::ona. — Schnltz j'. Territory (.■\riz.), 52 Pac. 352. California. — People v. Winters, 125 Cal. 325, =;7 Pac. 1067; People r. O'Niel, 59 Cal. 259. Florida. — Adams v. State. 28 Fla. SI I, 10 So. 106. Georgia. — Miles z'. State. 93 Ga. 117, 19 S. E. 80s, 44 .\m. St. Rep. 140. Idaho. — State v. Webb (Idaho), 55 Pac. 892. Illitiuis. — Ackerson v. People, 124 111. 563, 16 N. E. 847. Kansas. — State v. Child, 40 Kan. 482, 20 Pac. 27s ; State v. Conway, 56 Kan. 682, 44 Pac. 627. Michigan. — People v. Pichette, in Mich. 461, 69 N. W. 739; People v. Resh, 107 Mich. 251, 65 N. W. 99. .Mississippi. — Dawson v. State, 62 Miss. 241 ; Pollard v. State, 53 Miss. 410. Missouri. — State v. Miller (Mo.), 56 S. W. 907; State V. Hale (Mo.), S6 S. W. 881. Montana. — State v. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026. Nevada. — State v. Waterman, i Nev. 543. New Jersey. — Sherlock v. State, 60 N. J. Law 31, 37 Atl. 435. Pennsylvania. — Myers v. Com., 83 Pa. St. 144. South Carolina. — State v. Jackson, 36 S. C. 487, 15 S. E. 559, 31 Am. St, Rep. 890. Te.vas. — Gallaher v. State, 28 Tex. App. 247, 12 S. W. 1087. Il'est Virginia. — State v. Lowry, 42 W. Va. 205, 24 S. E. 561. IVisconsin. — Emery v. State, lOl Wis. 627, 78 N. W. 145'. " The burden of making good the defense of alibi is upon the accused, and to make it availing he must es- tablish such facts and circumstances, clearly sustaining that defense, as will be sufficient, when considered in connection with the other evidence in the case, to create in the minds of the jury a reasonable doubt of the truth of the charge against him." .\ckerson '■. People, 124 111. 563, 16 N. E. 847. Whenever the evidence introduced supports the defense of alibi, and its effect is to create a reasonable doubt in the minds of the jury as to the defendant's guilt, he is as much en- titled to an acquittal as if the rea- sonable doubt had arisen upon any other legitimate evidence. Prince v. State, 100 Ala. 144, 14 So. 409, 46 Am. St. Rep. 28. "While it is true that, in order to convict the defendants, it devolved upon the state to prove their pres- ence at the time and place of the commission of the offense, in order to overcome the case made out by the state against them they assumed the burden of showing such a state of facts as would raise in the minds of the jury a reasonable doubt as to their presence at the time and place of the commission of the offense, and to this e.xtent an alibi was a defense." State V. Hale (.Mo.), 56 S. W. 881, 883. 14. State V. Mahcr, 74 Iowa 77, 37 N. W. 2; State v. McGarry (Iowa), 83 N. W. 718. Vol. I JLIBI. 747 benefit, but in a comparatively recent case that doctrine, if it ever obtained, was materially modified.'^ IV. EVIDENCE ADMISSIBLE. 1. On Behalf of the Accused. — A. Prksumptioxs. — The legal presumption of the innocence of the accused is in no wise affected by the introduction of evidence in support of an alibi."' B. Facts and Circumstances. — The accused may, in support of an alibi, invoke all facts and circumstances tending in anywise to show his absence from the time and place of the corpus delicti.^' 15. Hoge I'. People, 117 III. 44, 6 N. E. 796; Hoops I'. People, 31 111. 392; Ackerson 7'. People, 124 III. 563, 16 N. E. 847. State V. Jennings. 81 Mo. 185, Overruled. — •• Tn the Ilowell case, 100 ^lo. 628, 14 S. W. 4, the Jennings case was overruled in terms, and we think correctly. The rule in Jen- nings' case requires a defendant to prove his innocence and cannot be sustained on principle." State v. Ta)dor, T18 Mo. 153, 24 S. W. 449. In this case it was fur- ther said: "Indeed we have found but two states and one terri- tory committed to the doctrine that an alibi must be established by the dtfi-ndant by a preponderance of the evidence, and they are Iowa, Illinois o.nd New Mexico." 16. California. — People v. Fong Ah Sing, 64 Cal. 253, 28 Pac. 253. Kansas. — State v. Child, 40 Kan. 482, 20 Pac. 275 ; State v. Conway, 56 Kan. 682, 44 Pac. 627. Mississiflyi. — Cunningham v. State, 56 Miss. 269, 31 Am. Rep. 360. Missouri. — State r. Taylor, 118 Mo. 153, 24 S. W. 449. Nevada. — Slate t. Waterman, i Nev. 543. Xcw York. — People v. Videto, I Parker Crim. 603. Pennsylvania. — Turner v. Com., 86 Pa. St. 54. IVisconsin. — Emery z'. State, lOi Wis. 627, 78 N. W. 145. 17. ^/obojHO. — Ratliff v. State, 122 Ala. 104, 26 So. 123. Arkansas. — Kinnemer ?■. State, 66 Ark. 206, 49 S. W. 815. California. — People z\ Kalkman, 72 Cal. 212, 13 Pac. 500; People v. Mitchell, 94 Cal. 550, 29 Pac. 1106. Illinois. — Otmer j'. People, 76 111. 149- Maine. — State ?■. Fenlason, 78 Me. 495. 7 Atl. 385. Teres. — Blake r. State. 38 Te.x. Crim. App. 377, 43 S. W. 107. Where it is shown that deceased was assassinated at about 1 1 o'clock at night, evidence that the accused was at his own house, seven miles away, late that night, is admissible on the question of alibi. Kinnemer r. State, 66 Ark. 206, 49 S. W. 815. The defendant in a criminal prose- cution for the purpose 01 proving an alibi may testify as to various acts which he claims to have done at and about the time of the alleged offense, but cannot give the particulars of conversation had between himself and others. People z: Kalkman, 72 Cal. 212, 13 Pac. 500. There being nothing positive, but only facts and circumstances tending to prove guilt, and an apparently re- liable witness having testified that the accused was at her house, 600 or 700 yards from the scene of the crime, at the time of its cominission, and had been there for some time before — this testimony, it was held, was such as to raise a reasonable doubt of defendant's guilt. Otmer v. People, 76 111. 149. TestiiTiony of witnesses to prove an alibi that they saw defendant on the Friday before he was arrested cannot be excluded because they cannot fix the date, when the date of the arrest is fixed by other compe- tent testimony. Blake z'. State, 38 Tex. Crim. App. 377, 43 S. W. 107. Vol. I 748 ALIBI. V. WEIGHT AND SUFFICIENCY. 1. Not Covering Exact Time. — And the evidence of his absence is competent and material, although it may not cover the exact time or the whole time of the alleged commission of the crime. '* 2. Insufficient to Establish, How Considered. — But if the evidence adduced in sup[}c>rt i.if an alibi be insufficient to establish it as an indenendent defense, such evidence is not to bp excluded from the case, but should be considered with the other evidence.'" 18. Waters c'. People. 172 111. 367, 50 N. E. 148; Parker v. State, 136 Ind. 284, 35 N. E. 1 105 ; Peyton v. State, 54 Neb. 188, 74 N. W. 597; State V. Ardoin, 49 La. .\nn. ir-i-. 22 So. 620, 62 Am. St. Rep. 678; Thompson v. State, (Tex. Crim. App.,) 57 S. W. 805. . A charge that the jury would be warranted in paying no attention to alibi evidence unless it covered the whole time necessary, was held er- ror, for, if such evidence was suffi- cient to create a reasonable doubt of guilt, it should have been considered. Kaufman ■;•. State, 49 Ind. 248. Failure to Account for Whole Time It was declared error to have told the jury that defendants' failure to account for their where- abouts during the entire lime in- volved was to be considered by the jury along with the other evidence tending to show guilt. Parker v. State, 136 Ind, 284, 35 N. E. 1 105. Impossibility Proof of alibi not required to show that the place de- fendant alleged himself to have been was so far from place of crime as to preclude the possibility of his guilt. Pcvton V. State, 54 Neb. 188. 74 N. \V.' .:;97. Need Not Cover Place of Taking and Recapture. — Held, error to have charged the jury that it was necessary to show the absence of the accused from the place of the theft of property as well as from the pos- session of it en route, and at the place of recapture. The alibi did not depend upon concurrence of the facts of absence from both places. Thompson z: State, (Tex. Crim. App.,) 57 S. W. 805. The court gave the fcill.ivving m- ^truction : " The defendant having introduced evidence for tlio purpose (if establishing an alibi, or in other words, to show tliat he was not guilty, for the reason that he was at a different place, if he failed to cover the whole time necessary when the crime may have been committed, then you would l)c warranted in pay- ing no attention to such testimony." And the appellate court said: "'As a rule of law, this instruction is er- roneous. An alibi is a legitimate de- fense, and if the evidence touching it was sufficient to raise a reasonable doubt of the appellant's guilt in the minds of the jury, it sliould have been considered, although the alibi did not cover the whole time during which the crime was committed. The case of French r. The State, 12 Ind. 670, is in point. The same principle is supported in the cases of .\dams v. The State, 42 Ind. 373. and P.inns v. The State, 46 Ind. 311." Kaufman V. State, 49 Ind. 248, 251. " The instruction that proof of an alibi ' must cover the time that the offense is shown to have been com- mitted, so as to preclude the l>ossi- bility of the irisoiier's presence at the place of the burglnry.' . and that 'the value of the defense consists in his showing that he was absent from the place where the deed was done, and at the very time that the evidence of the People tends to fi.x its commission upon him. If, however, it be possible that he could have been at both places, the proof of alibi is valueless,' was casting a bur- den upon the accused much heavier than the law would justify or than it required. No such strict proof is re- quired, and to so hold would render the defense, no matter how honestly made, in most cases valueless." Stuart V. People, 42 Mich. 255, 260, 3 N. W. 863. 19. Chappcl V. State, 7 Cold. (Tenn.) 92; Dawson v. State, 62 Vol. I ALIBI. 749 3. Sufficiency for the Jury. — Whether it is sufficient to raise a reasonable doubt is for the jury to determine from all rhe evidence." Miss. 241 ; People v. Resh, 107 Mich. 251, 65 N. W. 99. But if the evidence offered in sup- port of an alibi be insufficient to es- tablish it as a distinct issue, never- theless such evidence is for the con- sideration of the jury ; and if upon the whole case, including that per- taining to the aHbi, thej' have a rea- sonable doubt of defendant's guilt, he should be acquitted. State v. j\IcGarry (Iowa), 83 N. W. 718. Any evidence whatever of alibi is to be considered in the general case with the rest of the testimony, and, if a reasonable doulit of guilt be raised bj' the evidence as a whole, the doubt must be given in favor of innocence. Harrison v. State, 83 Ga. 129, 9 S. E. S42. Proof insufficient to show impos- sibility of presence of accused may generate a reasonable doubt of such presence. Wisdom v. People, 11 Colo. 170, 17 Pac. 519. Reasonable Doubt The accused is entitled to the benefit of any rea- sonable doubt that the jury might have of his guilt, arisin" from the proof touching alibi in connection with the other proof in the cause. Chappel V. State, 7 Cold. (Tenn.) 92. The jury should consider all the evidence bearing upon alibi, and if in view of the evidence, the jury had any reasonable doubt as to whether the defendant was at some other place at the time the crime was com- mitted, they should give him the benefit of any doubt and find him not guilty. People v. Resh, 107 Mich. 251, 65 X. W. 09. " The defendant is not required, in any phase, of any criminal case, to prove his defense to the satisfac- tio)i of the jury, but it is sufficiently established if, upon consideration of the whole evidence, there is a rea- sonalile doubt of his guilt. Pollard '•. The State, 53 Miss. 410; Cun- ningham V. The State, 56 Miss. 269; Hawthorne i'. The Stale, 58 Miss. 778: Smith V. The State, 'lb. 867; Ingram v. The State, ante. 142." Dawson v. State, 62 Miss. 241, 244. 20. Alabama. — .Xlbritton j'. State, 04 .^la. 76, 10 So. 426; Pate ?'. State, 94 Ala. 14, 10 So. 665. Colorado. — Wisdom v. People, 11 Colo. 17b, 17 Pac. 519. Atississippi. — Pollard r. State, 53 Miss. 410, 24 Am, Rep. 703. Nebraska. — Henry v. State, 51 N'eb. 149, 70 N. W. 924, 66 Am. St. Rep. 450; Nightingale f. State, ( Neb.,) 87 N. W. 158. Xcz'ada. — State ?•. Waterman. I Nev. 543. Oklahoma. — Wright -'. Territory, 5 Okla. 78, 47 Pac. 1069; Shoemaker V. Territory, 4 Okla. 118, 43 Pac. 1059. 'rcnnessec. — Ford f. Stale, 101 Tinn. 454, 47 S. \\'. 703- Reasonable Doubt Proof insuffi- cient to show impossibility of the defendant's presence at the commis- sion of the offense might still create a doubt in the minds of the jury as to such presence, and therefore en- gender a reasonable doubt as to guilt, of the benefit of which the defendant should not be deprived. Wisdom v. People, II Colo. 170, 17 Pac. 519. Though alibi evidence do not cover entire time nor show impossi- bility of defendant's guilt, it is suffi- cient if it reasonably satisfies the jury or in connection with other evi- dence generates a reasonable doubt of guilt. Albrilton v. State, 94 Ala. 70, 10 So. 426. When Defendant Entitled to an Acquittal. — It is only necessary that the defendant show from facts or circumstances to the reasonable satisfaction of the jury, that he was elsewhere than at the place of the crime when it was committed. Pate I'. State. 94 .\la. 14, 10 So. 663. No Presumption that Prisoner Was Not at Some Other Place. " There is no presumption as to the locality of the party indicted unless you can say that the legal presump- tion of the prisoner's innocence in- volves the presumption that he was not at the place where the offense was committed. Certainly, there is no presumption thai he was not at some other place." Slate T. Water- man. I Nev. 543. Vol. I 750 ALIBI. 4. Whole Evidence Must Be Considered. — And it ii[ on the whole evidence including that in relation to alibi, there be in the minds of the jury, a reasonable doubt of the guilt of the acr'.ised, he should be acquitted.^' Whole Time Not Essential "It follows logically if not necessarily, from the decisions of this court, that the proof of an alibi is not required to cover the entire period witliin which the oflfense might possibly have been committed, but that the accused is entitled to an acquittal whenever the evidence is sufficient to create in the minds of the jurors a reasonable doubt of his presence at the commission of the offense with which he stands charged." Henry v. State, 51 Neb. 149, 70 N. W. 924, 66 Am. St. Rep. 450; Nightingale v. State, (Neb.,) 87 N. W. 158. Proof need not exclude the abso- lute possibility of presence al the time and place of the offense to be of some value. It can be admitted and considered for what it is worth, if it renders it very improbable that defendant could have been present. Ford V. State, loi Tenn. 454, 47 S. W. 703. 21. Alabama. — Prince i'. Slate, 100 Ala. 144, 14 So. 409, 46 Am. St. Rep. 28; Pate v. State, 94 Ala. 14, 10 So. 665; Towns V. State, in Ala. I, 20 So. 528; Albritton v. State, 94 Ala. 76, 10 So. 426. Al kaiisas. — Blankenship z'. State, 55' Ark. 244, 18 S. \V. 51; Ware v. State, 59 Ark. 379, 27 S. W. 485. California. — People v. Fong .\h Sing, 64 Cal. 253, 28 Pac. 253. Illinois. — Ackcrson 7'. People, 124 111. 563, 16 N. E. 847; Carlton z: Peo- ple, 150 111. 181, i7 N. E. 244, 41 .\m. St. Rep. 346; Hoge t'. People, 117 III, 35, 6 N. E. 796; Miller r. People, 39 111. 457; MuUins t'. People, no 111. 42. Indiana. — Fleming ?■. State, 136 Ind. 149, 36 N. E. 15J1; French v. State, 12 Ind. 670, 74 Am. Dec. 229; Line V. State, 51 Ind. 172. lo'a'a. — State i'. Maher. 74 Iowa 77, 37 N. W. 2. Louisiana. — State r. .-Krdoin, 4<) La. .-Vun. 1 145, 22 So. 620, 62 Am. St. Kep. 678. .]firhii;an. — People v. GarlnUt, 17 Vol. I Mich. 9, 97 Am. Dec. 162; People v. Pearsell, 50 Midi. 233. 15 N. W. 98. Mississil'pi. — Pollard t'. State, 53 Miss. 410, 24 .\m. Rep. 703. Montana. — State zf. McClellan. 23 Mont. 532, 59 Pac. 924, 75 .\m. St. Rep. 558. Nebraska. — Nightingale z\ State, (Neb.,) 87 N. W. 158; Henry z: State, 51 Neb. 149, 70 N. \V. 924, 66 ."Vni. St. Rep. 450. Nevada. — State ;■. Waterman, i Ncv. 543. Nezt' Me.vico. — Willburn z\ Terri- tory, (N. M.,) 62 Pac. 968. Nczv York. — People z'. Stone. n7 N. Y. 480, 23 N. E. 13- South Carolina. — State Z'. Jackson, 36 S. C. 487, IS S. E. 559, 31 Am. St. Rep. 890. South Dakota. — State v. Thorn- ton, 10 S. D. 349. 73 N. W. 196, 41 L. R. A. 530. ■I'crmont. — Slate ;■. Ward. 61 Vt. 153, 17 Atl. 483. West I'irginia. — Stale v. Lowry, 42 W. Va. 205, 24 S. E. 561. Wisconsin. — Emerv v. Stale. loi Wis. 627, 78 N. W. 145- " An alibi was alleged, and the jury were told that the evidence to prove it must outweigh the evidence to show the respondent al the place elf the crime, and, if so established, they should acquit him. After this instruction, it was the duty of the court to go further, and to tell the jury that, if the alibi was not so es- tablished, evidence of it was not to he excluded from the case, but that it should be considered with the other evidence, and if unim the whole, including that in relation to the alibi, there was a reasonable doubt of the respondent's guilt, he was entitled to an acquittal." State V. Ward, 61 Vt. 153, 17 Atl. 483. 490. When the people have made a prima facie case, the l)urden is on defendant to prove an alibi, not be- yond a reasonable doubt, nor by a preponderance of the evidence, but ALIBI. 751 VI. EVIDENCE IN REBUTTAL BY STATE. 1. State May Rebut Evidence of Alibi. — The 5t;Uc nia\ introduce evidence in reljuttal of that offered h\ tlie defendant in sui^port of an ;.lilM.^^ 2. State May Rebut by Proving; Another Crime. — Even to the extent of proving the commission of another and differeiit crime. ''^ by such evidence and to sucli degree of certainty as will, when the whole evidence is considered, create and leave in the minds of the jury a rea- sonahle doubt of his guilt. Hoge v. People, 117 111- 44. 6 N. E. 796; Hopps V. People, 31 111. 392; Acker- son V. People, 124 111. ^63, 16 N. E. 847. "After the state has made out its case, it devolves upon the accused to introduce evidence, if he has any, to prove his alibi, if he relies upon such a defense. In that sense the burden is upon the accused, and, in order to maintain it, he is bound to establish in its support sucli facts and circum- stances as are sulficient, when con- sidered in connection with all the other evidence in the case, to create in the minds of the jury a reasona- ble doubt of his guilt." State v. Thornton, 10 S. D. 349, ji N. \V. 196, 41 L. R. .\. 530. 22. " Tlie defense in its attempt to make out the alibi introduced testi- mony tending to show that the de- fendant at a given time was many miles from the place of the murder, and that by the public road he could not have had time to reach this point, and have been present at tlie killing. In order to prove that he could not have reached there by any other more direct routes than the public road, one of his witnesses had testified that the country was covered with wire fences. It was competent to show in rebuttal of this statement that the accused was in possession of a wire-cutter, by which the jury could deduce that it was possible for him to travel across the country by cutting the fences. Of course the weight to be attached to the proof was a matter for the jury, but it was clearly rebuttal testimony, and its ad- missibility as such is covered by the ruling in Moore v. United Stales, 150 U. S. iiT- 998.)" Goldsby v. United States, 160 U. S. 70. 74. 1(1 Sup. Ct. 216. " It is plain that the state may in rebuttal support the proof before given of defendant's presence at the time and place of the crime, and con- tradict testimony tending to prove an alibi." State i'. Maher, 74 Iowa 77. i7 N. W. 2. '' Under the rule adopted liy this court, the burden was upon defend- ant to establish the alibi, and the state had the right to rebut any show- ing the defendant made as to his whereabouts at or near the time the crime was committed." State v. Watson, 102 Iowa 651, 72 N. W. 283. An offense was committed on the night of September 15th. The ac- cused offered evidence of an alibi. The court, touching the right of the state to rebut such proof, said : '' If the defendants had contented them- selves with a simple denial that they were at Olivet, or in that vicinity, on the evening of the 15th of September, the state would clearly not have lieen entitled to examine witnesses in re- buttal of their statement who had not been examined before the grand jury, or of whose introduction the notice prescribed by § 4421 of the Code had not been given, for the tes- timony of such witnesses would have tended to prove a fact which had a tendency to support the in- dictment." It was held further, that the testimony was admissible, not in support of the indictment, but to contradict defendant's statements. State V. Rivers, 68 Iowa 611. 27 N. W. 781- 23. Rebutting Alibi by Proving Another Offense — On a charge of highway roliliery, the prosecution was allowed to rebut an alibi, by proving that shortly before the attack and near the same spot, the prisoner had robbed another person. R. v. P.riggs, 2 M. & Rob. 199. Vol. I 7s2 ALIBI. VII. ALIBI A LEGITIMATE DEFENSE. 1. Attempt to Prove Does Not Justify Suspicion of Guilt. — The attempt to prove an alibi furnishes no cause for suspicion of guilt. '^^ 24. State v. Collins, 20 Iowa 85 ; State V. Josey, 64 N. C. 56 ; Turner v. Com., 86 Pa. St. 54, 27 Am. Rep. 683 ; Ford V. Slate, loi Tenn. 454. 47 S. W. 703; Adams v. State, 28 Fla. 511, 10 So. 106; Line V. State, 51 Ind. 172. " An unsuccessful attempt to es- tablish an alibi is always a circum- stance of great weight against a prisoner," etc. (Quoted from Wills on Circumstantial Evidence) ; but, say the court, " this is stated as a fact which we all know to be true, and not as a rule of law to be charged by the court." Stale v. Josey, 64 N. C. 56. Attempt to Prove an Alibi Not Evidence of Guilt "Failing to prove an alibi sliould have no greater weight to convince a jury of the guilt of the prisoner attempting it than tlie failure to prove any other important item of defense. A pris- oner is entitled to rely on the facts in his favor he may suppose he is able to prove, and if he is so unfor- tunate as to fail in his proof, it should not, generally speaking, oper- ate to his prejudice." Miller v. People, 39 111. 457. In a comparatively early Iowa case, the court, speaking through Dillon, J., said: "The instruction under consideration was founded upon a passage in Wills (Cir. Ev., 83 quoted without comment, Burrill, Id., 519,) where he observes that 'an unsuccessful attempt to establish an alibi is always a circumstance of great weight against a prisoner, be- cause the resort to that kind of evi- dence implies an admission of the truth and relevancy of the facts alleged, and the correctness of the inference drawn from them, if they remain uncontradicted." " If this is the law in any case, it must be limited to cases where the alibi has been forged or concerted, and is resorted to fraudulently. In such cases, if exposed, it would be, as above observed, a damaging cir- cumstance to the defendant. But the rcusnn given l>y Mr. Wills is im- Vol. I proper to be stated to the jury, espe- cially in a case like the one before us, where there was no certain evi- dence connecting the accused with the commission of the crime. We think it wrong to state to the jury that the effect of a failure to estab- lish an alibi is to admit that the facts deposed to by the State's wit- nesses are true as well as relevant. Whether true or not is for the jury to determine upon other considera- tions, and not upon any such sup- posed admission. State v. Collins, 20 Iowa 85. " The court instructed the jury that if the defendant proved an alibi, it constituted a perfect defense, but if not proved, and they did not think it had been proved, the attempt to manufacture evidence was a circum- stance which always bore against the person making it ; that no imio- cent person is driven to manufacture evidence. Held, (reversing the court below,) that this instruction is mani- festly wrong, inasmuch as the jury are told that the defendant having undertaken to defend himself on the ground of alibi, must produce evi- dence sufficient to work his acquittal, or if not his failure is evidence of guilt. Held, further, that were the defendant detected in an attempt to corrupt witnesses or to manufacture evidence, it would certainly weigh heavily against him, but his mere failure to prove a given part of his defense is no evidence of such at- tempt and ought not to have been submitted as such to the jury." Tur- ner V. Com., 86 Pa. St. S4, 27 .\m. Rep. 683. When an accused unsuccessfully attempts to establish an alibi, it is only a circumstance against him, when it appears to have been made in bad faith, and "a perfectly inno- cent man might make such an at- tempt in good faith, and fan for lack of evidence to establish it. It could only be a circumstance against him if it appeared to have been made in bad faith, manufactured, fabri- ALIBI. 75:^ A. Court May Not Gixe Disparaging Instructions. — And the court cannot properly disparage the defense in its instructions to tlie jury.-^ catcd or false." Ford j'. State, lOi Tcnn. 454, 47 S. W. 70.V 25. California. — People z'. Le- viiie, 85 Cal. 39, 22 Pac. 969; People V. JVIalaspina, 57 Cal. 628; People -•. Lattimore, 86 Cal. 403, 24 Pac. 1091. Georgia. — MWes v. State, 93 Ga. 117, 19 S. E. 805, 44 Am. St. Rep. 140; Kimbrougli i'. State, lOi Ga. 583. 29 S. E. 39. Mississifl'i. — Xelms v. State, 58 Miss. 362 ; Dawson v. State, 62 Miss. 241. Missouri. — State f. Crowell, 149 j\Io. 391, 50 S. W. 893, 73 Am. St. Rep. 402. Nebraska. — Casey v. Stale, 49 \eb. 403, 68 N. W. 643. Pennsylvania. — Com. t'. Orr, 138 Pa. St. 276, 20 Atl. 866. Tennessee. — Chappel v. State, 7 Cold. (Temi.) 92. ■' We again repeat that the defense of alibi is ' not one requiring that the evidence given in snpport of it should be scrutinized otherwise or differently from that given in sup- port of any other issue in the cause;' and we may add that if the trial courts will cease to give this particu- lar form of instruction, the ends of justice will be equally as well sub- served, and the administration of the laws less embarrassed." People v. Lattimore, 86 Cal. 403, 24 Pac. 109 1. The court below- had instructed the jury, substantially, that alibi testi- mony should be weighed with great caution because it is a defense easily fabricated and often attempted by contrivance or perjury: the court held such instruction wrong, and for the error in giving it reversed the case : reviewing earlier cases sup- posed to conflict with such ruling. Dawson v. State, 62 Miss. 241. The trial court in the introductory sentence of the instruction in ques- tion said to the jury: "The evidence produced to establish an alibi should be cautiously received, though when proved it is as strong as any other defense." This, it was held, was er- ror, as discrediting a legitimate de- 48 fense. Casey v. State, 49 Neli. 403, 68 N. W. 643. " The court ought not to have said that the accused had attempted to set up an alibi. The use of the word ' attempted,' at least bad a tendency to convey to the minds of the jury an intimation that the effort of the accused to prove an alibi amounted to nothing more than an attempt." Miles V. State, 93 Ga. 117. 19 S. E. 805, 44 Am. St. Rep. 140. Condemning an instruction using the word " attempted," the court held, that the language in question neces- sarily discredited the defense; and that such error was not remedied by another instruction, that if the jury lielicved the " plea of alibi " they were not authorized to convict. Kimbrough r. State, lOi Ga. 583. 29 S- E- 39. Court Not to Disparage. — " The defense was an alibi. An alilii is a proper and legal defense. That it is a defense is proof of its propriety and legality. If it is a defense at all, it is a good defense, and the law can attach no odium to it. It is an error to say that any good legal de- fense is odious and suspicious ; a fortiori, to say that by the use of a legal defense a suspicion is cast upon the truth of the defense. The de- fense of an alibi is as good a defense, when proven, as any other defense, and no court has the right to tell the jury that it is 'often fabricated by perjury.' . " The true rule is stated in Wil- hams V. The State, 49 Ala. 664 : ' An alibi is a fact, and its existence is established just as any other fact may be ; and the testimony to support it needs the same weight of evidence — no more, no less.' " Nelms v. State, 58 Miss. 362, 364. Concerning an instruction com- plained of, the court said : " That instruction reads; 'The court in- structs the jury that, though an alibi may be a well-worn defense, yet it is a legal one, to the benefit of which the defendant is entitled,' etc. There was error in giving this instruction. Vol. I r54 ALIBI. 2. Omissions on Part of Defendant. — A. Faii.uki-; to ]\I.\kr Di;fi;.\sk at l'ki;i,i-Mi.\'AKv Examinatkix, Effect Of. — Omission to introduce alibi evidence at the preliminary examination before the mafjistrate does not operate to the prejudice of the accused.-" But the omission on the part of the accused to produce evidence may be a matter for the jury to consider hi connection with the whole case.-^ 3. False Testimony in Support of Alibi. — A. I^.vlse Ai.nii, Ekfkot Of. — P'alse alibi testimony does not operate to strengthen the proofs adduced by the state.-** as tlie court is not permitted to dis- parage the defense of an alilii, or to refer to it in a slighting manner. Evidence in regard to an ah'Iii is to be tested and treated just like evi- dence offered in support of any other defense: insanity, self-defense, etc. I Bish. Cr. Proc. § 1062; Sater r. State, 56 Ind. 378; Walker v. State, 37 Tex. 366; Albin i: State, 63 Ind. 598; State z: Chee Gong. 16 Or. 534, 19 Pac. 607; II Enc. PI & Prac. 360 ct seg. and cases cited." State V. Crowell, 149 Mo. 391, 50 S. W. 893, 73 .Am. St. Rep. 402. 26. Omission to Produce Evi- dence — ■• It is easy to see that there may have been good reasons why the defendant, however innocent, should, as matter of prudence, have neglected to go into the evidence of the alibi before the magistrate." Sullivan z'. People, 31 Mich. i. 27. Omission to Produce Evi- dence — On the trial of an indict- ment for murder, the defendant re- quested the judge to instruct the jury that he was not bound to show by evidence where he was from si.x o'clock in the afternoon of the al- leged day of the murder, to two o'clock the next morning, and that the jury should draw no inference from any failure so to do. The judge declined to give this instruc- tion, but ruled that the question was entirely for the jury; that if a pris- oner was shown to be in any con- nection with the transaction which seemed to them to put into his pos- session facts which, if innocent, he would use, which he could use with- out going upon the stand himself, the withholding of those means to ex- plain the circimistanccs might be considered by the jury, in connection Vol. I with the other testimony, in deler- mining how far he was responsible for the occurrence. Meld, that the defendant had no ground of excep- tion. Com. V. Costley, 118 Mass. I. " It is easy to imagine a case where it would be impossible for a prisoner upon his trial to show his where- abouts on a given day, and a case also where he is guiltless of the crime charged, and where prudence and safety in regard 10 other transac- tions might induce silence and sup- pression of the evidence of his presence or absence, as the case might be. But the rule which treats the omission to produce such evi- dence as strongly corroborative, as strongly suspicious and inferential only, is reasonable as well as hu- mane, and a safer and surer guide to a just result." Gordon v. People, .y N. Y. 501. 28. False Alibi Testimony. — The court charged the jury substantially, that, if alibi proof, which if true would work a refutation of the charges against defendant, sliould actually prove false, the legal pre- sumption w'as that the evidence of the state upon which conviction was urged, whether weak or strong, was true. Touching this instruction and al- luding to the testimony of the state, the court said: "It docs not follow that, because the defense has offered to sustain itself by falsehood, the I)rosecution has not. While the law' presumes every man to speak truth, yet if that presumption be removed, it does not deprive the party of show- ing from itself or otherwise, that the proof of his adversary is insufficient or untrue. The jury may look to the attemi>t ,ind failure to prove an ALIBI. 755 4. How Truth of Defense Tested. — A. Tiiic Evidence of the Static Not to ]!k L'skd As a Stanuard. — The evidence of the state is not to be used as a standard b\- which to test the truth of that given on the suljject of ahbi by the defense.-'' alibi as a fact against tlic defendant, weak or strong, as jnstified by the surroundings, Init not as rejecting a legal presumption of the truth of other proof against him." Sawyers i: State, 15 Lea (Tcnn.) 6g4. (196. 29. Evidence of State Not a Standard by which to test the truth of that given on subject of alibi by defense. People v. Pearsell, 50 Mich. 2 J J, 15- N. W. 98. All facts in evidence constituting part of the res gestae, including the defense of alibi, are to be considered by the jury without discrimination as to rules of evidence. McNamara V. People, 24 Colo. 61, 48 Pac. 541. ALIENS.— See Citizens and Aliens. Vol. I ALIENATING AFFECTIONS. I. PROOF OF MARRIAGE, 756 II. PROOF OF ALIENATION, 756 1. Fact of Alienation, 756 A. Presumption of Affection. 756 B. Evidence of Relations Beticccn Husband and Wife, y. Bailey, 94 Iowa 598, 63 N. W. 341. Affection Presumed " The law presumes tliat a husband who lives with and cohabits with his wife, she bearing children, the issue of such cohabitation, has an affection for her, and this presumption continues until it is overthrown l)y a fair preponder- ance of the testimony to the con- trary." Beach v. Brown. 20 Wash. 266, ss Pac. 46. 43 L. R. A. 114, 72 Am. St. Rep. 98. 4, United States. — Asli r'. Prunier, 105 Fed. 722. Alabama. — Long v. Booe, 106 Ala. 570, 17 So. 716. Iowa. — Puth V. Ziinbleman, 99 Iowa 641, 68 N. W. 895. Massachusetts. — Pahner v. Crook, 7 Gray 418. Michigan. — Edgell v. Francis, 06 Mich. 303, 33 N. W. SOI. Ohio. — Preston v. Bowers, 13 Ohio St. I ; Holtz V. Dick, 42 Ohio St. 23, 51 Am. Rep. 791. I'ermont. — Fratini v. Caslini, 66 Vt. 273, 29 Atl. 252, 44 Am. St. Rep. 843 ; Rudd V. Rounds, 64 Vt. 432, 25 Atl. 438. Wisconsin. — Horner t. Yance, 93 Wis. 352, 67 N. W. 720. In Williams v. Williams, 20 Colo. SI, 37 Pac. 614, plaintiff and her husband were secretly married in New York, and their marriage was not known to the defendant for one year thereafter. The defendant was much displeased with her son's mar- riage, and immediately sought to bring about their separation. Plain- tiff was of good moral character, she and her husband living happily to- gether until the appearance of the defendant. In conversation with her husband just prior to his leaving her, he said, " Well, Kate, you know Ma has got all the money and will not give it to me until we are separated, but don't you worry, and keep quiet, and when I get it back from her I will come and live with you again." Held, it was proper therefore, that the husband's dec- larations concerning such conduct on his mother's part, and having refer- ence to his separation, or contem- plated separation from his wife, should be submitted to the jury for the purpose of enabling them, in connection with other evidence, to determine the cause or motive which prompted his separation from his wife. See Baker v. Baker, 16 Abb. N. C. 293 ; Buchanan v. Foster, 23 App. Div. S-p. 48 N. Y. Supp. 732. 5. Plaintiff's wife wrote to her parents in August, 1879, prior to leaving her husband ihe following June, that he was unkind to her, and to such a degree that she had become sick of her home. Held, that de- fendant could introduce this letter as a part of the res gestae, for the purpose of showing the state of the wife's mind and affection towards plaintiff, and also for the further purpose of showing that her leaving him was due to his illegal behavior. Vol. I r58 ALinX.l TING AFFECTIONS. Caution in Admitting Declarations. — The declarations of the wife, imputing to the husband cruel treatment of her and showing want of conjugal affection are to be received under the closest scrutiny, and are in no case to be admitted unless it affirmatively appears that they were made before the wife was the subject of intrigue with, or under the influence of the paramour, in whose favor they are sought to be introduced.'"' Declarations Part of Res Gestae. — Hut the declarations of the wife made immediately before, and at the time she left her husband, of his ill-treatment, are competent evidence for the defendant." Declarations Favorable to Plaintiff. — And it is held that the plain- tiff also has the right to give in evidence the declarations of his wife made recently, prior to the seduction, in order to show the state of her feelings toward him at the time.** Letters Showing Husbands Affection Admissible. — Letters written by the husband to the wife during coverture ^re admissible for the purpose of showing the aft'ection of the husband towards the wife." Perry i\ Lovejoy, 49 Mich. 529; White V. Ross, 47 Mich. 172, 10 N. W. 188, distinguished. 6. Gilchrist V. Bale, 8 Watts (Pa.) 355 ; Dickemiaii "•. Graves, 6 Cush. (Mass.) 308, 53 Am. Dec. 41 ; Higham V. Vanosdol, loi Ind. 160; Palmer V. Crook, 7 Gray (Mass.) 418; Fratini v. Caslini, 66 Vt. 273, 29 Atl. 252, 44 Am. St. Rep. 843. But sec Huot V. Wise, 27 Minn. 68, 6 N. W. 425- 7. In Gilchrist v. Bale, S Watts (Pa.) 355, defendant offered to prove that she went to her physician, and complained that her hushand treated her badly, and showed marks on her arms, which she said she had re- ceived from his beating her, and asked him what she should do; that he advised her to go to her father and leave her husband. The court said : " The evidence was very per- tinent ; for if Mrs. Bale left her hus- band in consequence of ill treatment, it was an answer to the plaintiff's action. The material part of the testimony was the advice of the wit- ness that she should leave her hus- band. The residue of the offer ex- plains the reasons which induced him to give this advice, and were evi- dence in explanation. The witness saw the marks on her arm, and was informed by her, at the time, that they arose from the ill treatment of her husband. If I am correct, the latter part of tlie offer was uncon- Vol. I nected with information derived from Mrs. Bale, and in that view was undoubtedly evidence, as it tended to show the motives which governed the wife in leaving the protection of her husband." Cattison V. Cattison. 22 Pa. St. 275; Palmer V. Crook, 7 Gray (Mass.) 418; Glass V. Bennett (5 Pickle), 89 Tenn. 478; Rudd V. Rounds, 64 Vt. 432, 25 Atl. 438. But see Kidder v. Lovell, 14 Pa. St. 214. 8. I Greenl. §102; Preston v. Bowers, 13 Ohio i ; Palmer 7'. Crook, 7 Gray (Mass.) 418. 9. Beach v. Brown, 20 Wash. 266, tS Pac. 46. 43 L. R. A. 114, 72 .\m. St. Rep. 98: Hohz ;■. Dick, 42 Ohio St. 2J, 51 ,\m. Rep. 7gi. Letters Showing Wife's Affection. In March. 1880, plaintiff went to look up a location for his family, leaving his wife and children in the house tliey had been occupying on defendant's farm. While in Kansas he received letters from his w^fe, two of which were produced on the trial, one of which indicated affection for him, whilst the other did not, which caused him to return at once. He then lived with his wife for about one week, when, without his knowl- edge or consent, she left his home and went to her father's. The letter indicating the wife's affection was properly admitted as showing the wife's affection at the time, and immediately after his departure. ALIEN A TIXG AFPECTIOXS. Js<) liut the letters of one consort to the other, showing- the state of his or her affections toward the other are inadmissible in a suit against the parents, imtil it is first shown that there was misconduct on the part of the parents.'" Husband's Statement When Wife Plaintiff, Inadmissible. — E.xcept as hereinbefore stated, the declarations of the husband, made in the absence of the defendant, as to the cause of his abandoning or put- ting away his wife, are not admissible," nor the declarations of the wife in an action for enticing awa}" the wife.'- C. r.\RTi.\i. Alien.vtion. — If plaintiiT shows even a partial alien- ation of the wife's affections, the defenilant is liable. Xor is he required to show that at the time in question his wife had affection for him and defendant completely alienated it from him.'-' D. Ar.AXDONMENT OF HoME. — It is not necessary to prove de- baucherv. or that the wife was enticed away from the home of the Perry i', Lovejov. 49 !Mich. 529. 14 N. \V. 485- In Rubenstein v. Rubenslein, App. Div., 69 N. Y. Supp. 1067. a letter written to plaintiff by ber bnsband two years after commencement of the action is not admissible to sbow existence of affectionate relations be- tween them. 10. White ■■. Ross. 47 Mich. 172, 10 N. W. 188; Edgell f. Francis, 66 Mich. 303, 33 N. W. 501. Bnt see Perry v. Lovejoy, 49 Mich. 529. 14 N. W. 485- Where the letters written by the wife and her statements are intro- duced in evidence on behalf of plain- tiff, as showing the state of her mii-id and affection towards her bnsband, it is error not to allow the wife to testify for defendants (ber parents) if the version of the wife would have been in their favor. McKenzie 1'. Lantenschalanger. 113 Mich. 171, 71 X. W. 489. 11. Winsniorc ''. Greenbank, Wiles 577; Westlake z: Westlakc. 34 Ohio St. 621. 32 Am. Rep. 397. But see Williams 7'. Willian-is, 20 Colo. SI, 37 Pac. 614; Baker z\ Baker. 16 Abb. N. C. (N. Y.) 293; Buchanan Foster. 23 App. Div. 542, 48 N. Y. upp. 732. 12. Iligham ;•. X'anosdol. lOi Ind 160. The wife will not be permitted to give conversations had with her husband as to opposition of his parents to their marriage. Huling '■. Huling. 32 111. App. 519. S Confessions of the wife in the absence of the paramour are not ad- missible against him. Sanborn r. Gale, 162 i\Iass. 412, 38 N. E. 710, 26 L. R. A. 864. But see Underwood V. Linton, 44 Ind. 72; Lewis z'. Hoff- man, 54 App. Div. 620, 66 N. Y. Supp. 428. In Edgell v. Francis. 66 Mich. 303, 33 N. W. 501. the husband sued his father-in-law for taking his wife and child, and persuading her to remain at his home and away from plaintiff. The stateinents of the wife were in- troduced as to why she stayed with her parents and her feelings and wishes, also to having warned plain- tiff to stay away from defendants. The court said: "This is undoubt- edly hearsay, but it is claimed to be one of the exceptions to the rule of e-xclusion relating to what are usually called res gestae or accon-i- panying acts and circumstances which cannot be well understood without such testimony." The evidence being regarded as explanatory of her residence with her parents was the only means, ex- cept calling her as a witness, of as- certaining these facts, and was prop- erly admitted. 13. Fratini ■;■. Caslini. 66 Vt. 273, 29 Atl. 252, 44 Am. St. Rep. 843; Dallas z'. Sellers. 17 Ind. 479, 79 .■\m. Dec. 489; Nichols t. Nichols. 147 Mo. 387. 48 S. W. 947. See E.v parte Warfield. 40 Te.x. Crim. App. 413, 50 S. W. 933. 76 .\m. St. Rep. ~2y. Vol. I 760 AUIIXA TING AFFECTIONS. husband in order to recover for alienating her atiections." E. Adultkkv. — It is not necessary to prove ackiltery between the wife of plaintiff and defendant to sustain the action.''' 2. Defendant's Agency in Alienating. — To maintain the action plaintiff must show a wrongful and willful attem])t on the part of defendant to alienate the affections of the consort, and to deprive plaintiff of the consort's society, that such attempt was successful, and that plaintiff was not a consenting party.'" To entitle the plaintiff' to recover, in an action for alienating the affections, it is necessary to prove that the defendant maliciously caused the husband or wife to leave the other. '^ Wrongful Act of Defendant. — There must be a direct interference on defendant's part, a wrongful act or acts shown, whereby it is made to appear that defendant has wrongfully alienated the affec- tions of the consort, and this must be shown by a preponderance of the evidence.'* 14- Hermance v. James, 47 Barb. 120; Hoard v. Peck, 56 Barb. 202; Adams v. Main, 3 Ind. App. 232, 29 N. E. 792, so Am. St. Rep. 266; Van Olinda v. Hall, 68 N. Y. St. 711. 34 N. Y. Supp. 777. In Foot V. Card, 58 Conn, i, 18 Atl. 1027, 18 Am. St. Rep. 258, 6 L. R. A. 829, it is held the fact that the man and wife continued to live to- gether will not defeat the wife's ac- tion against another woman for alien- ating the affections of her husband. The alienation of the wife's affec- tions for which the law gives redress may be accomplished notwithstand- ing her continued residence under her husband's roof. Reinhart v. Bills, 82 Mo. 534, 52 Am. Rep. 385. 15. Adams v. Main. 3 Ind. App. 232, 29 N. E. 792; Higham v. Vanosdol, loi Ind. 160. 16. Van Olinda v. Hall, 68 N. Y. St. 711, 34 N. Y. Supp. Tjy; Read- ing z'. Gazzam, 200 Pa. St. 70, 49 Atl. 889; Ash V. Prunicr, 105 Fed. 722; Warner v. Miller, 17 Abb. N. C. (N. Y.) 221; Churchill v. Lewis, 17 Abb. N. C. (N. Y.) 226; Whitman V. Egbert. 2y App. Div. 374, 50 N. Y. Supp. 3; Childs V. Muckler, 105 Iowa 279, 75 N. W. 100. 17. Westlake v. West lake, 34 Ohio St. 621. 32 Am. Rep. 397; Wald- ron V. Waldron, 45 Fed. 315; Buch- anan T'. Foster, 23 App. Uiv. 542, 48 N. Y. Supp. 732. It must appear that the defendant lias acted from improper motives. Vol. I Schuneman v. Palmer, 4 Barb. (N. Y.) 225. As Showing Motive Tucker v. Tucker, 74 Miss. 93, 19 So. 9tS. i2 L. R. A. 623. 18. " The defendant should not be held to answer in damages because the plaintiff's husband left her, al- though without good cause, and af- terwards fell in love with, and finally married defendant. If the husband alienated his own affections from his wife, or if alienated by the plain- tiff's own conduct, or both, without the interference of defendant, or if they were alienated by any other cause known or unknown, over which defendant had no control or ex- ercised no intentional direction or influence, then the plaintiff howsoever unfortunate or wronged, cannot re- cover damages from the defendant." Waldron v. Waldron, 45 Fed. 315. Statements Made in Absence of Plaintiff; When Admissible. — In Bailey v. Bailey. 94 Iowa 598. O3 N. W. 341, defendants proposed to prove that they offered their son, plaintiff's husband, eighty acres of land, a team, farming implements, and one year's supplies, if he would go there and live with her. This evidence was refused on the ground that it called for self-serving declar- ations, made at a time when plain- tiff was not present. Held, this was error. The fact that the statements were not made in the presence of plaintiff was wholly immaterial, for ALIEN A riXG AFFECTIONS. 761 Defendant's Conduct Controlling Cause. — It is nut necessarv for the plaintiff to prove the clefendant's coiKkict was the sole cause of his wife's leaving- him : it is sufficient to show that defendant's conduct was the controlling- cause without which she would not have left him.'" Financial Standing of Defendants. — Evidence ma\- he intniduced as to financial standing- of the parents, to show the weight and prohahle effect of the property inducements held out by them to their cj-iild to abandon either husband nr wife.-" Declarations of Co-Conspirator. — If the plaintiti has established the fact that a conspiracy has been entered into by two or more jiarties to entice away his wife, the declarations of one of the conspirators would become evidence against the other defendants, provided those declarations 'a'cre made in fnrtlterance of tlie coinnioii design, tend- ing to eft'ectuate the object of the conspiracy, and sp becoming, not mere words, but verbal acts.-' III. PROOF OF DEFENDANT'S MOTIVE. 1. Evil Motive Must Exist. — If the husband's conduct has been such as to justif}- the wife in leaving him, he cannot maintain an action against one who assists her, or receives or harbors her, they were not offered as bearing upon her knowledge of defendant's treatment of his son. " It was sub- stantive testimony of verlial acts, tending to show that defendant was trying to induce his son to live with plaintiff, and that the son's refusal to do so, was not brought about by his conduct." 19. Prettyman v. Williajnson. i Penn. ( Del. ) 224. ,^g At!. 731 ; Rice V. Rice, 104 Mich. 371, 62 N. W. 833; Waldron f. Waldron, 45 Fed. 315. In Bathkc '•. Krassin, 78 Minn. 272, 80 N. W. 950. there was no evidence that either defendants ever advised their sister to leave her husband, the plaintiff. One of defendants, in the presence of his sister, disparaged, criticized and belittled the husliand, his house, his farm, his work and his financial condition. Three days after the marriage the wife wrote plaintiff, reproaching him because he had not prepared a better house for her, threatening to leave him. Held, that while the conduct of defendants may have been one of the inducing causes of the wife's separation, it was a fair inference that the wife was disappointed in the financial condition of her husband, and tliat this was one of the causes, if not tlic causi', of her leaving him, and the award of damages, when compared with the evidence, was so excessive as to justify the conclusion that the verdict was the result of passion or prejudice. 20. Price v. Price, 91 Iowa 693, 60 N. W. 202, 51 Am. St. Rep. 360, 29 L. R. A. 150; Nichols V. Nichols, 147 Mo. 387, 48 S. W. 947; Johnston r. Allen, 100 N. C. 131, 5 S. E. 666. In Knapp r. Wii-ig, 72 \'t. 334, 47 .\tl. 1075. it was held not error to admit evidence tending to show that defendant attempted to use the in- fluence of her property to alienate the husband from the wife, and in that connection to show the amount of property defendant possessed. Contra. — But see Bailey :>. Bailey, 94 Iowa 598, 63 N. W. 341, which holds that it is improper to admit evidence as to the wealth, rank, social position or condition of defendants, and Derham v. Derham, 123 Mich. 451, 83 N. \V. 1005. 21. Preston i\ Bowers. 13 Ohio St. i; Beeler v. Webb, 113 111. 436. But see Buchanan z\ Foster, 23 App. Div. 542. 48 N. Y. Supp. 732. Vol. I 762 .mux. I TJ.XC Al'l'ECriONS. provided it be shown that his assistance is rendered from motives of humanity, and not from an evil motive or purpose, or in bad faitli towards the husband. "'- A Question for the Jury. — The material point of inquirx' is the intent with which the defendant has acted. It is therefore a question for the jury to determine whether the defendant has acted from improper motives.-'' 2. Presumption From Fact of Alienation. — If defendant did intend to induce a separatinn he has a right to show that his advice was given honestly, with a view to the welfare of both parties.'-* The burden is upon the defendant to give some proper and reasonable explanation for his conduct in inducing the plaintiff's wife to leave him.'-" Wife's Statements No Excuse. — And the mere statement of the wife that she w^as abused by her husbantl, without any proof of such abuse, in fact, will not justify the defendant in advising her to leave her husband.-" 22. I Bish. Mar. & Div., § 1362; Pretlyman v. Williamson, i Penn. (Del.) 224, 39 All. 731; Van Oliiida V. Hall, 68 N. Y. St. 611, 34 N. Y. Supp. 777. 23. Colorado. — Williams v. Wrl- liams, 20 Colo. 51, 37 Pac. 614. Indiana. — Higham v. 'Vanosdol, lOi Ind. 160. Missouri. — Modi.sett v. McPike, 74 Mo. 636; Hartpence v. Rogers, 143 Mo. 623, 43 S. W. 650. Nciv York. — 'Wilson v. Coulter, 29 App. Div. 85, 51 N. Y. Supp. 804; Warner ?'. Afiller, 17 Abb. N. C. 221 ; Smith J'. Lyke, 13 Hun 204; Scluuie- man i'. Palmer, 4 Barb. 225 : Barnes V. Allen, I Keyes 390. North Carolina. — Brown 7'. Brown, 124 N. C. 19, 32 S. E. 320, 70 Am. St. Rep. 574. 0/iiV>. — Westlakc r. Wcstlakc, 34 Ohio St. 621, 32 .\m. Rep. 397. Malice Implied From Conduct. In the case of Westlake r. West- lake, 24 Ohio St. 621, 32 Am. Rep. 397, it was said ; " The term malice, as applied to torts, does not neces- sarily mean tliat wliich must proceed from a spiteful, malignant, or re- vc-ngefid disposition, but a conduct injurious to another, though proceed- ing from an ill-regulated inind, not sufficiently cautious before it occa- sions an injury to another. If the conduct of the defendant was unjus- tifiable and actually caused the in- jury complained of by the )ilainliff. Vol. I which was a question for the jury, malice in law would be implied from such conduct, and the court sliould have so charged." 24. Tasker z: Stanlev, 15? Mass. 148, 26 N. E. 417, 10 L. R. A. 468. 25. Highain v. 'Vanosdol, loi Ind. 160; Johnston ?■. Allen, 100 N. C, 131, 5 S. E. 666. " That a state of circumstances might e.xist where a stranger would be justified in carrying a wife beyond the reach of her husband with her consent, and without his, can not be denied ; but such an adventure on the part of a stranger is always at- tended with the peril of his being able to show to the satisfaction of a court that the .safety of the wife, ap- parently, at least, demanded his inter- vention, and that what he did was meant in good faith for her protec- tion." Higham v. Vanosdol. loi Ind. I ho. 26. Barnes z: Allen. 30 Barb. 663. In Rndd z: Rounds, 64 Vt. 432. 25 .\tl. 4,^8, it appeared that plaintiff's wife left her home and went to a neighbor's, where the defendant was hoarding; that she then bore marks of violence about licr face and arms. The defendant offered to show that on that day she expressed fears of liodily injury from her husband, and declined to follow defendant's ad- vice to return to her husband and live with him, such statements were admissible. JUnX. i ri.XG --^FI'ECTIOXS. 763 3. In Actions Against Parents. — In actions against the parents of either husband or wife, much stronger evidence of malicious and imjiroper motives must be shown than where the action is against a stranger. Bad or unworthy motives cannot be presumed.-^ Parent's Motive Important. — In every suit of this character the (|uestion always must be, from what motive did the parent act? Was it malicious, or was it inspired by a proper parental regard for the welfare and happiness of the child!'-*' 27. Arkansas. — BurncU r. Burk- head. 2i .A^rk. 77, 76 Am. Dec. 358. Indiana. — Reed v. Reed. 6 Ind. ■ Vpp. .?!/. 3i N. E. 638. Massachusetts. — Tasker "'. Tasker, m^ Mass. 148. 2b X. E. 417, 10 L. R. .\. 468. Michigan. — White v. Ross, 47 Mich. 172. 10 N. W. 188. Mississippi. — Tucker v. Tucker, 74 Miss. 93. 19 So. 955, i2 L. R. A. 623. .Vrtf York. — Hutchesou v. Peck, 5 Johns. 196: Bennett v. Smith, 21 Barb. 439 ; Smith ;■. Lyke, 13 Hun 204, 20 N. Y. Supp. 204. Ohio. — Friend f. Thompson, W right 636. 1 cnncsscc. — Pavue '■. WiUiams. 4 Ba.xt. 583. The Conduct of the Parent Must Be Proved To Be Malicious. Brown v. Brown, 124 \. C. 19. ^2 S. E. 320. 70 .\m. St. Rep. 574. 28. Illinois. — Huling v. Huling. .?2 111. App. 519. Kansas. — Eagon v. Eagon, 60 Kan. 697. 57 Pac. 942. Maine. — Oaknian i-. Belden, 94 Me. 280, 47 .\tl. 553. So .\ni. St. Rep. 396. Massachusetts. — Tasker v. Tasker. 153 Mass. 148. 10 L. R. A. 468. Michigan. — Rice v. Rice. 104 Mich. 371, 62 N. W. 833; White v. Ross, 47 Mich. 172, 10 N. W. 188. Mississippi. — Tucker !•. Tucker, 74 Miss. 93, 19 So. 955, iz L. R. A. 623. Missouri. — Modisett i: McPike, 74 .Mo. 6.36. Xortli Carolina. — Brown v. Brown. 124 N. C. 19, 32 S. E. 320, 70 Am. St. Rep. 574- Pennsyk'ania. — Gernerd v. Ger- nerd, 185 Pa. St. 233. 39 ."Vtl. 884. 40 L. R. A. 549, 64 .•\m. St. Rep. 646. Washington. — Beach i'. Brown, 20 Wash. 266, 55 Pac. 46. 43 L. R. A. 114. Quo Animo Important Considera- tion. — When a father or mother is cliarged with the alienation of the luisband's or wife's affections, the t/uo aninw is an important con- sideration. The right of the parents to advise their children tjiust be care- fully protected as well as the rights of husband or wife. Rice v. Rice, 104 Mich. 371, 62 N. W. 833. Plaintiff and her husband were married in May, 1892, and went to live at the home of his parents, and continued to so reside until March, 1893; during this time plaintiff and defendants had frequent quarrels, which finally resulted in defendants' compelling plaintiff to leave their house. Defendants at that time made no attempt to keep their son, plaintiff's husband, from living with her. It was show-n by the testimony of one witness that after plaintiff had gone to reside with her parents, .Mrs. Young, one of defendants, re- quested the witness to use her in- fluence to prevent plaintiff's husband from again living with her. giving as a reason that if he did so his father would disinherit him, but wit- ness never mentioned the matter to the husband. Held, that plaintiff had failed to show that her husband's refusal to live with her was due to improper influence exercised over him by his parents. Young z'. Young, 8 Wash. 81. 35 Pac. 592. In Rice ?'. Rice, 104 Mich. 371, 62 N. W. 833, where the husband had made up his mind to leave his wife if she rejoined the Catholic church, and finding that she had done so commenced to move the furniture out of the house. Upon his wife's return from church he then informed her. in the presence of his father, the defendant, that as she had gone back to the church he would no longer live with her. It appeared that defendant did not Vol, I 764 ALIEN A rise, Afl'ECriOXS. IV. DAMAGES. 1. Loss of Consortium. — The gist of the matter is the loss of the comfort and society of the consort, and it is not necessar\- to prove any pecuniary loss.-" It is not necessary to show actual loss of support caused hy alienation of the spouse's affections ; it is sufficient to show the injured feelings, mortification and mental anguish caused hy such alienation.-'" Proof of Social Position Admissible. — It is competent for eithrr (jartv to show plaintiff's occupation, and ])erhaps the social position of advise plaintiff's hushaiul to leave her until after she had gone back to her church. Held, defendant was not liable ; that it was not shown that plaintiff's husband left her be- cause defendant alienated his affec- tions; that he had a right to object to his son's marrying a Catholic; that he had a right to advise his son that it would be unwise for liini to live with her if she again joined the church, and any advise given after the separation wotdd not render him liable. Gernerd r. Gernerd, 185 Pa. _'.?,?, 39 Atl. 884, 40 L. R. A. 549, 64 .\m. St. Rep. 646. The case of Brown t. Brown, 124 N. C. 19, 32 S. E. 320, was a suit against the father of plaintiff's hus- band. The court said : " Before a parent can be held liable in damages for advising his married child to abandon his wife or her husband, the conduct of the parent should be alleged and proved to be malicious ; that the willful advice and action of the parent in such a case may not be necessarily malicious, for the parent may be determined and per- sistent and oljstinate in liis purpose to cause the separation, and yet be entirely free from malice — in fact, have in view the highest good of his child. Our opinion, however, is that the malice necessary to be alleged and proved is not alone such malice as inust proceed from a malignant and revengeful disposition, but that it would be sufficient to prove, to the satisfaction of the jury, that the parent's action was taken without proper investigation of the facts, or where the advice was given from recklessness or dishonesty of purpose; Vol. I the law presuming malice from such conduct in actions of tliis nature." 29. £)<'/(iic'(i)Y.— Prettyman f. Wil- liamson, I Penn. 224, 39 Atl. 731. Illinois. — Betser v. Betser, 186 111- 537, 58 N. E. 349, 78 Am. St. Rep. 303- Indiana. — Adams v. Main. 3 Ind. App. 232, 29 N. E. 792, 50 .\ni. St. Rep. 266. Michigan. — Perry 7'. Lovejoy, 49 Mich. 529, 14 N. W. 485- Minnesota. — Lockwood f. Lock- wood, 67 Minn. 476, 70 N. W. 784. Missouri. — Reinhart v. Bills, 82 Mo. 534. 52 Am. Rep. .^85. New York. — Bennett v. Bennett. 116 N. Y. 584, 23 N. E. 17, 6 L. R. A. 553; Van Olinda v. Hall. 68 N. Y. St. 711, 34 N. Y. Supp. 777; Bennett V. Smith, 21 Barb. 439; Barnes v. .•\llen, I Keyes 390 ; Hermance v. James, 47 Barb. 120; Hutcheson v. Peck, 5 Johns. 207 ; Schuueman v. Palmer, 4 Barb. 227. Pennsylvania. — Reading v. Gaz- zam, 200 Pa. St. 70, 49 Atl. 889. Vermont. — Fratini -■ Caslini. 66 Vt. 273, 29 Atl. 252. 44 .\m. St. Rep. 843- Loss of the Consortium. — In Prettyman v. Williamson, i Penn. (Del.) 224, 39 Atl. 731, it was said: " The action is based mainly on what is termed 'loss of the consortium.' that is, the loss of the conjugal society, affection and assistance of the wife, and it is not necessary to the maintenance of the action that tliere should be any pecuniary loss whatever." 30. Rice f. Rice, 91 Iowa 693, 62 N. W. 833, 51 Am. St, Rep. 360: Bowerso.x z'. Bowersox, ii^ Mich. 24, 72 N. W. 986. ALIENATING AFFECTIONS. 765 herself and luisl)aiul, as licaring upon the value of the huslia'id's consortinut:'^ Evidence of the Reputed Wealth of defendant in actions of this nature is inadmissible. •'- Letters Written by Plaintiff's Wife to him prior to an alleged aliena- tion of her alifections, are admissible in evidence on the question of damages alleged to have lieen sustained by plaintiff.'-' 2. Mitigation of Damages. — In mitigation of damages evidence may be introduced which shows that prior to the wife's relation with defendant the relations between her and her husband were unhappy, or that they were wanting in affection for each other, or that he was cruel or unkind in his treatment of her, or any misconduct on his part tending to show their imhappy relations or lack of affection."^ 31. Bailey v. Bailey, 94 Iowa 598, 63 N. W. 341. 32. Derham v. Derliam. 123 Mich. 451, 83 N. W. 1005; Bailey v. Bailey. 94 Iowa 598. 63 N. \V. 341. Contra. — Nichols v. Nichols. 147 Mo. 3^7, 48 S. W. 947. As Bearing on the Question of Damages, statement of the wife that she married her hushaiul because she supposed he had more money than he did have, and that she was ashamed of him, are admissible. Derham T'. Derham, 123 JNIich. 451, 83 N. W. 1005. 33. Horner 1'. Yancc. 9? Wis. 3^2. 67 N. W. 720. In Derham t. Derham, 123 ?\Iich. 451, 83 N. W. 1005, an action by a divorced wife against her father-in- law, she was permitted to testify con- cerning contents of a lost letter written bj' her husband to her during the marriage relations. Held error. This was a communication to the wife by the husband, and it was not competent for her to state it without his consent. The case of McKenzie v. Lauten- schlager, 113 ;Mich. 171, 71 N. W. 489. distinguished. In this case the letters were written to a friend. 34. Churchill v. Lewis, 17 Abb. N. C. (N. Y.) 226; Schorn v. Berry, 63 Hun no, 17 N. Y. Supp. 572; Peek V. Traylor (Ky.), 34 S. W. 705. Prettyman v. Williamson, i Penn. (Del.) 224, 39 Atl. 731. In Van Vacter v. McKillip. 7 Blackf. (Ind.) 578. it was said: " There are many facts and circum- stances which defendant, in actions of this kind, may show in mitigation of damages ; but we have met with no case in which it has been decided that a bad temper, or the occasional collisions that may take place between husband and wife, in consequence of the bad temper of one or both of them, affords the slightest exten- uation to the guilt of the seducer." Voluntary Abandonment. — In Bassett v. Bassett, 20 111. App. 543, defendant offered to prove that at the time plaintiff and her husband (his son) were married he was in such a state of into.xication as not to know what he was about : that his son had never kept company with plaintiff, nor paid her any such at- tention as indicated any love for her, and that immediately after the marriage, when he came to realize his position, he voluntarily abandoned the plaintiff, and was in no wise affected by any advice of his father, the defendant. Held, this evidence was admissible, and should have been considered in mitigation of damages. In Hadley v. Heywood. 121 Mass. 236, it was said, any unhappy relations existing between the plaintiff and his wife may affect the question of dam- ages, and were properly submitted to the jury, but they are in no sense a justification or paliation of the de- fendant's conduct. They are not al- lowed to affect the damages because the acts of the defendant are less reprehensible, but because the con- dition of the husband is such that the injury which such acts occasion is less than otherwise it might have been. In Mitigation of Damages — In Wolf V. Frank, 92 Md. 138, 48 Atl. Vol. I l(>(, ALIEXA TfXG JFfECTIOXS. Unhappy Relations of Husband and Wife. — It llu' hushaml and his wife lived unhappily before the improper advances of the defendant, circumstances which show that he possessed no comforts of a domestic character are ])roper to be sjiven in evidence in mitigation (if damages.""' Records in a Divorce Proceeding. —The complaint and evidence in a divorce, previoush- obtained by one of the parties, arc not admissible in an action for alienating the atifections.-'" But it has been lield that the fact of a divorce having been ob- tained during the pendency of the action may be considered in mitigation of damages. '' 3. Exemplary Damages. — If it be shown that the defendant will- fully and maliciously induced the husband or wife to abandon the other, the plaintiff may recover exemplary damages."'' 132, 52 L. R. A. 102, llie defendant offered to prove that plaintiff had had improper relations with one Keiffer. and that about two months thereafter the husband of plaintiff left her. While it was not shown that this was the cause of his leaving, it was proper evidence to be con- sidered by the jury in mitigation of damages. In Ash V. Prunier, 105 Fed. 722, plaintiff was permitted to introduce evidence showing manifestations of remorse by her husband in some of their interviews, after the intimacy between him and defendant had be- gun, and also of great grief on part of plaintiff. Held, competent to show mental suffering of plaintiff caused by the misconduct of de- fendant, an element of damages properly considered in such actions. 35. Bennett v. Smith, 21 Barb. (N. Y.) 439; Smith v. Masten. 15 Wend. (N. Y.) 270; Coleman r. White. 43 Ind. 429 ; Prettyman i'. Williamson, i Penn. (Del.) 224, 39 Atl. 731; Peek <•. Traylor (Ky.). 34 S. W. 705. Where the plaintiff had rea.son to know of the improper conduct of his wife and did suspect it, but did not take any means to prevent it, this was a circumstance properly con- sidered by the jury in their assess- ment of damages. .Xnd where the plaintiff was in the habit of having improper relations with other women " his sense of moral propriety and Vol. I regard for chastity, could not be much offended by the loss of virtue in his wife, the guilt of the defend- ant is not. therefore, diminished, but the plaintiff has sustained less dam- age." Smith V. Maslen. 15 Wend. 270; Wolf T. Frank, 02 Md. 138, 4R .\tl. 132, 52 L. R. .X. 102. Profane and Indecent Language of the Wife — Where the plaintiff' is shown to have used profane and indecent language in the presence of her husband, although not to him. and taught her little boy to use vulgar language, held, such evidence was properly admitted as tending to show the state of domestic happiness in which they had previously lived, and that it may have had considerable to do in alienating her husband's affections. Bailey ''■ Bailev, 94 Iowa 598, 63 N. W. .Wi- se. Waldron r. Waldron. 45 Fed. 315; Crose V. Rutlcdge. 81 111. 266: Mead N. W. 37. Penn. ham I N. W. Mich. 38. Ill Mich. 268, 69 .59 1^3 Randall, 506. Prettyman (Del.') 224 :■. Derham. 1005; Mead 268, 69 N. W. ji Lindblom z'. Sonslelie; 10 X. 140, 86 N. W. 357 ; Prettyman Williamson, I Penn. (Del.) 224. .\tl. 731 ; Williams f. Williams. Colo. 51, 37 Pac. 614; Waldron Waldron. 45 Fed. 31 s: Warner Miller, 17 Abb. N. C. (N. Y.) 221 Williamson, i .Vtl. 731 ; Der- .Mich. 457. 83 . Randall, in ,06. D. 3Q 20 ALIENATION.— See Deeds. ALIMONY.— See Divorce ; Husband and Wife. ALLEGIANCE.— See Citizens and Aliens. ALLOWANCE.— See Descent and Distribution. ALLUVION.— See Boundaries. ALMANAC. By Lewis R. Works. I. DEFINITION, 768 II. USE ON TKIAL, 768 1. Courts Take Judicial Xoticc Of. 768 2. Is Not Evidence, 768 3. Is an Aid to the Memory of thci Court, 769 A. // Admitted in lividence, 769 R. When Xot Offered in Ilvidenee. 769 Vol. I 768 ALMANAC. I. DEFINITION. All almanac is defined to he " a book or table containing a calen- dar of days, weeks and months, to which astronomical data and various statistics are often added, such as the times of the rising and setting of the sun and moon, changes of the moon, ctc.^ II. USE ON TRIAL. 1. Courts Take Judicial Notice Of. — Courts take judicial notice of the almanac,- or, as it has Ijeen put, the almanac is a part of the law of the land.-' 2. Is Not Evidence. — Hence, a publication containing the aliua- nac need not. and properly speaking, should not, be offered or received in evidence.^ 1- Webster's Die. 2. Alabama. — Sprowl ?'. Law- rence, ^3 Ala. 6/4 ; Allman v. Owen, 31 Ala. 167. California. — People j'. Chee Kce, 61 Cal. 404; People t'. Mayes, 113 Cal. 618, 45 Pac. 860. Cciiuiccticjit. — State v. ISIorris, 47 Conn. 179. loica. — Mcintosh r. Lee, 57 luwa 356, 10 N. W. 895. Maine. — First Nat. Bank z: Kings- ley, 84 Me. Ill, 24 Atl. 794. Maryland. — Kilgonr v. Miles, 6 Gill. & J. 268; Sasscer v. Farmers' Bank, 4 Md. 409, 56 Am. Dec. 755 ; Pliiladelphia, W. & B. R. Co. v. Lehman, 56 Md. 309. 40 Am. Rep. 4I5._ iVcic ]'ork. — Case v. Perew, 46 Him 57 ; Lendle i: Robinson, 53 App. Div. 140, 65 N. Y. Snpp. 894. Pcnnsyhania.- — Wilson t'. Van Leer. 127 Pa. ,St. 371, 17 .\tl. 1097, 14 Am. St. Rep. 854. "The court must take judicial notice not only of the law-merchant, which is a part of the common law, but also of the almanac, from which it appears that the 15th day of De- ccmlier, 1872, fell on Sunday." Reed 7'. Wilson. 41 N. J. Law 29. 3. Finney v. Callendar, 8 Minn. 41. 4. People r. Chee Kee, 61 Cal. 404; Lendle v. Robinson, 53 App. Div. 14a, 65 N. Y. Supp. 894. No Occasion for Offering Almanac. "The cnurt erred in refu-ing lii pcr- Vol. I mit the counsel for defendant below to refer to the almanac to show, in support of his argument against the testimony of Margaret Manahan, that a certain date in 1865 fell upon Sun- day. . . . All of the authorities agree that this is one of the matters that do not require to be proved, but are taken judicial notice of with- oiU evidence. As all the authorities agree that no proof is necessary it follows that it is not required to be put in evidence at all. The almanac in such cases is used, like the stat- utes, not strictly as evidence, but for the purpose of refreshing the memory of the court and jury. State V. Morris, 47 Conn. 179." Wilson 7'. Van Leer, 127 Pa. St. 371, 17 Atl. 1097, 14 Am. St. Rep. 854. In the case of Louisville & N. R. Co. V. Brinckerhoff, 119 Ala. 606, 24 So. 892, the statement of facts shows that: "Upon the plaintiff ofTering an almanac in evidence, showing when the sun set on the day of the night the stock was killed, the de- fendant objected to the introduction of the almanac in evidence, upon the ground that it was irrelevant, in- competent and immaterial. The court overruled this objection, and the defendant duly excepted." In its opinion the court said: " The court had common knowdedgc of the time the sun set on the day under inquiry, and so did the jury. There was no occasion, therefore, 10 introduce an almanac to show the hour." ALMANAC. 769 Admission Not Error. — I'.ut it has been held that the admission of such a pubHcation is not error. '^ Sometimes Held to Be Competent. — And the ahnanac has been even declared to be competent evidence to prove the time of the rising and phase of the moon and the like.'' 3. Is an Aid to the Memory of the Court. — A. If Admitted in Evidence. • — ■ It has been held that an almanac is received merely to refresh the memory of the court and jury as to a fact already known, and not as evidence.' B. \\'hex Not Cjefered Court May Refer To. — The court may refer to a published almanac not offered in evidence for infor- mation as to the time of the rising or setting of the sun, and the like, and while the publication is not itself evidence, the information or knowledge derived from it is.' 5. State :■. Morris, 47 Conn. 179; People '•. Cliee Kee, 61 Cal. 404. As an Aid to the Memory of the Court " .-Vnother e.xception was taken to the introduction of an al- manac for the purpose of showing the time of sunset on the day of the accident. An almanac from an im- official source, and not properly verified, is not, strictly speaking, competent evidence ; but receiving it as an aid to the memory of the court and jury is not reversible error. It was entirely proper for the court, without evidence, to take judicial notice of the time of sunset on the day of the accident, and, for the purpose of refreshing the mind of the court, there was no legal objec- tion to consulting an almanac." Lendle :■. Robinson, 53 ."^pp. Div. 140, 65 N. Y. Supp. 894. 6. Munshower r.'. State, ^.^ Alfl. 11, 39 Am. Rep. 414. Competent Evidence " It was clearly competent to prove the time of the rising and phase of the moon on the night in question by the in- troduction of an almanac. Mun- shower z\ State. 55 Md. 11; Slate V. Morris. 47 Conn. 179; Sisson v. Railroad Co., 14 Mich. 497." Alobile & B. R. Co. 7'. Ladd, 92 Ala. 287, 9 So. 169. 7. Lendle i\ Robinson, 53 App. Div. 140, 65 N. Y. Supp. 894; Case V. Perew. 46 Hun 57. To Refresh Memory " For the purpose of showing that it was in 49 the night season, the state was per- mitted to introduce in evidence, against the objection of the defense, a copy of Beckwith's Almanac for 1879, in which the hour of sunset for that day is placed at four o'clock and forty-one minutes. There is no error in this. " The time of the rising or setting of the sun on any given day belongs to a class of facts, like the succes- sion of the seasons, changes of the mooti, days of the month and week, etc., of which courts will take judi- cial notice. The almanac in such cases is used, like the statute, not strictly as evidence, but for the pur- pose of refreshing the memory of the court and jury." State z\ Mor- ris. 47 Conn, 179. 8. Lendle ?'. Robinson. 53 App. Div. 140, 65 N. Y. Supp. 894. Court May Consult " The fact, for the proof of which the almanac is offered, was one of those facts of which a court may take judicial notice ; formal proof of it was there- fore unnecessary. It would have l)een sufficient to have called it to the knowledge of the judge at the trial; and if his memory was at fault, or his information not sufficiently full and precise to induce him to act upon it, he had the right to resort to an almanac, or any other book of reference for the purpose of satisfy- ing himself about it (Sub. 8, §1875, C. C. P.) : and such knowledge would have been evidence." People v. Chee Kee, 61 Cal. 404. Vol. I ALTERATION OF INSTRUMENTS. By Clark Ross Mahan. I. THE FACT OF THE ALTEKATION, 773 1. Burden of Proof. 773 A. Genera! Rule, 772 2. Parol Evidence, 774 A. General Rule, 774 B. Surrounding Circumstances, 775 3. Other Instncnients and Memoranda, 775 A. Other Alterations, 775 B. Facsimiles, Copies, Etc., 776 4. Competency of Witnesses, 776 A. In General, 776 B. Transactions IVitli Deceased Persons, 776 5. Opinion Ez'idcncc, y/y 6. Inspection by lury, -~j 7. J'ariance, 778 8. Cogency of Proof. 778 9. Conversion of Altered Instrument — Mitigation of Dam- ages, 778 II. EXPLANATION OF ALTERATIONS, 779 1. Adniissibilitx of the Instrument, 779 2. Immaterial Alterations A'ced Not Be Explained, 779 3. Material Alterations, 780 A. In General, 780 B. Operation of the Alteration As Constituting Materi- ality, 780 a. General Rule, 780 b. Basis of Doctrine, 782 c. Test of Materiality, 782 { 1 . ) /;( General, 782 (2.) Effect on fjabilitx of Maker or Oblii^or, 783 (3.) I he lime of the .Uteratwn, 783 d. Inte^nt, 783 C. Subject Matter of the .llleration, 784 a. In General, 784 b. Inserting Matter U'liich La'w Jl'ould Supply, 784 c. Orthography, P/irascology, Etc., 785 (I.) Generally. 785 (2.) Conforming Writing to Intention of Par- < ties, 785 (1. Retracing Pencil It' riling in Ink, 785 e. Memoranda, 785 Vol. I ALTERATION OF INSTRUMENTS. 771 (i.) General Rule. 785 (2.) Collateral to li'ritiiig, 787 (3.) Marginal Figures, 787 (4.) Figures Indicating Scries. 787 f. Matters Pertaining to the Execution of the Writ- ing, 788 (i.) Place of Execution. 7S8 (2.) Date, 788 (A.) In General. 788 (B.) Date of Payment Fixed, 789 (C.) Changing Date to Date Intended, 789 (3.) Attestation, 790 (4.) Seals, 790 g. Matters in Respect of Nature and Terms of Instrument, 791 (i.) /;; General, 791 (2.) ll'aiz'er of Demand and Notice, 792 (3.) Negotiability, 792 h. Matters in Respect of the Parties, 793 (i.) Alterations Affecting the Number of Par- ties, 793 (A.) In General, 793 (B.) Adding Neiv Parties, 794 (C.) Striking Out Parties. 795 (D.) Inserting Name of Signer in Body of Instrument, 797 (2.) Alterations Affecting the Personality of Parties, 797 (A.) In General. 797 (B.) Substituting Payee. Obligee, Etc., 798 (C.) Correction of Name, 799 (D.) Description of Person, 799 (3.) Alterations Affecting the Relations of Par- tics, 800 i. Matters in Respect of the Consideration, 800 j. Matters in Respect of the Promise, 800 (i.) In General, 800 (2.) Description of Property, 800 (3.) The Amount, 802 (4.) The Interest, 803 (A.) Change of Rate, 803 (B.) Adding Interest Clause to Non-Inter- est-Bearing Instrument, 804 (C.) Time When Interest Begins, 805 (D.) Time of Payment of Interest, 805 (5.) Character of Promise — Joint or Several, 805 (6.) Payment of Exchange, 806 k. Matters in Respect of the Performance, 806 Vol. I 772 ALTERATION OF INSTRUMENTS. (i.) The Time, 806 (2.) The Place, 807 (3.) The Manner, 808 4. Burden of Proof and Presumptions, 808 A. Rule As to Non-Apparent Alterations, 808 B. Rule As to Apparent Alterations, 810 a. Statement As to Rules, 810 b. Presumption of Alteration Before Delivery, 810 c. No Presumption Either JVav, 812 d. Presumption of Alteration After Delivery, 812 (i.) General Rule, 813 (2.) Alteration to Conform Paper With Itself, 814 (3.) Correction of Error, 814 (4.J Alteration Must Be Apparent, 815 (5.) Official Documents, 815 e. Burden of Proof Depending on Suspicions Char- acter of Alteration, 815 (i.) Rule Stated, 815 (2.) Suspicious Alterations Defined, 817 f. Distinction Bctii'cen Deeds and Other Instru- ments, 818 5. Order of Proof, 818 6. Parol Evidence, 819 A. In General, 819 B. Alteration by Stranger, 819 C. Consent of Maker or Obligor, 820 D. Ratification of Unauthorised Alteration, 821 7. Sufficiency of Attempted Explanation, 821 A. In General, 821 B. Cogency of Proof, 822 III. QUESTIONS OF LAW AND FACT, 822 1. Materiality of /llteration, 822 2. The Fatt of Alteration, 822 3. Time of the Alteration, 823 4. Person Making the Alteration, 824 5. Intent, 824 6. Consent, 824 7. Ratification. 824 CROSS-REFERENCES. Best and Secondary Evidence; Bills and Xotes ; Consent ; Documentary Evidence ; Expert Testimony ; Handwriting ; Opinions and Conclusions; Ratification ; Spoliation. Vol. I ALTERATION OF INSTRUMENTS. r73 I. THE FACT OF THE ALTERATION. 1. Burden of Proof. — A. Gknekal Rui,E. — ^ The general rule is that where the objection is that an instrument in writing offered in evidence has been aUered in a material part since its execution and without authority, which the party offering the instrument denies, and the alteration is not apparent on the face of the instrument, the burden of proof to establish the fact of the alteration is upon the party raising that objection.^ Under a Special Plea of Non Est Factum, alleging that the note in 1. United States. — U. S. v. Linn, I How. 104; Stirsen f>. Baker, 150 U. S. 312. Alabama. — Montgomery v. Cros- thwait, 90 Ala. 553, 8 So. 498, 12 L. R. A, 140. Florida. — Harris v. Bank of Jack- sonville. 22 Fla. 501. I So. 140. Illinois. ■ — Lowman v. .\uberg, 72 111. 619. Indiana. — Johns v. Harrison, 20 Ind. 317; Maikel i'. State Sav. Inst., 36 Ind. 355 ; Ins. Co. of North Amer- ica V. Brim, III Ind. 281, 12 N. E. 315- * lozi'a. — Potter i>. Kennelly, 81 Iowa 96, 46 N. W. 856; Odell v. Gallup, 62 Iowa 253, 17 N. W. 502; Shroeder v. Webster, 88 Iowa 627, 55 N. W. 569; Farmer's Loan and T. Co. V. Olson, 92 Iowa 770. 61 N. W. 199; Van Horn v. Bell, 11 Iowa 465, 79 ."Vm. Dec. 506. Kansas. — J. I. Case Threshing Mach. Co. V. Peterson, 51 Kan. 213, 33 Pac. 470- Kentucky. — Thacker v. Booth, 9 Ky. Law 745, 6 S. W. 460. Maryland. — Wickes v. Caulk, 5 Har. & J. 36. Mississippi. — Moye v. Herndon, 30 Miss. no. Nebraska. — McClintock v. State Bank, 52 Neb. 130, 71 N. W. 978. Neiv York. — Conable v. Keeney, 61 Hun 624, 16 N. Y. Supp. 719. Tennessee. — Smith v. Parker (Tenn.), 49 S. W. 285. Texas. — Heath v. State, 14 Te.x. App. 213; Wells V. Moore, 15 Te.x. App. S2I. Wisconsin. — Gordon v. Robertson, 48 Wis. 493, 4 N. W. 579. Statement of the Rule " The law imposes upon the party who claims under the instrument the bur- den of explaining the alteration. This is the rule, undoubtedly, where the alteration appears on the face of the instrument, as an erasure, in- terlineation, and the like. In such case, the party having the posses- sion of the instrument and claiming under it, ought to be called upon to explain it. It is presumed to have been done while in his possession. But, where no such prima facie evi- dence exists, there can be no good reason why this should devolve upon a party, simply because he claims under the instrument. The plea avers the alteration, and the defend- ant, therefore, holds the affirmative ; and the general rule is, that he who holds the affirmative must prove it." U. S. V. Linn, i How. (U. S.) 104. Proof That a Portion of the Docu- ment Has Been Torn Off is not enough of itself to establish the fact of an alteration. Hall v. Forqueran, 2 Litt. (Ky.) 329. Burden on Plaintiff — In Farm- er's L. & T. Co. V. Siefke, 144 N. Y. 354. 39 N. E. 358, wherein the com- plaint alleged that the note sued on was executed under seal, which the defendant answered by general denial, it was held that the plaintiff had the burden of proving that the note had not been altered after delivery by the addition of the seal. Memorandum of Character of Transaction The presumption is that a memorandum on a bank check showing the character of the transac- tion evidenced by the check was in- serted before the delivery of the check, in the absence of any evi- dence to the contrary. In re Barnes' Est., 92 Iowa 379, 60 N. W. 659. Vol. I 774 ALTERATION OF INSTRUMENTS. suit was altered after its execution and delivery, the burden of proof is u|Hin tile ilefendant to establish the fact of the alteration. - 2. Parol Evidence. — A. General Rule. — The rule excluding parol evidence offered to explain or vary that which is in writing does not apply to evidence to prove a fraudulent or unauthorized alteration of a written instrument, and hence such evidence may always be resorted to to impeach the validity of the instrument on the ground of such an alteration.^ So also parol evidence is com- petent to show that the instrument had been executed in blank, and that the blanks had been filled contrarv to directions.'' 2. Douglass V. Brandon, 6 Baxt. (Tenn.) 58. The Plaintiff Under Such a Plea Has Nothing to Do but Read the Note, and the special matter in avoidance must be proved by the defendant. Bumpass v. Timms, 3 Sneed (Tenn.) 459. 3. Alabama. — Montgomery z'. Crosthwait, 90 .Ma. ^S3, 8 So. 498, 12 L. R. A. 140. Illinois. — Johnson zi. Pollock, 58 111. 181 ; Schwarz v. Herrenkind, 26 III. 208. /oica. — Coit z: Churciiill, 61 Iowa 296, 16 N. W. 147. Louisiana.- — Perry v. Burton, 31 La. Ann. 262. Maine. — Goodwin v. Norton, 92 Me. 532, 43 Atl. Ill ; Buck v. Apple- ton, 14 Me. 284. Mississippi. — Everman z\ Robb, 52 Miss. 653, 24 Am. Kep. 682. Missouri. • — Sweet z\ Maupin, 65 Mo. 65. Nebraska. — Courcamp v. Weber, 39 Neb. 533, 58 N. \V. 187. Oregon. — Wren v. Fargo, 2 Or. 19. latitude of Evidence In Win- ters V. Mowrer, 163 Pa. St. 239, 29 Atl. 916, it was held that upon an issue of fraudulent alteration of a writing the door is thrown open to evidence bearing in any way on the nature of the transaction. Testimony of a Grantor, Present and Consenting to the Alteration, is admissible to show the fact of alteration. It does not tend to vary, contradict or avoid the deed which he made. It tends rather to show exactly what that deed was. Nor do his statements come within the rule excluding declarations. Good- Vol. I win V. Norton, 92 Me. 532, 43 Atl. III. * In Jourden v. Boyce, 25 Mich. 302, it was held that evidence that the only note of the kind defendant ever signed was payaljlc in two years, while the note sued upon and pro- duced in court was payable in four months, was evidence, fairly tending, if believed, to prove an alteration of the identical instrument originally signed ; and that the defendant had a right to have the case submitted to tlie jury on this theory. Conversations In an action' upon a bond, against which the defendants defend on the ground of the insertion without their knowdedge or consent after its execution of a place of pay- ment, it is not competent to per- mit one of the defendants, after testifying to the alteration, for the purpose of showing how this fact was impressed on his memory, to testify to conversations between himself and his co-defendants, in the absence of the plaintiffs and after the execution of the bond. Dickson i'. Baml)erger. 107 Ala. 293, 18 So. 290. 4. Richards v. Day, 137 N. Y. 183, 33 N. E. 146, 3i Am. St. Rej). 703, 2i h. R. A. 601. Testimony of Printer Who Printed Blank Where the maker of a note in an action thereon against him claims that the note was altered after he had signed it, some of the alterations claimed to have been made being printed words standing in the note as produced, the testimony of the printer in whose office the blank was printed, that it was origi- nally printed as it then appeared, is competent. Hunter v. Parsons. 22 Mich. 96. ALTERATION OF INSTRUMENTS. 775 B. SuKiKirxnixG Cikcimstaxces. — On an issue as to whether an instrument has been ahered, it is competent to put in evidence the circumstances surrounding- the execution of tlie writing.^ Increase of Liability. — The fact that the obhgjor's habihty would be increased by tlie aUeration is relevant as tending to show that he would less readily have consented to the change alleged by him as constituting the alteration." 3. Other Instruments and Memoranda. — A. Other Alterations. On an issue as to whether or not a writing has been altered since its execution, evidence that other writings executed at the same time have been altered is inadiuissible." But where there are strong circumstances to support the inference that an instrument has been fraudulently altered, evidence that other papers draw-n and signed by the same parties, and a part of the series to which the one in Evidence of Representations Made by the Maker of a Note to the Sure- ties as to the time of payment, which was left blank when indorsed, and filled in by the payee, is inadmissible for the sureties, where such represen- tations had not been brought to the knowledge of the payee. Johns v. Harri,son, 20 Ind. 317. 5. Pearson 7'. Hardin, 95 Mich. 360. 54 N. W. 504. Financial Condition of Maker of Note The rule admitting evidence of surrounding circumstances does not permit the reception of evidence that one maker of a promissory note was in embarrassed circum- stances when the note was made, in a suit against the other makers, for the purpose of showing that the note was altered by him so as to increase its amount before negotiating it. Agawam Bank v. Sears, 4 Gray (Mass.) 95. The court said: "It was wholly irrelevant to the question of the time of making the alteration of the note, and furnished no proper aid in deciding that question. The embarrassed circumstances of a debtor furnish no presumption that he would make a fraudulent alteration of a note in his hands. To admit such evidence would do great in- justice to the honest, but unfortunate debtor. The rule of admitting evi- dence of surrounding circumstances, to which the counsel of the defend- ants refers is not, in our opinion, comprehensive enough to include the fact that the principal was embar- rassed with debts, as a circumstance having any proper bearing upon the issue tried between these two par- ties." 6. Matlock V. Wheeler, 29 Or. 64, .43 Pac. 867. 7- England. — Thompson v. Mose- ley, 5 Car. & P. soi, 24 Eng. C. L. 676. Alabama. — Winter v. Pool, 100 Ala. 503, 14 So. 411. District of Columbia. — Cotharin T'. Davis, 2 Mackey 230. Michigan. — Pearson v. Hardin, 95 Mich. 360, 54 N. W. 504. Missouri. — Paramore ;'. Lindsey, 63 Mo. 63. Neiv York. — Booth v. Powers, 56 N. Y. 22. The Written Contract for the Pur- chase of the Goods for Which the Notes in Suit Were Given, signed by the parties, and containing the terms of the sale, is competent as tending to prove that the notes were given in conformity to the terms of the sale. Stein v. Brunswick-Balke- Collender Co., 69 ^liss. 277, 13 So. -3i- Refusal to Produce Copy. — In Curry z: May, 4 Harr. (Del.) 173, the court refused to nonsuit a party for an unexplained alteration of the instrument declared on, though the alteration was material and was in the plaintiff's handwriting, and the instrument in his custody, because it appeared the defendant had a counterpart which he refused to pro- duce. Vol. I 776 ALTERATION OF INSTRUMENTS. question belongs, had been altered, niay be given in evidence.' Paper Referring to Instrument. — On an issue as to whether an instrument has been altered, another paper referring to the instru- ment in question in its present condition is admissible." B. Facsimiles, Copies, Etc. — But alterations in a writing may be shown by a duly certified facsimile or exemplification thereof, when the party has not the power to produce, nor to compel the pro- duction of. the original.'" So also, it is proper for a copy of the paper, as it was proved by the defendant to have been originally, to go to the jurv to determine whether the original has been altered or not.'' 4. Competency of Witnesses. — A. In General. • — The fact of an alteration may be proved either by the subscribing witness, or by any other person who can testify that he saw the alteration made.** B. Transactions With Deceased Persons. — The statute pro- hibiting testimony in regard to personal transactions or communica- tions with deceased persons has been held to extend to the testimony of one of the parties to the fact of an alteration of a written instru- ment the other party to which is dead." 8. Rankin v. Blacknell, 2 Johns. Cas. (N. Y.) 198. See also Haynes z: Christian. 30 Mo. .^pp. igS. 9. Carlisle v. People's Bank, 122 Ala. 446, 26 So. 115. 10. Ansley v. Peterson, 30 Wis. 65.^ 11. Conner v. Fleshman, 4 W. Va. 693. See also Yoiuig v. Cohen, 42 S. C. 328, 20 S. E. 62. 12. Penny v. Corwithe. 18 Johns. (N. Y.) 499. And see Com. v. Mc- Gnrty, 145 Mass. 257, 14 N. R. 98. Arbitrators Are Competent Wit- nesses to testify that the suhniission under which they acted has heen altered since the award. Ahel v. Fitch, 20 Conn. 90. Declarations. — The affidavit of the party producing the paper will not be received to prove that an alteration was made through error or mistake; it must be established by legal evi- dence, and not by the declaration of the party seeking to recover. Slo- comb r. Watkins, i Rob. (La.) 214. The Indorser of a Note, after being released from liability thereon as such indorser, is a competent witness to prove that the note has been altered since his indorsement. Buck V. Appleton, 14 Mc. 284. This case also held that the objection that a party to a negotiable instrument Vol. I cannot be admitted as a witness to prove it void, extends only to proof that it was void when originally made and not to proof of an alteration. 13. Cole V. Marsh. 92 Iowa 379. 60 N. W. 659; Harris -•. Bank of Jacksonville. 22 Fla. 501. I So. 140; Mitchell V. Woodward. 2 Marv. (Del.) 311, 43 Atl. 165; Benton Co. Sav. Bank v. Strand, .106 Iowa 606, 76 N. W. looi ; Pyle v. Onstatt, 92 111. 20g. And see Gist v. Cans, 30 Ark. 285 ; Foster t. Collner, 107 Pa. St. 305." Interest of Witness The rule forbidding testimony as to transac- tions with a deceased person is not to be held inapplicable in respect of the fact of an alteration because the tes- timony does not in any way affect the witness' liability. Williams v. Barrett, 52 Iowa 637. 3 X. W. 690. The court said : " John T. Clark was a party to the action, and for that reason was disqualified as a witness to testify to personal transactions between himself and the deceased. We think the fact that the other de- fendants were not necessarily jointly liable with him, and that separate actions miglit have been maintained against the defendants, makes no dif- ference. There was but one party on trial, and the witness, being a ALTERATION OF INSTRUMENTS. 777 5. Opinion Evidence. — An expert witness duly qualified as such,'* may be asked whether or not a written instrument has in fact been altered ;'^ but not it seems when the alterations are apparent on the face of the paper.'" So, an expert may be asked whether an altera- tion was in his opinion made before or after the body of the instru- ment was written ;'^ whether interlineations and the like are the same handwriting as the remainder of the paper ;'^ whether the whole of the paper was written with the same ink, and the like.'* 6. Inspection by Jury. — It is proper for the jury, in determining the question of an alteration, to inspect the instrument.-" But not proper party defendant tlierein, was by the very terms of the statute incompetent to testify to the facts nnder consideration." Date of Instrument It has been held that the rule forbidding testi- mony of transactions with deceased persons does not forbid the exami- nation of the makers of a note, as to the true date of tlie note, which ap- pears to have lieen clianged. Barlow V. Buckingham. 68 Iowa 169. 26 N. W. 58, 58 Am. Rep. 218, wherein the court said : " It is as to facts and cir- cumstances of the transaction be- tween them and tlie deceased that they are forbidden by the provision to testify. The date on wliich it occurred is a matter quite distinct from them and we think it is not in- cluded in the prohibition." Surrounding Circumstances. — It has been held, however, that, as to a note which the defendants allege has been altered since e.xecution. one of them, as a witness for the defense, might properly be asked when and with what intent he signed the note ; whether he struck out the words in the printed form which appear to have been struck out, and other ques- tions which do not call for any transaction or communication by the defendants with the deceased payee personally. Page v. Danaher, 43 Wis. 221. 14. ftualification of Expert Wit- ness. — A count}' treasurer, who has also been a banker, and a banker of several years' experience, are qualified to testify as experts as to whether two capital letters claimed to have been the initials of the payee of a note have been changed. Hen- drix V. Gillett, 6 Colo. App. 127, 39 Pac. 896. 15. Colorado. — Hendrix -•■. Gillett, 6 Colo. App. 127, 39 Pac. 896. f)idiana. — Nelson Z'. Johnson, 18 Ind. 329. Michigan. — Vinton Z'. Peck, 14 Mich. 287. Mississit'f'i. — ]\Ioye v. Herndon, 30 Miss. no. Nezv York. — Nat. State Bank v. Rising, 4 Hun 793 ; Hadcocke v. O'Rourke, 6 N. Y. Supp. 543. Compare Swan z: O'Fallon; 7 Mo. 231- 16. StillwcU z: Patton. 108 Mo. 352, 18 S. W. 1075 ; Johnson v. Van Name, 51 Hun 644, 4 N. Y. Supp. 523 ; Yates z'. Waugh, i Jones Law (N. C.) 483. 17. Dubois z: Baker, 30 N. Y. 355 ; Sackett z'. Spencer. 29 Barb. (N. Y.) 180; Cheney Z'. Dunlap, 20 Neb. 26s, 29 N. W. 925, 57 .\m. Rep. 828, 5 L. R. A. 465; Phoenix Fire Ins. Co. V. Philip. 13 Wend. (N. Y.) 81 ; Hayden Mill Co. r. Lewis (Ariz.), 32 Pac. 263; Quinsigamond Bank v. Hobbs, 11 Gray (Mass.) 250. Opinion Founded on Appearance of Instrument Tlie opinion of an expert witness that certain words were interpolated in a written agree- ment after the signature, if founded upon the situation and crowded ap- pearance of the words, is inadmis- sible. Jewett V. Draper. 6 Allen (Mass.) 434. 18. Graham v. Spang (Pa. St.), 16 Atl. 91 ; Hawkins i'. Grimes, 13 B. Mon. (Ky.) 257. 19. Glover z'. Gentry, 104 .\la. 222, 16 So. 38 ; Nat. State Bank v. Rising, 4 Hun (N. Y.) 793. 20. Hill V. Barnes, II N. H. 39S ; Gooch z: Bryant. 13 Me. 386; Smith V. U. S., 2 Wall. (U. S.) 219. Vol. I 778 ALTERATION OF INSTRUMENTS. when the fact of the alteration in the instrument in suit is not raised by the pleadings."^ 7. Variance. — When the party producing the instrument has set up the paper as alleged, and the other jiarty has not put the same in issue, the paper as altered is admissible, and evidence of the alter- ation is not.-- But otherwise, where the plaintifi" has set out the instrument as altered, without averring the alteration, and the defendant denies the execution of the instrument as set up, and alleges the alteration.-' But under a verified denial of the execution of the instrument sued on, the defendant may give evidence of the alteration since the execution of the instrument.-* 8. Cogency of Proof. — The fact of an alteration may be estab- lished by a mere preponderance of the evidence.-^ It is not enough, however, that the evidence may raise a suspicion.-" There are cases, however, in which the courts have said that the evidence must be " quite convincing,"-' " very clear and forcible,"-** " satisfactory," and the like.-'' 9. Conversion of Altered Instrument, — Mitigation of Damages. In a suit for the conversion of a promissory note, the defendant may show, in reduction of damages, that the note had been altered by the payee after its execution, in a material part, and without the consent, authoritv or ratification of the maker. ^'' 21. Sliclton -■. Reynolds, in N. C. 525. 16 S. E. 272. 22. Siindberg v. Wliittesey, 3 Sandf. Ch. (N. Y.) 320. In Hollis V. Vandergrift, 5 Houst. (Del.) 521. liowever, wherein tfie plaintifif filed with his declaration a dnly certified copy of the note sued on, and the defendant did not file an affidavit at the time of pleading denying his signature to the original note of which it purports to be a sworn, correct and literal copy, it was held that the defendant was not thereby precluded from proving that the note liad been altered since its e.xecution and without his knowledge or consent. 23. Howlelt V. Bell, 52 Minn. 257, 53 N. W. 1154. 24. Coburn v. Webb, 56 Ind. 96, 26 Am. Rep. 15; Palmer v. Poor, 121 Ind. 135, 22 N. E. 984, 6 L. R. A. 469. 25. Dodge v. Haskell, 69 Me. 429; McClintock v. State Bank, 52 Neb. 130, 71 N. W. 978; Farmer's L. & T. Co. V. Olson, 92 Iowa 770, 61 N, W. 199. Vol. I No Greater Quantum of Evidence Is Required to establish the fact of a fraudulent alteration than any other fraudulent act. Coit 7\ Churchill, 61 Iowa 296, 16 N. \Y. 147. Proof Beyond a Reasonable Doubt is not necessary. Lewis v. Garret- son, 56 Iowa 178, 9 N. W. 214; Glover v. Gentry, 104 Ala. 222. 16 So. 38. 26. Oakey v. Hennen, i8 La. 435. 27. Rosenbug v. Jctt, 72 Fed. 90. 28. Sweet v. Naupin, 65 Mo. 65. See also North River Meadow Co. V. Christ Church, 22 N. J. Law 424, 53 Am, Dec. 258. 29. Duggar v. Dempsey, 13 Wash. 396, 43 Pac. 357. See also Boston Block Co. Z'. Bulfington, 39 Minn. 38s, 40 N. W. 361. 30. Booth V. Powers, 56 N. Y. 22. Compare Flint v. Craig, 59 Barb. (N. Y.) 319, a similar action, where the note had been held by the defendant as collateral security, which he refused to return to the plaintiff^ after the payment of the partial indebted- ness, in which it was held that the defendant could not show either as a ALTERATION OF INSTRUMENTS. • 779 II. EXPLANATION OF ALTEKATIONS. 1. Admissibility of the Instrument. — Formerly it was the rule that if an instrument was altered in a material part, the court declared it to be void, and hence it was not receivable in evidence for any purpose, even though the alteration was capable of expla- nation.^' But under the present practice the fact of such an altera- tion does not justify the court in excluding the instrument when offered in evidence,^- the question of the alteration and the time when it was made being for the jury to determine from the instru- ment in connection with the explanatory evidence adduced by the parties.'"'' Objection Available Only to Non-Consenting Parties. — The objection that an instrument has been altered in a material respect is available only to parties not consenting thereto.""* 2. Immaterial Alterations Need Not Be Explained. — It is a gen- eral rule that immaterial alterations in a paper offered in evidence, although apparent on its face, need not be explained before receiving the paper in evidence.''" party to the action or to mitigate damages that there had been made a material alteration in the note after its execution; the whole matter on the subject of the alteration of the note is as between the parties to such an action wholly irrelevant and im- material for any purpose. 31. See Babb t'. Clemson, lo Serg. & R. (Pa.) 419. 13 Am. Dec. 684; Soaps I'. Eichberg. 42 111. App. 375, for statements of tlie former rules in this respect. 32. Comstock v. Smith-, 26 Mich. 306 ; Hunt V. Gray, 35 N. J. Law 227, 10 Am. Rep. 232 ; Pringle z: Cham- bers. I Abb. Pr. (N. Y.) 58; Ravisies T'. Alston, 5 Ala. 297 ; Mitchell v. Woodward, 2 Marv. (Del.) 311, 43 Atl. 165, holding that the fact of ^Iteration of the note sued on is matter for defense, and not ground for objection to the note as evi- dence. As to whether or not such an in- strument may be excluded upon fail- ure of the party producing it to adduce the requisite explanatory evi- dence see infra II, 7-A. 33. See infra, this title III, " Questions of Law and Fact." 34. Hochmark v. Richler, 16 Colo. 263. 26 Pac. 818. See also Andrews V. Burdick, 62 Iowa 714, 16 N. W. 275; Flint V. Craig, 59 Barb. (N. Y.) 3IQ- An Erasure of the Names of the Guarantors of a Note, when the note is in the guarantor's hands, cannot be objected to by a prior or subsequent indorsee. Logue v. Smith, Wright (Ohio) 10. Objection by Stranger. — In Ravisies v. Alston, 5 Ala. 297, it was held that as the parties to the instrument made no objection to it, but admitted its validity, certainly a third person could not object to the admission of the instrninent on the ground of an alteration, unless the alteration was evidence of fraud between the parties to the injury of creditors. Erasure by Consent Where the holder of a negotiable instrument, under an arrangement with the prin- cipal debtor and one of the sureties, allows the signature of the surety to be erased by the principal debtor,, the latter cannot be allowed to set up the erasure in discharge of him- self. People V. Call, I Den. (N. Y.) 120. 35. Lee v. Newland, 164 Pa. St. ?6o, 30 Atl. 258 ; Zimmerman v. Camp, ItS Pa. St. 152, 25 Atl 1086; Virginia & T. Coal & I. Co. v. Fields, 94 Va. 102, 26 S. E. 426. Vol. I 780 ALTERATION OF INSTRUMENTS. 3. Material Alterations. — A. In General. — The discussion in this article of the question of the materiality of an alteration such as will necessitate the party producing the instrument to give evi- dence explaining the appearance of the instrument, and accordingly involve of necessity the competency of the evidence offered by him- for that purpose, has been restricted to alterations which because of their materiality so affect the instrument as that notliing can be proved by it, at least, in the absence of the requisite explanatory evidence. And no attempt has been made to discuss such questions as alterations by strangers ; or with due and proper authority, or the effect of the alteration on the original obligation, and other like questions which do not go to the materiality of the alteration. B. Opek.^tion op the Alteration As Constituting jNIateri- ALITY. — a. General Rule. — The general rule deduced from all the authorities is to the effect that in order to constitute a material alter- ation, such as will require explanation upon the part of the party producing the instrument as evidence in his behalf, the alteration must be one which in some manner changes the legal eft'ect or identity of the instrument in respect of some right, duty or obliga- tion of some of the parties thereto,^" otherwise the alteration will Where the Execution and Delivery of a Deed Have Been Proved by Other Evidence, the deed is not inadmissible because of an alteration in the acknowledgment. Arn v. Matthews, 39 Kan. 272, 18 Pac. 65. In Missouri it is held to be a firmly established rule that any alteration of a written instrument after delivery, however immaterial in its nature, or however innocently made, must be shown to have been made with the consent of all the parties. Morrison V. Garth. 78 Mo. 434; First Nat. Bank v. Fricke, 75 Mo. 178, 42 Am. Dec. 397. Compare Capital Bank v. Armstrong, 62 Mo. 59. 36. England. — Doedeni Lewis v. Bingham, 4 Barn, & A. 672, 6 Eng. C. L. 648. Canada. — Swaisland v. Davidson, 3 Ont. 320. United States. — Crawford v. Dex- ter, s Sawy, 201, 6 Fed. Cas. No. 3368, quoting with approval from Smith V. U. S., 2 Wall. (U. S.) 219; Mersman i'. Werges, 112 U. S. 139. Alabama. — 'White S. M. Co. v. Saxton, 121 Ala. 399, 25' So. 784; Ala. State Land Co. v. Thompson, 104 Ala. 570, 16 So. 440, 53, Am. St. Rep. 80, and cases cited. .Irkausds. — Inglish v. Breneman, Vol. I 5 Ark. 377, 41 Am. Dec. 96; Little Rnck Trust Co. z\ Martin, 57 Ark. j-7. 21 S. W. 468. California. — Humphreys v. Crane, 5 Cal. 173; Pelton ;■. San Jacinto Lumb. Co., 113 Cal. 21. 45 Pac. 12. Colorado. — King v. Rea, 13 Colo. 69. 21 Pac. 1084. Connecticut. — Nichols v. Johnson, 10 Conn. 192; Mahaiwe Bank v. Douglass, 31 Conn, 170; Murray v. Klinzing. 64 Conn. 78, 29 .\tl. 244. /JWaira/r. — Warder B, & G, Co. -'. Stewart, 2 Maw. 275, 36 Atl. 88. Georgia. — Low v. Argrove, 30 Ga. 129. Idaho. — Mulkcy r. Long (Idaho), 47 Pac. 949. Illinois. — Ryan v. First Nat. Bank, 148 111. 349, 35 N. E. 1 120; Magers V. Dunlap. 39 111. -A.pp. 618; Mc- Kibhen t. Newell, 41 III. 461 ; Hough- ion V. Francis, 29 111. 244. hidiana. — Bowser v. Rendell, 31 Ind. 128; Shuck v. State, 136 Ind. 63, 35 N. E. 993; Harris v. State, 54 Ind. 2. Citing Cochran v. Neb- ekcr, 48 Ind. 459; State -: Berg, 50 Ind. 496. Indian Territory. — Taylor v. Acorn, I Ind. Ter. 436, 45 S. W. 130. Zona. — Starr v. Blatner, 76 Iowa 356, 41 N. W. 41. ALTERATION OF INSTRUMENTS. 781 be retrarded as immaterial.^' Kansas. — Davis i>. Epplcr, 38 Kan. 629, 16 Pac. 793. Kentucky.- — Philips v. Breck, 79 Ky. 465 ; Phoenix Ins. Co. v. Mc- Kernan, 100 Kj'. 97, ^7 S. W. 490. .Maine. — Jewett t'. Hodgdon, 3 Me. 103; Lee r. Starhird, 55' Me. 491. Maryland. — Owen v. Hall, 70 Md. 97, 16 Atl. 376. Massachusetts. — Rhoades ''. Cast- ner, 12 Allen 130 ; Osgood -'. Steven- son, 143 Mass. 399, 9 N. E. 825. MicJiigan. — Prudden v. Nester, 103 Mich. 540. 61 N. W. 777; Aldrich V. Smith, V Mich. 468, 26 Am. Rep. 536. Minnesota. — Hcrrick v. Baldwin, 17 Minn. 209, 10 Am. Rep. 161. Mississil'pi. — Bridges f. Winters, 42 Miss. 135. 2 Am. Rep. 598; Hen- derson V. Wilson, 6 How. 65. Missouri. — Capital Bank v. Arm- strong, 62 Mo. 59. Nebraska. — Erickson v. First Nat. Bank, 44 Neb. 622, 62 N. W. 1078, 48 Am. St. Rep. 753, 28 L. R. A. 577; Hurlbnt V. Hall, 3Q Neb. 889, 58 N. W. 538. New Hampshire. — Cole v. Hills, 44 N. H. 227; Humphreys z: GuiUow, 13 N. II. 385, 38 Am. Dec. 499; Morrill V. Otis, 12 N. H. 466. Neiv York. — Martin -'. Trades- men's Ins. Co., loi N. Y. 498, 5 N. E. 338; Flint V. Craig, 59 Barb. 319; Ludekins r. Pscherhofer, 5 N. Y. St. 241, 28 X. Y. Supp. 230; Casoni v. Jerome, 58 N. Y. 315; Booth v. Powers. 56 N. Y. 22. North Carolina. — Cheek v. Nail, 112 N. C. 370, 17 S. E. 80. North Dakota. — First Nat. Bank V. Laughlin, 4 X. D. 391, 61 N. W. 473- Ohio. — Davis r. Bauer, 41 Ohio St. 257; Xewman f. King, 54 Ohio St. 273. 43 X. E. 683, 56 Am. St. Rep- 705. 35 L. R. A. 471. Okhilwina. — Richardson v. Fell- ner, 9 Okla. 513, 60 Pac. 270. Pennsyhania. — Robertson v. Hay, 91 Pa. St. 242 ; Mclntyre v. Velte, 153 Pa. St. 350, 25 Atl. 739; Gettys- burg Nat. Bank r. Chisholm, 169 Pa. St. 564. 32 Atl. 730, 47 Am. St. Rep. 929. Rhode Ishitid. — Keenc r. Weeks, 19 R. I. 309, 7,3 Atl. 446. South Carolina. — Heath v. Blake, 28 S. C. 406, 5 S. E. 842; Burton v. Pressly, Cheves Eq. 1. Tennessee. — McDaniel v. Whitsett, 96 Tenn. 10, 33 S. W. 567. Texas. — Marrow f. Richardson (Te.x.), 6 S. W^ 763; Heath v. State, 14 Tex. App. 213; Butler v. State, 51 Tex. Crim. App. 63, 19 S. W. 676; Wegner Z'. State, 28 Tex. App. 419, 13 S. W. 608; Park v. Glover, 23 Tex. 469. Utah. — American Pub. Co. v. Fisher, 10 Utah 147, 37 Pac. 259. i'irginia. — Dobyus -'. Raivley, 76 Va. 537- West Virginia. — Yeager 7: Mus- grave, 28 W. Va. 90; Moreland v. Nat. Bank, 5 W. Va. 74. 13 Am. Rep. 636. Wisconsin. — Krouskop ■;■. Shontz, 51 Wis. 204, 81 N. W. 241 : Matteson j'. Ellsworth, 33 Wis. 488, 14 .\m. Rep. 766. Wvowing. — ^ilcLaughlin v. Vcnine, 2 Wvo. I. Altering Return Term of Court of Bail Bond Any alteration of an instrument which causes it to speak a language different in legal effect from that which it originally spoke is a material alteration. Under this rule the alteration of a bail bond as to the term of court before which the principal is bailed to appear, if made without the consent of the sureties, is a material alteration, as to such non-consenting sureties. Heath z: State. 14 Tex. App. 213. 37. Alabama. — Winter v. Pool, 100 Ala. 503, 14 So. 411. ///(H()i.f. — Ryan v. First Nat. Bank, 148 111. 349. 35 N. E. 1120. /»rf/a»(7. — Cochran v. Nebeker, 48 lud. 459. Iowa. — Horton v. Horton, 71 Iowa 448, 32 N. W. 452. Louisiana. — Jilartin v. McMasters, 14 La. 420. .l/(7i»c. — Gushing c'. Field, 70 Me. 50, 35 .\m. Rep. 293. Massachusetts. — Brown c'. Pink- ham, 18 Pick. 172. Michigan. — White S. M. Co. v. Dakin. 86 Mich. 581, 49 N. W. 583, 13 L. R. A. 313. Minnesota. — Herrick v. Baldwin, 17 Minn. 209, lO .\ni. Rep. 161. Vol. I 782 ALTERATION OF INSTRUMENTS. b. Basis of Doctrine. — Two rules are usually assigned as the basis for the doctrine just stated : First, that the identity of the con- tract is destroyed by the alteration ; and second, that no man shall be permitted on grounds of public policy to take the chance of commit- ting a fraud without running any risk of loss by the event when it is detected.^' c. Test of Materiality. — (l.) in General. — It is immaterial how the alteration is effected, whether by erasure, interlineation or other- wise. The question is : has the integrity or identity of tlie paper been changed in respect of some right, duty or obligation of the party to be affected by the alteration, whether of detriment or benefit.^'' Mississiplii. ■ — Bridges v. Winters, 42 Miss. 13s, 2 Am. Rep. 598. Nebraska. — Fisherdick z: Hutton, 44 Neb. 122, 62 N. W. 488. New Vorli. — Casoni i'. Jerome, 58 N. Y. 315. Ohio. — Huntington t. Finch, 3 Ohio St 445. Pennsylvania. — E.xpress Pub. Co. V. Aldine Press Co., 126 Pa. St. 347, 17 Atl. 608. Texas. — Churchill v. Bielstein, g Tex. Civ. App. 445, 29 S. W. 392 ; Tutt V. Thornton, 57 Tex. 35. Wisconsin. — Krouskop i\ Shontz, SI Wis. 204, 8 N. W. 241. Erasing Unperformed Condition. A credit on a note indorsed pursuant to the agreement with the maker, conditional upon his performing cer- tain acts, may be erased by the holder where the maker fails to perform the condition upon which the credit was indorsed. Chamberlain v. White, 79 111. 549- Description of Property Attached. An interlineation in a delivery bond giving a description of the attached property, made in good faith by the officer to whom the bond is presented for acceptance, at the request of the principal in the bond, is not a ma- terial alteration. Rowley zk Jewett, 56 Iowa 492, 9 N. W. 353. 38. Massachuselts. — Lee v. But- ler, 167 Mass. 426, 46 N. W. 52. 57 Am. St. Rep. 466; Cambridge Sav. Bank v. Hyde, 131 Jilass. 77, 41 .\m. Rep. 193. .Minnesota. — Theopold f. Deike, 76 Minn. 121, 78 N. W. 977- New Jersey. — Hunt 7'. Gray, 35 N. J. Law 227, ID Am. Rep. 232. Vol. I Oliio. — Huntington v. Finch, 3 Ohio St. 445. Pennsylvania. — Gettysburg Nat. Bank v. Chisolni, 169 Pa. St. 564, 32 Atl. 730, 47 Am. St. Rep. 929, quoting with approval from Hartley f. Cor- boy, 150 Pa. St. 23, 24 Atl. 295. Tennessee. — McDaniel i'. Whit sett, go Tenn. 10, 33 S. W. 567. Virginia. — Newell v. Mayberry, 3 Leigh 250, 23 Am. Dec. 261, and cases cited ; Dobyus v. Rawley, 76 Va. 537. See also cases cited and particu- larly applied in the succeeding sec- tions. 39. Alabama. — \\\\\ie S. M. Co. V. Saxon, 121 Ala. ,399. 25 So. 784; Lesser •;■. Scholze, 93 Ala. 338, 9 So. 273- Indiana. — Johnston v. May, 76 Ind. 293. lozva. — Dickeman r'. Miner, 43 Iowa 508. Kansas. — McCormick Harv. Mach. Co. V. Lauber, 7 Kan. App. 730, 52 Pac. 577- Kentucky. — Phoeni.x Ins. Co. v. McKernan, 100 Ky. 97, 37 S. W. 490. Missouri. — Moore ''. Hutchinson, 69 Mo. 429. Neiv York. — McCaughey z\ Smith, 27 N. Y. 39. And see cases cited and applied to particular kinds of alterations in the succeeding sections. The Test is whether the alteration has made the writing a new writing; and not whether the new writing is more or less beneficial to some of the parties. Chism v. Toomer, 27 Ark. 108. ALTERATION OF I.YSTRU.^IENTS. 785 (2.) Effect on Liability of Maker or Obligor. — Within the rule pre- viously stated, it is held that any alteration is material which operates to chansje the legal liability of the maker or obligor, or which may work to his prejudice; and it is immaterial whether that change is the enlargement or reduction of his liability.'"' (3.) The Time of the Alteration. — An alteration of a writing, although apparent on its face, is immaterial if it was made before execution of the writing, which includes its delivery, and hence does not affect its character or value as an instrument of evidence.*^ d. Intent. — Again it has been held not ti) be material whether or not the alteration was made with fraudulent intent,^- or innocently 40. England. ^Gardner i: Walsh, 5 El. & B. 83, 85 Eng. C. L. 83. United States. — Miller v. Stewart, 9 Wheat. 680 ; Mersman z\ Werges, 112 U. S. 139. Alabama. — Green z: Sneed, loi Ala. 205, 13 So. 277, 46 Am. St. Rep. 1 19; Glover z: RobbiiLs, 49 Ala. 219, 20 Am. Rep. 272. Arkansas. — Fordyce z'. Kosminski, 49 Ark. 40, 3 S. W. 892, 4 Am. St. Rep. 18; Little Rock Trust Co. v. Martin, 57 Ark. 277, 21 S. W. 468; Chism z: Toomer, 27 Ark. 108. Colorado. — Hoopes z'. Collingwood, 10 Colo. 107, 13 Pac. 909, 10 .\m. St. Rep. 565. Connecticut. — .\etna Nat. Bank z'. Winchester, 43 Conn. 391. Georgia. — Gwin z'. Anderson. 91 Ga. 827, 18 S. E. 43. Illinois. — Rudesill z\ Jefferson Co., 85 111. 446; Yost .Minneapolis Harv. Wks., 41 111. App. 556. Indiana. — Wier Plow Co. v. Walinsley, no Ind. 242, ir N. E. 232; Kentucky. — Locknaue f. Emerson, II Bnsh. 69. Michigan. — Osburne z'. Van Honten, 45 Mich. 444. 8 N. W. 77. Minnesota. — Renville Co. v. Gray, 61 Minn. 242, 63 N. W. 635 ; White V. John, 24 Minn. 387. Nebraska. — State Sav. Bank z\ Shaffer, 9 Neb. i, I N. W. 980. 31 Am. Rep. 394. Nczu Hamfishirc. — Goodman z<. Eastman, 4 N. H. 455. Neiv York. — Booth z\ Powers, 56 N. Y. 22. Ohio. — Jones v. Bangs, 40 Ohio St. 139, 48 Am. Rep. 664. Virginia. — Dobyns v. Rawley, 76 Va. Si-- And see cases cited and applied in notes to succeeding sections. A Reduction of the Penalty Named in the Bond of a Sheriff made by the proper authorities, but after the execution by the sheriff and a portion of the sureties, and without their knowledge or consent, is a material alteration. People Z'. Brown, 2 Dougl. (Mich.) 9. 41. Hall z'. Weaver, 34 Fed. 104, quoting with approval from i Whart. Ev., §625, to the effect that "the period after which alterations, not mutual, are false is that of the final delivery of the document." To similar effect see Hills z\ Barnes, II N. H. 395; Chapman v. Sargent, 6 Colo. App' 438, 40 Pac. 849 : Williams z'. Starr, 5 Wis. 534; Hilton v. Houghton, 35 Me. 143; Thorpe v. Keeler, 18 N. J. Law 232. Compare Briton v. Dierker, 46 Mo. 591. 2 Am. Rep. 553. 42. Vogle V. Ripper, 34 111. 100. 85 Am. Dec. 298; Owen v. Hall. 70 Md. 97, 16 Atl. 376; Phoeni.x Ins. Co. Z'. AIcKerran, 100 Ky. 97, 37 S. W. 490 ; Richardson v. Fellner. 9 Okla. 513, 60 Pac. 270: Craighead v. McLoney, gtj Pa. St. 211. An Immaterial Alteration Is Not Made Material Simply by the In- tent, if the intent to give a different effect to the instrument was not and could not be effectuated by the act done. Robinson v. Phoenix Ins. Co., 25 Iowa 430; Fuller Z'. Green. 64 Wis. 159, 24 N. W. 907, 54 Am. Rep. 600. Compare McDaniel z\ Whitsell, 96 Tenn. 10, 33 S. W. 567. Vol. I 784 ALTER AT J ON OF INSTRUMENTS. or in the belief that it could lawfully be made without the consent of the other party to the instrument." C. Subject Matter.oF THE Altekatiox. — a. /;; Gcncyal. — The alteration, in order to be material, must be in a material part of the instrument/"' b. Inserting Matter Which Lav.' Would Supply. — An alteration is regarded as immaterial which only expresses what the law implies.''^ 43. Hartley z: Corboy, 150 Pa. St. 23, 24 Atl. 295. See also Gettysburg Nat. Bank v. Chisolm, 169 Pa. St. 564, 32 Atl. 730, 47 Am. St. Rep. 929; Moore v. Hutchinson, 69 Mo. 429. Compare First Nat. Bank z\ Wolff; 79 Cal. 69, 21 Pac. 551. 44. United States. — Crawford v. Dexter, =; Sawy. 201, 16 Fed. Cas. No. 3368. Illmois. — Bryan t'. Dyer, 28 III. 188. KciilKcIiy. — Lisle v. Rogers, 18 B. Men. 528; Woolfolk V. Bank of America, 10 Bush. 504. M!c/i!g(j;i. — White S. M. Co. v. Dakin, 86 i\Iich. 581, 49 N. W. 583, 13 L. R. A. 313. Ncbraslia. — State Sav. Bank v. Shaffer, 9 Neb. I, i N. W. 980, 31 Am. Rep. 394, citing Brown v. Straw, 6 Neb. 536, 29 Am. Rep. 369. Nczv Yorl:. — People, ex ret. Newel, 7'. Muzzy, I Denio 239. Te.vas. — Morris v. Cude, 57 Tex. 337; Gregg I'. State, 18 Tex. App. 295. And see cases cited in succeeding sections. When a Contract Is Evidenced by Several Writings, all of which are material to show the actual agree- ment between the parties, the fraudu- lent alteration of any of them by one of the parties is a material alteration of the contract. Myer ?'. Huneke, 55 N. Y. 412. Adding a Date to an Indorse- ment of a Payment upon the back of a promissory note is not an altera- tion of the note. Howe v. Thomp- son, II Me. 152. "The indorse- ment," said the court, " on the back of the note forms no part of the original instrument, and the addition of the date to this indorsement can have no effect upon the legal validity of that instrunienl. It is no altera- Vol. I tion of it, and can neither destroy its efficacy or give it force." Credits Wrongfully Indorsed Upon a Promissory Note by the maker may properly be obliterated by the holder thereof. Burtch v. Dent, 13 Ind. 542. The Writing of a Guaranty on the Back of a Note by the Payee Thereof at the time of the transfer by him to the present holder, is not an alteration of the original con- tract of the makers ; it is the col- lateral undertaking of the payee, which in no way affects the liability of the original parties. Hutches v. Case Thresh. Mach. Co. (Tex. Civ. App.), 35 S. W. 60. Cutting Margin of Paper — In Goodfellow V. Inslec, 12 N. J. Eq. 355', it was objected that the obligee mutilated the bond, cutting off a part of the margin, and mutilating the receipts upon it. The answer was held to be that the instrument itself was not mutilated. " The mere cut- ting the margin of the paper upon which a bond is printed or written," said the court, " is not a mutilation of the instrument itself. It is no part of the bond, as a legal instru- ment, where the paper has been mutilated for the purpose of destroy- ing a receipt or other indorsement upon the paper; the strongest pre- sumptions may be raised against his touching the instrument mutilated or destroyed, but it is no nuitilation or alteration of the bond itself." 45. £»i^/a;id. — Waugh r. Phil- lips, 5 Taunt. 707, IS Rev. Rep. 624. Alaba}iia. — Anderson t'. Bcllenger, 87 Ala. 334. 6 So. 82, 4 1,. R. A. 68, 13 Am. St. Rep. 46. ////)i()/.s. — Swigart z: Wearc, 37 111. .•\pp. 258. Indiana. — State v. Berg, 50 Ind. 496. ALTERATION OP INSTRUMENTS. 785 c. Orthography, Plirascology, Etc. — (1.) Generally. — Nor is a mere change in the phraseology of the language, a material altera- tion, where the sense or legal effect of the instrument is not affected.-"' (2.) Conforming Writing to Intention of Parties. \i, p Iteration which not onl_y does not change the meaning and construction of the writings, but does in fact conform the language of the writing to the clear and obvious intention of the parties,*' or which only conforms the writing to the facts, and goes but to the identity of its subject matter, is not material.^* d. Retracing Pencil Writing in Ink. — Where a note is written in pencil, to go over it and retrace the writing in ink is not a material alteration, although done W'ithout the consent of the maker by a party claiming under it.''" e. Memoranda. — (1.) General Rule. — Any alteration of a memo- randum placed upon a written instrument, or annexed thereto, is not material where such memorandum is no part of the writing, or in no wav eft'ects a change therein.'"'" iiut where the memoran- loii'a. — James r. Delbey, 107 Iowa 463, 78 N. W. 51. Alassaclutsctts. — Hunt f. Adams. 6 Mass. 519. Mississiplyi. — Bridges v. Winters, 42 Miss. 135, 2 Am. Rep. 598. Missouri. — West Bldg. & Loan Ass"n f. Fitzmaurice, 7 Mo. App. 283. A'rii' Hampsliirc. — Burnliam ?'. Aver, 35 _N. H. 351. Xczi.' Yorl;. — Kinney v. Schmitt, 12 Hun 521. Tennessee. — Blair i'. State Bank, II Humph. 84. H'asliinglon. — Kleeb i'. Bard, 12 Wa^h. 140. 40 Pac. 73^. The Addition to a Bond for a Deed, of a Clause Granting Imme- diate Possession to (he obligee, with- out the knowledge or consent of the obhgor, is a material alteration. It is not a case of inserting what the law would supply. Kelly v. Tumble, 74 111. 428. 46. State '■. Riebe, 27 JNIinn. 315, 7 N. W. 262; Gushing v. Field, 70 Me. 50. 35 .\m. Rep. 293. Interlining the 'Word " Before " Over the Word " By," in a clause fi.xing the time within which a specified privilege may be exercised, is not a material alteration. E.x- press Pub. Co. v. Aldine Press, 126 Pa. St. 347, 17 Atl. 608. 47. U. S. V. Hatch, i Paine 336, 26 Fed. Cas. No. 15,325. SO Erasing Signatures Placed in the Wrong Place and re-signing in the proper place, is not a material al- teration of the instrument. Fournier V. Cyr, 64 Me. 32; Ryan v. First Nat. Bank, 148 III. 349, 35 N. E. 1120. See also Fisher v. King, 153 Pa. St. 3, 25 Atl. 1029. Compare Morrison v. Garth, 78 Mo. 434, under the Missouri rule, that an unauthorized alteration, however immaterial, vitiates the writing. 48. Domestic Sewing Mach. Co. V. Barry, 2 Misc. 264, 21 N. Y. Supp. 970. 49. Reed v. Roark, 14 Tex. 329. See also Donnell Mfg. Co. f. Jones, 49 111. App, 327. Retracing Blotted Writing In Dunn V. Clement, 7 Jones I,. (N. C.) 58, where the obligee in a bond attempted to retrace part of the obligor's name, which had been blotted with ink and obscured, and in doing so mispelled it, but not so as to alter the sound, no fraud being imputable to the act, it was held that the alteration was not material. 50. Alabama. — Manning v. Ma- roney, 87 Ala. 563, 6 So. 343, 13 Am. St. Rep. 67 ; Maness Z'. Henry, 96 Ala. 454, II So. 41b. Louisiana. — Nugent Z'. Delhomme, 2 Mart. O. S. 308. Maine. — Gushing 'e. Field, 70 Me. so, 35 Am. Rep. 293. Vol. I 786 ALrilRATION OP JXSTRUMENTS. dum constitutes part of the instniment. an alteration thereof is governed by the same rules as obtains in the case of an alteration of the body of the instrument, except in those cases where the memorandum has been inade in such manner as to permit of its being altered, and still leave the body of the instrument unafTected,''' and whether the memorandum qualifying the effect of the instrument is underwritten or indorsed, is immaterial, so long as it is in fact a part of the original contract. ■'- A memorandum under a negotiable Missouri. — American Nat. Bank r. Bangs, 42 Mo. 450, 97 Am. Dec. 349- Nebraska. — Palmer T'. Largent, 5 Neb. 223. 25 Am. Rep. 479. North Carolina. — Hubbard v. Wil- liamson, 5 I red. 397. Tcvas. — First Nat. Bank v. Prit- cliard, 2 Will. Tex. Civ. Cas. Ct. App. § 130; Marrow ;■. Richardson (Te.x.), 6 S. W. 763. A Memorandum of a Partial Pay- ment indorsed liy the holder on a promissory note, is no part of the note or written evidence of the con- tract of the parties ; and hence its erasnre by the holder, although fraudulently made, is not an altera- tion of the note. Theopold f. Deike, 76 Minn. 121, 78 N. W. 977. In Foote V. Bragg, 5 Blackf. (Ind.) 363, the payee of a note in- dorsed over his signature the words " Pay tlie bearer," and delivered it to the present holder. It was held that the holder might erase the words " Pay the bearer" and insert in their place over the payee's signature a formal assigiunent of himself. Erasing Unauthorized Indorse- ment Made by Agent Erasing an indorsement put on a note pursuant to a contract between the maker and an unauthorized agent of the payee is not an alteration of the note. Waldrof t: Simpson, 15 App. Div. 297. 44 N. Y. Supp. 921. 51. England. — Fitch v. Jones, 5 Ellis & B. 238. 85' Eng. C. L. 238. Canada. — Campbell v. McKen- non, 18 U. C. Q. B. 612: Swaisland V. Davidson, 3 Ont. 320. Illinois. — Benjamin z: McCon- ncl, 9 111. 536, 46 .\m. Dec. 474- Indiana. — Cochran i'. Nebcker, 48 Ind. 459. Iowa. — Scofield v. Ford. 56 Iowa 370, 9 N. W. 309; State V. Stratton, 27 Iowa 420, I Am. Rep. 282. Kentucky. — Warren v. Faut, 79 Ky. I . Maine. — Johnson v. Ileagan, 23 Me. 329. Massachusetts. — Wheelock x\ Free- man, 13 Pick. 165, 23 Am. Dec. 674. Michigan. — Wait i'. Pomeroy, 20 Alich. 423, 4 Am. Rep. 395. Mississippi. — Bay "'. Schrader, 50 Miss. 326. Missouri. — Law •;■. Crawford, 67 Mo. App. 150. Nebraska. — Davis v. Henry. 13 Neb. 497, 14 N. W. 523. NciK.' Hampshire. — Gerrish v. Glines, 56 N. H. g. Nezi' Jersey. — Price r. Tallman. I N. J. Law 447. Neti' York. — Benedict v. Cowden, 49 N. Y. 396, 10 Am. Rep. 382. Tennessee. — Stephens v. Davis, 83 Tenn. 271, 2 S. W. 382. Te.vas. — Meade v. Sandidgc, 9 Ti'v. Civ, Ann. 360. 30 S. W. 243. Test of Materiality — In Bay v. Schrader, 50 Miss. 326, it was held that words written on the back of a note are no part of the body thereof, prima facie, but are presumed to have been put there after the note was completed. The court said that the test of the materiality of such memoranda or indorsement on the back of the instrument is the time and the extent and purpose of it. If made before or at the time of the execution of the instrument it may be parcel of it and may control the obligation in some important particular. But being disconnected from the body of the instrument through which the maker's name is signed it forms no potent part of it until shown to have been on it when executed. 52. Swaisland r. Davidson. 3 Ont. Vol. I ALTERATJOX OF IXSTRUMBNTS. 7s; iiistrunient and qualifying it is to be taken as a ])art of the contract, antl the fraudulent removal of such a niemorandnni is a material alteration. ^^ (2.) Collateral to Writing-. — If a memorandum, however, is col- lateral to and independent of the instrument, it does not become part of it, and placing it upon the same paper as the instrument itself is not a material alteration of the instrument.''' Memorandum Indicating Verbal Understanding. — A memorandum showing clearly that it was designed by the holder of the instru- ment as a mere memorandum for his own guidance, very probably having reference to some verbal understanding between himself and the maker, will not be deemed material.''^ (3.) Marginal Figures. — The marginal figures in the corner of a note are no part of the note, and an unauthorized change in them is not a material alteration.''" (4.) Figures Indicating Series. — The figures in the margin of the instrument denoting the number in a particular series, to which the instrument belongs, are no part of the contract, and their alteration is immaterial.'"'" 320, citing Warrington ?•. Early, 2 Ellis & B. 763; Hartley z: Wilkinson, 4 M. & S. 2S; Campbell z: McKen- non, 18 U. C. Q. B. 612. 53. Orton z\ Largent, 5 Neb. 223. Compare Zimmerman z\ Rote, 75 Pa. St. 188. 54. Alabama. — Maness •;•. Henry, 96 Ala. 45'4, II So. 410. Arkansas. — Mente z'. Townsend, 68 Ark. 391, 59 S. W. 41. Indiana. — Cnrrent z: Fulton, 10 Ind. App. 617. 38 N. E. 419. Maine. — Littlefield z\ Comb'^, 71 ^fe. no. Massachusetts. — Cambridge Sav. Bank v. Hyde, 131 Mass. 77, 41 .\m. Rep. 193. Minnesota. — White z\ Johns, 24 Minn. 387. Nebras/ca. — Oliver z'. Hawlcy, 5 Neb. 439. Nezo Hampshire. — Morrill z\ Otis, 12 N. H. 466. In Payne v. Long, 121 Ala. 385, 25 So. 780, the alteration alleged was that before the note' was de- livered, the defendant entered thereon a memorandum : " Snbiect to a set- tlement between us ;" that after said note was delivered, plaintiff, without the knowledge or consent of the defendant, detached the memoran- dum. The court said that the memorandum plainly enough indi- cated that there was something un- settled between the parties not in- cluded in the note, and which may be brought forward on its settle- ment, and such words constituted a material part of the note. 55. Carr v. Welch, 46 111. 88. 56. Smith v. Smith, I R. I. 398. 53 .A.m. Dec. 652; Johnston Har- vester Co. •:'. McLean, 57 Wis. 258. IS N. W. 117; Woolfolk v. Bank of .•\merica, 10 Bush 504; Schryver z\ Hawks, 22 Ohio St. 308 ; Yost v. Watertovvu Steam Engine Co. (Tex. Civ. App.), 24 S. W. 657; Chase z: Washington M. Ins. Co., 12 Barb. S95 ; Kinard z\ Glenn, 29 S. C. S90, 8 S. E. 203. ■Words Added Upon the Margin of an Obligation, and above the sig- natures of the obligors, by an ar- rangement between the obligee and principal obligor, after the delivery of the writing, are to be deemed a part of the obligation. Warren v. Fant, 79 Ky. I. 57. England. — SufFell z: Bank of Eng., 51 L. J. Q. B. 401, 9 Q. B. D. SS5' (reversing 7 Q. B. Div. 270). United States. — WyVie v. Mo. Pac. R. Co., 41 Fed. 623. Alabama. — State e.v rcl. Plock z\ Cobb, 64 Ala. 127. Vol. I 788 ALTERATION OF INSTRUMENTS. f. Matters Pcrtaiiiiiig to the Execution of tlie IVritiiig. — •(!.) Place of Execution. — Adding the name of a place to the signature of the maker of a note, so as to make the note negotiable according to the laws of that place, is a material alteration. ^^ So also is changing the name of the place where the instrument purports to have been executed. '^^ (2.) Date. — (A.) In Gkneral. — The alteration of the date of a negotiable instrument, without the consent of the maker or surety, is a material alteration ; and it makes no difference whether the eft'ect of the alteration is to accelerate or extend the time of pay- ment.*" An impossible date raises a presumption of ante or post Massachusetts. — Com. z'. Emi- grant Industrial Sav. Bank, 98 Mass. 12. New Jersey. — Elizabeth v. Force, 29 N. J. Eq. 587 (reversing 28 N. J. Eq. 587). jWic Korfc. — Birdsall r. Russell, 29 N. Y. 220 (dictum). Tennessee. — Bank of Tennessee 'c\ Funding Board, 16 Lea 46, 57 A. S. R. 211. 58. Commercial & Farmers Bank V. Patterson, 2 Cr. C. C. 346, 6 Fed. Cas. No. 3056. Memorandum Indicating Object of Instrument. — In Bachellor z: Priest. 12 Pick. 39, it was held that a memorandum written on a bill of exchange under the signature of the drawer indicating it had been left with the indorser was in no sense an alteration of the original. " It was a memorandum of a collateral agreement between the maker and indorser which did no more affect the liability of the parties to the note than it would have done had it been made on a separate cover." Memorandum Indicating Bene- ficiary of Insurance Policy. — .\ mem- orandum written in lead pencil on the face of an insurance policy amounting to no more than a sug- gestion of the wishes of the insured as to the persons for whose benefit the insurance is taken, is not an alteration. Chase v. Washington M. In.s. Co., 12 Barb. 59s. Memorandum of Insertions Before Signatures. — A note or memo- randum preceding the signatures of the makers of a bond and stating that certain words have been in- Vol. I serted in a bond before signaturei affii.xed is not a part of the bond proper. White v. Johns, 24 Minn. 387. 59. Mahaiwe Bank v. Douglass, 31 Conn. 170; McQueen z: Mc- Intyre, 30 U. C. C. P. (Can.) 426. 60. England. — Outhwaite f. Lemt- ley, 4 Camp. 176, 16 Rev. Rep. 771 ; Master z: Miller, 4 T.- R. 320; Vance V. Lowther, L. R. I Exchange Div. 176, 13 M. & W. 778, 34 L. T. N. S. 286. Canada. — Gladstone z: Dew, 9 U. C. C. P. 439; Meredith ;■. Culver, 5 U. C. Q. B. 218. United Stales. — Wood v. Steele, 6 Wall. 80. Contra. — Union Bank v. Cook, 2 Cr. C. C. 218, 24 Fed. Cas. No. 14,349. Alabama. — Lesser zt. iicholze, 93 Ala. 338, 9 So. 273. Arliansas. — Lemay v. Williains, 32 Ark. 166. California.- — Galland ;•. Jackson, 27 Cal. 79. Dclazvare. — Warren v. Layton, 3 Harr. 404. Georgia. — Armstrong v. Penn, 105 Ga. 229, 31 S. E. 158; Wheat v. Arnold, 36 Ga. 479. Illinois. — Wyman v. Yoemans, 84 111. 403. Indiana. — Hamilton v. Wood, 70 Ind. 306. Kansas. — Fraker v. Cullum, 21 Kan. 402; .McCormick Harv. Mach. Co. V. Laubcr, 7 Kan. App. 730, 52 Pac. 577- Kentncky. — Bank of Com. v. Mc- Chord, 4 Dana 191, 29 Am. Dec. 398; Letcher v. Bates, 6 J. J. Marsh. 524, 22 Am. Dec. 92 ; Lisle v. Rogers, 18 1!. .Mon. ^28. ALTERATION OF INSTRUMENTS. 78'> dating; but not of alteration.''" (B.) Date of Payment Fixed. — When the date of the payment of the obHgation evidenced by the paper is fi.xed and is not dependent upon the date of the paper, changing the date of the paper has been held to be immaterial. "- (C.) Chancing Date to Date Intended. — But the date of an instru- ment may be changed so as to make it correspond with the intention of the parties. ''^ Maine. — Hcrvey v. Hervey, 15 Me. 357. Maryland. — Mitchell v. Ring- gold, 3 Har. & J. 159, 5 Am. Dec. 433. Missouri. — Britten v. Dierker, 46 Mo. 591, 2 Am. Rep. 553; Aubuchon V. JMcNigln, I Mo. 312, 13 Am. Dec. 502. il/o;i;a»a. — McMillan v. Hefferlin, 18 Mont. 38s, 45 Pac. 548. Nebraska. — State Sav. Bank v. Shaffer, 9 Neb. i, citing Brown v. Straw, 6 Neb. 536, 31 Am. Rep. 394. Ne'M Hampshire. — Bowers v. Jewell, 2 N. H. 543. Nezu Jersey. — Wright v. Wright, 7 N. J. Law 175, 22 Am. Dec. 483. Neiv Me.rico. — Ruby v. Talbot, S N. Mex. 251, 21 Pac. 72, 3 L. R. A. 724. New York. — Rogers v. Vosburgh, 87 N. Y. 228; Crawford v. Westside Bank, 100 N. Y. 50, 2 N. E. 881, 53 Am. Rep. 152. Pennsvlvania. — Kennedy v. Lan- caster Bank. 18 Pa. St. 347 : Heffner V. Wenrich, 32 Pa. St. 423 ; Stephens V. Graham, 7 Serg. & R. 505, 10 Am. Dec. 485 ; Hocker v. Jamison, 2 W. & S. 438: Miller V. Gilleland, 19 Pa. St. 119; Getty •:■. Shearer, 20 Pa. St. 12. Tennessee. — Taylor v. Taylor, 12 Lea 714. Wisconsin. — Lowe v. Merrill, i Prim. 340. The Date of an Assignment or Indorsement of a Note is not an essential part of it; and an altera- tion thereof is not material. Griffith V. Cox, I Overt. (Tenn.) 210. Transposing Words Indicating Bate — Erasing the figures indi- cating the day of the month, after the month, and writing them before, is not a material alteration. Reed r. Kemp, 16 III. 445. 61. Davis V. Loftin, 6 Te.x. 489. 62. Prather v. Zulauf, 38 Ind. 63. Ryan v. First Nat. Bank, 148 III- 349. 35 N. E. J 120. See also Ames V. Colburn, 11 Gray (Mass.) 390, 71 Am. Dec. 723; Dyker v. Fraz, 7 Bush (Ky.) 273, 3 Am. Rep. 314; Hervey -'. Hervey, 15 Me. 357 ; Mer- chant's Bank v. Stirling, 13 Nova Scotia, 439, where the court say that a " mistake or omission stands upon a different footing, and a bill may be altered to correct a mistake and in furtherance of the original intentions of the parties;" citing Downes v. Richardson, 5 B. & Aid. 674. Consent of All Parties Necessary. But the holder of a bill has no right to make an alteration in it to cor- rect a mistake in the date, unless to make the instrument conform to what all the parties to it agreed or intended it sliould have been. Her- vey V. Hervey, 15 Me. 357. Effect of Statute of Limitations. In Horner v. Wallis, 11 Mass. 309, the payee of a note, procured one, not present at its execution, to attest it as a witness, and the court held it to be a material alteration. The opinion of tlie court seems to have been materially influenced by a stat- ute of limitations of Massachusetts, making a difference between attested and unattested notes. Yet the same court, in Smith v. Dunham, 8 Pick. 249, where the payee procured one present at the execution of the note, afterwards, and without the knowl- edge of the maker to attest it, but without any fraudulent intent, held the alteration to be immaterial. And in Ford v. Ford, 17 Pick. 418, the note was signed, and was attested by a single witness, which gave it the character of a witnessed Vol. I 'H) ALTERATION OF INSTRUMENTS. (3.) Attestation. — The attestation of a note by one who was not present and did not see the maker sign, has been held to he a mate- rial alteration f* but it has been held not to be a material alteration for an attesting- witness who saw the paper executed to afterwards sign, although without the knowledge or consent of the sureties,'"'^ at least if he docs so, or the procurement of his doing so. is without wrongful or improper intent.'" (4.) Seals. — Putting a seal upon an instrument after its execu- ticin, without the knowdedge or consent of the maker or obligor, is a material alteration. '■' So also is tearing or cutting off the note. The addition of the attesta- tion of another witness in tlie absence of the maker furnished to the plain- tiff additional evidence, but it was lield not to be a material alteration uf the note, because it made no al- teration in its character. 64. Alontgomerv R. Co. v. Hurst. g Ala. 513; White T. M. Co. v. Saxon, 121 Ala. 39, 25 So. 784; Eddy V. Bond, 19 JNIe. 461 ; Foust !■. Remio, 8 Pa. St. 378; Henning f. W'crkheiser, 8 Pa. St. 578. Compare Talbot T'. Hodson, 7 Taunt. 251, 2 Eng. C. L. 248; Fuller z\ Green, 64 Wis. 159, 24 N. W. 907; State i'. Cherkin, 7 Ired. ( N. C.) 206. Alteration Before Delivery. When a person executes a bond as surety, and leaves it with his prin- cipal for delivery to the obligee, and before doing so the principal procures a third person to attest the sureties' signature, who is not authorized to do so, such alteration is not an al- teration of the bond, that impairs or affects its value as an instrument of evidence in the hands of the obligee, because it was made before delivery. Hall V. Weaver, 34 Fed. 104. Signer Acknowledging Signature. In Blackwell i'. Lane, 4 E)ev. & B. L. (N. C.) 113, 32 Am. Dec. 675', the attesting witness, after the signature by the maker, asked the latter if he acknowledged the signature to be his, which he did; and it was held that >uch an alteration did not affect the paper. Attestation at Instance of Obligor. The addition of a subscribing wit- ness to a bond after its execution, made at the instance of one of the obligors, and whether the other obligor was present or not did not distinctly appear, but not made at the request of the obligors or with their knowledge, is not a material alter- ation. Fritz I'. Commissioner of Montgomery Co.. 17 Pa. St. i,?o. Attestation Prima Facie Evidence of Fraudulent Intent In Adams J'. Frye. 3 Met. 103. it was held that the procurement of such an attes- tation would be prima facie evidence of fraudulent intent : but that it might be rebutted by proof. To the same effect, see Willard c'. Clarke, 7 Met. 435. Striking Out Attestation. — In Church I'. Fowle, 142 Mass. 12. 6 N. E. 764, it is held that such an attestation is a material alteration, but that it does not make the note void, and that the alteration, being unauthorized and no part of the contract as understood or intended by either party, may lie stricken out. 65. Govenor z: Tagow. 43 111. 134. 66. Milberry v. Stover, 75 Me. 69. 67. England. — Davidson ?'. Coop- er, II M. & W. 78.1; affirmed 13 M. & W. 353- United States. ^V. S. r. Lmn, i IIow. 104. Delazeare. — State Houst. 143. Maryland. — Morrison i'. Md. 169. .Massaelnisetts. — Warring Hams, 8 Pick. 326. Michigan. — Rauson '■. Davidson, 49 Mich. 607. Missouri. — Fred Heim Brew. Co. f. Hazen, 55 Mo. App. 277. Nezc York. — Farmers' Loan & T. Co. J'. Sufke, 144 N. Y. 354. 39 N. E. 3,^8. Smith, 9 Welty, 18 Wil- Vol. I AL'niRATlOX Of IXSTRUMBXTS. r'ji seal."' g. Matters in Respect of Nature and Terms of Instrument. (1.) In General. — Any alteration which in some manner changes some material terms or conditions as expressed in the instrument, is a material alteration. ''•' Ohio. — Fullerlon ■;■. Sliirgcs. 4 Oliio St. 530. Pomsylvania. — Bierg v. Haines, 5 Whart. 56,3. Soutli Carolina. — \'auglian v. Fowler, 14 S. C. 355. Texas. — Muckelro}- v. Bethany. 23 Tex. 163. I'crmont. — Barnett v. AlAott. 53 \'t. \20. 68. ISiiglaiid. — Matliewson i'. Lydiate, 5 Coke 44. North Carolina. — Evans v. Wil- liamson, 79 N. C. 86. Pennsylvania. — Rittenhouse t'. Levening. 6 Watts. & S. 190. Soiitli Carolina. — Porter z\ Doley, 2 Rich. Eq. 49. Tennessee. — Organ T'. .\lHson, 9 Ra.Nt. 459. I'ennont. — Dcwev ;■. Bradberg, i Tyler 186. II' est I'irginia. — Picrcy •;•. Picrcy, 5 W. Va. 199. Compare Keen i\ Monroe, 75 \'a. 4-'4. " . Several Obligation. — In Collins ;■. Presser. i Barn. & C. 682, 8 Eng. C. L. 183, debt on a bond, whereby Sir N. C. G. S. W., and J. W. acknowledged themselves held and bonnd to the plaintiffs in " £1000 each for which they bonnd themselves, and each of them for himself for the whole and entire sum of iiooo each," subject to a condition that G. B. Al. should render a true ac- count of all moneys received by him as treasurer for the county of Middle- ,se.x. Held, that this was a several bond only, and that the removal, by the obligees, of the seal of one ob- ligor, did not constitute a material alteration. 69. lingland. — Powell z\ Divett, 15 East 29; Mollett z'. Wackenbarth, 5 M. G. & S. 181, V Eng. C. I,. 181. Alabama. — Payne ?'. Long, 121 Ala. 385, 25 So. 780. ///moi.s. — Kelly z'. Trumble, 74 111. 428. Indiana. — Wier Plow Co. z'. Walmsley, no Ind. 242, 11 N. E. 232. Massachnsetts. — Osgood <■. Stev- enson. 143 Mass. 399, 9 N. E. 825. Miehigan. — Osborne Z'. Van Hou- ton, 45 Mich. 444. 8 N. W. 77. Minnesota. — Flanigan Z'. Phelps, 42 Minn. 186. 43 N. W. 1113. Pennsylvania. — Bengevin z'. Bishop, Qi Pa. St. 336; Mclntyre v. Velte, 153 Pa. St. 350, 25 Atl. 739. Tennessee. — McDaniel z\ Whitsett, 96 Tenn. lO, 33 S. W. 567. Utah. — American Pub. Co. v. Fisher, 10 Utah 147, 37 Pac. 259. W'iseonsin. — Schwalm v. Mcln- tyre, 17 Wis. 2^2. Striking Out the Words " the Collection of " in the Phrase " I Guarantee the Collection of the Within Note," is a material alter- ation ; the result of such act is to make the guarantee an absolute one. Newlan v. Harrington, 24 111. 206. Striking Out the Clause " I Do Not. However. Guarantee Its pay- ment " in an Assignment of a Debt, is not a material alteration where there is not in the assignment itself any guaranty of the payment of the debt. Prudden v. Nestor, 103 Mich. 540, 61 N. W. 777. The Addition by the Payee of a Promissory Note of the Words " Without Defalcation or Setoff," without the knowledge or consent of the maker, is a material alteration of the note. Davis v. Carlisle, 6 Ala. 707. Writing a Waiver of Exemptions over the name of the indorser of a note, is a material alteration, as against the indorser. Jordon v. Long, 109 Ala. 414, 19 So. 843. Waiver of Benefit of Statute. The alteration of a mortgage by adding a clause waiving the benefit of a specific statute which, in fact, had been repealed prior to the ex- ecution of the mortgage, and hence had no validity whereby the mort- Vol. I 792 ALTERATIOX OP INSTRUMENTS. Attorneys' Fees. — An alteration of a note by the holder, after its execiiticjn, witliout the knowledge or consent of the maker, whereby the provision for attorneys" fees in case suit is brought on the note is made an absolute agreement by striking out the clause as to suit being brought, is material."" Compliance With Condition. — An indorsement on a note after its delivery, by the maker thereof, but without the consent of a surety, the payment of which is conditioned on the performance by the payee of a written agreement of even date therewith, that the payee has complied with the condition, is not a material alteration. '"^ (2.) Waiver of Demand and Notice. — It is a material alteration of a note to change the liability of an indorsee from a conditional to an absolute engagement." (3.) Negotiability. — An alteration of a written instrument, whereby the instrument is changed from a non-negotiable to a nego- gage could be afifected, is .in imma- terial alteration, wliicli, in no man- ner, prejudices the mortgagor. Rob- ertson I'. Hay, gi Pa. St. 242. Clause Charging Married Woman's Estate. — In Taddiken v. Cantrell, 69 N. Y. 597, it was held that where a married woman e.xecutes a prom- issory note in tlie ordinary form, and perfect in its terms, the fact, that in order to make it bind- ing upon her, the addition of other terms not suggested by the paper itself is required, i. e., an ex- pression of an intent to charge her separate estate, does not justify the payee in making such an addition after delivery of the note, and with- out her knowledge and consent ; and if so trade it is a material alter- ation. Reeves zk Pierson, 23 Hun 185. But since the enactment of laws N. Y. 1884, c. 381, making the sep- arate estate of a married woman liable for her contracts, and pro- viding that in no case shall a charge on her separate estate be necessary, it is not a material alteration to write above a married woman's in- dorsement on a note that she charged her estate with its payment. Clapp V. Collins, (City Court of N. Y.), 7 N. Y. Supp. 98, wherein the court said : " At the time Taddiken v. Can- trell, 69 N. Y. 597, was decided, the alteration charged would have been regarded as innnatcrial. It did not enlarge the indnrser's liability, nor Vol. I change her relation to the paper. It proved nothing against her that the very nature of the obligation did not imply without the addition. It was surplusage ; nothing more." 70. Tate V. Fletcher, 77 Ind. 102. 71. Jackson 1'. Bowles, 64 Iowa 428, 20 N. W. 746. " We are of opinion," said the court, " that the district court correctly held that the indorsement in question did not have the effect to in any manner change the terms or conditions of the note. The note, by its terms, became due on the performance of a specified agreement by the payee. The in- dorsement does not undertake to change the condition, or to release the payee from its performance. It is simply a written admission that they have performed it. The fact that it is indorsed on the paper on which the note is written is not ma- terial, for it is apparent from its terms that there was no intention to change any condition of the note, and it has no dififerent effect from what it would have had if it had been embodied in a letter or other writing signed by Bowles. It is sitTiply prima facie evidence that the condition precedent to the maturing of the note has happened." 72. As by writing over tlie sig- nature of the indorsee a waiver of demand and notice. Buck v. Apple- ton, 14 Me. 284; Andrews v. Simms, T,T, Ark. 771 ; Davis v. Hppler, 38 Kan. 629, 16 Pac. 793. ALTERATIOX OP INSTRUMENTS. 793 tiable instrument is a material alteration.'-' And inserting; the words " or order " after the name of the iia\ee, without the knowled,Q;e or consent of the maker, is a material alteration.'* So also is an alteration of a note payable to order, whereby it is made payable to bearer.'^ And it has been held that inserting- the words " or bearer " after the name of the payee, after the execution and delivery of the instrument, is a material alteration.'" h. Matters in Respect of the Parties. — (1.) Alterations Affecting the Number of Parties. — (A.) In General. — An alteration of an exe- cuted written instrument subsequent to its execution, and done with- out authority, the effect of which is to change the number of the 73. Canada. — Campbell v. Mc- Kinnon, i8 U. C. Q. B. 612; Swais- land f. Davidson, 3 Ont. 320. Dclau'arc. — Hollis v. Vandergrift, 5 Houst. 521. Indiana. — Cochran v. Nebeker, 48 Ind. 459. /oica. — State ''. Shatton, 27 Iowa 420. .Missouri. — Mechanics' Bank v. Valley Pack. Co., 70 Mo. 643; affirm- ing 4 Mo. App. 200. Nebraska. — Walton Plow Co. v. Campbell, 35 Neb. 173, 52 N. W. 883. Ncv York. — Bruce v. Westcott, 3 Barb. 374- Nezv Hampshire. — Gerrish v. Ghr,es, 56 N. H. 9. North Do/cofa. — First Nat. Bank V. Laughlin, 4 N. D. 391, 61 N. W. 473- West Virginia. — Morehead v. Parkersburg Nat. Bank, 5 W. Va. 74. 13 Am. Rep. 636. So also is an alteration which changes paper not commercial to commercial paper. Toomen v. Rut- land, 57 Ala. 379 ; Muter v. Pool, 100 Ala. 503, 14 So. 411; Gillespie v. Kelly, 41 Ind. 158; McCoy v. Lock- wood, 71 Ind. 319. And see infra this title, " Matters in Respect of THE Performance; the Place;" III-3-C-k. 74. Taylor v. Moore (Tex.), 20 S. W. 53 ; Bruce v. Westcott, 3 Barb. 374 ; Johnson v. Bank U. S., 41 Ky- (2 B. Mon.) 310; Pepoon v. Stagg, I Nott & McC. 103; McDaniel v. Whitsell (Tenn.), 33 S. W. 567; Hollis V. Vandergrift, 5' Houst. 521 ; Haines v. Dennett, 11 N. H. 180. 75. Booth V. Powers, 56 N. Y. 22 ; Needles v. Shaffer, 60 Iowa 65, 14 N. W. 129; Union Nat. Bank v. ' Roberts, 45 Wis. 373; Belknap v. Nat. Bank of N. A., 100 Mass. 276; Sheenan v. Rollberg, II Cal. 38; McDaniel v. Whitesell, 96 Tenn. 10, 33 S. W. 567. See also re Commer- cial Bank, 10 Manitoba 171, so hold- ing of such an alteration of a bank check. Compare Flint i'. Craig, 59 Barb. 319, where the note, payable "to the order of " a cerlaiu person was, after delivery, and without the knowledge or consent of the makers, altered by erasing the words " to the order of " and inserting the words " or bearer," which the court held not to be a material alteration. 76. Crosswell r. Labrec, 81 Me. 44, 16 Atl. 331 ; Simmons i'. Atkin- son & Lampton Co., 69 Miss. 862, 23 L. R. A. 599; Walton Plow Co. r. Campbell, 35 Neb. 173, 16 L. R. A. 468; McConley z: Gonlon, 64 Ga. 221. Compare Weaver z\ Bromley, 65 Mich. 212. 31 N. W. 839; Mc- Laughlin V. Vennie, 2 Wyo. i. Instrument Not Negotiable in First Instance — The alteration by interpolating the words " or bearer " in an instrument in form of a prom- issory note, but made expressly sub- ject to the conditions of a mortgage not payable absolutely, but only on certai.i contingencies, in no way in- validates or changes the legal effect of the instrument; such an in- strument is not negotiabl , and the use of the words in qu-stiuu would not make it so. Goodenow v. Curtis, 33 Mich. 505- Vol. I 794 ALTHRATIOX OP INSTRUMEXTS. parties to the writing-, is usually regarded as material."' (B.) Adding New Parties. — Additional Maker or Obligor. — Thus an alteration which consists of the addition of a new person as a principal maker or obligor, rendering all of the promisors appar- ently jointly and equally liable, not only to the holder, but also as between themselves, and so far tending to lessen the ultimate liability of the original maker, or makers, has been held to be a material alteration as to such previous non-consenting signers.'** But it has 77. Donkle v. Milem, ist-' Wis. 33, 59 N. W. 586. Substitution of Arbitrators It IS a material alteration of an arbi- tration agrceiiieiu vvlicn the effect of the alteration is to permit the substitution of arbitrators for those who fail to attend. Mackay v. Dodge. 5' Ala. 388. Several Deed of Husband Where a mortgage on a homestead was e.x- ccuted and delivered as a complete instrument by the husband alone, with the understanding that his wife was not to join in the execution thereof, but her signature and ac- knowledgment were afterward fraud- ulently obtained by the mortgagee, who thereupon altered the inortgage and acknowledgment so as to make it appear a mortgage by them jointly, thus giving it the force of a lien upon the homestead, as well as upon other lands covered by the mort- gage, it was held that the alteration was material. Cutler !■. Rose, 35 Iowa 456. Release of Wife's Dower hi Kendall f. Kendall 12 .\llen 92, it was held that the fraudulent ad- dition by the grantee of the mort- gage of the name of the grantor's wife releasing her dower and home- stead, was not a material alteration. Attaching' Duplicate Stock Sub- scriptions. — In Davis v. Campbell, 93 Iowa 524, 61 N. W. 1053, it ap- peared that after the defendant had signed the instrument sued on, which was a subscription to a fund raised for the purpose of erecting a cream- ery, the names of the signers of a duplicate subscription had been de- tached from the duplicate and at- taclycd to the instrument sued on; and it was held, that this was not an alteration of the contract sued Vol. I on, inasmuch as it, in no way, changed its language or meaning. 78. England. — Gardner v. Walsh, 5 Ellis & B. 83. 85 Eng. C. L. 83. Canada. — Carrigue v. Beaty, 24 Ont. App. 302. United States. — Bingham z: Reddy, 5 Ben. 266, 3 Fed. Cas. No. 1414. Alabama. — Brown v. Johnson (Ala.), 28 So. 579. Colorado. — Hochmark 7'. Richler, 16 Colo. 263, 26 Pac. 818. • Illinois. — Soaps v. Eichberg, 42 111. App. 375- Indiana. — Bowers i\ Biggs, 20 Ind. 139; Henry v. Coats, 17 Ind. 161 ; Harper 7'. State, e.v rel. Knox Co., 7 Blackf. 61. /otca. — Browning ■;■. Gosnell, 91 Iowa 448, S9 N. W. 340; Sullivan T'. Rudesill, 63 Iowa 158, 18 N. W. 856, citing Hamilton v. Hooper, 46 Iowa 515; Dikeman v. Miller, 43 Iowa 508; Hall ■:■. McHenry, 19 Iowa 521. Kentucky. — PuUiam v. Withers, 8 Dana 98; Bank of Limestone -■. Penick, 5 T. B. Mon, 32; Singleton 7'. McQuerey, 85 Ky. 41, 2 S. W. 652; Shipp V. Sugge'tt, 9 B. Mon. 5. Missouri. — Lunt r. Silver, 5 Mo. App. 186. A^ctt' York. — McVeaii r. Scott, 46 Barb. 379. 0/1/0. — Wallace -'. Jewell, 21 Ohio St. 163. Texas. — Ford z: First Nat. Bank (Tex. Civ. App.), 34 S. W, 684; Harper r. Stroud, 41 Tex. 367. The Reason For This Rule is said to be because it changes the number of parties and their relative rights; it changes the rate of contribution, and it changes the character and description of the instrument. Ford r. First Nat. Bank (Tex. Civ. App.). 34 S. W. 684. ALTERATION Of INSTRUMEXTS. 795 l)L'cn hold otherwise (if the aiUlition of another ]iersoii as maker to a se\-eral note.''' Sureties. — It has heen held that the sit^ninj;- of an instrument hy one as surety, after its execution h\' the original maker, without his knowledge and consent, is not a material alteration as to such non-consenting maker,*" although there are cases to the contrary .*- But it has been held that the signing by one as additional suret\', after the execution of the original instrument, and without the knowledge or consent of previous sureties, is a material alteration as to the previous signing sureties f-' although the apparent weight of authoritv is otherwise.*^ Slight Evidence of Assent Two persons having given a note, in the body of which they were named as promisors, the addition afterward of a third signatnre, with a cor- responding change in tlie Ijody, with- out the consent of the original sign- ers, was held to vitiate the note as to them. But where without any change in the form of the note, an additional promisor signed it, a jury may find it to be still the act and deed of the first signer, upon very slight evidence of even a subsequent assent on his part, and the verdict will be sustained. Pulliam v. With- ers 8 Dana ( Kv. ) 98. The Signature of the Wife of the Principal Maker of a note after its execution and without the knowledge or consent of the surety, is not a material alteration of the note. Wil- liams V. Jensen, 75 Mo. 681. " Such a signature," said the court, " im- posed upon her no legal liability whatever, being in contemplation of law a nullity, and the responsibility of the parties to the note was in no way increased or diminished or other- wise changed by the addition of her name thereto." 19- Brownell v. Winnie. 29 N. Y. 40a. 80. United States. — Mersnian v. Werges, 112 U. S. 139. Alabama. — Montgomery R. Co. ■;'. Hurst, 9 Ala. 513. Illinois. — Ives v. McHard, 2 III. A pp. 176. Massachusetts. — Stone t'. White, 8 Gray (Mass.) 589. Michigan. — Miller v. Finley, 26 Mich. 249, 12 A. R. 306; Union liank- ing Co. zi. Martin, 113 Mich. 52I, 71 N. W. 807; Gano v. Heath, 36 Mich. 441. Nebraska. — Barnes z\ Van Keu- ren, 31 Neb. 165, 47 N. W. 648; Royse v. State Nat. Bank, 50 Neb. 16, 69 N. W. 301. AVtt' y'ork. — McCaughey v. Smith, 27 N. Y. 39. Application of Rule — The sign- ing by a third party as surety of a note payable on demand some months after its execution by the original promisor and delivered to the payee and for a new consideration, is a new and independent contract not requiring the consent of the original promisor, and it does not constitute an alteration of the contract of the original parties. Stone v. White, 8 Gray 589. The court said : " It did not in any way change or affect their rights. It was a new and indepen- dent contract, made on a sutificient consideration with a third party, to which their assent was unnecessary. The validity of such contracts hav-e been often recognized in this com- monwealth. Tenney r. Prince, 4 Pick. 385 ; Bryany v. Eastman, 7 Cush. III. See also Catton v. Simp- son, 8 Ad. & El. 136, and 3 Nev. & P. 248; Hughes V. Littlefield, 18 Me. 400 ; Powers v. Nash, 37 Me. 3,22." 82. Wersnian v. Werges, 112 U. S. 139; Berryman v. Manker, 56 Iowa' 150, 9 N. W. 103; Houck v. Graham, 106 Ind. 195, 6 in. E. 594. 55 L. R. A. 727 ; Sullivan v. Rudersill, 63 Iowa 158, 18 N. W. 856. 83. Taylor r. Johnson, 17 Ga. 521. 84. Sullivan z: Rudisell, 63 Iowa 158, 18 N. W. 856; Bowser i-. Ren- dell, 31 Ind. 128; Palmer z: Poor, Vol. I 7y6 ALTERATION OF INSTRUMENTS. (C.) Striking Out Parties. — Again striking- out, by erasure or otherwise, the name of one or more of several obHgors to a written instrument, without the knowledge or consent of the remaining obligors, is a material alteration as to such oblisrors."^ 121 Ind. 135, 22 N. E. 984; Hoiick v. Graham, 106 Ind. 195, 6 N. E. 594. See also Anderson v. Bellinger, 87 Ala. 334, 4 L. R. A. 680, 6 So. 82, 13 Am. St. Rep. 46. 85. England — Nicholson v. Revell, 4 Advl. & E. 675, 31 Eng. C. L. 300. United States. — Smith r. U. S., 2 Wall. ; Martin v. Thomas, 24 How. 315; Mersman v. Werges. 112 U. S. 139. Arkansas,— Sl3.i<: z: Churchill, 48 Ark. 426, 3 S. W. 352. Delaware. — Herdman v. Bratten, 2 Harr. 396. Illinois. — Gillett v. Sweat, 6 III. 475- Indiana. — State e.v rel. Griswold v. Blair, 32 Ind. 313 ; State z: Polkc, 7 Blackf. 27. loiva. — McCramer i'. Thompson, 21 Iowa 244; State v. Craig, 58 Iowa 238, 12 N. W. 301. Missouri. — Briggs v. Glenn, 7 Mo. 572 : State V. Findley, loi Mo. 217, 14 S. W. 185. Pennsylvania. — Barrington j'. Bank of Washington, 14 Serg. & R. 405. Te.ras. — Davis z: State, 5 Tex. App. 48 (citing numerous authori- ties) ; Collins z: State, 16 Te.x. App. 274. Vermont. — Dewey v. Bradhury, i Tyler 186. I'irginia. — Blanton z'. Com., 91 Va. I, 20 S. E. 884. Washington. — King Co. z'. Ferry, .S Wash, s'36, 19 h. R. A. 500, 34 Am. St. Rep. 886. The Reason is that such an alter- ation materially changes the con- tract of the remaining ohligors, be- cause it increases the amount which each of them may be held to con- tribute. Martin z'. Thomas, 24 How. 315; Smith V. U. S., 2 Wall. 219. The Deliberate Cancellation by the Holder of an Indorsement on a Note, discharges the liability of such indorscr to the holder, and so operating, it will also discharge from Vol. I liability to the holder, the subsequent indorser. Curry v. The Bank of Mobile, 8 Port. (Ala.) 360. Erasure of Indorsement by In- dorser After Payment When one who indorses a note before its de- livery, but who is not a party thereto on the face of the note, subsequently pays it and sues the maker, the erasure of his indorsement by a pen mark drawn through his sig- nature is not a material alteration as between the parlies to the suit. Tutt V. Thornton. 57 Tex. 35. Payee Erasing Signature as Surety and Indorsing. — In Lunch v. Hicks, 80 Ga. 200, 4 S. E. 255, the payee of the notes in suit, having at first signed them as security, and having failed in his attempt to negotiate them, erased his indorsement, and indorsed them to the plaintiff. It was held that this did not constitute a material alteration. In Blewett z: Bash, 22 Wash. 536, 61 Pac. 770, a suit to foreclose a mortgage which the plaintiff had paid off, as guarantor, it was held that the plaintiff was not released from his obligation as guarantor, by the fact that the name of one of the joint obligors was erased, because such an erasure is not material unless done without their consent or ac- quiescence. The Erasure of the Name of One of the Original Subscribers to the Capital Stock of a Corporation, before the articles were filed, does not alter the subscription paper, in an action by the corporation against the remaining subscribers, where it is fairly inferrible from all the circum- stances that such erasure was made with the knowledge of the defend- ants and of the corporation and at the request of the person whose name was erased and without any fraudulent intent. Rensselaer & Washington Plank Road Co, v. Wetzcll, 21 Barb. 56. ALTERATION OF INSTRUMENTS. T')7 Erasing a Forged Signature before the delivery of the instrument to the obligee, who knew nothing of stich forged signature or of its subsequent erasure, is not a material alteration.*" (D.) Ixsi-RTiNG Name of Sirner in Body of Instrument. — It is not a material alteration of a written instrument for the holder thereof to insert the name of the signer or maker in the body of the instru- ment, although after delivery and without his knowledge or con- sent.^' (2.) Alterations Affecting the Personality of Parties — (A.) In GenER.\l. Again, anv alteration of a written instrument, without the knowl- edge or consent of all the parties thereto, which operates to change the personality of one or more of the parties, is a material altera- tion as to the non-consenting parties.** Erasure of Signature to Several Obligation — In Whittlesley v. Frantz, 74 X. V. 456, an action on a sub- scription contract to the capital stock of a corporation, the subscription paper, when offered in evidence, showed the cancellation of one of the subscribers, a memorandum ap- pearing opposite his name, " by agreement," dated a date subsequent to the time of the defendant's sub- scription ; there being no explanation of the cancellation outside the paper itself. The court held the alteration to be immaterial. 86. York Co. 'SI. F. Ins. Co. v. Brooks, 51 JMe. 506. 87. Reed v. Kemp, 16 111. 445; State ex rel. McCarthy v. Pepper, 31 Ind. 76; Fouriner z: Cyr, 64 Me. 32: Smith V. Crooker, 5 .Mass. 538. 88. Canada. — Henderson ■;■. Ver- milyea, 27 U. C. Q. B. 544. United States. — Steele i'. Spencer, I Pet. 552. Alabama. — Montgomery z\ Cross- thwait, 90 Ala. 553, 8 So. 498, 12 L. R. A. 140; Hollis z: Harris, 96 Ala. 288, II So. 377. Illinois. — Vincent Z'. People, 25 III. 412. Indiana. — State c.v rel. La Porte Co. ''. \'an Pelt, i Ind. 304. Maine. — Sheridon v. Carpenter, 61 Me. 83 ; Goodwin v. Norton, 92 Me. 532, 43 Atl. hi; Chadwick v. Eastman, 53 Me. 12. Massachusetts. — Wilde v. Armsby, 6 Cush. 314. Micliigan. — Aldrich v. Smith, 37 Mich. 468, 26 Am. Rep. 536. Missouri. — First Nat. Bank z'. Fricke. 75 Mo. 178. 42 Am. Dec. 397; Haskell z: Champion, 30 Mo. 136; State V. jMcGonigle, loi Mo. 353, 13 S. W. 758. 8 L. R. A. 735, 20 Am. St. Rep. 609. Nezu Jersey. — York Z'. Janes, 43 N. J. Law 332. Oregon. — Simpkins z: Windsor, 21 Or. 382, 28 Pac. 72. Pennsylvania. — Smith v. Weld, 2 Pa. St. 54. il'ashington. — Fairhavcn z'. Cow- gill, 8 Wash. 686, 36 Pac. 1093, 32 Pac. 538, 19 L. R. .^. 500, 34 Am. St. Rep. 880 : King County f. Ferry, 5 Wash. 538. wherein the rule was rec- ognized, but held not to be applicable because the erasure was not of the signature of the surety, but his name on the body of the bond was erased and another substituted, the bond be- ing regular on its face and the ob- ligee having no notice of the change. A Bail Bond is materially altered by the erasure of the name of one of the sureties and substitution of another in his stead, without the knowledge and consent of the other sureties. Kiser z\ State, 13 Tex. App. 201. Words Descriptive of Person. In Hayes z'. Mathews, 63 Ind. 412, 30 Am. Rep. 226, the note in suit read " We promise to pay," but was signed with the individual names of the makers, followed, however, with the words " trustees " etc. of the defendant's church ; and it was held that the erasure of the words " trustees " etc. was an immaterial alteration, inasmuch as the note pur- ported to be the individual note of Vol. I 798 ALTERATIOX Of IXSTRUMEXTS. (B.) Substituting Pavek, Obucek. Etc. — Any alteration in a writ- ten instrument, by erasure and substitution, or otberwise. tbe effect of which is to change the payee or obHgee therein, after its delivery, by the party interested in the instrument, is a material alteration/^" tlie makers, the additional words constituting merely a description of their persons without in any way affecting the legal character of the note itself. See also Hayes v. Brupaker, 6s Ind. 27; Burlingame v. Brewster. 79 111. 515. 22 .-Vm. Rep. 177- Individual Signature Changed to Signature as Agent A change in the form of the execution of a deed, whereby the signature of the grantor instead of being in his individual capacity, becomes the signature of a third person under and by virtue of the power of attorney to him is a material alteration; and if made by the grantee or by some third person with his consent or by or with the consent of one claiming title under him. and without the prior or subsequent knowledge and consent of the grantor, constitutes a material alteration of the deed in so far as concerns any action on its covenants by a party to the alteration. North I'. Henneberry. 44 Wis. 306. The Middle Initial of a Man's Name is generally regarded as im- material ; and its erasure is not of itself sufficient to cast suspicion upon the instrument; especially if the gen- uineness of the instrument in other respects is fully established. Banks z>. Lee, 7$ Ga. 25. 89. United States. — Sneed v. Sabinal M. & M. Co., 7.3 Fed. 925, affirming 71 Fed. 49,3, 18 C. C. A. 213- loica. — Bell ■:■. ^Nlahin, 69 Iowa 408. 29 N. W. 331. Kansas. — • Horn T'. Newton City Bank, 32 Kan. 518. 6 Pac. 1022, citing Bank v. Hall, i Halst. (N. J.) 215; Draper v. Wood, 112 Mass. 315, 17 Am. Rep. 92. Maine. — Dolbier i'. Norton, 17 Me. 307. Massachusetts. — Stoddard r'. Pen- niman, 108 Mass. 360, 11 .\m. Rep. Missouri. — German I'aiik r'. Dunn, 62 Mo. 79 : Rol)inson v. Berryman, 22 Mo. App. 509. Nebraska. — Erickson z: First Xat. Bank, 44 Neb. 622, 62 N. W. 1078, 28 L. R. A. 577, 48 Am. St. Rep. 753, citing Patch t'. Washburn, 16 Gray 82. Ohio. — Davis T'. Bauer, 41 Ohio St. ^25-7. Vermont. — Broughton ?■. Fuller. 9 Vt. 373. Application of Doctrine. — In German Hank v. Dunn, 62 Mo. 79. after a note was completed, in the absence and without the authority or knowledge of the maker, the name of the payee was by the holder erased, and his own name sub- stituted. It appeared that the note was in fact made for the holder's benefit, and there was no evidence that the erasure was made with any sinister or fraudulent motive. It was urged that the alteration was not a material one, as it did not Ihwart the intention of the maker ; but the court, in accord with its previous decisions, enforced the rigid doc- trine that fraud should be prevented even in its incipient stages, by put- ting an absolute interdict on all un- authorized tamperings. thereby plac- ing the holders of paper under the strong bonds of pecuniary self in- terest to keep it entirely intact. Inserting Proper Obligee in Bond. In Turner v. Billagram, 2 Cal. 520, the bond in question was made pay- able to the acting sheriff instead of the party who was to be protected by its execution; this was the result of mistake alone, and when dis- covered the name of the officer was erased and that of the proper obligee inserted. It was held that this did not affect the bond. Sec also Hale V. Russ, I Me. 334. In Elliott v.. Blair, 47 111. 342, a holder of a note in suit added to the name of the payee the words " & Company;" and it was held that this alteration was immaterial. In Granite K. Co. v. Bacon, 15 Vol. I AI.rERATIOX Of IXSTRUMEXTS. IV) Adding the Word " Cashier " after the name of the pa\ce of an exe- cuted note, with the consent of the maker, but not of the suret\-. is a material aheration."" Erasing the Name of a Special Indorsee of a promi.ssor\' note and substitutini; the name of another, without the knowledge or consent of the indorsee, is a material alteration as against the latter."' (C.) Correction of N.\me. — But an alteration is not material where it is in fact but a mere correction in the name of one of the parties. "- (D.) Description oi- Person. — Xor is an alteration material where the change consists of the addition of a mere description of the person."^ Pick. 239, I'y die note in suit the defendant promised to pay to the plaintiff the amount sued for. The note was indorsed hy a third person and delivered to the plaintiff's treas- urer, who, without the knowledge or consent of defendant. interlined above the plaintiff's name, the name of the indorser. but did not erase the name of the plaintiff, as payee. It was held that the most that could be inferred was that it was a pro- posal to insert the name of another payee never acceded to, and there- fore, did not constitute an alteration ; as mere senseless words written on an instrument complete in itself do not affect the terms, the effect, or the identity of the contract, and so are immaterial. 90. Hodge c'. Farmers Bank. 7 Ind. .App. 94, J4 N. E. 132. 91. Grimes v. Piersol. 25 Iml. 246, affirmed ,^0 Ind. I2g. 92. State v. Dean, 40 Mo. 464; Davis V. Rankin Bldg. & Mfg. Co. V. Di.x, 64 Fed. 406; Latshaw v. Hihe- beil, 3 Penny. (Pa.) 257; Pardee v. Findley. 31 111. 174, 83 Am. Dec. 219; Onttonn r. Dulin, 72 Md. 536, 20 Ki\. 134: First Nat. Bank r." Wolff, 79 Cal. 69. 21 Pac. 551. Alteration Correctly Describing Payee An alteration in the name of the payee of a note, the only effect of which is to correctly describe the party to whom tbe promise was in fact understandingly made, is not material. Derby v. Thrall, 44 Vt. 413, 8 .^m. Rep. 389. Scratching Out the Dot Over the Letter " I " hi the name of the grantee in a patent is not sufficient to exclude the patent as evidence, where it does not appear that the change is material or that it was made after the patentee came into possession of the patent. Morgan V. Curtenins, 4 McLean 366, 17 Fed. Cas. No. 9799. Adding Christian Names. — In Blair z\ Bank of Tcnn.. 11 Humph- reys 84, the bill in suit was drawn by two persons as co-partners, who were not, in fact, such, and the al- teration consisted of the individual signatures of the drawers under the joint name made after acceptance: and it was held, that this did not constitute a material alteration of the bill. It was, ill effect, said the court, "but adding the christian names of the drawers, whose surnames Iiad been affixed to the bill, before ac- ceptance, and were so affixed by the mutual assent of the drawers. The omission of the christian names of tbe drawers, was one which the law supplied, and which did not affect their liability to the acceptor or other parties." ■Where the Surname of the Payee ■Was Interlined subsequently to the delivery of a promissory note, but it was proved that the note was orig- inally given to the payee whose name was inserted, it was held that the alteration was not material. Mouchet V. Cason & Hill, i Brev. ( S. C.) 307- 93. Casto v. Evinger. 17 Ind. .\pp. 298. 46 N. E. 648. The Addition of the Word " Junior " to a Man's Name is adopted as a convenient term of designation, but is not a part of the Vol. I 800 ALTERATION OP IXSTRUMEXTS. (3.) Alterations Affecting the Relations of Parties. — Again, any alteration, the effect of which is to change the relations of the par- ties, is material :'■''' as for example, when a person who has signed as surety, becomes a principal maker in consequence of the altera- tion ^■'^ or when a guarantor becomes a surety.''" i. Matters in Respect of the Consideration. — It has Ix-en held that any alteration of a written instrument, the effect of which is to change the consideration as therein recited, is material.''' So also, name ; and hence will not constitute a material alteration. Coit z: Stark- weather, 8 Conn. 289. Contra. — Broughton z\ Fuller, 9 Vt. 373, wherein it is held that this is a material alteration. Description of Person In Sharpe z\ Bellis, 61 Pa. St. 69, 100 Am. Dec. 618, it appeared that the note in suit had been drawn in blank and indorsed by the defendant as president, he refusing to indorse in- dividualh'. The note was afterwards filled up with the defendant's name as payee, and the " pres't " erased. It was then handed to the plaintiff, who had no knowledge of the erasure, but did know of the de- fendant's connection with the com- pany, for whose debt the note was given, and was received by the plain- tiff. The court said : " There can be no difference in principle between simply adding the word 'agent' when no principal is disclosed, and the word ' pres't ' when no corpo- ration or company is disclosed. On this note so indorsed, without ex- trinsic proof of knowledge on part of the plaintiffs, this indorsement, we think, would have imported a legal, personal obligation, and in this as- pect the erasure of the affi.x would be an immaterial alteration. If, how- ever, the plaintiff's did know the official relation of the defendant to the company, the erasure was ma- terial. It changed the nature of the defendant's obligation from an offi- cial representative act to a personal undertaking. It was then not ad- missible in evidence, provided that fact sufficiently appeared before its offer." 94. Changing Relation of Par- ties The bolder of a note with a blank indorsement by the payee has no legal right to change the obliga- Vol. I tion of the indorsee by writing a contract of guaranty over the name of the payee, " without the knowledge or consent of the payee." Belden v. Hann, 61 Iowa 42, 15 N. W. 591 ; Needhams r. Page, 3 B. Mon. (Ky.) 465. 95. Laub -■. Paine, 46 Iowa 550. In Humphreys v. Crane, 5 Cal. 173, a memorandum had been made upon a note in suit to the effect that cer- tain parties who had signed it were sureties. This memorandum the holder tore off. It was held that the alteration was not material. The court said ; " The defendants were liable to the plaintiff, whether they signed as principals or sureties, and it is well settled that an alteration which does not vary the ineaning, the nature or the subject matter of a contract, is iminaterial." 96. Robinson f. Reed, 46 Iowa 219. 97. £;(g/o»(f — Knill v. Williams, 10 East 431. Alabama. — Carlisle v. People's Bank, 122 Ala. 446, 26 So. 115. Illinois. — Benjamin v. McConnel, 9 111. 536, 46 Am. Dec. 474. Kansas. — Johnson v. Moore, 33 Kan. 90, 5 Pac. 406. Minnesota. — Russell v. Reed, 36 Minn. 376, 31 N. W. 452. A Change in i.ie Recited Con- sideration of a Mortgage is imma- terial when no change whatsoever is inade in the description of the debt to be secured therein. Cheek v. Nail, 112 N. C. 370, 17 S. E. 80. In Magers v. Dunlap, 39 III. App. 618, the note offered in evidence contained the clause " for labor," which the evidence showed had been added after the execution of the note. The evidence also showed that the real consideration of the note was the professional services of the ILTER.rnoX or IXSTRC-.]fEXTS. 801 it is a material alteration of an instrument to insert a recital of a consideration where the instrument as executed recited no con- sideration."*' I'.ut not so of an alteration in the account of a mere recital in a deed or contract of a consideration, whose sole purpose is to show that there was a valuahle consideration paid or to be paid;"'' nor where the alteration makes the instrument express the real consideration paid.' j. Matters in Respect of the l^raiiiise. — (1.) In General. — Any alteration, whereby the promise is caused to read differently from the promise as expressed, is material. - (2.) Description of Property. — Any alteration in a writins;' trans- ferring- property, whereb\- the description of the property transferred is so changed as to in fact cause the writing to transfer property other than as originall}' expressed, is material." except where the plaintiff as a physician. It wa.s held that no riglil of the defendant was or could he afifected by the words inserted, and hence the alteration was immaterial. Additional Words to Explain Con- sideration — In Gardiner -e. Ilar- hack, 21 III. 129, the alteration con- sisted of the addition of the words " $10 dollars and fifty interest," fol- lowing the clause " valne received." The court in holding this to be an immaterial alteration said : " Had they been inserted before the note was signed and made a part of it, we are not able to perceive that they would have added any further lia- bility than what the language al- ready used had imposed. Occupying the position they did, at the con- clusion of the note, they would rather seem to explain the preceding lan- guage used, than to import a new obligation." 98. Low X'. Argrove, 30 Ga. 129. 99. Reed v. Kemp, 16 111. 445'. Consideration Immaterial. — .\n interlineation in an instrument re- citing a consideration therefor, which is subsequently striken out. will he regarded as immaterial, where 't in fact makes no difference upon wliat consideration the instrument was made. Westmorland i'. Westmor- land, 91 Ga. 233, 17 S. E. 1033. !• Murray v. Klinzing, 64 Conn. 78, 29 Atl. 244, wherein the alter- ation consisted of inserting in the blank of the clause " for the con- sideration of dollars," the amount. 51 Filling Blanks. — In Vose v. Dolan, 108 Mass. 155. 11 Am. Rep. 331, the plaintiff, in consideration of dollars, sold to the de- fendant, certain property, the quan- tity being unknown. Subsequent to the writing the parties agreed that tlu quantity should be ascertained! by a third person and the blanks fuled up, which was done. It was held that this was an immaterial r.lteration, in no way changing the terms of the writing or enlarging the defendant's liability under it. 2. Thus, in American Pub. Co. z'. Fisher, 10 Utah 147, 37 Pac. 259, the plaintiff signed a written offer to manufacture goods for the defend- ant, and the defendant signed his name below that of the plaintiff. Subsequently the plaintiff interlined above the defendant's signature the words, " all terms and conditions included in above approved, read and agreed." It was held that the alteration was material. Inserting After the Word Mer- chantable the Word " Young," in the clause "merchantable neat stock," is a material alteration. Martindale f. FolleU, I N. H. 95. Adding Other Property It is a material alteration for a vendee in a bill of sale to add other property to be transferred thereimdcr, after its execution and without the knowl- edge or consent of the vendor. Babb 7'. Clemson, 10 Serg. & R. (Pa.) 419, 13 Am. Dec. 684. 3. Pereau ■;•. Frederick, 17 Neb. Vol. I 802 ALTERATION OF IXSTKUM HX'TS. sole purpose of the alteration is to cure an im])ertect description ,* to more particularly describe the location of the premises;'' or to particularize a more general description." (3.) The Amount. — Any unauthorized change by one of the i)ar- ties to a writing of the amount intended to be evidenced by the writing whereby it becomes nominally a promise to pay either a greater or less sum than that originally expressed is a material alteration.' 117, 22 N. W. 235; Montag i'. Linn, 23 111. .S5I- It is a material alteration of a promissory note which recites on its face that it is given for the purchase price of the buildings on lot i, to erase the word " on " and insert the word " and " so as to make the note read that it is given for the purchase price of the buildings and lot I. Richardson v. Fellner, g Okla. 513, 60 Pac. 270. Adding Quantity. — In Shelton r. Deering, 10 B. Mon. 405, the deed was originally drawn and acknowl- edged, describing the land con- veyed by metes and bounds, without naming any quantity; but before it was acknowledged by the husband, he inserted the words, " containing by a survey two hundred acres " as part of the description, and also in the covenant of warrantry which purported to be joined the words " and that the same shall contain two hundred acres." It was held that the alteration was immaterial, inasmuch as it did not change the legal effect of the deed in respect to the wife. Description Sufficient to Include Additional Property. — .\n inter- lineation in the description of land conveyed by the deed in question, indicating a purpose to include other property in the property trans- ferred, is immaterial, where the de- scription of the land is sufficient of itself to include such oilier property. Brown 1: Pinkham, 18 Pick. 172. Adding the Words, " More or less " to the Quantity of Land contracted to be conveye. Dolan, 108 Mass. 155, 11 Am. Rep. 331, the quantity of goods sold and intended to be transferred by the writing in question was left blank, and subsequent to the execution of the writing, tlie parties agreed that a third person should ascertain and fill in the blank, which was done ; and it was held that this did not constitute a material alteration. See also State f. Dean, 40 Mo. 464; Rowley r. Jcwett, ^6 Iowa 4Q2, 9 N. W. 335- 5. Location of Premises. — In Gordon v. Sizer, 39 Miss. S05. the court said : " The omission of the interlined words would only render the description of the premises in that part of the deed obscure and uncertain, and the use of the same words in the subsequent part would show what was intended, and render the former description certain and clear. In either of these views the olijection was properly overruled." 6. Particularizing General De- scription. — In Churchill v. Beilstein, 9 Tex. Civ. App. 445; 29 S. W. 392. the contract in question provided for the erection of a dwelling for the defendants "on their lot on" (a designated street) ; and it was held that the insertion after the execution and acknowledgment of the contract of the description of the lot, by lot and block, was held not to be ma- terial. 7. England.- — Gardner v. Walsh. 5 Ellis & B. 83, 85 Hng. C. I,. 83. Alabama. — Green v. Sneed, loi Ala. 205, 13 So. 277, 46 \m. St. Rep. 119. . i /. TER. I TJOX OF /XSTR UMEX TS. 803 Attorneys' Fees. — The unauthorized hiserlion of a clause in an instrument wherehy the makers or obUgjors are rendered Hable for attorneys' fees, for whicli there was no Habihty under the instrument as first executed, is a material alteration.* (4.) The Interest (A.) Chance oi-' R.\te. — Any alteration of a written instrument, after its execution and without authority, the elifect of which is to chantje the rate of interest to be paid, either Arkansas. — Chism i'. Tooiner, 27 Ark. 108. California. — People 7'. Knceland, 31 Cal. 288. Connecticut. — ^ Aetna Nat. Bank V. VVinclie.'iter, 43 Conn. 391. Delaware. — Bank of Newark v. Crawford, 2 Housl. 282. Georgia. — Winkles r. Guenther, 98 Ga. 472, 25 S. E. 527: Wlieat v. Arnold, 36 Ga. 479. Idaho. — Mnlkey v. Long (Idaho), 47 Pac. 949. Illinois. — Sans v. People, 8 III. :i2y; Alerritt v. Boyder, 191 111. 136, 60 N. E. 907. Indiana. — Collier v. Waugli. 64 Ind. 456; Hout V. Oeler. 80 fnd. 83. Iowa. — Knoxville Nat. Rank v. Clark, 51 Iowa 264, i N. \V. 491, 33 Am. Rep. 129 ; Maguire v. Eich- nieier, 109 Iowa 301, 80 N. W. 395. Kentuclcy. — Woolfolk r. Bank of America, 10 Bnsh 504-513. Maine. — Dover i'. Robinson, 64 Me. 183; Hewins z'. Cargill, 67 Me. 554- Maryland. — Burrows v. Klunk, 70 Md. 451. 3 L. R. A. 576, 17 Atl. 378, 14 A. S. R. 371. Missouri. — State e.v rel. Jackson Co. V. Chick, 146 Mo. 645, 48 S. W. 829. Massachusetts. — Wade v. With- ington, I Allen 561 ; Greenfield Sav. Bank z'. Stowell, 123 Mass. iq6, 25 Am. Rep. 67; Doane v. Eldridge, 16 Gray 254; Cape Ann Nat. Bank z'. Burns, 129 Mass. 596. Nebraska. — State Sav. Bank '■. Shaffer, 9 Neb. I, i N. W. g8o, 31 Am. Rep. 394 ; Goodwin z\ Pluggc, 47 Neb. 284, 66 N. W. 407. Nezv Hamfi!id aitnually; and as a conse- (pience. if the interest should not be promptly paid as it fell due. then the interest so in arrear should bear interest." Conifiare Leonard v. Phillips, .39 Mich. 182, 33 Am. Rep. 370. wherein the court, in holding such an al- teration immaterial said : " The proper construction to be given the note as thus changed is as though it had been made to read ten per cent, per annum, and when so con- structed the alteration added nothing to the extent of the maker's liability nor did it change their liability m any way." 16. Dewey z: Reed, 40 Barb. 16; Fulmer z\ Seitz. 68 Pa. St. 237, 8 Am. Rep. 172; Boalt "■. Brown, 13 Ohio 364; Blakey t'. Johnson. 13 Bush (Ky.) 197; Neff z: Homer, 63 Pa. St. 327. 17. Wilson z'. Hayes, 40 Minn. 531. 42 N. W. 467. 4 L. R. -A., igo. 18. Ecbert z\ Louis. 84 Ind. 99; Humphreys z'. Guillow. 13 N. H. 385, Tol. I 806 JLTER.rnoX Of lA'STRUMENTS. ever, of an altcratiim wliicli changes a joint promise into a joint and several promise.''' (6.) Payment of Exchange. — Adding a clause to a note providing for the payment by the maker of the rate of exchange is a material alteration.-" k. Matters in Respect of the Perfonnancc. — (1.) The Time. Any unauthorized alteration by a party to the writing whereby the time of the act to be performed is accelerated or extended,-' such as payment of the debt evidenced by the writing, is material.-- So ,^8 Am. Dec. 499. Contra. — Eddy v. I'lOiid, ig Me. 461. Changing Several Indorsement to Joint Indorsement In .Murrison v. Smith, 13 Mo. 234, 53 Am. Dec. 145, it was held that the holder of note severally indorsed in blank by two or more persons, has no right to fill up one indorsement over the signa- tures, so as to make the assignment tn him the joint act of all those whose names are thus written upon it. 19. Miller v. Reed, 27 Pa. St. 244, 67 Am. Rep. 459 ; Kline v. Raymond, 70 Mo. 271 ; Laudaner v. Siou.x Falls Imp. Co., 10 S. D. 20:;, 72 N. W. 467. In Warring v. Williams, 8 Pick. 322, 79 Am. Dec. 752, where an agreement signed by three persons, was afterward altered by the con- sent of two of them, by adding seals to the names of the signers, and in- terlining the words " jointly and severally," and was afterward de- livered by those two, it was held that tlic alteration was not material. 20, Merrick v. Bowry, 4 Ohio St. fio. See also Hirschfield Z'. Smith, L. R. I C. P. 353. Expense of Transmitting Money to Place of Payment In Bullock V. Taylor, 39 Mich. 137, 33 Am. Rep. 356, it was held that a provision in a note for the payment of current exchange or express charges is nu- gatory and does not add to or vary the sureties' liability, since the prom- isor must be liable for the expense ' of transmitting the money to the place where the note is payable. 81. U. S. Glass Co. -e. West Vir- ginia Flint Bottle Co., 81 Fed. 993. 22. England. — Paton v. Winter, I Taunt. 420. Canada. — Westloh ;'. Ilrown, 43 V. C. Q. B. 402. Vol. I Alabama. — -Lesser v. Scholze, 93 Ala. 338, 9 So. 273. Indiana. — Stavner v. Joyce, 82 Ind. 35 ; Bell v. State Bank, 7 Blackf. 456. Iowa. — Eckert v. Pickel, ^9 Iowa 545. 13 N. W. 708. Kentuckv. — Lisle ■;■. Rogers, 18 B. Mon. 528." Maine. — Hervcy v. Ilervey, 15 Me. 357- Massacliusctts. — Wheelock v. Free- man, 13 Pick. 165, 23 Am. Dec. 674: Davis V. Jenney, i Aletc. 221. Minnesota. — Flanigan ?'. Phelps. 42 Minn. 186, 43 N. W. 11 13. Mississippi. — Henderson j'. Wil- son, 6 How. 65. Missouri. — King r. Hunt, 13 Mo. 97- AVie York. — Waring i'. Smyth, 2 Barb. Ch. 119, 47 Am. Dec. 299. Pennsylvania. — Hartley v. Corboy, 150 Pa. St. 23, 24 Atl. 295. Tennessee. — Crockett i'. Thomas- sou, 5 Sneed 342. Power of Attorney to Confess Judgment — In Hodge r. Oilman, 20 111. 437, it was held that inter- lining the words " before or " be- tween the words " time " and " after," in the clause, " at any time after the said note becomes due," in the power of attorney to confess judgment, was a material alter- ation. Inserting the 'Word " Months " in the clause " twenty-four after date " in a note is not a material alteration of the note. Conner v. Routh, 7 How. (Miss.) 176, 40 Am. Dec. 59. For cases as to changing the time of the payment by a change in the dale of the instrument, see supra this title, " Matters in Resi'Uct of the ALTERATIOX OP INSTRUMENTS. 807 also is an alteration which deprives the obligor of his right to days of grace. -■'■ (2.) The Place. — Again, it is a material alteration of a note, pay- alile generallw to insert a place of payment :'-* or to change the place of payment.-'' E.XECUTION or THE IxSTRUMENT; D.xte: n-3-C-f-(2)". 23. Steiiian v. Moody, lOO Ga. i,?6. 28 S. E. 30. Contra. — Tranten ;■. Hibbard (Ky.,) 3i S. W. 169, holding otherwise because the note was non-negotial)le. ,24. England. — Calvert v. Baker, 4 \r. & W. 417, 2 Jur. 1020. .Alabama. — Toonicr '■. Rutland. 57 Ala. 379, 29 Am. Rep. 722; Winter V. Pool, 100 Ala. 503, 14 So. 411. California. — Pelton t. San Jacinto Lumb. Co.. 113 Cal. 21. 45 Pac. 551. Dclaii'arc. — Sudler 1: Collins, 2 Houst. 538. Georgia. — Gwin v. Anderson, 91 Ga. 827. 18 S. E. 4.^. Illinois. — Pahlman r. Tavlor, 75 111. 629. Indiana. — Ballard v. Franklin L. Ins. Co., 81 Ind. 239; ^IcCoy v. Lockwood, 71 Ind. 319. Io7va. — -Adair v. England, 58 Iowa 314. 12 N. W. 377; Black z'. DeCanip, -^ Iowa 105, 39 N. W. 215; Knox- ville Nat. Bank '■. Clark, 51 Iowa 264, I N. W. 491, ij Am. Rep. 129. Kentucky. — Whitesides v. Bank of Kentucky, lO Bush 501, 19 Am. Rep. 74- .Mississi[arc Major V. Hanson, 2 Biss. 195, Fed. Cas. 8982. "The rights of "the defend- ant." said the court, "are thereliy en- larged, and in no respect limited, and he cannot complain unless he can in some manner connect the plaintifif with the alteration, or can show that he tendered the money at the place stated and has been damnified." 27. As where a writing calling for payment in " drafts to the order of" the promisee is changed so as to be iiayable " in current funds." Angle V. Northwestern Nat. L. Ins. Co , 92 u. S. 330. • 28. Wills '■. Wilson. 3 Or. 308; Hanson v. Crawley, 41 ('la. 303. Such an Alteration Destroys the Identity and Legal Effect of the Instrument, and it is no longer the agreement the makers promised to perform, and cannot legally he used in evidence against them. Hogarth ?'. Breedlove, 39 Te.x. 561. So also an alteration changing a note payable in gold or its equivalent into one payable gener.illy is mate- rial. Church V. Howard, 17 Him 5. La'w Requiring Debt Payable in Vol. I Gold But. in Bridges v. Winters, 42 Aliss. 135, 2 Am, Rep. 598, it was held that where the makers of a note could not discharge their indebtedness in any other currency than gold, their legal liability is not changed Ijy inserting the words " in gold;" that such an alteration only expresses what the law implies, and hence is immaterial. 29. Darwin v. Rippev, 63 N. C. 30. See sHfra. this title, I-i-A. 31. Howell !■. Cloman, 112 N. C. 77, 23 S. E. 95 ; Havens v. Osborn, 36 N. J. Kq. 426. Admitting Alteration and Suing on Original Debt — Where the holder of a note which he has altered in a material respect to his own advan- tage, sues on the original debt, ad- mitting the alteration, but denying any fraudulent intent, and averring that it was made without his knowl- edge and consent, the burden rests upon him to show that there was no fraudulent intent wlien the alter- ation was made. Warder B. & G. Co. ;'. Willgard, 46 Minn. 531, 49 N. W. 300, 24 Am. St. Rep. 250. 32. United States. — Sneed 7'. Sa- berial M. & Mill. Co., 73 Fed. 925, 20 C. C. A. 2,^0. ALTliRATlOX Ol- IXSTh'l 'MliXTS. Ni') Presumption of Consent. — All alteration of a note, not apparent on ins])ection. and made Ijefore anyone as holder or pa\ee had an\- lethal Ahilniiiui. — Whitsett f. Womack. 8 Ala. 466; Davis v. Carlisle. 6 Ala. 707: Winter r. Pool, too Ala. 303, 14 So. 411; White I'. Hass, 32 Ala. 4,^0, 70 Am. Dec. 548 ; Glover f. Gentry, 104 Ala. 222, 16 So. 38. UHnois. — Hodge <•. Gilman, 20 111. W- Indiana. — Bowman <■. Mitchell. 70 Ind. 84 ; Emerson f. Opp, Q Ind. App. 581. 34 N. E. 840; Cochran f. Nebeker, 48 Ind. 459: Green z\ Beck- ncr, 3 Ind. App. 39, 29 N. E. 172. fnzi'a. — Robinson v. Reed. 46 Iowa 219; Shroeder t'. Webster, 88 Towa 627. 55 N. W. 569. Kcntiickw — FJherl v. McClehmd, 8 Rnsh 577. Massachusetts. — Draper v. Wood, 112 Mass. 315. 17 Am. Rep. 92. Michigan. — Eherenwood v. Web- ber. 100 .Mich. 314, 58 N. W. 665; Willett V. Shepard. 34 Mich. 106. Missouri. — Capital Hank i'. Arm- strong, 62 Mo. 59. -Vi'Ti' )'()/7v. — Glcason i'. Hamilton, h8 N. Y. 35.?, .^4 N. E. 283, 21 L. R. .\. 210. North Carolina. — Martin t. Buffa- loe. 121 N. C. 24, 27 S. E. 995. Fcnnsylz'auia. — Hartley v. Corboy, 150 Pa. St. 23, 24 Atl. 295'. Wisconsin. — North i'. Henne- brrry. 44 Wis. 306. Burden of Proving Authority. In an action against an officer for serving a writ of replevin against plaintitif without taking a replevin imnd, wdiere it is proved that the bond returned with the writ was originally made to a different obligee and was altered by the officer and made payable to the plaintiff, ii is not incumbent on the plaintiff to prove that the defendant had not authority to make the alteration, but the burden is on the defendant to show that he had authority. Dol- bicr 7'. Norton, 17 Mc. 307. Burden of Proving Consent. In Baxter z'. Camp, 2,^ Conn. 245, 41 .\tl. 803, the instrument sued on when produced showed on its face either that the signature had been crossed out or that it had been written over a line of crosses such as are commoidy used for canceling writing, or that it had been re-writ- ten or re-traced over a previous sig- nature which had been first erased. Which of these was true would be disclosed oidy by extrinsic evidence. The defendant testified that he had crossed out his signature immedi- ately after making it and long before it came into the plaintiff's hands. Thereupon, the trial court ruled that, as he had admitted making the crosses, he had the Inirden of prov- ing that he made tliem with the con- sent of his wife, to whom he had executed writing for the benefit of the plaintiff. But upon appealing, the court said: "There was no sufficient ground for any presump- tion, either of law or fact, which could throw upon the defendant the burden to which he was thus sub- jected. The plaintiff's case rested on a document, the defendant's sig- nature to which had plainly been the subject of erasure, alteration or can- cellation. He was bound to prove that the defendant's signature was still upon it, or else that it was upon it when delivered to Mrs. Camp, and liad not since been canceled with her consent. The document did tiot, alone, establish either fact. Proof that the defendant canceled his sig- nature raised no presumption that it was canceled without his wife's con- sent. Fraud is never presumed ; and still less, crime. The question pre- sented for decision as to whether the alterations were authorized or unauthorized, was simply beclouded |]y an appeal to the rules respecting Inirden of proof as applicable to pre- sumptions arising in the course of a trial. It was to be decided in view of all the circumstances before the court, and guided by no other rule as to the onus /trobandi than that which requires a plaintiff, where the defense is a denial. In prove his case." Burden of Disproving Fraud. In Bery v. Mariette, P. & C. Ry. Co., 26 Ohio St. 673. an action upon Vol. I 810 ALTERATION OP fNSTRUMENTS. claim ui^on it. and while il was in the hands of one of the promis- ors, must be presumed to have been made by their consent/" B. Rule As to Apparent Altekations. — a. Statement As to Rules. — Whether, on the prochiction of a written instrument, which appears to have been altered in a material respect, it is incumbent on the party offering it in evidence to first give evidence to explain the appearance of the writing, is a much vexed question, and the books are full of diverse decisions. The courts generally state the rules four different ways."' lUit this conflict has been character- ized as being more apparent than real."'' b. Presumption of Alteration Before Deliz'ery. — Accordingly one line of cases holds that an apparent alteration is presumed, in the absence of any explanation, to have been made simultaneously with or before the delivery of the instrument, and hence no explanation is required in the first instance ;"'' or, as it is sometimes expressed, a subscription to corporate stock, wliich after its execution had l)een materially altered without the knowledge or consent of the maker, ■wherein the execution of the con- tract, as set out, was denied, it was held the plaintiff could not recover the amount due on the original sub- scription, without showing that the alteration was not fraudulently made by it. 33. Eddy v. Bond, 19 Ale. 461. 34. For cases discussing at great length this conflict, see Neil v. Case, 25 Kan. 355; W'ilson v. Hayes, 40 i\Iinn. 5-;i. 42 X. W. 467. 4 L. R. A. 195. 35. Cox I'. Palmer, 3 Fed. 16. 3G. United States. — Little r. Herndon, 10 Wall. 26, 19 L. Ed. 878, 119 U. S. 156. .'Uabaiiia. — Ward v. Cheney, 117 Ala. 238, 22 So. 996. Florida. — Orlando v. Gooding, 34 Fla. 244, 15 So. 770; Kendrick t'. Latham, 25 Fla. 819, 6 So. 871 (cit- ing Stewart ''. Preston, i Fla. i.) Coin[>are Harris v. Bank of Jackson- ville, 22 Fla. 501, I So. 140, to the effect that the party producing and claiming under the paper is bound to explain every apparent and mate- rial alteration. If it appears to have been altered, he must explain this appearance. If there is appar- ent upon its face any mark of or ground for suspicion, he must re- move the suspicion. But if. on the other hand, however material in fact Vol. I the alteration of the bill may be, there is upon its face no evidence or mark raising a suspicion thereof, the holder is not called upon to make an explanation on the mere production of the bill, or to introduce any testi- mony until the alteration has been shown by sufficient evidence outside of the paper. Georgia. — Printup v. i\litchell, 17 Ga. 558, 63 Am. Dec. 258; Westmor- land V. Westmorland, g Ga. 233, 17 S; E. 1033 ; Thrasher v. Anderson, 45 Ga. 538. Cowfaie Wheat -e. Ar- nold, 36 Ga. 479, wherein it was held that if the instrument, when offered," appears to have been altered, it is in- cumbent on the party producing it to explain such alteration. Maryland. — Wickes 'e. Caulk. 5 Har. & J. 36. Micltigan. — Brand ?'. Johnrowe, 60 Mich. 210, 26 N. W. 883; Monroe v. Eastman, 31 Mich. 283; Sirrine v. I^riggs, 31 Mich. 443. Compare Wil- lett V. Shepard, 34 Mich. 106; Com- stock V. Smith, 26 Mich. 306. Minnesota. — Wilson v. Hayes, 40 Minn. 531, 42 N. W. 467, 4 L. R. A. 196. Missouri. — McCormik f. Fitzmor- ris, 39 Mo. 24; Stillwell i: Patton, 108 Mo. 352, 18 S. W. 1075: Burnett 7: McCluey, 78 Mo. 676; Paramore I'. Lindsey, 63 Mo. 63. A'cbraslca. — Dorscy v. Conrad, 49 Neb. 443. 68 N. W. 645 (overruling Johnson v. First Nat. Bank, 28 Neb. 792, 45 N. W. 161 ; Courcamp v. ALTERATIOX OF IXSTRrMEXTS. 811 the proof or admission of the signature of the maker is Iriiiui facie evidence that the instrument written over it is his act, and this will Weber, 39 Neb. 533, 58 N. W. 187; and following Bank Z'. Morrison, 17 Xeb. 341, 22 N. \V. 782, 52 Am. Rep. 417; Goodwin r. Plugge, 47 Neb. 284, 66 N. W. 407-) Xi'W Jersey. — Nortb River Meadow Co. v. Christ Church, 22 N. J. Law 424, S3 Am. Dec. 258; Cum- l)crland Bank v. Hall, 6 N. J. Law, I Halst. 215 ; Hnnt v. Gray, 35 N. J. Law 227, ID Am. Rep. 232 ; Den v. Farlee, 21 N. J. Law 279. And see Hoey z: Jarman, 39 N. J. Law 523, to the effect tliat a party offering an instrument showing an alteration on its face need not under ordinary cir- cumstances explain the alteration by evidence aliunde. Putnam :■. Clark, X^ N. J. Eq. 338. North Carolina. — Norfleet v. Ed- wards, 7 Jones L. 455 ; Pullen v. Shaw, 3 Dev. 238. North Dakota. — Cass Co. v. Am. Exch. State Bank, 9 N. D. 263, 83 N. W. 121 ; First Nat. Bank v. Laughlin, 4 N. D. 391, 61 N. VV. 473. Ohio. — Franklin z: Baker, 48 Ohio St. 296, 27 N. E. 550, 29 Am. St. Rep. 547; (distinguishing Hunt- mgton z: Finch, 3 Ohio St. 445, as not being in point, for the reason that there the only question was as 10 the materiality of the change that had been made in the note — the erasure of the name of the surety. The facts were not in dispute. The court simply held that the erasure of the name of the surety, at his re- quest and with die permission of the payee, did not affect the rights of the principal, and so did not amount 10 such an alteration as would in- validate the note. The observations of the court, it was said, might, con- formably to a view taken by many courts at that day, indicate an opin- ion that the burden of explaining what are termed alterations of a suspicious character is on the plain- tiff. But, it was said, no such ques- tion was before the court, and its remarks should be confined to the case it had under consideration.) In Vermont it is held that an alter- ation of a written instrument, if nothing appear to the contrary, should be presumed to have been made at the time of its execution. But, generally the whole inquiry, whether there has been an alteration, and, if so, whether in fraud of the defending party or otherwise, to be determined by the instrument itself, or from that and other evidence in the case, is for the jury. The court, upon the usual proof of the execu- tion of the instrument, should admit it in evidence, without reference to the character of any alterations upon it, leaving all testimony in relation to such alteration to be given to the jur}', and passed upon by them, un- der proper instructions from the court upon any given state of facts. Beaman v. Russell, 20 Vt. 205, 49 Am. Dec. 775. Erasing Names of Attesting Wit- nesses In Wickes v. Caulk, 5 Har. & J. (Md.) 36, it was held that at- testing witnesses are not necessary to a deed, and where their names have been erased, it is incumbent on the party seeking to avoid the deed to prove that the erasure was made after its execution and delivery. Erasing Credit on Note. — Where a credit has been indorsed on a bond, or note, and is afterwards erased, it devolves upon the obligee or payee to account for the erasure. The indorsement, if made with the consent of the obligee or payee, amounts to an admission of payment, and if not made with his consent, it devolves upon him to prove that fact. McElroy z: Caldwell, 7 Mo. 231. Erasing Indorsement on Note. In an action upon a note, it is not necessary for the plaintiff to explain an erased indorsement found upon the note. The defendant must prove the indorsement to have been made so as to transfer the right to the note, to use it as a defense. Finney z: Turner, 10 Mo. 208. Erasure of Obligor's Signature. In Blewett r. Bash, 22 Wash. 536, 6l Pac. 770, while recognizing the rule stated in the text, the court held Vol. I 812 .ILTlih'.ITJOX Ol- JXSTKCMEXTS. stand as biiuHny; jirouf unless the maker can i'e!)nt it 1)\ evidence that the alteration was made after delivery, and that the question when, by whom, and with what intent, the alteration was made, should be submitted to the jury as cjuestions of fact npnn all the evidence, both intrinsic and extrinsic.''' c. No Presumption Either JVay. — Another line of cases is to the effect that an alteration apparent on the face of the instrument raises no presumption either for or against the instrument, but leaves the question as to the time when it was done, or by whom, to be ultimately determined b\' the jury upon proofs to be adduced by him who offers the instrument in evidence, and who has the bur- den of proving that the instrument declared on and put in evidence is substantially the instrument made by the opposite party.^' that it could not apply in llic case of the erasure of a signature of an obligor, since such erasure could only have been made after execution of the writing. Interlineations in a Deed in the Handwriting of the Officer Who At- tested it Officially, will lie presumed to have been made at or before the execution of the deed. Bedgood t. McLain, 8g Ga. 793. 15 S. E, 670. 37. Wilson v. Hayes, 40 Minn. 531, 42 N. W. 467, 4 L. R. A. 196. See also Davis v. jfenny, i Mete. (Mass.) 221. The court upon the usual proof of the execution of the instrument should admit it in evi- dence without reference 10 the char- acter of any alterations upon it. about which the court will presume nothing. leaving the whole question Id he passed on by the iury. Printup V. Mitchell. 17 Ga. =;=;«. (13 A'", l^tc. ^58. 38. Shroeder z: Webster. 88 Iowa 627. ,s,i N. W. 569; .Magec v. .\llison, 94 Iowa 527. 63 N. W. ,t,J2: Niel v. Case. 25 Kan. 355 ; Stale v. Roberts, :\7 Kan. 437. 15 Pac. 593. Statement of the Rule Appar- rni aluralicjn-. are often made before delivery, and .sometimes alterations arc made after, with or without au- thority. Hence, the mere fact of alter- ation furnishes no evidence as to when it was made, or wdiether made by authority or not. If. from the fact of alteration, it may not be pre- sumed that it was made after deliv- ery, and without aulboriiy. then surely the burden nf so jiroving is upon him wlio alleges it. Hagan f. .Merchants & Bankers' Ins. Co., 81 Iowa 321. 46 N. W. 1 1 14. 23 .\m. St. Rep. 493. In Massachusetts, the rule is stated thus: "The further instruction that. in the absence of all proof to the contrary, the presumption of law was that the interlineations and altera- tions were made prior to or contem- poraneously with the execution of the mortgage, was wrong. There is no such legal presumption. If it were so. the party setting up the in- strument might always introduce the instrument as a genuine one. and it would stand as such if no evidence was introduced by the other party to show that it was in fact altered after the execution. Now the bur- den is on the party offering the in- strument, to prove the genuineness of the instrument, and that the alter- ations apparent on the same were honestly and properly made. To what extent he shall be re(piired to introduce evidence will depend upon the peculiar circumstances of each case. The alterations may be of such a character that he may safely rely upon the paper itself, and the subject matter, as authorizing the in- ference that the alteration was made before the execution, or he may in- troduce some very slight evidence to account for the apparent interlinea- tions. But there is no presumption of law, either that the alterations and interlineations apparent on the face of a deed were made prior to the execution of the instrument, or that they were made subsequently. That question is to be settled by the Vol. I ALTER. trios (>!■' IXSTRi'MIiXrS. d. Prcsuinf'tioii of Alteration .Iftcr Delivery. 813 (1.) General Rule. A third line of authorities holds that sueh an alteration raises a ])resumption against the writing', and hence in order to render the instrument admissible, imposes ujjon the party producinn; the instru- ment the hmxlen to explain the alteration hy proper evidence.^" jury, upon all the evidence in the case offered by the parties, and the surrounding circumstances, including, of course, the character of the altera- tions and the appearance of the in- strument alleged to have been altered." Ely v. Ely, 6 Gray 43g. And see Wilde v. Armsby, 6 Cusli. .314; Simpson :'. Davis. 119 Mass. 269, 20 Am. Rep. 324 ; Belfast Nat. Bank !■. Harrinian, 68 Me. 522. 39. United States. — Smith r. United States, 2 Wall. 219: Abbe '■. Rood, 6 McLean 106, Fed. Cas. No. 6. .4rkansas. — Chism v. Toomer, 2y .\rk. 108. Compare Gi.st 'e. Gans, ,30 .\rk. 285, holding that an apparent alteration creates no legal presump- tion that it was fraudulently altered. and under the issue of non est faetiiiii the question is to be determined from the appearance of the paper in con- nection with tlie evidence adduced. California. — An express statute requires an explanation of an appar- ent alteration liy the party producing the paper. Corcorn >■. Doll, 32 Cal. 82; Miller z: Luo, 80 Cal. 257, 22 Pac. 19=; ; Roberts v. Unger, 30 Cal. 676. Idaho. — Mulkey r. I^ong (Idaho.) 47 Pac. 949. Compare Dengel r. Levy, I Idaho 742. ///j)!o;'.y. — Gillett v. Sweat, 6 111. 475; Catlin Coal Co. ?■. Lloyd, t8o 111. 398, 54 N. E. 214, 72 Am. St. Rep. 216; Sissoii V. Pearson, 44 111. ."Kpp. 81; Walters v. Short, 10 111. 252; McAllister v. Avery. 17 111. .\pp. 568; Hodge V. Gilman. 20 111. 437; Pyle V. Oustatt, 92 111. 209. Compare Miliken v. Marlin, 67 111. 13; Dcho- ney v. Soucie, 17 111. App. 234. Kentucky. — Elbert v. ^McClelland. 8 Bush 577. Louisiana. — Pipes v. Hardesty, 9 La. Ann. 152, 61 Am. Dec. 202; McMicken v. Beauchamp, 2 La. 290; Union Bank 7'. Brewer, 2 La. .\nu. 83i; (to the effect that an alteration in a note will be presumed fraudu- lent.) See also Martin v. Creditors, 14 La. Ann. 393. .Maine. — Dodge i\ Haskell, 69 Me. 429 ; Croswell i'. Labree, 81 Me. 44, 16 Atl. 331, 10 .\m. St. Rep. 238; Johnson r. Heagan, 23 Me. 329. Compare Boothby z: Stanley, 34 Me. 515, Gooch z: Bryant, 13 Me. 386. .'[[ississippi. — Croit z: White, 36 Miss. 455; Ellison z'. JNIobile & O. R. Co., 36 Miss. 572 ; Everman v. Robb, 52 Miss. 653, 24 Am. Rep. 682. iVeze Hampshire. — Dow z<. Jewell, 18 N. H. 340, 45 Am. Dec. 371; Humphreys t'. Guillow. 13 N. H. 385, 38 Am. Dec. 499; Cole z\ Hills. 44 N. H. 227. Nczv York. — Jackson v. Osburn, 2 Wend. 555, 20 Am. Dec. 649 ; Gowdey z\ Robbins, 3 App. Div. 353, 38 N. Y. Supp. 280; Herrick v. Malin, 22 Wend. .;88: Solon v. Williamsburg Sav. Bank, 114 N. Y. 122, 21 N. E. 168; Nat. Ulster Co. Bank v. Mad- den, 114 N. Y. 280, 21 N. E. 408. II Am. St. Rep. 633; Ridgeley v. John- son, II Barb. 527; Acker z\ Ledyard, 8 Barb. 514; Cliappell z\ Spencer, 23 Barb. 584. Oregon. — In Oregon a statute re- quires a party offering an altered in- strument to explain the alteration; and failure to comply with the stat- ute is ground for rejecting the offered instrument. Simpkins v. Windsor, 21 Or. 382, 28 Pac. 72; First Nat. Bank v. Mark, 35 Or. 122, 57 Pac. 326. But this statute is not aiiplicable when it is shown that the alteration was not made after the execution of the paper. Neckum v. Gaston, 28 Or. 322, 42 Pac. 130. South Carolina. — Vaughan v. Fowler, 14 S. C. 355, i7 Am. Rep. 731 ; Burton z\ Pressly, i Chev. Eq. 1 : Kennedy v. Moore, 17 S. C. 464. Compare Wicker z: Pope, 12 Rich. Law 387, 75 Am. Dec. 732, to the elTect that whether an alteration was made before or after an instrument was executed, is generally a question Vol. I 814 ALTERATION Of INSTRUMENTS. Alteration Noted. — Where an apparent alteration is noted at the foot uf the paper, the party producing it lias not the burden to explain the alteration.'"' Altered Instrument to Corroborate Oral Testimony. — And a deed is admissible without evidence to explain an apparent alteration, when it is offered merely to corroborate the testimony of the party pro- ducing it, as to the occurrence of a transaction forming the princi- pal issue. ■'^ Action to Cancel Altered Instrument. — W bile the burden is with a party seeking to enforce a contract to relieve it from the effect of any material alteration made in it after its inception, that rule is not necessarily ap]:)licable to a defendant in an action brought to have a security held by him canceled upon that ground, when it appears that such defendant is in no sense chargeable with uiala fides in that respect. ^- (2.) Alteration to Conform Paper With Itself. — Hut where the alter- ation consists of an interlineation of matter embraced in another portion of the paper, so that the paper as a whole reads connectedly, without reference to the fact of the interlineation, the presumption should be indulged that the alteration was made either before the execution of the paper or afterwards by consent of the parties.^" (3.) Correction of Error. — So it has been held that an alteration, whose sole purpose was to correct an error, will be presumed to have been made before dcliverv of the instrument." of fact for the jury to decide, and the party offering the instrument is not bound to offer evidence to show when the aheration was made, but may rely upon appearances on the face of the instrument itself to ex- plain it. Texas. — Jacobey i'. Brigman, (Tex.,) 7 S. W. .^66; Dewees v. Bhmtzer, 70 Te.\. 406, 7 S. W. 820; Heath v. State, 14 Tex. App. 213; Park V. Glover, 23 Tex. 469. Virginia. — Hodsett v. Pace, 82 Va. 873, 6 S. E. 217; Slater v. Moore. 86 Va. 26, 9 S. E. 419 (citing Priest v. Whitacre, 78 Va. 151 ; Elgin v. Hall, 82 Va. 680; Angle r. Ins. Co., 92 U. S. 330; Batchclder <•. White, 80 Va. 103.) IVisconsiti. — North v. Heiin1)erry, 44 Wis. 306. And see Schwahii t'. Mclntyre, 17 Wis. 232. Seal Cut Off. — When a sealed note was found amongst the papers of the payee after his death, with the seal carefully cut off, leaving a mere fila- ment l)y which it was allowed to re- main attached to show what liad been the character of the instru- ment, it was held that the destruction of the seal was to be attributed to the payee. Porter <■. Doliv, 2 Rich. Eq. (S. C.) 49. Annexed Paper Detached. — In McCullough r. Wall. 4 Rich. Law (S. C.) 68, 53 Am. Dec. 71S, a deed referred to a plat annexed, but when produced the plat (admitted to be the same to which the deed referred) was separate from it, although it was manifest that it had been altered by wafers, and it was held that no further explanation of the mutilalion was necessary. 40. Howell V. Hanrick, 88 Tex. 383, 29 S. W. 762. 41. Hay v. Douglas. 32 N. Y. Super. Ct. (12 Sweeny) 49. 42. Solon z\ Williamsburg Sav. Bank. 114 N. V. 122, 21 N. E. l68. 43. Gordon 7'. Sizer, 39 Miss. 805. 44. Correction of Error. — In Houston t'. Jordan, 82 Tex. 352, 18 S. W. 702, an error in the descrip- tion of property transferred by hus- band and wife was pointed out to the Vol. I ALTERATION OF LXSTRUMIiXTS. Si; (4.) Alteration Must Be Apparent. — Jn order to raise the presiiiiii)- tion that the paper has been altered and put the holder to proof explaining it, it is necessary that it plainly appear from the face of the paper that it has been altered. It is not sufficient that it is probable that an alteration has been made, but it must be manifest to the inspection of the jury that it has been made.'''' (5.) Official Documents. — The rule which excludes jiapers, on account of an unexplained alteration, applies to papers in possession of the party to be injured or benefited thereby, but not to official documents not in the custody or under the control of the parts. ^" e. Burden of Proof As Dependent on Suspicious Cltaractcr of Alterations. — (1.) Rule Stated. — P)Ut irrespective of the conflict of authorities shown by the preceding sections, it is held that in case the alteration is of a suspicious character, or bears the ear marks of fraud, the burden is then upon the party producing the writing to explain the alteration by proper evidence.''" And where the husband after the execution of the deed, but before its acknowledg- ment, which was corrected by some one prior to the delivery of the deed by the husband. It was held that, in the absence of evidence to the con- trary, the correction would be pre- sumed to have been made before acknowledgment by the wife and be- fore dehver}'. 45. Ellison V. Mobile & O. R. Co., 36 Miss. 572. 46. Devoy v. New York, 36 Barb. 264, 22 How. Pr. 226. See also Mil- ler V. Alexander, 13 Tex. 497, 65 Am. Dec. 73, where the court said: " Every alteration on the face of an instrument which evidences the agreement renders it suspicious : and this suspicion the party claiming un- der, is ordinarily held bound to re- move. I Greenl. Ev., §§ 564, 568. It was probably upon this principle that the evidence in this case was ex- cluded ; not adverting to the distinc- tion between the alteration of a pri- vate instrument by one of the parties to it and the alteration by a sheriff or other officer of his entries made to evidence his official acts, which it is every day's practice to admit, by way of amendment of his returns, and which cast no suspicion upon the fairness and truthfulness of the re- turns theiTiselves." Comfarc Dolbier T. Norton, 17 i\Ie. 307. 47. United States. — Smith z: United States, 2 Wall. 219; Cox 7'. Palmer, i McCrarv 431, ^ Fed. Cas. No. 16. .Alabama. — Glover '■. Gentry. 104 Ala. 222, 16 So. 38: Ward v. Clieney, 117 Ala. 238, 22 So. 996; Wisdom r. Reeves, no Ala. 418. 18 So. i^; Barclift v. Treece, 77 Ala. 528; Hill V. Nelins, 86 .Ma. 442, 5 So. 796. Arkansas. — Gist z\ Dans, 30 Ark. 285. California. — Sedgwick z'. Sedg- wick, 56 Cal. 213. Delazvarc. — Welch z'. Coulborn, 3 Houst. 647. See also Hollis Z'. Van- dergrift, 5 Houst. 521. Compare Warren v. Layton, 3 Harr. 404. District of Columbia. — Pengli v. Mitchell, 3 App. D. C. 321. Florida. — Orlando Z'. Gooding, 34 Fla. 244, 15 So. 770; Kendrick v. Lathan, 25 Fla. 819, 6 So. 871. Georgia. — Gwin z\ .Anderson. 91 Ga. 827, 18 S. E. 43- Illinois. — Catlin Coal Co. 7'. Lloyd, 180 111. 398. 54 N. E. 214, 7^ .\m. St. Rep. 216. Indiana. — Ins. Co. of N. A. v. Brim, in Ind. 281, 12 N. E. 31.=;; Stoner v. Ellis, 6 Ind. 152. /oit'fl. — Harlan v. Berry, 4 Greene 212. Kansas. —J. I. Case Thresh. Mach. Co. V. Peterson, 51 Kan. 713, :iT, Pac. 470; Neil V. Case, 23 Kan. 35's. Maine. — Croswell z'. Labree, 81 Me. 44, 16 Atl. 331, 10 .\m. St. Rep. 238. Vol. I 816 Al.'I'LiR.l'I'lOS Ol' IXSTRLWinXTS. ])aper has been received conditicjiially upnii promise <.>f CDiinsel to give the proper explanatory evidence, and this is not fjiven. the court sliould, if the susjiicion be so clear as not to leave any question for the jury, strike out the i)aper/'* Massiiihusctl.':. — Wililc j'. Arnisljy. 6 Cusli. 314, Michigan. — Sirrine t: Briggs, 31 Mich. 443; Muiiroe ■;: Eastman, 31 Mich. 283; Brand v. Jolnirowe, 60 :\Iich. aro, 26 N. W. 883; Wil.son z\ ]]otchkiss, 81 Mich. 172, 4; N. W. 8.38. Minnesota. — See Wilson v. Hayes, 40 Alinn. 531, 42 N. W. 467, 4 L. R. A. 196, where the rnle is recognized but is criticised. Missouri. — McCormick 7'. Fitz- niorris, 39 Mo. 24 : Mathews i: Coal- tcr, 9 Mo. 705 ; Paraniore v. Lind- sev, 63 Mo. 63; Stillwell v. Patton, 108 Mo. 352. 18 vS. W. 1075. .Yezf York. — Jackson z'. Osliorn, 2 Wend. 555, 20 Am. Dec. 649 ; Prin- gle V. Chambers, i Abb. Pr. 58; Smith t'. ;McGowan, 3 Barb. 404 : O'Donnell z\ Harmon, 3 Daly 424. Ohio. — Huntington z: Finch. 3 Ohio St. 445. South Carolina. — Wicker z: Pope, 12 Rich. Law .387, 75 Am. Dec. 732. South Dakota. — Cosgrove z'. Fane- bust, 10 S. D. 213, 72 N. W. 469. Tennessee- — Farnsworth Z'. Sharp, 4 Sneed. 55. Tcra.?. — Collins t'. Ball, 82 Tex. 259, 17 S. W. 614, 27 Am. St. Rep. 877 ; Rodriguez Z'. Haynes, 76 Tex. 225, 13 S. W. 296 ; Davis z'. Stale, 5' Tex. App. 48: Kiser r. State, 13 Tex, App. 201 ; Collins i'. State, ifi Tex. App. 274. J'ernwnt. — Bcaman v. Russel, 20 Vl. 205, 49 Am. Dec. 775. IVcst Virginia. — Conner z\ Flcsli- man, 4 W. Va. 693. Wisconsin. — Page v. Danahcr, 43 Wis. 221 ; Maldaver v. Smith, 102 Wis. ^o, 78 N. W. 140. Statement of the Rule. — If llic interlineation is in itself suspicious, as, if it appears to be contrary to the probable meaning of the instrument as it stood before the insertion of the interlined words ; or if it is in a hand- writing different from the body of the inslrument. or appears to have 1)een wrilUn with dilTerenl ink. in all such cases, if the court considers the interlineation suspicious on its face, the presumption will be that it was an unauthorized alteration after execution. Cox v. Palmer, 3 Fed. 16. In Pennsylvania, the rule is stated thus : " When a contest occurs, and the instrument is offered in evi- dence, the question at once arises whether the alteration is beneficial to the party offering it ; if it be, we do not presume a forgery, but we hold the party offering it in evidence and seeking advantage from it, l)Ound to explain tlie alteration to the satisfac- tion of the jury. If the interlinea- tion or erasure has been noted in the attestation clause as having been made before signature, this is suffi- cient ; or if tlie similarity of ink and hand-writing, or the conduct of the parties, or other facts proved, shall persuade a jury that it was so made, the instrument is relieved from sus- picion, and the party offering it is entitled to the benefits of it. So long as any ground of suspicion is appar- ent on the face of the instrument, the law presumes nothing, but leaves ihe question as to the time when it was done, to be ultimately found by the jury upon proofs to be adduced by him who offers it in evidence.'' Jordan z\ Stewart, 23 Pa. St. 244, (citing Stahl v. Berger, 10 Serg. & R. 170, 13 Am. Dec. 666; Babli z: Clemson, Ibid. 424; Barrington v. Bank of Washington, 14 Serg. & R. 405; Heffelfinger v. Shutz, 16 Serg. & R. 46; Hudson z>. Reel, 5 Barr 279,) See also Robinson z\ Myers, 67 Pa. St. 9; Nibbitt v. Turner. 155 Pa. St. 429, 26 Atl. 750; McHale z: McDonnell, 175 Pa. St. 632, 34 All. 966. 48. Sweitzer z\ Allen Pd.-g. Co., 76 Mo. App. I. And if the Writing Be Essential to the Cause of Action, the court may direct a nonsuit or verdict. Tillou z\ Clinton & Iv Ins. Co., 7 Barb. 564. Vol. I ALTERATION OF INSTRUMENTS. 817 (2.) Suspicious Alterations Defined. — It is impossible to state a general rule which will show just what character of an alteration will be required in order that it may be termed suspicious within the meaning- of the rule just stated. Instances, however, are cited in the note.'*" 49. Hill V. Nelius, 86 Ala. 442, 5 So. 796; Hodsett V. Pace, 82 Va. 873. 6 S. E. 217; Wilson V. Hotch- kiss, 81 Mich. 172. 45 N. W. 838. Erasures and Interlineations in a Material Part of the Deed, of which no notice is taken at the time of the e.xeciition. Smith v. McGowan, 3 Barb. 404. Difference in Ink and Hand- writing The insertion in a note of an increased rate of interest, in an ink different from the body of the note arid not written in the manner usually to be expected, is such an alteration as creates a sulficient ground of doubt to require the party using it to explain the alteration. Sheldon v. Hawes, 15 Mich. 519. See also Paraniore Z'. Lindsey, 63 Mo. 63. But in Smith v. McGowan, 3 Barb. 404, the court said : " There is no principle of the common law which requires a deed to be written throughout with the same colored ink. The fact that ink of different colors is used may or may not afford evi- dence of a fraudulent alteration of an instrument. It may often be an important item of evidence on that question. And it may be consistent with the utmost honesty. There is nothing in the fact, considered in it- self, which will require the court to exclude the instrument for that rea- son, as matter of law. It may be a proper consideration for the jury, in connection with other facts, on the question of a fraudulent alteration ; but the question was not put to the court in that way." Blemishes in Negotiable Paper. Negotiable paper is always pre- sumed, in the absence of evidence, to have been issued clear of all blem- ishes, erasures and alterations, whether of the date or body of the instrument; and the burden of show- ing that it was defective, when is- sued, is upon the holder, even though the alteration be beneficial to the maker. Heffner v. VVenrich, 32 Pa. St. 423. To siinilar effect see Simp- son V. Stackhouse. 9 Pa. St. 186, 49 Am. Dec. 554 ; Paine v. Edsell, 19 Pa. St. 178; Robinson v. Myers, 67 Pa. St. 9; Hill V. Cooley, 46 Pa. St. 259; Appeal of Hess, 134 Pa. St. 31, 19 Atl. 434, 19 Am. St. Rep. 669 (holding that the holder of an altered instrument has the burden of proof, even though both drawee and payee be dead;) Clark v. Eckstein, 22 Pa. St. 507, 62 Am. Dec. 381 ; Hood's Appeal, (Pa. St.,) 7 Atl. 137. But the fact that the words " ten per cent." in a note are written in an ink different from the body of the note and from the signature of the maker, there being no interlineation resorted to to insert the words, they being in their natural order and position, as if written when the remainder of the note was written or inserted in a space left to receive them, does not cast upon the note such suspicion that the payee suing upon it must, before offering it in evidence, show that the words were made by au- thority of the maker, or before the execution of the note. Jones v. Ire- land. 4 Iowa 63, 68. See also, Ault V. Fleming, 7 Iowa 143. And see Wilson 7'. Harris, 35 Iowa 507, wherein it was held that the fact that a portion of an indorsement signed by the defendant, is written in different ink and handwriting from the lialance, does not afford such ftfiina facie evidence of a fraudulent alteration as to require the plaintiffs to explain the same. Interlineations in Same Ink as Body of Paper In Vickery v. Ben- son, 26 Ga. 582, it was held that the presumption should be indulged that interlineations in the same ink and handwriting as the body of the cer- tificate to the copy of a deed were rightfully made. See also Zimmer- man V. Camp, IS5 Pa. St. 152, 25 ,\ll. 1086. .S2 Vol. I 818 ALTEKATIOX OP JXSTKUMENTS. Interlineations Completing Imperfect Description. — Inteiiiiieations are not of themselves of a character to excite suspicion wlien they are mere completions of imperfect descriptions of parcels of the lands conveyed, and of the aggregate number of acres, the deed importing a sale by description or metes and bounds, and not by the quantity."'" f. Distinction Between Deeds and Other Instruments. — Some of the courts in holding that in the case of deeds the presumption is that the alteration was made before the execution of the deed,"'^ seek to make a distinction between deeds and other instruments ;^'- but others disregard any such distinction, merely applying the rule adopted by that particular jurisdiction without regard to the nature of the instrument or other writing. ^'^ 5. Order of Proof. — Where it is incumbent upon the party producing an instrument showing a material alteration on its face, to explain the alteration, whether the explanatory evidence or the writing shall be first introduced in evidence, is within the discretion of the court; he may receive the writing subject to explanation or on condition that counsel will give the explanation.'"* 50. Sharpe -'. Ornie, 6i .Ala. 263, wherein the court said: "These in- terhneations, merely curing an im- perfect description of the particular parcels of the lands, accord with all the purposes and objects of the con- veyance, and it is but a fair pre- sumption that their omission in the original writing of the deed was merely inadvertent. The inadvertence was corrected, so soon as it was dis- covered, it is also fair to presume. The legal presumption under the circumstances, is, that they were made before the acknowledgment of execution, and the burden of repel- ling the presumption rested on the party asserting the contrary." 51. United 5/a/c.f.— Little I'. Hern- don, 10 Wall, 26, 19 L. Ed. 878. Alabama. — White f. Hass, 32 Ala. 430, 70 Am. Dec. 548. Florida. — Kenl>i. — Croft v. White, 36 Miss. 455. Nc'ji' Jersey. — Hunt r. Gray, 35 N. J. Law 227, 10 Am. Rep. 232. Neitf York.— Nzt Ulster Co. Bank V. Jtladden, 114 N. Y. 280, 21 N. E. 408, II Am. St. Rep. 633; Martin v. Tradesmen's Ins. Co., loi N. Y. 498, 5 N. E. 338. Ohio. — Thompson v. Massie, 41 Ohio St. 307. Oregon. — Whitlock v. Mausick, 10 Or. 166. Tennessee. — Boyd v. McConnel, 10 Humph. 68. Te.ras. — Tutt r. Thornton, 57 Te.x. 35- . . Wisconsin. — Union Nat. Bank v. Roberts, 45 Wis. 373. 59. United States. — - Speake v. U. S. 9 Cr. 28, 3 L- Ed. 64s ; Mundy V. Stevens, 61 Fed. yj. Alabama. — Ravisies v. Alston, 5 Ala. 297 ; White v. Hass, 32 Ala. 430, 70 Am. Dec. 548. Illinois. — McNail z\ Welch, 125 111. 623, 18 N. E. 737- Indiana. — Richmond Mfg. Co. v. Davis, 7 Blackf. 412. loti'a. — Browning v. Gosnell, 91 Iowa 448, 59 N. W. 340. Massacliusetls. — Boston v. Ben- son, 12 Cush. 61. Missouri. — Evans v. Foreman, 60 Mo. 449. Nebraska. — BoWand r. Griffith, 13 Neb. 472, 14 N. W. 387. North Carolina. — Campbell v. McAustin, 2 Hawks, i:^, II Am. Dec. 738; Howell z\ Clonian, 117 N. C. 77, 23 S. E. 95- Pennsylvania. — Miller v. Gilleland, 19 Pa. St. 119; Smith v. Weld, 2 Pa. St. 54; Stahl V. Berger, 10 Serg. & R. 170, 13 Am. Dec. 666; Myers v. Nell, 84 Pa. St. 369. South Dakota. — Wyckof? v. John- son, 2 S. D. 91, 48 N. W. 837- Texas. — Taylor v. Moore (Tex.), 20 S. W. 53. In Krause f. Meyer, 32 Iowa 566, tlic court permitted evidence to go to Vol. I the jury, against defendant's objec- tion, of a conversation had between one of the plaintiffs and their agent, in which plaintiffs were informed that defendant had authorized the alteration. Defendant's counsel in- sisted that the court erred in over- ruling the objection to the evidence. The court said : " We are of a dif- ferent opinion. It was competent to show the good faith and innocence of plaintiffs, that they acted upon information of the assent of defend- ant to the change in the note, which they directed. This information was brought them through a proper chan- nel, and the fact that they did re- ceive it was certainly proper to be given in evidence. And that is all that the evidence amounts to. Proof of the conversation was a direct, accurate and proper way to show that plaintiffs did receive such infor- mation as well as the manner in which they received it, which was also proper to be shown." In King v. Bush, 36 111. 142, it was held that evidence showing that the note in suit as it appeared at the lime of trial had been presented to tlie maker and admitted by him to be correct, was sufficient to show that the alteration was made previous to its execution, or if afterwards that it was with his consent. Proceedings in a Partition Suit nearly two years after the grantor had full knowledge of the alteration in the deed, wherein it appeared that he testified that the grantee in such deed owned the interest which such deed purports to convey, are per- tinent evidence to show his assent to such alteration as lawfully made. North V. Henneberry, 44 Wis. 306. In Horton v. Horton, 71 Iowa 448, 32 N. W. 45'2, it was held that an indorsement of the place of pay- ment of a note, made by the payee after the maker's death, was imma- terial, inasmuch as the payee was administratrix of the maker's es- tate. ALTERATION OT INSTRUMENTS. 821 shown to have been made in good faith to correct an error, under circumstances showing the implied authority from the other party to make the correction.''" Other Similar Transactions. — It is not competent, however, in order to show that a party to a note in suit, has authorized the insertion of a clause, to show that he was a party to other notes containing similar clauses."^ D. Ratification of Unauthorized Alteration. — So, also, he may show that although made without such knowledge and consent, the maker or obligor subsequently ratified the alteration. '^- 7. Sufficiency of Attempted Explanation A. In General. — If the evidence given to explain the alteration is of such cogency that the paper as explained would sustain a verdict in favor of the party producing it, the court should let the paper go to the jury with such explanatory evidence."^ 60. Lee V. Butler, 167 Mass. 426, 46 N. E. 52, 57 Am. St. Rep. 466. See also Martin v. Tradesmen's Ins. Co., loi N. Y. 498, 5 N. E. 338. 61. Iron Mountain Bank v. Mur- dock & .\rrastrong, 62 Mo. 70. 68. England. — Tarleton v. Shing- ler, 7 M. G. & S. 812, 62 Eng. C. L. 812. Illinois. — King v. Bush, 36 III. 142; Goodspeed v. Cutler, 75 III. 534. Massachusetts. — Prouty v. Wil- son, 123 Mass. 297. Michigan. — Stewart v. First Nat. Bank, 40 Mich. 348; Jenkinson v. Monroe etc. Co., 61 Mich. 454, 28 N. W. 663. Minnesota. — Jauney, Sample & Co. V. Gochruigcr, 52 Minn. 428, 54 N. W. 481. Missouri. — Workman v. Campbell, 57 Mo. 53. Nezi' Hanifshiic. — Humphreys v. Guillow, 13 N. H. 385, 38 Am. Dec. Pennsylvania. — Wilson v. Jamie- son, 7 Pa. St. 126. South Carolina. — Jacobs v. Gal- breath, 45 S. C. 46, 22 S. E. 757. Tennessee. — RatclifF v. Planter's Bank, 2 Sneed. 425. Offer to Pay Debt It is com- petent to show that the obligors of a writing, with knowledge of the al- teration, offered to make payment thereon (Browning v. Gosnell, 91 Iowa 448, 59 N. W. 340) ; and asked for time in which to pay the bal- ance. Dickson v. Bamberger, 107 Ala. 293, 18 So. 290. Readiness to Ratify Alteration. .\ccording to Booth v. Powers, 56 X. Y. 22, an action for the conversion of a promissory note, in which the defendant set up an unauthorized al- teration by the payee after the ex- ecution and delivery of the note, it seems that plaintiff may rebut the defendant's evidence of alteration, bj- showing a readiness on the part of the maker of the note to ratify same and to admit the note to be a valid obligation. ■When the Plaintiff Has Denied That the Instrument Was Altered, he cannot be allowed to give evi- dence to show subsequent ratification of the alteration. Capital Bank 7'. Armstrong, 62 Mo. 59. 63. United States. — Rosenbug z\ Jett, 72 Fed. 90. Alabama. — Ward v. Cheney, 117 .\la. 238, 22 So. 996. Illinois. — Catlin Coal Co. v. Lloyd, 180 111. 398, 54 N. E. 214. 72 AiTi. St. Rep. 216. Michigan. — Pearson f. Hardin, 95 Mich. 360, 54 N. W. 504. Xehraska. — Holland f. Gritfith, 13 Neb. 472, 14 N. W. 387. 'Pennsylvania. — Winters v. Mow- rer, 163 Pa. St. 239, 29 Atl. 916; Miller v. Stack, 148 Pa. St. 164, 23 Atl. 1058. Time Book Kept by Different Per- sons. — A time book is properly ad- mitted in evidence over the objection that it was kept by different persons, and that it showed on its face that it had been altered with fraudulent Vol. I 822 ALTERATION OF INSTRUMUNTS. B. Cogency of Proof. — The evidence should be clear and satis- factory that it was done under such circumstances as will rebut all motive of any fraudulent intention."* III. QUESTIONS OF LAW AND FACT. 1. Materiality of Alteration. — The question whether or not an alteration in a written instrument is a material one should not be submitted to the jury, but it is a question of law for the court to determine."" 2. The Fact of the Alteration. — IJut the question whether there has in fact been an alteration is one for the jury to determine from the instrument, in connection with the explanatory evidence adduced by the parties."" intent, where, although there is ground for claiming from its ap- pearance that there had been some additions to the original entries, its condition and the method pursued in making the entries are fully ex- plained by some of the parties who made them. The jury is competent to consider it and the explanations given, and to determine its value. Gutherless ?■. Ripley, 98 Iowa 290, ti; N. W. log. A Statute Requiring Explanation of an Apparent Alteration is Com- plied With when the party present- ing the instrument in evidence has shown that there has been no alter- ation therein since it came to his hands. Mulkey v. Long (Idaho), 47 Pac. 949; Sedgwick v. Sedgwick, 56 Cal. 213. 64. Wheat z: Arnold, 36 Ga. 479- See also Pew z: Laughlin, 3 Fed. 39, wherein the court said : " One who seeks to avoid the language in which such an instrument is drawn, as by proving the assent of parties to a change, or otherwise, must be held to full and satisfactory proof of the fact." 65. United Stales. — Steele v. Spencer, i Pet. (U. S.) 352, 7 L. Ed. 259; Wood V. Steele, 6 Wall. 80, 18 L. Ed. 725. Alabama. — Payne v. Long, 121 Ala. 38s, 25 So. 780. Arkansas. — Overton v. Matthews, 35 Ark. 146, 37 Am. Rep. 9. Georgia. — Pritchard v. Smith, 77 Ga. 463; Winkles v. Guenther, 98 Ga. 472, 25 S. E. 527. Compare Reinhart r. Miller, 22 Ga. 402, 68 Am. Dec. 506. Illinois. — Donnel Mfg. Co. v. Jones, 49 111. App. 327; Milliken v. Marlni, 67 111. I3- Indiana. — Cochran v. Nebeker, 48 Ind. 459. lozca. — Benton Co. Sav. Bank v. Strand, 106 Iowa 606, 76 N. W. looi. Maine. — Belfast Nat. Bank v. Harriman, 68 Me. 522. Mississippi. — Hill v. Calvin, 4 How. (Miss.) 231. Missouri. — Holloa v. Kemp, 81 Mo. 661. Nebraska. — Fisherdick v. Hutton, 44 Neb. 122, 62 N. W. 488. Oklahoma. — Richardson v. Fill- ner, 9 Okla. 513, 60 Pac. 270. Pennsylvania. — Stephen v. Graham, 7 Serg. "& R. 505, 10 Am. Dec. 485. South Carolina. — Kinard v. Glenn, 29 S. C. 590, 8 S. E. 203. And see Jacobs V. Gilreath, 45 S. C. 46, 22 S. E. 757, where this principle was affirmed but the charge held not to be open to the objection of sub- mitting the question of the material- ity of the alteration to the jury. Te.vas. — Randall r. Smith, 2 Posey Unrep. Cas. 397. I'irginia. — Keen Z'. Monroe, 75 \'a. 424. 66. United States. — Steele v. Spencer, I Pet. 352. Colorado. — Huston z: Plato, 3 Colo. 402. Georgia. — Printup z'. Mitchell. 17 Ga. 558, 63 Am. Dec. 258. Illinois. — Miliken z\ Martin, 67 111. 13- Vol. I ALTERATION OF IXSTRUMENTS. 823 But it is error to submit tlie question to the jury for their deter- niination from a mere inspection of the paper itself."" And where tlie alteration, if any, is material it is error to sulimit the fact of tlie alteration to the jury.''* 3. Time of the Alteration. — So, also, it is for the jury to deter- mine the time when an alteration was made, where the alteration is apparent on the face of the paper.*"' IniHamt. — Stoncr f. Ellis, 6 Ind. 1 52. /t)7i'(7. — Horten v. Horten, 71 Iowa 448, 32 N. W. 452. Maine. — Belfast Nat. Bank v. Harriman, 68 Me. 522. Michigan. — Comstock v. Smith, 26 Midi. 306. Missouri. — Holton v. Kemp, 81 Mo. 661 ; Paramore X'. Lindsey, 63 Mo. 63. Nebraska. — Stoiigh -'. Ogden, 49 Xeb. 291, 68 N. W. 516. Nc'M Hampshire. — Cole v. Hills, 44 N. H. 227. New Jersey. — Richman v. Rich- man, 10 N. J. Law 114; Hunt v. Gray, 35 N. J. I,aw 227. 10 Am. Rep. 232. Oklahoma. — Richardson v. Fell- ner, 9 Okla. 513. 60 Pac. 270. Pennsylvania. — Stahl v. Berger, 10 Serg. & R. 170, 13 Am. Dec. 666. ■Vermont. — Beaman v. Russell, 20 Vt. 205, 49 Am. Dec. 775. IVest Virginia. — Conner t'. Flesh- man, 4 W. Va. 693. IVisconsi)!. — North r. Henne- berry, 44 Wis. 306. 67. Horton 7: Horton, 71 Iowa 448, 32 N. W. 452. 68. Palmer v. Largent, 5 Neb. 223, 2^ Am. Rep. 479. 69. Alabama. — Ward ?'. Cheney, 117 Ala. 238, 22 So. 996. Colorado. — Huston 1: Plato, 3 Colo. 402 ; Schmidt r. Stecker, 3 Colo. 273. Conneeticut. — Bailey v. Taylor 11 Conn. 531, 29 Am. Dec. 321. Georgia. — Planters & Merchants' Bank v. Erwin, 31 Ga. 371 ; Reinhart V. Miller, 22 Ga. 402, 68 Am. Dec. 506. Illinois. — Dehoney v. Soucie, 17 111. App. 234; Milliken z: Marlin, 67 III. 13. Kansas. — Neil v. Case, 25 Kan. 355, 37 Am. Rep. 259. l.onisiana. — Pipes v. Hardesty, 9 I,a. Ann. 152, 61 Am. Dec. 202. Maine. — Crabtree v. Clark, 20 Me. 337- Massacliusetts. — Norwood v. Fair- service, Quincy 189; Newman v. Wallace, I2I- Mass. 323. Michigan. — Wilson v. Hotchkiss, 81 Mich. 172, 45 N. W. 838. Minnesota. — Wilson "•. Hayes, 40 JNIinn. 531, 4 L. R. .\. 196, 42 N. W. 467- Mississippi. — Commercial & R. Bank v. Hum, 7 How. 414; Wilson V. Henderson, 9 Snied. & M. 375, 48 .•\ni. Dec. 716. Missouri. — Beach v. Heck, 54 Mo. .\pp. ^99; Paramore z\ Lindsey, 63 Mo. 63. Nebraska. — Bank of Cass County -•. ilorrison, 17 Neb. 341, 22 N. W. 782, 52 Am. Rep. 417; Lamb v. Briges 22 Neb. 138, 34 N. W. 217; Goodin v. Plugge, 47 Neb. 284, 66 N. W. 407. Nezi' Hampshire. — Cole v. Hills, 44 N. H. 227; Hill V. Barnes, 11 N. H. 395. New Jersev. — Cumberland Bank V. Hall, I Halst. 215 (6 N. J. L.) ; Hunt I'. Gray, 35 N. J. L. 227, ID Am. Dec. 232. Nezv York. — Pease z\ Barnett, 27 Hun 378; Acker z\ Ledyard, 8 Barb. 514: Pringle i'. Chambers, i Abb. Pr. 58; Tuthill zi. Hussey, 7 N, Y. Supp. 547, 27 N. Y. St. 362. Pcnnsvlvania. — Heffelfinger v. Shntz, 16 Serg. & R. 46 ; Heffner v. Wenrich, 32 Pa. St. 423 ; Martin v. Kline, 157 Pa. St. 473, 27 Atl. 753. South Carolina. ■ — Commissioners of Pore z'. Hauion, I Nott & McC. 554 ; Wicker v. Pope, 12 Rich. L. 387. 75 Am. Dec. 732. Te.vas. — Rodriguez v. Haynes, 76 Tex. 225, 13 S. W. 296. Virginia. — Ramsey z'. McCue, 21 Gralt. 349- Vol. I 824 ALTERATION OF INSTRUMENTS. 4. Person Making the Alteration. — Again, it is for the jury to determine who made the alteration.'" 5. Intent. — It is also a question for the jury to determine with what intent an alteration was made.'' 6. Consent. — So, also, whether or not the alterati(Mi was made with the knowledge and consent of the other party to the instrument is one for the jury.'- 7. Ratification. — And whether or not an unauthorized alteration has been ratified liy the part}' affected thereby, is also a question for the jury.'* 70. Aliibaina. — Ward v. Cliciicy, 117 Ala. 238, 22 So. 996. Illinois. — Milliken v. Marliii, 66 111. 13. Minnesota. — Wilson v. Haves, 40 Minn. 531, 42 N. W. 467, 4 I,' R. A. 196. New York. — Artisans' Bank v. Backus, 31 How. Pr. 242. Pennsylvania. — ^Martin z'. Kline, 157 Pa. St. 473, .27 Atl. 753. Texas. — Rodriguez v. Haynes, 76 Tex. 225, 13 S. W. 296. Virginia. — Ramsey v. McCue, 21 Gratt. 349. 71. Alabama. — Ward v. Cheney, 117 Ala. 238, 22 So. 996. Colorado. — Huston v. Pialo, 3 Colo. 402. Georgia. — Pritchard v. Sniilli, 77 Ga. 463; Printnp v. Mitchell, 17 Ga. 558, 63 Am. Dec. 258. Maine. — Belfast Nat. Bank v. Harrinian, 68 Me. 522. Minnesota. — Wilson v. Hayes, 40 Minn. 531, 42 N. W. 467, 4 L. R. A. 196. Missouri. — McCormick v. Fitz- morris, 39 Mo. 24. Nezv Hampshire. — Cole v. Hills, 44 N. H. 227. Neiv York. — Kelly v. Indemnity Fire Ins. Co., 38 N. Y. 322. Vol. I Pennsylvania. — Hudson v. Reel, 5 Pa. St. 279. Te.vas. — Rodriguez v. Haynes, 76 Te.x. 225, 13 S. W. 296. Virginia. — Ramsey v. McCue, 21 Gratt. 349. 72. Connecticut. — Bailey !■. Tay- lor, II Conn. 531, 29 Am. Dec. 321. Indiana. — Cochran v. Ncbeker, 48 Ind. 459. Iowa. — Williams v. Barrett. 52 Iowa 637, 3 N. W. 690. Maine. — Belfast Nat. Bank v. Harrinian, 68 Me. 522. Mississippi. — Wilson v. Hender- son, 9 Smed. & M. 375, 48 Am. Dec. 716. Missouri. — McElroy v. Caldwell, 7 Mo. 231. South Carolina. — Jacobs ;'. Gil- reath, 45 S. C. 46, 22 S. E. 757. 'Virginia. — Keen v. Monroe, 75 Va. 424. M'iseonsin. — North r'. Hcnneberry, 44 Wis. 306. 73. Lammers v. While S. M. Co.. 23 Mo. App. 471. Compare Dickson V. Bamberger, 107 Ala. 293, 18 So. 290, wherein the courl holds that it is for the court alone lo pass upon the legal sufficiency of the facts to constitute ratification. AMBIGUITY. By Clark Ross Mahan. I. UNAMBIGUOUS WRITING, 826 II, PATENT AMBIGUITY, 827 1. Genera! Rule Stated, 827 2. Inquiry Into Snrronnding Ciretinislances, 829 A. General Rule, 829 B. Illustrations of Rule Applied to Particular Instru- ments, 832 a. Contracts Generally, 832 b. Contracts of Guaranty, 833 c. Contracts of Conveyance and Sale, 834 d. Coni'cxances, S35 e. Wills,' ^2,6 C. Nature and Extent of Inquiry, 837 a. Previous Negotiations, 837 b. Declarations of Parties, 838 (i.) Generally, 838 (2.) Parties to Conveyances, 838 c. Practical Construction, 839 ( I.) In General, 839 (2.) Under Conveyances, 840 d. Meaning in Trade or Art, 840 e. Usage of the Business, 843 III. LATENT AMBIGUITY, 844 1. In General, 844 2. Illustrations of Rule Applied to Particular Instruments, 846 A. Contracts Generally, 846 B. Contracts of Guaranty, 847 C. Chattel Mortgages, 847 D. Contracts for Sale of Land. 847 E. Conveyances, 847 a. Description of Premises, 847 (i.) In General, 847 (2.) Tz^'o Descriptions Applying to Same Subject Matter, 849 (3.) Description Applicable to T'cvo or More Objects, 849 b. Description of Party, 850 (i.) In General, 850 (2.) Duplicate Grantees, 850 Vol. I 826 AMBIGUITY. F. Leases. 850 G. Coiivcxaiices b\ Public Officers, 8^1 H. J'r'/7/^-,"85i a. Description of Subject Matter, 851 b. Description of Dcz'isee or Legatee, 853 3. Creating Ambiguity by Parol, 855 IV. INTERMEDIATE OR MIXED AMBIGUITY, 855 V. QUESTIONS OF LAW AND FACT. 853 I. UNAMBIGUOUS WRITING. Where a writing is entirely free from any ambiguity whatsoever, extrinsic evidence is not admissible to aid or explain any of its terms. ^ No Matter How Difficult it Is to Interpret an Instrument, if the court does finally mterpret it, there is no ambiguity about it which will warrant the introduction of parol testimony. - 1. United States. — Holmes r. Montauk Steamboat Co., 93 Fed. 731 ; Kemble i'. Lull, 3 McLean 272, 14 Fed. Cas. No. 7683. Connecticut. — Adams z\ Turner (Conn.), 46 Atl. 247. Georgia. — Harrison i'. Tate, 100 Ga._ 383. 28 S. E. 227. Kansas. — Cross v. Thompson, 50 Kan. 627, ^2 Pac. 357. Kentucky. — Franklin F. Ins. Co. z: Hellerick. 20 Kv. Law 1703, 4g S. W. 1066. .Maryland. — Neal z\ Hopkins, 87 Md. 19, 39 Atl. 322. Massachusetts. — Revere v. Leon- ard, I Mass. 91 ; Stowell Z'. Buswcll. 135 Mass. 340. Michigan. — Brown z\ Schiap- pacasse, 115 Mich. 47, 72 N. W. 1096. Missouri. — Schickle Z'. Chouteau H. & V. Iron Co., 84 Mo. 161. Nebraska. — Drexel v. Murphy, sg Neb. 210, 80 N. W. 813. Nezu York. — De Remer z'. Brown (N. Y.), 59 N. E. 129. North Carolina. — Chard z\ War- ren, 122 N. C. 75, 29 S. E. 373. Texas. — Jones z: Hanna (Tex. Civ. App.), 60 S. W. 279. Vermont. — Herrick z: Noble. 27 Vt. I. IVest Virginia. — Camden v. Mc- Coy, 48 W. Va, 377, 37 S. E. 637. Vol. I ll'isconsin. — Hooker z: Hyde, 61 Wis. 204, 21 N. W. 52. Illustrations. — An insurance pol- icy excepted some " oil in the tanks." It was attempted to be proved the tanks referred to were those insured in a separate policy ; but the court held that as the meaning of the words was clear and unambiguous, such parol testimony must be ex- cluded. Weisenberger z: Harmony Ins. Co., 56 Pa. St. 442. Where a lease purported to be made for a " term of si.x months, from the 6th day of December. 1881, which term shall end on the 6th day of May, 1882," the court held that there was no ambiguity which would warrant the admission of parol testimony, but a mere inaccuracy in stating the termination of the lease, which must yield to the term granted under it. Nindle z\ State Bank. 13 Neb. 245. 2. San Diego Flume Co. v. Chase (Cal.), 32 Pac. 245. " The Language May Be Inaccu- rate, but if the court can determine the meaning of this inaccurate lan- guage, without any other guide than a knowledge of the simpje facts upon which, from the nature of language in general, its meaning depends, the language, although inaccurate, can- not be ambiguous." Riggs v. Myers, 20 Mo. 239. AMBIGUITY. 827 II. PATENT AMBIGUITY. 1. General Rule Stated. — The rule in respect of the admissibility of extrinsic evidence to explain an ambiguity apparent on the face of an instrument of writing is generally stated as excluding such evidence,-' unless it is otherwise expressly provided by statute;* 3. Statement of Rule — " The general rule seems lu be, that for an apparent ambiguity, or uncertainty upon the face of the instrument, no proof can be admiued, if it be per- fectly consistent in itself; but if there is difficulty in applying its terms to the suliject-matter. with reference to which those terms or stipulations were made, then parol evidence is admitted. The reason of the rule is perfectly clear; the object of the law is to carry into effect the intention of the parties, as expressed through the medium of language, which they have, more or less, solemnly and deliberately com- mitted to writing. Now, let it be supposed that this apparent am- biguity, inherent in the words them- selves, is perfectly inconsistent and unintelHgiblo. and is, moreover, in- capable of being explained and made intelligible by any one of the rules of interpretation known to the law, the effect of admitting vague and imcertain testimony of the intention of the parties, would be to substitute a contract, or create terms or stip- ulations, in reference to the subject- matter of the instrument, entirely independent of the particular ex- pressions which the party or parties thought fit to use. Suppose, again, that the words arc intelligible, but capable, upon their face, of two constructions, and parol testimony is admitted to settle which meaning shall be taketi, is it not clear that it is the testimony admitted which produces the effect, and not the lan- guage of the instrument ? There is one instance where such testimony is admitted, sometitnes mentioned as an exception, but which, in fact, is not. Where expressions or technical terms are used in the instrument, unintelligible to the common reader, yet susceptible of a definite inter- pretation by experts, then explanation is admitted for the purpose of effectuating the intention of tlie party through the medium of his own lan- guage. Atty.-Gen. v. Clapham, 31 E. L. & E. R. 164; I Greenl. Ev., 298-99 ; 2 Stark. Ev.. 756." Brauns V. Stearns, i Or. 368. " If Such a Defect Can Be Sup- plied by Parol Proof," said the court in Dingman zk Kelly, 7 Ind. 717, "the statute of frauds is of no avail. The proof would more than alter or vary the terms of a deed ; it would make one, which, indepen- dent of such proof, could have no operation whatever." 4. In Georgia, the code expressly provides that parol evidence is ad- missible to explain a patent am- biguity. Hill V. Felton, 47 Ga. 455, 15 Am. Rep. 643; Bell v. Boyd, 53 Ga. 643; Barrett v. Powell, 63 Ga. 552; Ferrell v. Hurst, 68 Ga. 132; Burgd V. Hamilton, 72 Ga. 568; Jen- nings V. Athens Bank, 74 Ga. 782; Turner v. Berry, 74 Ga. 481 ; Savan- nah R. Co. V. Collins, 77 Ga. 376; Mohr V. Dillon, 80 Ga. 572, 5 S. E. 770; Johnston v. Patterson, 86 Ga. 725, 13 S. E. 17; American Ex. Bank t'. Ga. Con. Co., 87 Ga. 651, 13 S. E. 505; Atlanta v. Schmeltzer, 83 Ga. 609. 10 S. E. 543 ; Brown v. Doane, 86 Ga. 22. 12 S. E. I79. n L. R. A. 381 ; Wheelwright v. Aiken, 92 Ga. 394, 17 S. E. 610; Shore v. Miller (Ga.), 4 S. E. 561; Neal v. Reams, 88 Ga. 298. 14 S. E. 617; Cent. R. Co. v. Ga. Exchange, 91 Ga. 389. 17 S. E. 904; Penn Tobacco V. Lehman. 109 Ga. 428, 34 S. E. 679; Follendore v. Follendore (Ga.), 35 S. E. 676; Trumlin v. Perry (Ga.), 34 S. E. 171. By the Georgia code, " where the rules of construction, as understood before the passage of the code, failed to enlighten the court as to the meaning of the instrument," parol evidence was admissilile. " whether the ambiguity was patent or latent." Hill V. Felton, 47 Ga. 455. 15 Am. Rep. 643. Vol. I 828 AMBIGUITY and the rule as thus stated is appHed to all classes of instruments in which it is sought to explain by parol such an ambiguit)', without regard to their character, whether under seal or not, whether vol- untary or growing out of proceedings in invituni, or whether within the statute of frauds or not, and the like."^ 5. England. — HoUier v. Eyre, 9 CI. &. P". I ; Cheyneys v. Case, 5 Coke 68; Saiinderson v. Piper, 5 Bing. (N. C.) 41S, 35 Eng. C. L. 162 J Smith v. Oeffnyes, 15 Al. & W. 561. Canada. — Clark z>. Boiinycastle, 3 U. C. Q. B. (O. S.) 528. United States. — Keniiel v. Wil- son, 4 Wash. C. C. 308, 2 Fed. Cas. No. 7685. Alabama. — Dane v. Glennon, 72 Ala. 160; Ravisies v. Stoddart, 32 Ala. 599. Arkansas. — Fuller t'. Fellows, 30 Ark. 657 ; Tatuni v. Croom, 60 Ark. 487, 30 S. W. 885. California. — Mesick v. Sunder- land, 6 Cal. 297 ; Brandon v. Leddy, 67 Cal. 43, 7 Pac. 33 ; In re Young's Estate, 123 Cal. 337, 55 Pac. ion. Illinois. — Griffith v. Furry, 30 111. 251, 83 Am. Dec. 186; Pantoti v. Tefft, 22 111. 367; Hamilton v. Har- vey, 121 111. 469, 13 N. E. 210, 2 Am. St. Rep. 118. Indiana. — Grimes v. Harmon, 35 Ind. 198, 9 Am. Rep. 690. Louisiana.- — Mithoff v. Byrne, 20 La. Ann. 363. Maryland. — Clark v. Lancaster, 36 Md. 196, II Am. Rep. 486; Cas- telman v. Duval, 89 Md. 657, 43 Atl. 821; Newcomer 7'. Kline, 11 Gill & J. 457, 37 Am. Dec. 74. Massachusetts. — Stoner r. Free- man, 6 Mass. 435. Minnesota. — McNair t'. Toler, 5 Minn. 435. Mississippi. — Silden v. Coffee, 55 Miss. 41. Missouri. — Campbell v. Johnson, 44 Mo. 247; Carter z'. Holman, 60 Mo. 498. Nezv Hampshire. — Brown v. Brown, 43 N. H. 17. New Jersey. — Carr v. Passaic Land, Imp. & BIdg. Co., 22 N. J. Eq. 85. North Carolina. — Holman v. Whitacre, 119 N. C. 113, 25 S. E. 793. Vol. I Oregon. — Noyes v. Stauff, 5 Or. 455- Pennsylvania. — Wriglit f. Weak- ley, 2 Watts 89. Tennessee. — Barnes v. Sellars, 2 Sneed 33. Wisconsin. — Cole v. Clark, 3 Finn. 303. Omitting Dollar Mark at Top of Column The omission in an as- sessment roll at the Iiead of a column intended for valuation of the prop- erty assessed, of anything lo indi- cate what the figures in the column were intended to represent, is an incurable patent ambiguity not ex- plainable by extrinsic evidence. People V. San Francisco Sav. Union, 31 Cal. 132. Compare San Luis Obispo Co. V. White, 91 Cal. 432, 24 Pac. 864. Chattel Mortgagor Not Named As Owner. — In Kelly r. Reid, 57 Miss. 89, a mortgage of a certain number of animals did not designate the mortgagor as their owner, nor lo- cate them other than in a certain county and state, and evidence was excluded to show that the mort- gagor owned the animals and no others. Compare Spivey 7\ Grant, 96 N. C. 214, 2 S. E. 45, disapproving this ruling. See also Barker v. Wheelip, 5 Humph. (Tenn.) 329, 42 Am. Dec. 432. Failure to Specify Securities In- tended. — A nK'inorandum of con- tract for the sale of real estate provided for the delivery of the deed upon receipt of the cash payments, and " the securities for the deferred payments," without specifying the kind or character of the securities. Held, that the contract was bad for uncertainty as to its terms in this particular. George 7: Conhaim, 38 Minn. 338, 37 N. W. 791. A Description of Property, as situate, lying and being in the city of Sacramento and State of Cali- fornia, and "consisting of two thou- sand two hundred town lots, be the same more or less, said lots being AMBIGUITY. H2'i 2. Inquiry Into Surrounding Circumstances. — A. General Rule. — The rule as just stated, however, has been characterized as being too broadly stated, for the reason, it is said, that fre- quently in respect of tlic particular case before the court, the rule, however broadly stated, was correct in its application," because the ambiguity in question was so radical in its nature as to be beyond the reach of explanation by any extraneous evidence ;' that it is not true that every ambiguity appearing upon the face of an instrument of writing, if that alone be looked to, can not be explained by extraneous evidence," but that it is a generally recognized rule that bounded according to the original plat or plan of said city." is an il- lustration of a patent ambiguity which cannot be cured by parol evi- dence. Mesick v. Sunderland. 6 Cal. 297. The Beed of a Tax Collector who sells in i)iviltiiii, by virtue of power conferred by law, must in itself be sufficient to convey the thing sold. The deed cannot be reformed so as to help out a defective descrip- tion. There is no " aggrcgatio inciitiiini " which the instrument has mistaken. Bowers z'. Andrews, 52 Miss. 596. Failure of Will to Describe Prop- erty To Be Sold. — A testator requested his e.xecutors " to sell and dispose of the following-described land " but left out the description. Held, that evidence that he owned a parcel of land not specifically dis- posed of was not admissible for the purpose of supplying the missing description. Crooks v. Whitford, 11 Mich. 159. Antecedent and Relative In Lord Cheney's Case. 5 Coke 68a, the Lord Warden of the Cinque Ports devised to his son in tail, remainder to C in tail male, on condition " that he. or they, or any of them, shall not alien;" and evidence was held inadmissible to show that the tes- tator meant the conditioning clause to include his son, and not C only. 6. Schlottman v. Hoffman, 73 Miss. 188, 18 So. 893, 55 Am. St. Rep. 527 ; Ladnier j'. Ladnier, 75 Miss. 777. 25 Sn. 430. 7. Mississifipi. — Holmes i'. Evans. 48 Miss. 247, 12 .\m. Rep. 372. Missouri. — Donnell Newspaper Co. V. Jung. 81 Mo. App. 577. Xczf York. — LTnited Press v. New York Press Co., 164 N. Y. 406, 58 N. E. 527 ; Burnett z\ Wright, 44 N. Y. St. 14. 17 N. Y. Supp. 309. Tcvas. — Curdy v. Stafford (Tex, Civ. .\pp.), 27 S, W. 823; McKinzic 7'. Stafford, 8 Tex, Civ, .^pp. 121, 27 S. W. 790; Pfeiffer v. Lindsay, 66 Tex. 123, I S, W, 264. Vermont. — Pingry v. Watkins, 17 \'t, 379. IVisconsin. — Campbell r. Pack- ard, 61 Wis. 88, 20 N. W, 672: In re Willey's Estate (Wis.), 80 N. W. 102. An Inherently Insufficient Descrip- tion in a Sale on Execution, cannot 1)0 helped out by evidence of facts tending to show what property the officer probably intended to sell. Herrick v. Morrill, 37 Minn. 250, 33 N. W. 849. 8. Schlottman v. Hoffman, 73 Miss. 188, 18 So. 893, Lord Bacon's Definition Criticized As Too General In Peacher v. Strauss, 47 Miss, 353, the court said : " According to Lord Bacon, the learned author of these rules, patent ambiguities are ' never holpen by averment ; ' but Kent says, that rule is too general; vol. 2, p. 747; and is not of universal application. Broom's .Max, 472; 21 Wend, 651; 23 ib. 71; I Mason 11; i Tex, 377; 3 Binn. 587; 4 ib. 482; 3 Stark, Ev, 1021. .\nd subsequent authorities have left few cases subject to its operation, mainly those so uncertain as to be incapable of execution or enforce- ment. 2 Pars, on Cont. 557, note e. Indeed, these rules of Lord Bacon are less regarded of late than they were formerly, Ib. and cases. A simpler rule, perhaps, in most cases, is this, that evidence may explain but cannot contradict written lan- guage. Ib. 563" " The Current of the Decisions Vol. I 830 AMBIGUITY. the court may hear evidence of the facts and circumstances sur- rounding the making of the instrument, its subject matter, and all proper collateral facts;" but that if the written language used is, Evidently Is, if not to disregard altogether Lord Bacon's ride as to patent ambiguities, to enlarge the ex- ceptions to it as far as that can be done without violating the rule that parol evidence is not to reform or engraft a new contract on the old, but only to explain the intentions of the parties." Roberts i'. Short, I Tex. 373. In Ely f. Adams, 19 Johns. (N. Y.) 313, Spencer. Ch. Justice, says: " Where a question arises on the general intention of the parties, con- cerning which, the instrument is not decisive, proof of independent facts, collateral to the instrument, may be properly admitted ; and accordingly in that case, evidence was received, of a conversation between the parties, at the time of making the writing, and of other collateral and extraneous facts, in order to show, what kind, or degree of ' indulgence ' ( that being a word of equivocal import) was in- tended by the Darties. And see Peak's Ev. 116; Phil. Ev. 343, 344; The King v. The Inhabitants, etc., 8 T. R. 379; Doe v. Burt, i T. R. 701 ; Cole V. Wendall. 8 Johns. R. 116; The ^Mechanics' Bank v. The Bank of Columbia, 5 Wheat. 326; and The Union Bank v. Hyde, 6 Wheat. 572, all of which, seem to show, that the admissibility of parol evi- dence is not restricted to cases in which the uncertainty is strictly and exclusively such as is properly termed, ambiguitas latens." See also Bell Admrs. v. Martin, 18 N. J. Law 167. Three Rules Deducible From Authorities "From the authorities we have been able to examine three rules which may be taken to be cor- rect : First. Where the instrument itself seems to be clear and certain on its face, and the ambiguity arises from some extrinsic or collateral matter, the ambiguity may be helped by parol evidence. Second. Where the ambiguity consists in the use of equivocal words designating the per- son or subject-matter, parol evi- dence of collateral or extrinsic mat- ters may be introduced for the pur- Vol. I pose of aiding the court in arriving at the meaning of the language used. Third. Where the ambiguity is such that a perusal of the instrument shows plainly that something more must be added before the reader can determine what of several things is meant, the rule is inflexible that parol evidence cannot be admitted to supply the deficiency. .A.bout this last named class of cases there can- not, under the authorities, be any question. They belong to the am- biguitas patens of Lord Bacon." Palmer v. Albee, 50 Iowa 429. See also Holmes v. Simon, 71 Miss. 245, 15 So. 70. The Distinction Between Patent and Latent Ambiguities is now regarded as intended to enable the court to distinguish between cases curable and those of incurable un- certainty; to carry the aid of evi- dence as far as it can go, without making for the parties what they did not make for themselves. Brannan v. Mesick, 10 Cal. 95. ■' When the person or thing is designated on the face of the in- strument by terms imperfectly under- stood and equivocal, admitting either of no meaning at all by themselves, or of a variety of different meanings, referring tacitly or expressly for the ascertainment and completion of the meaning to extrinsic circumstances, it has never been considered an ob- jection to the evidence of those cir- cumstances, that the ambiguity was patent, manifested on the face of the instrument." Plumer M. R. in Col- poys I'. Colpoys, Jacobs 451. In a covenant to " permit the use of water from my dam." notwithstand- ing ;he uncertainty as to whicli dam was meant, was patent upon the in- strument, parol evidence was held cdmissible to clear up the uncer- tainty. Fish i\ Hubbard's Adm'rs, 21 Wend. (N. Y.) 651. 9. England. — Charter v. Charter, L. R. 7 H. L. 364- Canada. — Harris :•. Moore, lO Out. App. ID. United States. — West v. Smith, loi U. S. 263; Drovers' Nat. Bank AMBIGUITY. 831 when viewed by the court in the hght of such suiTOunding- facts and circumstances, still ambiguous and incapable of interpretation, it is then a case of a hopeless, incurable ambiguity. '" V. Albany Co. Banlc, 44 Fed. 18^: Standard S. M. Co. v. Leslie, 78 Fed. 325. Alabama. — McGhee v. Alexander, 104 Ala. 116. 16 So. 148. Arkansas. — Merrill v. Sypert. 65 Ark. SI, 44 S. W. 462. California. — Baker v. Clark, 128 Cal. 181 ; Lassing i'. James, 107 Cal. .^48; Piper V. True, 36 Cal. 606. Cojinccticut. — In re Curtis Castle .\rbitration, 64 Conn. 501. 30 Atl. 769. 42 Am. St. Rep. 200. Florida. — Solary v. Webster, 35 Fla. 363. 17 So. 646. Illinois. — Barrett v. Stow, 15 111. 423; Chambers v. Prewitt. 71 111. App. 119, affirmed 50 N. E. 145. Indiana. — Martindale v. Parsons, 98 Ind. 174. Iowa. — Rush V. Carpenter. 54 Iowa 132, 6 N. W. 172; McClelland V. James, 2ii Iowa 571 ; Palmer v. Albee, 50 Iowa 429. Kansas. — Citizen's Bank v. Brig- bam (Kan.), 60 Pac. 754. Kcntnet:y. — Henry v. Henry, 81 Ky. 34^. Louisiana. — Lee v. Carter, 52 La. Ann. 1453, 27 So. 739. Maine. — Nichols v. Frothingham, 45 Me. 220, 71 Am. Dec. 539. Maryland. — Haile Z'. Pierce, ;^2 Md. 327. 3 Am. Rep. 139. Massachusetts. — Adams z\ Mor- gan, 150 Mass. 248. 22 N. E. 708; Sargent z'. Adams, 3 Gray 72, 68 Am. Dec. 718. Mississif'f'i. — Schlottman z\ Hoff- man, 73 Aliss. 188, 18 So. 893; Heirn V. JNIcCoughan, 32 Aliss. 17, 66 Am. Dec. 588. Missouri. — Ellis v. Harrison, 104 Mo. 270, 16 S. W. 198. New York. — Thomas z'. Scott, 127 N. Y. I33v 27 N. E. 961 ; Garvin Mach. Co. V. Hammond Tpyewriter Co., 42 N. Y. Supp. 564 ; French z\ Carhart, i N. Y. 96; Hunneman v. Kosenback, 39 N. Y. 98 ; Agawam Bank z'. Strever, 18 N. Y. 502; Pet- rie z'. Hamilton College, 158 N. Y. 458, 53 N. E. 216. Ohio. — Worman i'. Teagarden, 2 Ohio St. 380. Pennsylzania. — Berridge i'. Glas- sey, 112 Pa. St. 442, 3 All. 583, 56 Am. Rep. 332. Rhode Island. — Kinney z: Flvnn, 2 R. I. 319. South Carolina. — Craig z'. Pervis, 14 Rich. Eq. 150. South Dakota. — Blodd "■. Fargo & S. Elev. Co., I S. D. 71, 45 N. W. 200. Tennessee. — Nashville L. Ins. Co. z: Mathews, 8 Lea 499. Te.ras. — VVatrous v. McKie, 54 Tex. 65 ; Gardner v. Watson. 76 Te.\. 25, 13 S. W. 39- Vermont. — Lowry v. Adams, 8 Vt. 157; Kinney z\ Hooker, 65 Vt. ^^3, 26 Atl. 690. 36 Am. St. Rep. 864.^ Virginia. — Richardson z'. Planters Bank, 94 Va. 130, 26 S. E. 413. West Virginia. — Camden v. Mc- Coy, 48 W. Va. 377. i7 S. E. 637. Wisconsin'. — Lyman "'. Babcock, 40 Wis. 503; Bancroft v. Grover, 23 Wis. 463, 99 Am. Dec. 195. U yoming. — Frank v. Hicks. 4 Wyo. 502, 35 Pac. 1025. Acts As Part of the Res Gestae, lu Kingsford v. Hood, 105 Mass. 495, on the trial of a writ of entry, it was shown that demandant's father paid the consideration for and received a deed of the preinises while his son (of the same name) was a year old, and that the father became insane two years afterwards. Demandant claimed to be the grantee, and that his father took the conveyance as a provision for him. It was held admissible to show further that the father mortgaged the premises, and that the same were sold under foreclosure, on the ground that any acts or declarations of his which formed part of and gave character to his occupation were competent evidence as part of tlie res gestae: but declarations of the grantor to the scrivener to the effect that it was to be a deed to the infant son were excluded. See also Simpson z\ Dix, 131 Mas--. 179. 10. Language Viewed in Light of Circumstances When the lan- guage is of such a character as to show that the parlies had a fixed and Vol. I 832 AMBIGUITY. Purpose of the Inquiry. — Extraneous circumstances are not re- sorted to for the purpose of controlling the writing and engrafting a new one on such proof, but for the purpose only of explaining and understanding truly the meaning of the parties who had used such words of doubtful signification." A Statute Forbidding the Reception of Evidence to Vary a Writing does not operate to exclude evidence of the circumstances under which a written instrument was made, or to which it relates. '- B. Illustrations of Rule Applied to Particular Instru- MEXTS. — a. Contracts Generally. — In respect to the explanation of the terms employed in contracts generally, the rule admitting the surrounding circumstances is invoked.'^ So also, such evidence is definite meaning which they intended to express, and used language adequate to convey that idea to per- sons possessed of all the facts which they had in view at the time they used the language, it then hecomes the duty of the court to learn those facts, if need be, by parol proof, and thus as far as possible by occupying the place of the parties employing the expressions, ascertain the sense in which they were intended to be used. But if the language itself shows that the parties using it had no fixed and definite idea, which they intended to convey, then bring- ing the language in contact with no state of extraneous facts could enable the words themselves to convey a clear and definite idea, be- cause, after all, it must be the lan- guage used in view of the circum- stances, that conveys the meaning of the parties." Doyle t. Teas, 4 Scam. (111.) 202. 11. Roberts v. Short, i Tex. 373. And see cases cited in the preceding notes of this section. The Principal Upon Which Evi- dence of Surrounding Circum- stances Is Admissible in the exposi- tion of written cnniracts is that the court may be placed, as near as possible, in the situation of the par- ties whose language is to be inter- preted. Rut such evidence is not admissible to prove an unexpressed intention of the parties, or their prior negotiations, which must be deemed to be merged in the written instrument. Its use is limited simply to develop and throw light upon the real meaning of that which is writ- ten, in case of ambiguity arising from tlie face of the instrument. Vol. I King V. Merriman, 38 Minn. 47, 35 N. W. 570. Intent of Parties the End Desired. If an instrument of writing is obscure, the ascertainment of the intent of the parties to it should be the end sought, and, if that end can be accomplished by evidence aliunde, it should be admitted. Cox V. Rust (Tex. Civ. App.), 29 S. W. 807. Where the alleged acceptance of an order is ambiguous on its face, and can be explained so as to ascer- tain the true intention of the parties by parol testimony, it is properly ad- missible for that purpose, (jallagher V. Black, 2 Me. 99. 12. Bogk V. Gassert, 149 U. S. 17, 13 Sup. Ct. 738, 37 L. ed. 631. 13. England. — Bruflf v. Cony- beare, 13 J. Scott (N. S.) 263, 106 Eng. C. L. 261 ; Osborn v. Wise, 32 Eng. C. L. 859. United States. — Chy v. Field, 138 U. S. 464, II Sup. Ct. 419; Amer- ican Trust Co. •:'. Takashadi, in Fed. 125. Alabama. — Whatley v. Rees (Ala.), 29 So. 606. Colorado. — McPhee v. Young. 13 Colo. 80, 21 Pac. 1014. Connecticut. — Construction Infor- mation Co. !■. Cass (Conn.), 50 Atl. 563. Idaho. — Burke Land & L. S. Co. V. Wells. Fargo & Co. (Idaho), 60 Pac. 87. Illinois. — Irmn v. Powell (III), 58 N. E. 941- Indiana. — Thomas v. Traxel (Ind.), 59 N. E. 48.V lozva. — Kelly v. Fcjervary, in Iowa 693, 83 N. W. 791 ; Clement v. AMBIGUITY. 833 admissible to appi}- the instrument to its suhjeet matter,'"" and to identify the parties thereto.'"' b. Contracts of (iiuvtvity. — Again, gnaranties, Hke other con- tracts, must be construed so as to give effect to the intention of the parties, and if this be doubtful, because of an ambiguity therein, resort may be had to evidence of the situation and surroundings of the parties in order to solve the difficulty.'" Drybread, io8 Iowa 701, 78 N. W. 235- Kansas. — Coates r. Siilau, 46 Kan. 341, 26 Pac. 720; Simpson t'. Kini- berlin, 12 Kan. 579. Kntluckv. — Crane i'. Williamson (Ky.), 63 "S. W. 610. Maryland. — Morrison z'. Baecli- told, 93 Md. 319, 48 Atl. 926. Massachusetts. — Alvord i'. Cook, 174 Mass. 120, 54 N. E. 499. Xlichigan. — Preston Nat. Bank z'. Emerson (Mich.), 60 N. W. 981. Minnesota. — Bell f. Mendenhall, 78 Minn. 57, 80 N. W. 843. .Missouri. — Nordyke & M. Co. 7'. Kehlor. 155 Mo. 643, 56 S. \V. 287, 78 Am. St. Rep. 600. Nebraska. — State v. Cass Co., 60 Neb. 566. 83 N. W. 733- Nezu Hampshire. — Grant v. Lath- rop, 23 N. H. 67. Sc'd' York. — Cole z'. Wcndel, 8 Johns. 116; ^lanchester Paper Co. V. Moore. 104 N. Y. 680. 10 N. E. 861. North Carolina. — Richards z\ Schlegelmich, 65 N. C. 150. Ohio. — Mosier t'. Parrv, 60 Ohio St. 388, 54 N. E. 364- Pennsylvania. — Schwab z\ Gin- kinger, 181 Pa. St. 8, ^7 .\tl. 125. Tennessee. — Turner v. Jackson (Tenn.), 63 S. W. 511. Texas. — Eikel z\ Randolph (Te.x.), 25 S. W. 62. Utah. — Brown v. Markland, 16 Utah 360, 52 Pac. 597, 67 Am. St. Rep. 629. I'ennoiit. — Young v. Young, 59 Vt. 342, ID Atl. 528. Washington. — Pennsylvania Mtge. Inv. Co. z\ Simms, 16 Wash. 243, 47 Pac. 441. JVest J'irginia. — Scraggs r. Hill. 37 W. Va. 706, 17 S. E. 185. JVisconsin. — Boden Z'. Maher, los Wis. 539. 81 N. W. 661. JVyoming. — North Platte Co. z\ Price, 4 Wye. 293, 33 Pac. 664. 14- Idaho. — Kelly 7'. Leachman (Idaho), 33 Pac. 44, 34 Pac. 813. lozva. — Aleader z'. Allen (Iowa), 81 N. W. 799. Kansas. — Bell z'. Rankin, x Kan. App. 209. 40 Pac. 1094. Maine. — Gillerson v. Small, 45 Me. 17. Maryland. — Warfield z: Booth, •!3 Md. 63. Massachusetts. — Sweet z\ Shum- way, 102 Mass. 365, 3 Am. Rep. 471. Michigan. — Norris z'. Shower- man. 2 Doug. 16. Mississippi. — Shackelford v. Hooker, 54 Miss. 716. Nezv Jersey. — Sandford z\ New- ark & H. R. Co., 37 N. J. Law i. Pennsylvania. — Foster z'. Mc- Graw, 64 Pa. St. 464. J'ermont. — New England Works z'. Bailey, 69 Vt. 257, 37 Atl. 1043. JFest J'irginia. — Caperton v. Caperton, 36 W. Va. 479, 15 S. E. 257- . ll'isco)isin. — Andrews v. Robert- son. Ill Wis. 334, 87 N. W. 190. In Applying a Lease to the Land Described as located on designated streets, it is competent to show where, at the time of the execution of the lease, the streets were, and what building there was on the cor- ner of those streets recently erected by the lessor. Durr z'. Chase, 161 .Mass. 40, 36 N. E. 741. 15. Warfield z'. Curd, =; Dana (Ky.) 318; Shackelford z: Hooker, 54 Miss. 716. 16. Hamill v. Woods (Iowa), 62 N. W. 735 ; Hotchkiss z\ Barnes. 34 Conn. 27, 91 Am. Dec. 713; Gardner r. Watson, 76 Tex. 25, 13 S. W. 39; White's Bank v. Myles, 73 N. Y. 335. 29 Am. Rep. 157 ; Michigan State Bank v. Peck, 28 Vt. 200; Waldheim z: Miller, 97 Wis. 300, 72 N. W. 869; Wills z: Ross, 77 Ind. I, 40 Am. Rep. 279. Result of the Circumstances. But even if the broadest viow be 53 Vol. I 834 AMBIGUITY. c. Contracts of Coin'cyuiicc aiitl Sale. — Aniljiguous lerms in a contract for the conveyance of real property may be sufficient under the statute of frauds when construed according to the evidence per- missible under the rule allowing extrinsic evidence of the surround- ing facts and circumstances to aid or explain such terms." And so also may be the tcFms of a contract of sale or assignment." adopted in respect of the admissi- bilily of evidence of the circum- stances surroimding the parties, or contemplated by them when a con- tract is entered into, a witness can- not state what in his opinion was the resvdt of the circumstances or that 'n his opinion, they Hmited or changed the language of the written con- tract. Swain I'. Granger's Union, 69 Cal. 186. 10 Pac. 404. 17. England. — Oliver t'. Hunting, L. R. 44 Ch. Div. J04. Alabama. — O'Neal '■. Scixas, 85 Ala. 80, 4 So. 74S. California. — Prehle r. .Abrahams, 88 Cal. 245, 26 Pac. 99, 22 .\m. Si. Rep. 30 r. Georgia. — Towner v. Thompson, 82 Ga. 740, 9 S. E. 672. lozca. — Brown v. Ward dowa), 81 N. W. 247. Maryland. — Stockham ■;•. Stock- ham, 32 Md. 196, Massaclnisctts. — .At wood v. Cobl>, 16 Pick. 227, 26 Am. Dec. 657; Hur- ley V. Brown, 98 Mass. 545, 96 Am. Dec. 671. Minnesota. — Ham r. Johnson, 51 Minn. 105, 52 N. W. 1080. Nebraska. — Ballon 7'. Sherwood, 32 Neb. 666, 49 N. W. 790. Nezi.1 York. — Waring v. Ayres, 40 N. Y. 357- Oregon. — Richards z\ Snider, 1 1 Or. 197, 3 Pac. 177. Pennsylvania. — Stamels v. Denis- ton, 193 Pa. St. 548, 44 Atl. 575. Te.vas. — Ragsdale v. Mays, 65 Te.x. 255. Washington. — Langert i'. Ross, i Wash. 250, 24 Pac. 443. Contracts Within Statute of Frauds. — In Dorris v. King (Tenn.), 54 S. W. 683, it was held that evidence of the surrounding facts and circumstances was admis- sible for the purpose of making more definite* the land referred to in a contract for the sale and de- livery of all timber of a certain kind on the settler's " lands," not within Vol. I the statute of frauds. The court said, however, that " The rule would be different where the contract, un- der the statute of frauds, is required to be in writing, or, at any rate, would have less extensive applica- tion, as in such cases the terms of the contract must be found entire in the contract itself as to stipula- tions and subject-matter." See also the case of Hanincr t'. Sharp. 11 Heisk. (Tenn.) 704; Hyde r. Har- den, 3 Heisk. (Tenn.) 515; Mum- ford t'. Railroad Co.. 2 Lea (Tenn.') 398, 31 Am. Rep. 616. 18. England. — McDoii)lied in the case of an ambiguous description of the parties.-" e. Wills. — An anibignous description in the terms of a bequest or devise is often explained under this rule, by resorting to the facts and circumstances surrounding the testator and his situation in reference to the subject matter, whether in respect of the thing devised or bequeathed."' or in identification of the devisee or land adjoining, in derogation of his own title to extend over the line pointed out. Purkiss v. Ben,son. 6 .Mich. 538. On an Issue As to the location of a Boundary Line, described as run- ning from a designated point on a stated line to " the shop of " a per- son named, it is proper to show that, at the time of tlic making of the instrument so describing the bound- ary, there was a platform extending along one side of the shop, built at the same time, resting on the same foundation, and used in connection with it, a corner of which was the boundary intended. Dunham v. Gan- nett. 124 Mass. 151. Agreement Upon Boundary Line. Where, in a conveyance of land, a description is given which is am- biguous or variable, it is competent to sliow that the parties, at the time of the conveyance, agreed upon a certain line as the boundary intended. Horner v. Stillwell, 35 N. J. Law 307. 20. Fletcher v. .Mansm', 5 Ind. 269; Langlois '•.'. Crawford. 59 Mo. 456; Heath v. Hewitt, 127 N. Y. 166, 27 N. E. 959, 24 Am. St. Rep. 438, 13 L. R. A. 46; Holmes v. Moon, 7 Heisk. (Tenn.) 506; Leach V. Dodson, 64 Tex. 185. 21. England. — In re Cheadle. L. R. 2 Ch. 620. Georgia. — White v, Holland, 92 Ga. 216, 18 S. E. 17, 44 Am. St. Rep. 87. Indiana. — Groves i'. Cnlph, 132 Ind. 186, 31 N. E. 569. /mi'o. — Chambers v. Watson. 60 Iowa 339, 14 N. W. 336. Kentucky. — Henry J'. Henry, 81 Ky. 342- ' Marvland. — Frick v. Frick, 82 Md. 218, 33 Atl. 462; Willett V. Carroll, 13 Md. 459. -Massachusetts. — Denfield v. Pe- titioner, 156 Mass. 265, 30 N. E. 1018. Michigan. — Waldron v. Waldron, 45 Mich. 350, 7 N. W. 894. Mississif>f!. — Schlottman r. HofT- man, 7i Aliss. 188, 18 So. 893, 55 Am. St. Rep. 527. Missouri. — Briant z'. Garrison, 150 Mo. 655, 52 S. W. 361. Next' Jersey. — Evans v. Griscom, 42 N. J. Law 579, .36 Am. Rep. 542. New York. — Lawton v. Corlies, 127 N. Y. 100. 27 N. E. 847- 0/»io. — Black V. Hill. 32 Ohio St. 313- Pennsxlvania. — In re Gaston's Estate, 188 Pa. St. 374, 41 Atl. S29, 68 Am. St. Rep. 874- Vermont. — Townsend v. Downer, 2T: \'t. 225. Condition of Testator's Property. Family, Etc. — While no construction can be indulged, which is in con- flict with the intention of the tes- tator, as expressed in his will, yet when the will has been written by an illiterate person, without any punctuation marks whatever, and its language is at all doubtful, evidence as to the condition of the testator's property, family, etc.. is admissible in construing its terms. Donohue v. Donohue, 54 Kan. 1,36, 37 Pac. 998. Construing Words of Indefinite Signification. — Where words of in- definite signification are used, such as my farm and plantation, and there is nothing on the face of the instrument to qualify them or limit and apply them to a particular sub- ject-matter, evidence of extrinsic circumstances, matters of fact, as distinguished from mere 'declarations of intention, is admissible for the purpose of ascertaining in what sense such definite language was used. The office of such testimony is that of interpretation — to find out the true sense of the written words as the parties used them. When such evi- dence is received and the facts are either admitted or found by the jury, the intention of the parties is to be Vol. I AMBIGUITY S37 legatee. -- C. Nature and Extent op Inquiry. — a. Previous Negotia- tions. — So, if the previous negotiations make it manifest in what sense the parties understood and used the ambiguous terms in the writing, they may be resorted to, and indeed, they furnish the best definition to be apphed in ascertaining the intention of the parties."^ Thus, the subject matter of the writing may be identified by proof of what was before the parties by sample or otherwise, at the time of the negotiations."* determined by a construction by the court from the language of the entire instrument after the sense of such general words has been ascertained by the extrinsic truth. Grisconi v. Evens. 40 N. J. Law 402. 29 Am. Rep. J51. Acts of the Testator After the Execution of the Will may be shown. Succession of Ehrenberg, 21 La. Ann. 280, 99 .Am. Dec. 729. 22. England. — In re Tavlor. L. R. 34 Ch. Div. 155. California. — In re Langdon's Es- tate (Cal.), 62 Pac. 73. Illinois. — Hawhe v. Chicago & W.LR. Co., 165 111. 501. 46 N.E. 240, Ulassachuselis. — Tucker 7: Sea- man's Aid Soc, 7 Mete. 188; Hink- ley V. Thatcher, 139 Mass. 477, i N. E. 840, 52 Am. Rep. 719. Ohio. — Worman !■. Teagarden, 2 Ohio St. 380. Pennsylvania. — In re Gaston's Es- tate, 188 Pa. St. 374, 41 Atl. 529, 68 Am. St. Rep. 874. Virginia. — Maund v. McPhail, 10 Leigh 199. To Enable the Court to Strike Out What Is False in the Designa- tion of the Legatee, and so carry out the intent of the testator, parol testimony has been introduced to show the number, the degree, and the kinship of the testator's relations, as well as how he regarded them and talked about them. Atterburv t. Straflford, 58 N. J. Eq. 186. 44 Atl. 160: citing Lord Camoys i'. Blun- dell, I H. L. Cas. 778; Thomas v. Thomas, 6 T. R. 671 ; Vernor v. Henry, 3 Watts. (Pa.) 393; Smith V. Smith, I Edw. Ch. (N. Y.) 189; affirmed in 4 Paige 272. 23. Stoops V. Smith. 100 Mass. 63, 92 Am. Dec. 76; Keller 7'. Webb, 125 Mass. 88, 28 .\m. Rep. 214; Quarry Co. v. Clements, 38 Ohio St. 587. 43 Am. Rep. 442. The Terms of the Negotiation Itself, and Statements Therein made, may be resorted to for this purpose. Foster v. Woods, 16 Mas.s. 116; Sargent v. Adams, 3 Gray (Mass.) 72, 63 Am. Dec. 718; Mun- ford V. Gething, 7 Com. B. N. S. .305; Chadwick v. Burnley. 12 Week. Rep. 1077. Articles of Agreement in Pursu- ance of Which a Deed Was Exe- cuted may be admitted in evidence, to show the intent of the parties, where there is an ambiguity in the . Lawrence, 38 Barb. 643 ; Collender z'. Dinsmore, 55 N. Y. 200, 14 Am. Rep. 224 : Law- rence V. Gallagher, 73 N. Y. 613; Bissel z'. Campbell, 54 N. Y. 353; Thompson z'. Sloan, 2^^ Wend. 71, 35 Am. Dec. 546; Stroud v. Fritli, ii Barb. 300; Sleght v. Hartshome, 2 Johns. 531. Oregon. — Abraham v. Oregon & C. R. Co., 37 Or. 495, 60 Pac. 899, 82 Am. St. Rep. 779. Pennsylvania. — Carey z\ Bright, 58 Pa. St. 70. Texas. — Dewees v. Lockhart, i Tex. 535- Vermont. — Moore i'. Hill, 62 Vt. 424, 19 Atl. 997. jriscoiisin. — Bedard v. Bonvillc, 57 Wis. 270, 15 N. W. 185. Statement of the Rule The rule is too axiomatic to require the citation of authority for its support, that when parties have deliberately reduced their engagements to writ- ing, in terms precise and unambigu- ous, their intention must be gathered from the whole instrument, and the language thus chosen to express their meaning, and parol evidence is inadmissible, to add to. contradict or alter snch language, or to support a construction at variance with the fair, plain import of the words them- selves. When, however, the agree- ment rests in doubt and uncertainty, because of the use of terms of a technical character, or so indefinite in their reference as to be alike ap- plicable to different things, such technical terms may be explained, and surrounding facts and circum- stances may be shown, to enable the court to point the proper application as intended by the parties. The range of this inquiry must, of course, be limited to such extrinsic facts" as have some relevanci' to the subject of inquiry, and cannot be extended to embrace facts clearly foreign to any possible matters mentioned and referred to in the contract. But, in no case can the mere admissions or declarations of a party to the agree- ment in respect to the purpose, meaning or effect of any of its pro- visions be received to aid or influ- ence the court in reaching a correct interpretation. City of Winona v. Thompson, 24 Minn. 199. "Season." — In an action for the breach of a written contract of em- ployment for a " season " in which the duration of the season is not specified, parol evidence is not ad- missible to define the term. Walch- tershauser z\ Smith. 10 N, Y. St. 552, 10 N. Y. Supp. 535. Compare .Alclntosh -'. Miner, 53 .\pp. Div. 240, 65 N. Y. Supp. 735- If there was any uncertainty, on the face of the bill, whether the word cashier was appended to the name, or rather, whether the figures and marks were intended for that word, Vol. I 842 AMBIGUITY. evidence neither varies nor adds to the writing;', hut merely trans- lates it from the language of the trade or art in c|uestion, into the ordinary language of people generally. ■'■'' Out such evidence is not admissible where it is apparent that the word or term in question was not used in such new, peculiar or technical sense. ''^ Medium of Payment. — It has been held competent to show that the I)arties to a written contract l)y the word " dollars " intended Con- federate dollars, and not lawful monev of the United States."'' So testimony was proper and necessary to establish that fact. In the fac similes we have of the signatures of some distingnished men. it would be impossible to make out the name, ex- cept by the testimony of those ac- quainted with such signatures. This must, from the nature of the case, be a subject to be estabHshcd by parol testimony. Farmers' & Mechanics' I'.ank V. Day, 6 Vt. 36. 33. Maurin i'. Lyon, 69 Minn. 257, 72 N. W. 72, 65 Am. St. Rep. 568. 34. Alabama. — Mohb\e M. Dork & Mut. Ins. Co. V. McMillan, 31 Ala. 711. California. — Bullock v. Consum- ers' Luni. Co., (Cal.), 31 Pac. 367. Illinois. — Lord v. Owen, 35 111. App. 382; Galena Ins. Co. v. Kupfer, 28 111. ii2, 81 Am. Dec. 284. Indiana. — Laugohr v. Smith, 81 Ind. 495. Iowa. — Cash i\ Ilinkle, ,^0 Iowa 623. Kansas. — Gowans v. Pierce, 57 Kan. 180, 45 Pac. 586. .Wfl/Hr. — Littlefield v. Liltlefield, 28 Me. 180. Massachusetts. — First Nat. Bank V. Coffin, 162 Mass. 180, 38 N. E. 444- Netv Jersey. — Hartwell r. Cam- man, 10 N. J. Eq. 128, 64 Am. Dec. 448. Ne'ii.' York. — Strong v. Waters, 27 App. Div. 299, 50 N. Y. Supp. 257; Heiberger v. Johnson, 34 App. Div. 66, 53 N. Y. Supp. 1057. Texas. — Ginnuth v. Blankenship Co. (Tex. Civ. App.), 28 S. W. 828. 35. United States. — Thorington V. Smith, 8 Wall, i ; The Confed- erate Note Case, 19 Wall. 548. Alabama. — Hill v. Erwin, 44 Ala. 661. Arkansas. — Roane v. Green, 24 .'\rk. 210 Vol. I South Carolina. — Ncely v. Mc- Fadden, 2 S. C. 169. Te.ras. — Johnson i'. Blount, 48 Tex. 38; :\Iathe\vs v. Rucker, 41 Tex. 636; Roberts •:■. Short, i Tex. 37.^- Statement of Rule. — It is quite clear that a contract to pay dollars, made between citizens of any state of the Union, while maintaining its constitutional relations with the National government, is a contract to pay lawful money of the Linited States, and cannot be modified or explained by parol evidence. But it is equally clear, if in any other country, coins or notes denominated dollars should be authorized of dif- ferent value from the coins or notes which are current here under that name, that, in a suit upon a contract to pay dollars, made in that coun- try, evidence would be admitted to prove what kind of dollars were in- tended, and, if it should turn out that foreign dollars were meant, to prove their equivalent value in lawful money of the L'nited States. Such evidence does not modify, or alter the contract. It simply explains an ambiguity, which, under the general rules of evidence, may be removed by parol evidence. We have already seen that the people of the insurgent states, under the confederate govern- ment w'ere, in legal contemplation, substantially in the same condition as inhabitants of districts of a coun- try occupied and controlled by an invading belligerent. The rules which would apply in the former case would apply in the latter ; and, as in the former case, the people must he regarded as subjects of a foreign power, and contracts among them be interpreted and enforced with reference to the conditions im- posed by the conqueror, so in the latter case, the inhabilants must be regarded as under the authority of AMBICUirv 843 also, it has liuen liclil that it may be shown that an ohHgation described as payable in tlollars and cents was in fact to be paid in I'nited States bank bills."'' e. Usage of the Business. — Evidence of the known ami ordinary course of the jiarticular business is competent for the purpose of exijlaining an ambiguity,'' as, for instance, that according to usage the insurgeiU belligerent power actually established as the govern- ment of the country, and contracts made with them must be interpreted and enforced with reference to the condition of things created by the acts of the governing power. Thor- ingfon ?'. Smith, 8 Wall. i. 36. Morton z'. Wells, i Tyler (Vt.) j8l, so holding that such evi- dence does not controvert, but ex- plains the writing. Compare Noe V. Hodges, 3 Humph. (Tenn.) 162, wherein it was held that the admis- sion of parol evidence to prove that it was agreed between the parties that bank notes should be receivable in discharge of an obligation paya- ble in dollars was in violation of the great principle that parol evidence shall not be heard to add to or vary a writing. See also Ehle v. Chitten- ango 1-iank, 24 N. Y. 548, wherein it was held that evidence of an under- standing by the cashier of a bank that " state currency " meant coun- try l)ank notes current in New York city at a discount of a quarter of i per cent., but not showing general usage in that sense, was inadmissi- ble. 37, Robinson v. U. S. 363; Salmon Mfg. Co. 7' 14 How. 441. Connecticut. — Hatch v. 48 Conn. 1 17. Georgia. — .Maril f. Connecticut F. In.s. Co., 95 Ga. 604. 2i S. E. 463, 51 Am. St. Rep. 102, 30 L. R. A. 835. Itliiiois. — Elgin 7'. Joslyn, 36 111. App. 301. Indiana. — Lyon 7\ Lcnon, 106 Ind. 567. 7 N. E. 311- Massachusetts. — Brown ■:•. Brown, 8 Mete. 573. Minnesota. — Breen ;■. Moran, 51 Minn. 525, 53 N. W. 755. Nc7V Hampshire. — Cummings ■:'. Blanchard, 67 N. H. 268, 36 Atl. ss6, 68 Am. St. Rep. 664. Nezi' Jersey. — Smith f. Clayton, 29 N. J. Law 357. 13 Wall. Goddard, Douglass, Ne-a' York. — White v. Ellis- burgh, 18 App. Div. 514, 45 N: Y. Supp. 1 122; Brunold ■:■. Glasser, 25 Misc. 285, 53 N. Y. Supp. 1021 ; Liv- ingston V. Ten Broeck, 16 Johns. 14, 8 Am. Dec. 287. Pennsyl'eania. — Brown -e. Brooks, 25 Pa. St. 210. Soutli Carolina. — Goddard v. Bu- low, 1 Nott & McC. 45, 9 Am. Dec. 663. Te.vas. — Brennenian v. Birsh, (Tex. Civ. App.), 30 S. W. 699. Jl'ashiiigton. — Adamant Plaster Co. 7'. Nat. Bank, 5 Wash. 232, 31 Pac. 634. Proof of Usage is received in ac- tions on express contracts, upon the ground that it serves to explain and ascertain the intent of the parties on some point as to which their con- tract is silent. Lamb v. Klaus, 30 Wis. 94. It is permissible for the owner of a steamboat, when sued for the loss of goods by fire, to show by parol that the exceptive words, " dangers of the river," in a bill of lading, by custom and usage include dangers by fire. McClure & Co. v. Cox & Co., ,?2 Ala. 617, 70 Am. Dec. 552; citing Samoson z\ Gazzam, 6 Port. (Ala.) 123, 30 .\m. Dec. 578; Hibler ',■. Mc- Cartney, 31 Ala. 501. Evidence of a Prior Course of Dealing between the parties to a contract is inadmissible wdien the contract is so distinctly drawn as to leave no ambiguities for parol ex- planation especially of a prior course of dealing between one of the par- ties to it and the predecessors of the other party ; although it may be shown that the parties in their deal- ings under the contract varied its terms by a subsequent parol agree- ment. Conrad 7'. Fisher, 37 Mo. App. 35-2- In Penn. Steel etc. Co. 7'. Iron Co., I Penn. (Del.) 337, 41 Atl. 236, an action to recover goods sold un- der written contract, requiring qual- Vol. I 844 AMBIGUITY. in the insurance Jjusiness a word or term used in a policv has acquired a meaning other than its usual and ordinary sense."* Hut evidence of the sense in which a word or term was understood by other persons in the same business is not admissible, unless the party to the writing is shown to have known of such otlier transac- tions.^" III. LATENT AMBIGUITY. 1. In General. — A latent ambiguity being one that is evoked by extrinsic evidence, it follows as a corollary that its resolution should be effected in the same manner, and to that end. parol evi- dence is always admissible to aid or explain such an ambiguity, provided, of course, that such evidence does not contradict or vary the implications of the written terms employed.*" Facts existing ity and workmanship to be " up to standard," it was held that the de- fendant could not show that he con- tracted with reference to a standard defined by plaintiff in a circular is- sued by him in regard to his busi- ness, in the absence of evidence that there was no standard recognized by the trade. The Phrase " Rainy Day " being of itself indefinite and uncertain, the sense in which it was used in a par- ticular contract may, therefore, be shown by the surrounding circum- stances, including the usage of the particular port or trade to which the contract relates. Balfour v. Wilkins, 5 Saw. 429, 2 Fed. Cas. No. 807. Oral Evidence Is Admissible to Show That by Word " barrels." used in a writen contract, the parties in- tended vessels of a certain kind and capacity, used in a particular busi- ness, and not a measure of quantity as per statute barrel. Miller ;■. State, 100 Mass. 518. 97 Am. Dec. 123. In Montana, liy express statute (Civ. Code, §§2209, 2210) the words of a contract are to be understood in their ordinary and popular sense, and technical words are to be inter- preted as usually j.inderstood by per- sons in the business to which they relate ; and accordingly evidence of qualified witnesses to interpret tech- nical terms used in a mining lease according to the usual understanding of miners, is competent. Cambers v. l.owry, 21 Mont. 478, 54 Pac. 816. 38, United States. — Erhart v. Ullman, 51 Fed. 414. Com pare Mo- ran <■. Prather, 23 Wall. 492. Vol. I Arkansas. — Western Assur. Co. V. Altheimer, 58 Ark. 565, 25 S. W. 1067. Iov. (2.) Two Descriptions Applying to Same Subject Matter. — So also, where two descriptions of the premises conveyed are found to apply to the same subject matter, the rule admitting extrinsic evidence is invoked.'"' (3.) Description Applicable to Two or More Objects. — And where the terms of the conveyance are applicable indifferently to two or more tracts of land, the rule admitting extrinsic evidence mav be invoked.-'^' So also, in the case of the extrinsic of two or more monuments or boundaries.^^ precisely and accurately identifie'; the premises to be conveyed. Stowell V. Buswell, I3S Mass. 340. 49. Arkansas. ■ — Cato v. Stewart, 28 Ark. 146. Colorado. — Sullivan v. Collins, 20 Colo. 528, 39 Pac. 334. Illinois. — Evans v. Gerry, 174 111. 595. 51 N. E. 615. MassaclitiSi-tls. — Fisk 7: Fisk, 12 Cush. 150. Michigan. — Moran v. Lezotte, 54 Mich. 83, 19 N. W. 757. Missouri. — Thornton v. Missouri Pac. R. Co., 40 Mo. App. 265. i\'t-tt' Jersey. — Thayer v. Torrey, 37 N. J. Law- 339. Pcnnsvh'ania. — Hetherington v. Clark, 30 Pa. St. 393. Texas. — Giddings v. Day, 84 Tex. 605, 19 S. W. 682. 50. Alabama. — Dorgan v. Weeks, 86 Ala. 329. 5 So. 581. California.- — Vejar v. Mound City Land & W. Ass'n., 97 Cal. 659, 32 Pac. 713. Illinois. — Fisher v. Quackenbush, 83 111. 310; Bybee v. Hageman, 66 111. 519. loii'a. — Palmer v. Albec, 50 Iowa 429. Louisiana. — Bagley -'. Deimy, 26 La. Ann. 255. Maryland. — Rogers v. Moore, 7 Har. & J. III. Massachusetts. — Durr v. Chase, 161 Mass. 40, 36 N. E. 741 ; Mead i'. Parker, 115 Mass. 413, 15 Am. Rep. 110. Michigan. — Ives v. Kimball, I Mich. 308. Mississippi. — Fonte z'. Fairman, 48 Miss. 536. Nebraska. — Ballou t'. Sherwood, 32 Neb. 666, 49 N. W. 790. New Hampshire. — Lathrnp i; Blake, 23 N. H. 46. 54 Nezi' Mexico. — Gentile v. Cross- man, 7 N. M. 589, 38 Pac. 247. North Carolina. — McGIawhom v. Worthington, 98 N. C. 199. 3 S. E. 633. Pennsylvania. — Hetherington 7/. Clark, 30 Pa. St. 393. South Carolina. — Scates v. Hen- derson, 44 S. C. 548, 22 S. E. 724. Tennessee. — Snodgrass v. Ward, 3 Hayw. 40. Texas. — Bassett v. Martin, 83 Tex. 339, 18 S. W. 587. Wisconsin. — Sargeant v. Solberg, 32 Wis. 127. Place of Sale Under Trust Deed. In Goff V. Roberts, 72 Mo. 570, by the terms of a trust deed if the grantor defaulted in payment of a note the trustees were authorized to sell the property at the courthouse door in a certain town, and, as there were two houses called such in the town, parol evidence was held ad- missible to show which was in- tended. 51. United States.— ^eeA ;■. Pro- prietors of Locks & Canals, 8 How. 274. Alabama. — Stamphill v. Bullen, 121 Ala. 250, 25 So. 928. Connecticut. — Wooster v. Butler, 19 Conn. 308. Indiana. — Hurst v. Francis, 5 Ind. 302. Kentuckv. — Shelby z: Teris, (Ky.), 14 S. W. 501- Maine. — Emery j'. Webster, 42 Me. 204, 66 Am. Dec. 274; Tyler z: Fickett, 73 JMe. 410. Massachusetts. — Flagg v. Mason, 141 Mass. 64, 6 N. E. 702; Water- man V. Johnson, 13 Pick. 261 ; Mac- donald v. Morrill, 154 Mass. 270, 28 N. E. 259. Michigan. — Purkiss v. Benson, 28 Mich. 538. Vol. I 850 AMBIGUITY. b. Dcscri[shire. — Pickering v. Pickering, 50 N. H. 349; Winkley v. Kaime, 32 N. H. 268. AVii' Jersey. — Taylor i'. Tolen, 38 N. J. Eq. 91- Neiv York. — Lefevre v. Lefevre, 59 N. Y. 434- North Carolina. — Hatch I'. Hatch, 2 Hayw. ig. The Admission of Such Evidence Is No Encroachment npon the rule (to sustain which numerous cases were cited), that, "in general, parol evidence of the intention of the tes- tator is inadmissihle for the purpose of e.xplaining, contradicting or add- ing to the contents of the will; hut its language must be interpreted ac- cording to its terms." Morgan j'. Vol. I Burrows, 45 Wis. 211, 30 Am. Rep. Where words in a will are fairly and legitimately applicable to one thing as its name, and are equally applicable to another thing as words of description, parol evidence is ad- missible to show in which of the two senses the testator was in the habit of using the words. Boggs v. Taylor, 26 Ohio St. 604. 59. England. — ;\liller z\ Fraiers, 8 Bing. 244, 21 Eng. C. L. 288. Connecticut. — Doolittle v. Blakes- ley, 4 Day 265, 4 Am. Dec. 218. Maryland. — Hammond ',: Ham- mond," 55 Md. 575. Massachusetts. — Sargent i'. Towne, 10 Mass. 303. Michigan. — Waldron v. Waldron, 45 Mich. 350, 7 N. W. 894. Nets.' Jersey. — Den v. Culberly, 12 N. J. Law 308. North Carolina. — Lowe 7'. Carter, 2 Jones Eq. 377. 0/!io. — Black V. Hill, 32 Ohio St. Pennsylvania. — Brownfield v. Browntield, 12 Pa. St. 13O, 51 .\m. Dec. 590. 60. England. — In re Kilvert's Trusts, 12 Eng. C. L. 183; Grant I'. Grant, L. R. 5 C. P. 38. Connecticut. — Durham v. ,'\verill, 45 Conn. 61, 29 Am. Rep. 642. Illinois. — Bradley i'. Rees, 113 111- 3^7. 55 Am. Rep. 422. Indiana. — Daugherty i'. Rogers, iig Ind. 254, 20 N. E. 779. Joti'a. — Covert Z'. Sebern, 73 Iowa 564, 35 N. W. 636. Kentucky. — Cromie Z'. Louisville Orphan's Home Soc, 3 Bush. 365. Maine. — Howard z'. American Peace Soc, 49 Me. 288. Massachusetts. — Morse z'. Stearics, 131 Mass. 389; Sargent f. Towne, ID Mass. 303. AMBIGUITY. 853 b. Description of Dci'iscc or Legatee. — Likewise, where an ambiguity arises in respect of the appHcation of the designation of the devisee or legatee named in a will, to an individual,"' or where Michigan. — Waldron v. Waldron, 45 Mich. 350, 7 N. W. 894. Nnu Hampshire. — Tilton v. Am- erican Bible Soc. 60 N. H. 377. 49 Am. Rep. 321. Nen< Jersey. — Den v. Cu1)berly, 12 N. J. Law 308. Nezv York. — St. Luke's Home t'. Ass'n for Relief, 52 N. Y, 191, 11 Am. Rep. 697; Jackson v. Goes, 13 Johns. 518; Tillotson ?■. Race, 22 N. Y. 122. North Carolina. — Lowe v. Carter, 2 Jones Eq. 377. O/n'o. — Black v. Hill. ?,2 Ohio St. 313. Pennsylvania. — Vernor i\ Henry, 3 Watts .185 ; Brownfield ;■. Brown- field, 12 Pa. St. 136, 51 Am. Dec. 590. Tennessee. — Gass v. Ross, 3 Sneed 211. Vermont. — Townsend v. Downer, 23 Vt. 225. Virginia. — Maund v. McPhail, lo Leigh 199. Wisconsin. — Webster r. Morris, 66 Wis. 366. 28 N. W. 353. 57 Am. Rep. 278. Declarations of the Testator may be resorted to in case of a latent ambiguity, which arises where there are two or more persons or things, each answering exactly to the person or thing described in the will. In such an event, parol evidence of what the testator said may law- fully be adduced, to show which of them he intended ; but such evidence will not be allowed to show that he meant a thing different from that disclosed in the will. Griscoin v. Evens, 40 N. J. Law 402. 29 Am. Dec. 251. Upon the question as to what the words used by the testator to ex- press evidence of declaration as to what were his intentions in the dis- positions which he had made, Q,r as to the ilisposition which he intended to make, of his property, is inad- missible. But where it is found that the terms used apply indifferently and without ambiguity to each of several subjects or persons, then evi- dence of such declarations is admis- sible. Wooten ;■. Redd, 12 Gratt. (Va.) 196. The general rule that parol evi- dence is admissible to explain .a latent ambiguity, is perfectly well settled; and that the condition of the testator's property may be shown to raise this ambiguity, is also set- tled. Brainerd 1'. Cowdrey. 16 Conn. 1. Instructions of a Testator to a Scrivener who drew his will have been held admissible in case of a latent ambiguity. Den v. Cubberly, 12 N. J. Law 308. Contra. — Hill v. Felton, 47 Ga. 455. 15 Am. Rep. 643 : see also Frick V. Prick. 82 Md. 218, 33 Atl. 462, wherein the court said : " We cannot, however, resort to extrinsic evidence as to ascer- tain from the scrivener what the testator instructed or intended hiin to say, as was attempted in this case, nor can we accept the declar- ations of the testator to establish his intention, or to aid in the inter- pretion of the will, as was settled in Cesar v. Chew, 7 Gill. & J. (-Md.) 127; Zimmerman f. Hafer, 81 Md. .U7, 32 Atl. 316: and other cases that might be cited." 61. England. — Grant v. Grant. L. R. 5 C. P. 380. 727 ; In re Wolver- ton's Estate, L. R. 7 Ch. Div. I97_; Hiscocks V. Hiscocks. 5 M. & W. 363, 52 Rev. Rep. 748. Illinois. — Bradley z: Rees. 113 III 327, 55 Am. Rep. 422. Indiana. — Skinner t'. Harrison Twp., 116 Ind. 139. 18 X. E. 5^9. 2 L. R. A. 137- lozva. — Coovert i'. Sebern, 73 Iowa 564. 35 N. W. 636. Louisiana. — Barnabee v. Snaer, 18 La. .\nn. 148. .Massaclntsetts. — Bodman !■. Amer- ican Tract Soc, 9 Allen 447 ; Morse v. Stearns, 131 Mass. 389. New Jersey. — Atterbury ;'. Straf- ford, 58 N. J. Eq. 186, 44 Atl. 160. Ne7v York. — In re Wheeler, 32 App. Div. 183. 52 N. Y. Supp. 943, aMrnied 57 N. E. 1128; Gallup v. Wright. (M How. Pr. 286. Vol. I 854 MDlGUirv. the devisee or legatee is characterized in terms which are words of general description only, rather than hy the use of an exact name,"' extrinsic evidence is receivable in explanation thereof ; and for this purpose evidence of the testator's declarations to show what person lij meant to designate by the description is admissible."^ y orth Carolina. — Clarke v. Cot- ton. 2 Dev. Eq. 301, 24 Am. Dec. 279. Pcnnsxk'ania. — Vernor v. Henry, ,1 Watts" 385. Sonth Carolina. — In re Rolib's Es- tate. 3/ S. C. 19, 16 S. E. 241. Virginia. — Hawkins v. Garland, 76 Va. 149, 44 Am. Rep. 158. hi Grant v. Grant, L. R. 2 Prob. & Div. 8. L. R. S C. P. 380, 727. a devise was " to my nephew J G," and the testator had such a nephew, l)ut did not know his name or ex- istence and was unfriendly with his father. Testator's wife had a nephew of the same name, who had lived with the testator for years, and was called " nephew " uy him, and testator had declared that he meant to make this latter nephew his heir and cut ofif his brother's family. These facts were held com- petent evidence establishing the claim of the wife's nephew. Com- pare Wells V. Wells, L. R. 18 Eq. Cas. 504; In re Fish, L. R. 2 Ch. Div. (1894) 83; In re Foster, L. R. 17 Ch. Div. 382. Where inoney is bequeathed to a school by a testatrix, designating the object of her bounty by a wrong name, but fixing the locality, it may be shown by extrinsic testimony what school was intended in the will and that it was the only school controlled by a certain denomination of religious people in that place. Ross V. Kiger, 42 W. Va. 402, 26 S. E. 193. If there are two societies of the same name which is used by a tes- tator to describe a legatee, extrin- sic evidence is to be resorted to for the purpose of ascertaining which he had in mind. Bodman z>. American Tract Soc, 9 Allen (Mass.) 447. 62. England. — Allen v. Allen, 12 .\(1. & E. 451 ; In re Kilvert's Trusts, i,. k. 7 Ch. App. Cas. 170; In re Alchius' Trusts, L. R. 14 Eq. 230; Doc V. Huthwaite, 3 Barn. & A. 632, 5 iMig. C. L. .S63. Vol. I United States. — Gilmer ?•. Stone, 120 U. S. 586. Connectieut. — Brewster v. Mc- Call, 15 Conn. 274. Illinois. — Missionary Soc. v. Mead, 131 111. t,^. 2^ N. E. 603. Indiana. — Elliott v. Elliott, 117 Ind. 380, 20 N. E. 264, 10 Am. St. Rep. 54; Denis v. Holsapple, 148 Ind. 297, 47 N. E. 631, 62 Am. St. Rep. 526, 46 L. R. A. 168. Massaehusetts. — Faulkner f. Na- tional Sailors' Hoine. 155 i\Iass. 458, 29 N. E. 645. New Hampshire. — Tilton v. Am- erican Bible Soc, 60 N. H. 377, 49 .A.!!!. Rep. 321. Neiv lersey. — Van Nostrand v. Board of Missions, 59 N. J. Eq. 19, 44 Atl. 472. Neii.' York. — Lefevre v. Lefevre, 59 N. Y. 434. North Carolina. — Keith 7'. Scales, 124 N. C. 497, 32 S. E. 809. Pennsylvania. — Appeal of Wash- ington and Lee University, 1 1 1 Pa. St. 572, 3 Atl. 664. Rhode Island. — Wood t. Ham- mond, 16 R. I. 98, 17 Atl. 324, South Carolina. — In re Robb's Estate, 37 S. C. 19, 16 S. E. 241. Tennessee. — Gass f. Ross, 3 Sneed 211. I'ermont. — McAllister j'. McAl- lister, 46 Vt. 272. Virginia. — Hawkins v. Garland, 76 Va. 149, 44 Am. Rep. 158. IVest Virginia. — Ross v. Kiger, 42 \V. Va. 402, 26 S. E. 193. 63. Gord I'. Needs. 2 M. & W. 129. Dennis i'. Holsapple, 148 Ind. 297, 47 N. E. 331 ; and see cases cited in notes immediately preceding. Circumstances Indicative of the State of the Testator's Affections towards the object of his bounty, or the relative circumstances of his connections, or his acts and declar- ations in respect of the thing given, or the person of the donee, arc con- stantly admitted. With this view the relative amount of advance- ments and the difference in value AMBIGUITY. 855 3. Creating Ambiguity by Parol. — It is not enough to render parol evidence competent to show circumstances known to one of the jiarties, but unknown to the other, which might have influenced tlie former in making the contract ; but, in order to create an ambi- guity in the use of common and ordinary language, so as to open such writing to parol explanatory evidence, it must be established by proof of circumstances known to all of the parties to the writing and available to all, in selecting the language to be employed to express their meaning.** IV. INTERMEDIATE OR MIXED AMBIGUITY. The difficulty of always distinguishing between a patent and latent ambiguity has led to the suggestion that there is an interme- diate class partaking of the nature of both patent and latent ambi- guity, "° and that in such case extrinsic evidence is properly resorted to in order that the ambiguity may be resolved ;"" but this suggested classification has been criticised.*" V. QUESTIONS OF LAW AND FACT. The construction of an instrument of writing, being matter of of the portions of the land, woiihl he proper evidence. Brownfield v. Brownfield, 12 Pa. St. 136, 51 .\ni. Dec. 590. Evidence tliat testator, at the time of making his will, stated that he had given a legacy to the " Shelter," and when told that he had erroneously called it the " Nursery," he replied that he did not wish to erase any- thing from the will, and that he meant the " nigger nursery," is in- admissible. Wood V. Hammond, 16 R. I. 98, 17 Atl. 324- 64. Brady v. Cassidy, 104 N. Y. 147, ID N. E. 131- 65. Peish v. Dickson, i Mason 9, 19 Fed. Cas. No. 10,911, wherein Judge Story discusses this difficulty and suggests the classification above stated. 66. United States. — Peish ?'. Dickson, I Mason 9, 19 Fed. Cas. No. 10,911. Alabama. — Moody v. Alabama G. S. R. Co. (Ala.), 26 So. 952; Chambers v. Ringstaff, 69 Ala. 140. California. — Auzerais v. Naglee, 74 Cal. 60, 15 Pac. 371 ; Hawley v. Bader, 15 Cal. 44. Mississippi. — Preacher i'. Strauss, 47 Miss. 353. New Mexico. — Gentile v. Crossan, 7 N. M. 589, 38 Pac. 247. iY«t' York. — Fish v. Hubbard, 21 Wend. 651. ll'isconsiit. — Reason i'. Kurz, 66 Wis. 448. 29 N. W. 230; Ganson f. Madigan, 15 Wis. 158, 81 Am. Dec. 652. In an action concerning a disputed boundary between two mining claims, depending on an agreement between the parties, in which the word " north " was used, and parol evidence was admitted to prove that it was the custom of the locality to run boundary lines by the magnetic meridian, and that that was the un- derstanding of the parties. Held, that such evidence was admissible, not to contradict or vary the term, but to ascertain the sense in which it was used. Jenny Lind Co. v. Bovver, 11 Cal. 194. 67. Schlottman r. Hoffman, 73 Miss. 188, 18 So. 893, 55 Am- St. Rep. 527, wherein the court says that the solution of the difficulty by Prof. Greenleaf, in assigning am- biguities of this character to the class of latent ambiguities, is per- haps as satisfactory as can be sug- gested, and reconciles many appar- ently conflicting statements of the rule. See also 2 Phil. Ev., Cowen, Hill & Edward's Notes to §3, ch. 8. Vol. I 856 AMBIGUITY law, is for the court ; but when an ambiguity arises, and evidence is received in explanation thereof, it then becomes a question for the jury to determine the meaning of the ambiguous language,*** anil a charge by the court as to such meaning is error."" 68. Unglaiid. — Smith v. Tlioiiip- son, 8 M. & G. 44, 65 Eng. C. L. 42- Georgia. — Hill '■. King Mfg. Co., 79 Ga. 105, 3 S. E. 445- Maine. — Fenderson v. Owen, 54 Me. 372, 92 Am. Dec. 551. New Havipshire. — Barflett v. Nottingham, 8 N. H. .^00. Neiv Jersev. — Curtis !■. Aaronson, 49 N. J. Law 68, 7 Atl. 886. 60 Am. Rep. 584. Nortli Carolina. — Colgate c'. l.atta, 115 N. C. 127, 20 S. E. 38S. 26 L. R. A. 321. Pennsylvania. — Lycoming Ins. Co. V. Sailor, 67 Pa. St. loS; Cimimins V. Germain Am. Lis. Co., 197 Pa. St. 61, 46 Atl. 902; McCullough V. Wainwright. 14 Pa. St. 171. Te.vas. — Kingston %'. Pickins, 46 Tex. 99. 69. Ginnuth v. Blankenship (Tex. Civ. App.), 28 S. W. 828. AMNESTY.— See Pardon. AMOUNT.— See Books of Account, Quantity. AN NOTION— See Corporations. ANCIENT BOUNDARIES.— See Boundaries. Vol. I ANCIENT DOCUMENTS. By Edoar W. Camp. I. DEFINITION, 860 II. DETERMINATION OF AGE, 860 1. Date J-roin Winch Reckoned, 8C0 A. Geiierallv, 860 P.. irilh, 860 2. Date to Which Reckoned, 8(10 3. Proving Age, 860 A. 7 o Be Proved, SCo B. Method of Proof. 861 a. Direct Evidence, 861 b. Circnnistantial Evidence, 861 (i.) Generally, 861 (2.) Appearance, 861 (3.) Indorsements, 861 III. SHOWING COMPETENCY, 862 1. Necessity of Proof. 862 2. Method of Proof, 862 A. Custody, 862 a. Importance Of, 862 b. Proper, Must Be .Shown, 863 (i.) Generally. 863 (2.) Presumptions. SCi;^, (3.) Exceptions, 863 c. B3.' rF/?o;7j /o Be Proved, 864 d. WAa/ /j- Proper Custody, 864 (i.) Generally, 864 (2.) Custody of Claimant, 8O3 (3.) fFM 0//;rr Muniments] 865 (4.) Custody of Grantor, 866 e. iVcerf A/'o; Be Most Proper, 866 f. Explaining Custody, 866 g. /.? Question for Court. 866 h. Sufficiency of Custod\ As Proof. 866 (i.) England and Canada, 866 (2.) I7;n7crf 6"to/(\f. 867 B. Possession, 868 a. JFi7/j Custody Snificient, 868 b. Whether Indispensable, 869 (i.) Rulings That it Is, 869 (A.) Prevailing Rule Formerly. 861) Vol. I 858 ANCIENT DOCUMENTS. (B.) Length of Possession. 869 (C.) Hou' Proved. 870 (D.) E.rtenf of Possession. 870 (E.) E-vceptions. 870 (2.) Rulings Thai it Is Not. 871 C. Other Corroborative Facts, 872 a. Attestation and Record, 872 b. Payment of Ta.ves, 872 c. Acts of Oivnership, 872 d. Assertion of Rights. 873 D. Legal E.v cent ion. 873 a. Mnst Shoii< Compliance With Lazi.\ 873 b. Presumptions in Favor Of, 873 c. Informalities Do Not Vitiate, 873 E. Free From Gronnds of Suspicion. 874 a. Generally. 874 b. Unusual Form, 874 c. Erasures, 874 d. Mutilation, 874 e. Alteration, 874 (i.) Generally. 874 (2.) Material' to Be Explained. 874 f. Defective Acknoz>.'lcdgment. 875 F. Direct Proof of Execution. 875 a. fr/(r» A'^o^ Required. 875 ( T.) Suhscrihina^ Ultness Need Not Be Called, 875 (2.) A^'o)- Accounted For. 875 b. rF/;f» .1/;/.?/ Bf Proved. 876 (i.) Dff(/ a Fraudulent Act, 876 (2.) rF/7n-c Custody. Etc.. Not Proved. ^•-C^ c. Method of Proof, 876 (1.) Rules Relaxed, 876 (2.) Accounting for IVitncsscs, 876 (3.) Proof of Handii'riting, 877 IV. EXECUTION BY AGENT, 878 1. Recitals Prove Authoiit\, 878 A. General Rule, 878" B. Exception, 878 a. Authority Producible, 878 b. Authority Matter of Record, 879 C. Presumptions in Favor of Authority, 879 2. Where There Are No Recitals, 879 A. Proof Required, 879 B. Presumptions Indulged, 879 C. .S"//.;;/// T'-^'c/ SutJicicnt. 880 Vol. 1 ANCIENT DOCUMENTS. 859 V. ORIGINALS LOST OR INACCESSIBLE, S8o 1 . Contents^ How Trovcd, 880 A. As Recent Documents, 880 B. By Ancient Accepted Copy. 880 C. B'y Record or Certified Copy. 881 a. Commonly Used, 881 h. Original Entitled to Record, 881 c. U'lien Affidin'it of Forgery Is Filed, 881 D. jriierc Copy Imperfect. 882 E. iriicre Original in Existence, 882 2. Proving Loss. 882 A. SHsiht Proof Required. 882 B. When No Proof Required. 882 3. Competency of Original, 883 A. Must Be Shozvn, 883 B. Method of Shozving, 883 VI. OBJECTIONS TO INTRODUCTION, 883 VII. PROVINCE OF COURT AND JURY, 884 1. Competency, 884 A. For Court, 884 B'. What Testimony Heard As To. 884 C. Discretion of Court, 884 2. Genuineness, 884 A. Instructions That Paper Is Genuine. 884 P.. When Question Is for Jury, 885 C. Burden of Proof, 885 VIII. RELEVANCY, 886 1. Rule, 886 2. Exceptions, 886 CROSS-REFERENCES. Best and Secondary Evidence ; Handwriting ; Maps ; Private Writings; l'ul)lic Documents. Note. — This article includes only " Ancient Private Writings," and does not include public documents or maps. Vol. I 860 A NCI EN T DOC UMEN TS. Note. — This article includes only Ancient Private Writings, and does not include Public Documents or Maps. I. DEFINITION. The term " Ancient Document " includes any pri\atc writing* that is at least thirty years old." The rules as to Ancient Writings have been in some cases extended to documents less than thirty years old f as in Canada by statute.* Formerly in England a greater age was required.'' The rules concerning Ancient Writings do not extend to recent entries made in such writings." II. DETERMINATION OF AGE. 1. Date From Which Reckoned. — A. Genkrali.v. — The age of writings generally is reckoned from the time of their execution.' B. Wills. — But some authorities hold that wills age only from the testator's death.'' 2. Date to Which Reckoned. — Age is reckoned ddwn to tlie date the instrument is offered in evidence." 3. Proving Age. — A. To Bit Proved. — A ])aper offered as ancient must be proved to be so: the fact of anticjuity is not usually taken for g'ranted.'" 1. Doe V. Turnbull. 3 U. C. Q. B. (Can.) 129; Montsjomerv "'. Graham, 31 U. C. Q. B. (Can.) 57; Bell v. Brewster, 44 Ohio St. 690, 10 N. E. 679; Holt V. Maverick, 86 Te.x. 457, 23 S. W. 75 ; Stroud r. Springfield, 28 Te.x. 649. 2. Barr i'. Gratz. 4 Wheat. 213; Fairly r. Fairly, 38 Miss. 280: Quinn V. Eagleston, 108 111. 248; Swygart 7: Taylor, i Rich. Law (S. C.) 54. 3. No Fixed Rule as to Age. " It is said in one case (12 Vin. .\br. 57, pi. 9, MSS.) that there is no fixed rule about it, but that it had often been allowed where the deed was but 25 or 30 years old." Everley 7'. Stoner. 2 Yeates (Pa.) 122; and in thai case a deed 28 years old was admitted without calling or account- ing for a subscribing witness. But the deed was identified by a witness who had been present when it was executed. Deed Twenty-five Years Old In Slroud I'. Springfield, 28 Tex. 649, a paper 25 years old was offered as ancient; the supreme court held it was improperly admitted, but ap- parently not because it did not come within the definiticm of ,Tn ancient Vol. I writing, but because it was not suffi- ciently proved under the rules for proving ancient writings. 4. .\llan V. McTavish, 28 Grant's Ch. (Can.) 539. 5. Sixty Years Jackson-'. Hlan- shan, 3 Johns. (N. Y.) 292. 6. Goulding v. Clark, 34 X. H. 148. 7. Mackery ■:'. Newbolt. citoil in Calthorpe v. Gough, 4 T. R. (num. & E.) 707, note; Doe v. WoUey, 8 Barn. & C. 22, 15 Eng. C. L. I.W; Man V. Ricketts, 7 Beav. 93; Mc- Kenire v. Eraser, 9 Ves. 5. 8. Jackson f. Blanshan, 3 Johns. (N. Y.) 292 (but Spencer dissented, holding that age should be reckoned from date of execution ) ; Shaller i'. Brand. 6 Binn. (Pa.) 435; Felherly T. Waggoner, 11 Wend. (N. V.) ^00. But see Mackerv v. Newbolt, 4 T. R. (Durn. & E.) '709, note, and I\IcKenire Z'. Fraser, 9 Ves. 5. 9. Johnson j'. Shaw, 41 Tex. 428; Bass 7'. Sevier, 58 Tex. 567; Man v. Ricketts, 7 Beav. 93. 10. Fairly v. Fairly, 38 Miss. 280; Doe Stevens v. Clement, 9 U. C. Q. B. (Can.) 650. Coiilra. — It will be prcsunui! that ANCIENT DOCUMENTS. 861 B. Method of I'roof. — a.. Direct Evidence. — x\ge may be proved by the direct evidence of those who can testif\' to having seen the paper more than thirty years before." b. Circiiiiistaiitial Evidence. — (1.) Generally. — Antiquitv may Ije shown by circumstances. ^- (2.) Appearance. — Thus the court will take into consideration the appearance of the i)aper and of the writing thereon.'^ (3.) Indorsements. — Indorsements on the paper may be considered as bearing on the question of age." archives became such at their date. Von Rosenberg v. Haynes, 85 Te.\. 357, 20 S. W. 143. 11. To prove that a deed is more than 30 years old the recorder may be called to testify when liis in- dorsement thereon was made. Cox V. Cock. 59 Tex. 521. 12. An Admission Made by Party or Privy. — Nixon v. Porter, 34 ]Miss. 697, 69 Am. Dec. 408. A Copy shown to have been made more than thirty years before may be put in evidence to prove that the original is at least as old. Williams V. Conger, 125 U. S. 397' 8 Sup. Ct. 933- ' Two Seeds Found Together In Applegate f. Lexington etc. Min. Co., 117 U. S. 25s, 6 Sup. Ct. 742,. it was held that where it appeared that two deeds had a common his- tory, were found together, and had been relied on as links in the same title, testimony directly applicable to one tended to support the other. 13. Kennard v. Withrow (Tex. Civ. App.), 28 S. W. 226; Hollis V. Dashiell, 52 Tex. 187; Pridgen v. Green, 80 Ga. 737, 7 S. E. 97. " It was an old and faded paper and was apparently of corresponding age with its purported date of ex- ecution." Williams v. Conger, 49 Tex. 582. Stooksberry v. Swan (Tex. Civ. App.), 21 S. W. 694; Bell V. Hut- chins (Tex. Civ. App.), 41 S. W. 200; Weitman v. Thiot, 64 Ga. 11; Corporation of Burford, 18 O. R. (Can.) ^46; Davies v. Lowndes, i Bing. (N. C.) 161. In Perry v. Clift (Tcnn.). 54 S. W. 121, the court said: "The original is sent up and it bears on its face evidence of great age, in the tattered condition of the paper, its color. and the faded appearance of the ink." Character of Handwriting, that it is of the period wlien the paper is alleged to have been made. Duke of Beaufort v. Smith, 4 Ex. 450, 19 L. J. Ex. 97. 14. Stooksberry v. Swan (Tex. Civ. App.), 34 S. W. 369. 21 S. W. 694, 22 S. W. 963 ; Whitman v. Henneberry, 73 111, 109 ; Pridgen v. Green, 80 Ga. 7^7, 7 S. E. 97. In Bell ?'. Hutchins (Te.x. Civ. .\pp.), 41 S. W. 200, the court said: " When the age of the deed is the matter under investigation the in- dorsements made thereon and cer- tificates attached thereto, which in ,iny manner indicate its age, are matters to be considered by the jury. The iuTy can look to the deed, its .•ippearance and all indorsements (ihercon, in determining its age." A Certificate of Recordation :ipparently ancient and genuine will lend to show the antiquity of the deed. Applegate v. Lexington etc. .\Iin. Co., 117 U. S. 255, 6 Sup. Ct. 742. Even Though the Certificate is Not Signed Stebbins v. Duncan, 108 r. S. 32, 2 Sup. Ct. 313. Certificate of Record in the Wrong County In Pridgen v. Green, 80 Ga. 737, 7 S. E. 97. there was a cer- tificate of registration in a certain county which was objected to be- cause the land conveyed lay in an- other county and therefore the cer- tificate was unauthorized. Held, that the certificate, being over thirty years of age, might go before the jury, and be considered by them as a circumstance, both on the question of the antiquity of the deed and of its genuineness. "The act of the notary, taking Vol. I 862 ANCIENT DOCUMENTS. III. SHOWING COMPETENCY. 1. Necessity of Proof. — It has often been said that Ancient Writ- ings prove themselves.'" but such is not the rule. In order that they may be admitted in evidence they must be shown to be prob- ably genuine.'" 2. Method of Proof. — A. Custody. — a. Importance Of. — In determining the competency of an ancient document offered with- out proof of execution, the custody from which it comes is a factor," proof of the execution of the in- strument under his seal is proof that the act was done by him at the time stated, and the act of the clerk, under the seal of his office, certifying that the deed was recorded, is proof that it was recorded as stated and at the time stated. They are the original acts of the officers, and, being under seal, prove themselves. They do not prove the execution of the deed, but the age of the instrument, and tend to establish the fact that its date is correct." Kennard T'. With- row (Tex. Civ. App.), 28 S. W. 226. 15. Beall v. Bearing, 7 Ala. 124; Adams z'. Roberts. 2 How. 486; Stroud I'. Springfield, 28 Tex. 649; King V. Watkins. 98 Fed. 913; Green V. Chelsea. 24 Pick. (Mass.) 71; Everly v. Stoner, 2 Yeates (Pa.) 122; Mapes V. Leal's Heirs, 27 Tex. 345 ; Walker ?■. Peterson (Tex. Civ. App.), 3.^ S. W. 269, 42 S. W. 1045. " The deed being more than thirty years old required no proof." Hen- thorn V. Sheperd, i Blackf. (Ind.) IS7, and in that case, apparently, the deed was supported by nothing but its age. " There Are Several loose Dicta to be found that an ancient deed proves itself." Kent, in Jackson v. Laroway, 3 Johns. Cas. (N. Y.) 283. Parish Certificates of Pauper Set- tlement — King f. Ryton. 5 T. R. 259 ; Rex. z\ Netherthong, 2 M. & S. 537. Ancient Corporation Records held I0 prove themselves. Goodwin v. Jack, 62 Me. 414; King v. Little, I Cush. (Mass.) 436: Rust v. Boston Mill Corporation, 6 Pick. (Mass.) 158. 16. Chamberlain v. Sbowaltcr, 5 Vol. I Tex. Civ. .\pp. 226, 23 S. W. 1017; Jackson v. Luquere, 5 Cow. ( N. Y.) 221 ; Stroud 7'. Springfield. 28 Tex. 649; Little v. Downing. 37 N. H. 355 ; Whitehouse v. Bickford, 29 N. H. 471 ; Manley v. Curtis, i Price 225 ; Crispen v. Hannovan. 50 ^lo 418; Williams v. Bass, 22 Vt. 332' Havens v. Seashore L. Co.. 47 N. J Eq. 365. 20 .\tl. 497 ; Jackson v. Lamb, 7 Cow. (N. Y.) 4^1: Hewlett V. Cock, 7 Wend. (N. Y.) 371; Fogal r. Pirro. 10 Bos. too. 23 \. Y. Sup. Ct. 100. Genuineness Not Presumed From Antiquity. — When the signing be- comes a matter of legal controversy it must be established by proof. Showing that the instrument is • thirty years old has no greater ten- dency to prove it genuine than would the fact that it had existed for a single day. The mere fact of existence has no tendency to prove legal execution. Indeed, when noth- ing has ever been done under the deed, the lapse of time tends to discredit it. Willson v. Bitts, 4 Dcnio (N. Y.) 201. Presumption of Genuineness In- sufficient. ^ While there is the pre- svmiption of the genuineness of a deed more than thirt}' years old, the party offering it is bound to use every means in his power to prove its genuineness, by proof of posses- sion, by proof from the records where it has been recorded, and by testimony of the attesting witnesses, whenever possible. Smith r. Rankin, 20 111. 14. 17. Stroud V. Springfield. 28 Tex-. 649; Stooksberry v. Swan (Tex. Civ. App.), 34 S. W. 369: Winn v. Pat- terson, 9 Pet. 663 ; Stoddard v. Chambers, 2 How. 284; \Vil. Simpson, 80 Tex. 279, 16 ?. W. 40; AXClF.Xr POCUMnXTS. Hf,?. and an important one.''' b. Proper. Must Be Shoi\.'n. — (1.) Generally. — It has been held that a showing that it comes from proper custody is indispensable.^" (2.) Presumptions. — i]ut where it is shown that anciently the paper was in a certain custody not apparently improper, it may be jiresumetl to have been proper.-" (3.) Exceptions. — And the rule is relaxed as to papers so ancient that the proper custody cannot he determined ;-' so sometimes in case Thompson i'. Brannon, 14 S. C. 542; Lyon V. Adde, 63 Barb. (N. Y.) 89; Fogal V. Pirro, 10 Bosw. 100, 23 N. y. Sup. Ct. 100; Rogers v. Sliorlis, 10 Grant's Ch. (Can.) 243; Van Every v. Drake, 9 U. C. C. P. (Can.) 478; Carroll r. Norwood, I Har. (5e J. (Md.) 167; Evans v. Rees, 10 All. &■ E. 151. 18. ■' It is not strictly correct to say that an ancient instrument proves itself. The presumptions that follow from the conditions that indicate its genuineness are allowed to take the place of the proof necessary at com- mon law, and chief among these con- ditions has always been and still is the fact that it comes from a proper custody. To dispense with this re- t|uiremcnt would be to push the rule beyond any known precedent ; to throw down the last conservative barrier, and allow every instrument regular upon its face, and appearing to be over 30 years of age to lie in- troduced witliout any evidence of its execution. We do not wish to be understood as saying that it is neces- sary for the evidence to trace step by step the custody of the instru- ment from its purported date, but that some fact or circumstance should appear to indicate that, when the in- strument is presented to the court, it has come from the place or deposi- tory where it would naturally be found if genuine." Chamberlain z: Showaiter, 5 Te.x. Civ. App. 226, 2;} S. \V. 1017.' 19. Williamson v. Mosley, 1 10 Ga. 53, 35 S. E. 301 ; Rogers ?■. Rid- dlesburg C. & I. Co., 31 Leg. Int. (Pa.) 325. Tn Long 7'. Georgia Land & Lum. Co., 82 Ga. 628, 9 S. E. 425. it was held that in the absence of prelimii'ary proof as to its coming from proper custody, a deed over 70 years old is not admissible in evidence. Records of a bishopric dated 1321 and 1412, were held inadmissible as not coming from the proper office. They were produced from the hands of a private collector, who himself purchased them from another collec- tor. Their genuineness was amply corroborated ; but it was held that the rule as to proper custody could not be so stretched. Potts r. Du- rant. 3 Anstr. 789, 4 Rev. Rep. 864. 20. In Tolman z\ Emerson, 4 Pick. (Mass.) 160, a book of the proprietors produced by the witness was shown to have come to him from his grandfather, whose execu- tor had had it thirty years. Since there was no showing of the present existence of any office or clerk where the book ought to be kept, and no depository appointed by law, it was presumed that the book came prop- erly into tlie custody of the grand- father. 21. " The rule of evidence requir- ing the testimony of the lawful cus- todian of books of record offered in evidence, that they are of the descrip- tion claimed, before they are admis- sible, has been repeatedly relaxed in the case of ancient books of record of the proprietors of land. In such instances such books have been held to prove themselves. When ancient books, purporting to be tlie records of such proprietary, contain obvious internal evidence of their own ver- ity, and there is no evidence of the present existence of the proprietary or of any person representing it. or any clerk or other person authorized to keep the records, they are admis- sible in evidence without proof of the legal organization of the proprietary, or of its subsequent meetings. King V. Little. I Cush. 440; Rust z\ Bos- ton Mill Corporation. 6 Pick. 165; IMonumoi Great Beach j'. Rogers, I Mass. 159; Pitts V. Temple. 2 Mass. Vol. I 864 ANCIENT DOCUMENTS. of lost papers,'-- and where there are other cireumstances corrobo- rating the genuineness of the deed, production from the proper custody has been held not essential. ^^ ()ne that has asserted the genuineness of the pa])er cannot object to it on the ground of improper custody.-'' c. By Whom to Be Proved. — It was once said that the custody must be testified to by him who had it.-^ d. What Is Proper Custody. — (1.) Generally. — A paper comes from proper custody when the custody is such as would be rea- sonable and ])robable for a genuine document of the kind offered ;^'* 538; Tolmaii I'. Emerson, 4 Pick. 160." Goodwin v. Jack, 62 Me. 414. But see Swinnerton v. Stafford, 3 Taunt. 91. 22. In Case of a Lost Seed no custody of which at any time can be directly proved, the fact that it was recorded raised the presumption that it was delivered and so obviates the requirement of proof of custody, wliich is " mainly that its delivery may be evidenced by the possession of a partv claiming under it." Holmes v. Coryell, 58 Tex. 680. 23. Brown v. Woods, 6 Rich. Eq. (S. C.) 155; Quinn v. Eagleston, 108 111. 248; Whitman v. Shaw, 166 Mass. 451, 44 K. E. 333, where an old map or plan was let in, its genuineness not "being questioned, although its custody could not be accounted for. A town map bearing no dale but marked with the letter " P " was offered in evidence. It did not come from the proper custody (that of the town clerk,) but was found in the possession of one G., an aged sur- veyor, who had, more than thirty years before, been town clerk, and who testified that the map was at that dale among the records of the office. It was evidently much used and worn. Its genuineness was held to be sufficiently proved, regardless of the fact of its not having come from the proper custody. Gibson z'. Poor, 21 N. H. 440. Otherwise Custody Apparently Im- proper Must Be Explained. — Cham- berlain !■. Showalter, 5 Tex. Civ. App. 226, 23 S. W. 1017. 24. Miller v. Foster, cilcd in n.ile to Atkyns v. Hatton. 2 .\nstr. 386, 3 Rev. Rep. :;89. 25. Evans v. Rees, 10 .\(\. & E. I.SI. Vol. I 26. Former Heirs v. Eslava, II Ala. 1028; Reg. v. Nytton, 2 El. & E. 557, 29 L. J. N. C. 109; De La Vega r. League, (Tex. Civ. App.,) 21 S. W. 565 ; Talbot z'. Lewis, 6 Car. & P. (X)3 ; Templeton r. Luckett, 75 Fed. -'54 ; Rex z'. Bathwick, 2 Barn. & A. 6^9; Blanchy-Jenkins z\ Duirvaven, L. R. 2 Ch. Div. 121. Book of Records of Boston preserved among ihc records of town. Rust z: Boston Alill Corporation, 6 Pick. (Mass.) 158. Vicar's Books and Bishop's Ordi- nances from registry of bishop or archdeacon or from church chest. .•\rmstrong v. Hewitt, 4 Price 216, 18 Rev. Rep. 707 ; Atkyns z'. Hatton, 2 Anstr. 386, 3 Rev. Rep. ^89 ; Graves z'. Fisher. 3 CI. & F. i, 8 Bligh (N. S.) 937- Custody Traced Back to Grantee. Cook V. Christie, 12 U. C. C. P. (Can.) S17. Most Proper Custody " Docu- ments found in a place in which and under the care of persons with whom the care of such papers might natu- rally and reasonably be expected to be found, are in precisely the custody which gives authenticity to them." McCleskey t'. Lcadbettcr, i Ga. 551. Lease Held at Lessee's Disposal is in proper custody. Rees z'. Wal- lers, 3 M- & W. 5^7. 7 L- J- Ex. 138. Papers Filed With Land Commis- sioner A power of attorney in Texas after presentation to the com- missioner would either be placed by him among the papers pertaining to the title issued by him, or 1)e returned to the party presenting it ; conse- quently such a power found among the papers of the person to whom it had been indorsed conies from a ANCIENT DOCUMENTS. 865 as a letter among papers of the addressee ;-' a paper found in a custody provided by statute;-" old surveys found in the surveyor- general's office ;'-'■' papers found on file as exhibits in other actions, come from proper custody."" The fact that the custodian bears the name of a partv to the paper ma\' indicate i)ropriety of the custody."' (2.) Custody of Claimant. — A paper is in proper custody if in the possession of one claiming imder it,'- or of his representatives,^'' or heirs.""* (o.) With Other Muniments. — A paper comes from pro])er cus- tody if found among undisputed numiments of title to the land to which itself relates."-'' proper custody. Williams t'. Con- ger, 49 Tex. 582. Deed Found in County Clerk's OfRce among papers labeled with grantee's name. Warren i'. Freder- ichs. 76 Tex. 647. 13 S. W. 64.^ Rut see Harris v. Hoskins, 2 Te.x. Civ. App. 486, 22 S. W. 251. Ancient MSS. Brought From the Bodleian Collection did not come from the proper custody, and were consequently inadmissible. Michel v. Rabbets, cited in 3 Taunt, gi. See also Swinnerton t. Stafford, 3 Taunt. 91- Book Should Be Traced Back to Maker. Randolph :'. Gordon. 5 Price 312, 19 Rev. Rep. 633, that was an ancient book (MSS.) produced by the grandson of the maker, but not shown to have been found among the maker's papers. 27. Bell V. Brewster, 44 Ohio St. 690, 10 N. E. 679. 28. Wilson v. Bitts, 4 Denio (N. Y.) 201. 29. Rodgers r. Ruddlesberger, C. & I. Co.. 31 Leg. Int. (Pa.) 325: Burchtield i'. McCauley, 3 Watts (Pa.) 9. 30. Culmore r. Wedlerker, (Tex. Civ. .\pp..) 44 S. W. 676. Presumed to Have Been Exhibits. In .Applegate v. Lexington etc. Min. Co., 117 U. S. 255, 6 Sup. Ct. 742, deeds were found in the office of a clerk of court among the papers of a suit in that court in which suit they would have been proper exhibits and evidence, and it was fairly to be in- ferred from the record that they had been offered in evidence. The cus- tody was held proper and beyond sus- picion. 31. An ancient receipt foimd in 55 the possession of a man bearing the same naine as the one to whom the receipt was given, although a stranger to the action, held to come from the proper custody. Per Thom- son, C. B., i;i Bertie ?'. Beaumont, 2 Price .303. 32. Hollis V. Dashiell, 52 Tex. 187; Beaumont Pasture Co. 7'. Pres- ton, 65 Tex. 448; Williamson v. Moseley, no Ga. 53, 35 S. E. 301; Templeton v. Luckett, 75 Fed. 254: Williams i: Conger, 49 Tex. 582. A receipt more than too years old found in a desk used for thirty years by the person into whose possession such receipt should have passed, comes from a proper custody. Lewis 1: Lewis, 4 W'atts & S. (Pa.) 378. In trespass to try title, plaintiff offered in evidence, as an ancient in- strument, a deed from N, the com- mon source, to his grantor, purport- ing to be dated in 1854. There was proof that plaintiff obtained it from the grantee, who had it in possession in 1868, when he returned it, for acknowledgment, to N, who prom- ised to acknowledge and return it ; that N's widow returned it to such grantee after N's death, and that the deed was the same in 1868 as when oflFered in 1802. Held, that the deed should have been admitted. Lunn T. Scarborough. 6 Tex. Civ. .\pp. 15, 24 S. W. 846. 33. Orser r. Vernon, 14 V. C. C. P. (Can.) 57.?. From Trustees of Granted Estate. Thompson v. Bennett. 22 U. C. C. P'. (Can.) 393. 34. Hogaii r. Carruth, 19 Fla, 84; Pettingell z: Boynton (Mass..) 29 N. E. 65s. 35. Hewlett v. Cock. 7 Wend. (N. Vol. I 866 JNCIENT DOCUMBXrs. (4.) Custody of Grantor. — I'.ut a deed coming from the possession of the grantor's heirs is not from proper custody.''" e. Need Not Be Most Proper. — The custody need not be the most proper one." i. Msplainiiig Ciislody. — Custody prima facie improper may lie explained.^* g. Is Question for Court. — The question what is proper custody is for the court.^" h. Sufficiency of Custody As Proof. — (i.) England and Canada. In England,*" a different rule prevails, but apparently in Canada,*^ Y.) 371 ; BuUen v. Michel. 4 Uow. 297, 16 Rev. Rep. 77. Reason of the Rule. — " Ancient deeds proved to have been found amongst deeds and evidences of land may be given in evidence, although the execution of tliem cannot be proved, and the reason given is. ' that it is hard to prove ancient things, and the finding of iheni /;( sucli a place is a presumption that they were fairly and honestly obtained, and re- served for use, and are free from suspicion of dislionesty.' " EUenlior- ough, C. J., in Roe v. Rawlings, 7 East 279. 36. Heintz -•. O'Donnell. 17 Tex. Civ. App. 21, 42 S. W. 797; Williani- son V. Moseley, no Ga. 53, 35 S. E. 301. Contra. — Patterson. J., in Doe v. Samples, 8 Ad. & E. 154- 37. Williams v. Conger, 49 Tex. 582 : Whitman i\ Shaw, 166 Mass., 44 N. E. za ; Doe V. Samples, 8 Ad. & E. 154; Croughton v. Blake, 12 iM. & W. 705, 13 L. J. Ex. 28; Slater v- Hodgson, 9 Q. B. 727 ; Shrewsbury v. Ruling, 1 1 Q. B. 884, 17 L. J. Q. B. 190; Jacobs t'. Phillips, 82 Q. B. 158, 15 L. J. Q. H. 47; Andrews v. Motley, 12 C. B. ( N. S.) 514, 32 L- J. C. P. 128. " It is not necessary that they should be found in the best and most proper place of deposit. There can only be one such place, but there may be many that are reasonable and probable, though differing in degree." Former Heirs 'C. Eslava, 11 .\la. 1028. 38. Former Heirs 7'. Eslava. 1 1 Ala. 1028; Rees v. Walters, 3 M. & W. 327, 7 L. J. Ex. 138; Limn v. Scarljorough, 6 Tex. Civ. .\pp. 15, 24 S. W. 846. " It is when documents are found in other than their proper place of Vol. I deposit that the investigation com- mences, whether it was reasonable and natural, under the circumstan- ces in the particular case, to expect that they should have been in the place where they are actually found, for it is obvious, that whilst there can be only one place of deposit strictly and absolutely proper, there may be various and many that are reasonable and probable, though dif- fering 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 probably to be ac- counted for, that it impresses the mind with the conviction that the instrument found in such custody must be genuine." Per Tindal. C. J., in Bishop of iVIeath v. Marquis of Winchester. 4 CI. & F. 44^. 3 Bing. (N. C.) 304. 39. Cook V. Christie, 12 U. C. C. P. (Can.) S17; Rees v. Walters. 3 M. & W. 527, 7 L. J. Ex. 138. See also Jacobs -c. Phillips, 8 Q. B. is8, 15 L. J. Q. B. 47- 40. Clark z\ Owens, 18 K. V. 434 ; Havens v. Seashore L. Co., 47 X. J. Eq. 365, 20 Atl. 497; Wynn v. Syrwhett, 4 Barn. & A. 376 ; Brishro V. Cormican, 3 App. Cas. (Eng.) 641 ; Clarkson v. Woodhouse, 3 Doug. (Eng.) 189: Doe v. Passing- ham, 2 Car. & P. 440, .30 Rev. Rep. Purporting to Show Acts of Ownership. — Malcolinsoii ;■. ( I'l )ea, 10 11. L. C. 593. " Old Leases Have Always Been Considered to Be Admissible as being evidence of acts of owner- ship. I understand this to rest on the principle, that when at a distant period, as to which there is no more direct evidence available, you find a ANCIENT DOCUMENTS. 867 the mere fact of proper custody makes an ancient tlocument com- petent. Corroboration was sometimes required,*" but want of it went rather to the weight than to the admissibility of the paper.*-' (2.) United States. — This is the rule in some of the United States/* but in others fartlier corroboration is required, at least person claiming to be the owner of prcperty, and willing to make him- self responsible as lessor for the title to it, and another person willing to agree to give rent for the property and to enter into a solenni engage- ment as a tenant of it. admitting his landlord's title, these circinnstances are of themselves admissible as evi- dence of title." Cairns, L. C. in Bri- sliro V. Cormican, 3 -'\pp- Cas. 641. But see Lancum v. Lovell, 6 Car. & P- 437. 41. Doe z: Clement, 9 U. C. Q. B. (Can.) 650; Chamberlain v. Tor- rance, 14 Grant's Ch. (Can.) 181; Van Every :■. Drake, 9 U. C. C. P. (Can.) 478. 42. In Brett f. Beales, i Kos. & Mai. 416, toll tables were admitted on proof that they had been acted on, but a deed never acted on was admitted, bnt only to prove reputa- tion. See also Rogers i'. .\llen, i Camp. 309, 10 Rev. Rep. 689; Lan- cum V. Lovell. 6. Car. & P. 437 ; Ranclifife v. Perkyns, 6 Dow. 149. 43. Cunningham i'. Davis. 175 Mass. 213, 56 N. E. 2. 44. Hogan z: Carruth, 19 Fla. 84; Follendore i'. Follendore, no Ga. 359. 35 S. E. 676. But see Civil Code, Georgia. §3610; and. William- son t'. Mosley, no Ga. 53, 35 S. E. 301 ; Cunningham v. Davis, 175 Mass. 213, 56 N. E. 2; Gardner v. Grannis, 57 Ga. 539 ; Harlan v. Howard, 79 Ky. 373 ; McReynolds Z'. Longenberger, 57 Pa. St. 13; Settle I'. Alison, 8 Ga. 201, 52 .\m. Dec. 383 ; McCleskey f. Leadbetter, i Ga. 551; Former Heirs z'. Eslava. 11 Ala. 1028; Hewlett J'. Cock, 7 Wend. (N. Y.) 371; Pendleton v. Shaw, 18 Tex. Civ. .A.pp. 439. 44 S. W. 1002 (an order of court for sale of land) ; Doe z'. Roe, 31 Ga. 593. In Missouri the court said, obiter, that age and proper custody suflfice to let in a deed. Long z'. McDow, 87 Mo. 197. But the deed there in question was a patent from the United States. In 'Vermont in Townsend z\ Dow- ner, 32 Vt. 183, age and proper cus- tody were said, obiter, to be suffi- cient. In Ohio, Bell z'. Brewster, 44 Ohio St. 690, 10 N. E. 679. In that case the paper was merely a letter and was offered, not as a muniment of title, but to identify a person by comparison of hands. In Alabama Woods v. Montc- vallo etc. Co., 84 .\la. 560, 3 So. 475. In New Hampshire, as to records of a prnprietarv. Little z\ Downing, 37 N. H. 355- In Texas '' It has all the essen- tials and qualifications to make it an ancient instrument. It comes from the proper custody, is free from suspicion, and is over 30 ye.irs of age, and was therefore admissible, at common law. as an ancient in- strument. .\mmons v. Dwyer, 78 Te.x. 650, 15 S. W. 1049; Grain v. Huntington," 81 Tex. 614, 17 S. W. 243- " In the case of Stroud z\ Spring- field, 28 Tex. 664, it was held that, in addition to the other essentials above enumerated, there must have been some act of ownership, cor- roborative of the genuineness of the instrument, before it could be con- sidered an ancient instrument. The case of Holmes z'. Coryell, 58 Tex. 688, is perhaps a little more liberal in its views on this question, and yet there is drawn from the opinion the thought that all proof is not dispensed with; and the case of Beau- mont Pasture Co. f. Preston, 65 Tex. 448, rather follows in its wake. But in the case of Parker z: Chan- cellor, 73 Tex. 478. II S. W. 503; Ammons z'. Dwyer, 78 Tex. 639, 15 S. W. 1049, and Grain z: Hunting- ton, 81 Tex. 614, 17 S. W. 243, the broad and liberal doctrine is laid down that where a deed is 30 years Vol. I 868 ANCIENT DOCUMENTS. if the paper offered is a muniment of title. ^•'' B. Possession. — a. W'itli Custody Sufficient. — If tlie instru- ment is a muniment of title found in proper custody, possession con- formable to it is strong evidence of its genuineness and sufficient to permit its introduction in evidence.^'' The rule applies as well to old, and is free from suspicion, and comes from the proper custody, it would be admissible in evidence as an ancient instrument." Holt v. -Maverick, 86 Tex. 457, 23 S. VV. See also Cbambcrlin ;■. Showalter, 5 Te.x. Civ. App. 226, 23 S. W. 1017; JoueU z\ Gunn, 13 Tex. Civ. App. 84. 35 S. W. 194; Kennard v. Withrow (Tex. Civ. -A.pp.), 28 S. W. 226; Mackay v. Armstrong, 84 Tex. 159, 19 S. W. 463: Kellogg v. McCabe, 14 Tex. Civ. App. 598, .38 S. W. S42; Walker v. Peterson (Tex. Civ. .Vpp). ii S. W. 269, 42 S. VV. 1045. Even in Case of a Lost Deed the fact of its existence and its con- tents being established. Smith v. Cavitt, 20 Tex. Civ. App. . ., so S. W. 167. An Order of Court for sale of land, found in tlie custody of the clerk of court, though not in the minutes upon regular records will be presumed genuine. Pendleton v. Shaw, 18 Tex, Civ. .^pp. 439, 44 S. W. 1002. 45. Clark 7'. Owens, 18 N. Y. 434; Havens v. Seashore L. Co., 47 N. J. Eq. 365, 20 Atl. 497 ; Osborne T. Tunis, 25 N. J. Law 633; Frosf I'. Frost, 21 S. C. 501 ; Cox v. Bow- man, 2 Yerg. (Tenn.) 108; Apple- gate -■. Lexington etc. M. Co., 117 U. S. 25s, 6 Sup. Ct. 742; McArthur V. Morrison (Ga.), 34 S. E. 205; Williamson v. Moselev, no Ga. 53, 35 S. E. 301; Burciifield v. Mc- Cauley, 3 Watts (Pa.) 9; Fogal v. Pirro, 10 Bosw. 100, 23 N. Y. Sup. Ct. 100. Reasons for Requiring Corrobora- tion. — The fact of proper custody can never prove much in favor of the deed, for if it were a forgery we might expect to find it in the hands or control of those who in- tended to use it. In the absence of all the usual nroof of execution nothing can tend to corroborate the deed but acts done under it or the recognition of its validity by those who have an in- terest in the other direction. When possession has accompanied the deed, or other unequivocal acts have been done under it, then the longer it has existed the stronger is the nre- sumption that it is genuine. But if the deed has never been put in use and especially if the right which it professes to give has been denied by an adverse possession, then the longer the deed has existed the stronger is the presumption that it is not a genuine instrument. Wilson v. Bitts, 4 Denio (N. Y.) 201. 46. Canada. — Orser ;■. Vernon. 14 U. C. C. P. S7i: Monk V. Farlin- ger, 17 U. C. C. P. 41- Unilcd States. — \N?i\Xon v. Coul- son, I McLean 120, 29 Fed. Cas. No. 17,132; Meegan v. Boyle. 19 How. 130; Stoddard v. Chambers, 2 How. 284. Alabama. — White v. Hutchings, 40 .^la. 253. Georgia. — Bell 7'. McCawley, 29 (•a._ 355- Kentucky. — Bennett v. Runyon, 4 Dana 422; Winston v. Gwathmey's Heirs, 8 B. Mon. 19; Thurston v. Masterson, g Dana 228 : Cook i'. Totton, 6 Dana 108. Maine. — Crane i'. Marshall, 16 Me. 27. Maryland. — Carroll v. Norwood, I Har. & J. 167. Massachusetts. — Pettingell ?■. Boyji- ton (Mass.), 29 N. E. 655: Stock- bridge T. West Stockbridge, 14 Mass. Mississipt>i. — Fairly v. Fairly, 38 Miss. 280. Nc'A' Hampshire. — Waldron i'. Tuttle, 4 N. H. 371. .Vf7i' )'o/7f.— Hewlett v. Cock, 7 Wend. 371 ; Wilson v. Betts, 4 Denio 201; Clinton v. Phelps. 9 Johns. 169; Jackson v. Christman, 4 Wend. 277 ; Clark V. Owens, 18 N. Y. 434. North Carolina. — Davis -'. Hig- gins, 91 N. C. 382. South Carolina. — Eubanks v. Har- Vol. I AXCIENT DOCUMENTS. 869 wills.-*' b. Whether liidisffcnsable. — (1.) Rulings That it Is. — (A.) Prevail- ing Rule Formerly. — Indeed, it was formerly asserted that such pos- session must be shown, in order to warrant the introduction of the instrument without further proof.** (B.) Length of Possession. — And some cases hold that such pos- session must be shown to have continued thirty years.-"'' But this rule is not s;enerallv followed.^" ris, I Spear 183 : Swygart -■. Taylor, I Rich. Law 54 ; Wagner v. .Alton, i Rich. 100; Robinson ;■. Craig, i Hill Law 251 ; Duncan v. Pieard, 2 Nott & McC. 400; Edmonston v. Hughes, 1 Cheves 81 ; Thompson v. Piullock, I Bay 364 ; Poison v. Ingram, 22 S. C. 541. Texas. — Gainer v. Cotton, 49 Te.x. lOl ; Schunior v. Russell, 83 Tex. 83, 18 S. W. 484: Von Rosenberg r. Haynes. 85 Tex. 337, 20 S. W. 143. I'crttwnt. — Townsend t'. Downer, ^2 Vt. 183 ; Booge v. Parsons, 2 Vt. 450; Bank v. Rutland, t,}, Vt. 414. Virginia. — Shanks i'. Lancaster, 5 C.ratt. 1 10, so .\ni. Dec. 108. No Conflict on This Point " The cases are entirely harmonious to this extent — that where possession of the land has accompanied the deed, that fact furnishes sufficient evidence of its authenticity to justify its admis- sion." Havens v. Seashore L. Co., 47 N. J. Eq. 365. 20 Atl. 497. See also Roe r. Doe, Dud. (Ga.) 168. 47. Jackson i'. Thompson, 6 Cow. (N. Y.) 178: Fetherly i'. Waggoner, II Wend. (X. Y. ) 599: Jackson z: Luquere, 5 Cow. ( N. Y.) 221. Although Probate Defective. Jordan ;■. Cameron. 12 Ga. 267. Although Not Probated. — Brad- street r. Clarke, 12 Wend. ( N. Y.) 602. 48. Clarke's Lessee v. Courtney, 5 Pet. 319; .'\rnold v. Gorr, i Rawl. (Pa.) 223; Shaller v. Brand, 6 Binn. (Pa.) 435; Starin 7'. Bowne. 6 Barb. (N. Y.) 109; Homer z'. Cilley, 14 N, H. 85 ; Zeigler v. Houtz, i Watts & S. (Pa.) 378: McGennis v. Al- lison, 10 Serg. & R. (Pa.) 197; Ridgcley ?■. Johnson, 9 Barb. (N. -Y.) 327 ; Sims z: De Graffenreid, 4 Mc- Cord (S. C.) 253; Dishazer v. Mait- land, 12 Leigh (Va.) 524 (which case is overruled bv Carruthers t'. Eldridge. 12 Gratt. [Va.] 670* : Sit- tings r. Hall. I Har. & J. (Md.) 14. 2 .\m. Dec. 502. Opinions of Kent and 'Walworth. buch was the opinion expressed by Ch. Kent (dissenting) in Jackson v. Laroway, 3 Johns. Cas. (N. Y.) 283, citing Gilbert, p. 89; Peake pp. 72, 73; Fleta lib.. 6 ch. 34: i Co. Inst.. 6 b. ; Isaac v. Clarke, i Roll. 132; James v. Trollop, Skinner 239 and 2 .Mod. i2i ; Forbes v. Wale, I Blackf. 532. See also Kent's opinion in Jackson :•. Blanshan, 3 Johns. ( N. Y. ) 292, 3 .-Vm. Dec. 485. Chan- cellor Kent's view seems again to be suggested in Jackson v. Brooks, 8 Wend. (N. Y.) 426, but it is not a direct ruling on the question. .\nd as late as 1844 Chancellor Walworth declared in Northrop ;■. Wright, 7 Hill 476, that a will, more than 30 years old, could not be received in evidence without proof, because pos- session had not followed it. 49. Jackson v. Thompson, 6 Cow. (N. Y.) 178; Fetherly r. Waggoner, II Wend. (N. Y.) 599; Jackson r. Luquere, 5 Cow. (N. Y.) 221; Starin v. Bowen. 6 Barb. (N. Y.) 109; Walker r. Walker, 67 Pa. St. 185; Robinson '<■. Craig, i Hill Law (3. C.) 389. See also Nixon v. Porter, 34 Miss. 697, 69 .A.m. Dec. 408: Healy v. Moul, 5 Serg. & R. (Pa.) 181; McGinnis v. .\llison. 10 Serg. & R. (Pa.) 197. 50. Jackson f. Luquere, s Cow. (N. Y.) 221. Twenty Years" Possession Enough. Gainer !■. Cotton, 40 Tex. loi. Five Years' Possession Sufficient. Wagner ■;■. .\hon, i Rich. ( S. C. ) 100. Ten Years' Possession 'Without Ob- jection Hughes V. Wilkinson, 37 >riss. 4S2. Several Years King r. Sears, 91 Ga. S77, 18 S. E. 830.^ Possession 'With Other Facts. Vol. I 870 ANCIENT DOCUMENTS. (C.) How Proved. — That the possession was held under the instru- ment offered may be estabhshed by circumstantial evitlence,^' or by declarations of those who had been in possession,"'- and it may be of no importance that the person in possession of the land is not in possession of the document.'^' It is enough if one being in possession claims the right thereto under the document though he did not enter under it.-'^ (D.) Extent of Possession. — The possession need not be of the entire tract conveyed or devised ;^'^ nor need it be taken or held by all the devisees or grantees.^" (E.) Exceptions. — Where it appears that the land was wholly unoccupied for a long time after the date of the document, proof of possession is of necessity dispensed with."*' Failure to take pos- Stoddard v. Chambers, 2 How. 284, where it is said that " possession was held by Stoddard for a time." Weight of Authority In Renter r. Stnckart, 181 111. 529, 54 N. E. loi4> Magruder J. said : " Some of tne authorities differ as to whether it is necessary to show that possession was taken under the deed. It seems to be settled, however, by the weight of authority, that such pos- session if necessary to be shown, need not be for the full period of ,30 years, if there are other circum- stances tending to show the genuine- ness of the instrument." 51. Cahill v. Palmer, 45 N. Y. 478. 52. Jackson z: Van Dusen, 5 Johns. (N. Y.) 144, 4 Am. Dec. 3.?o. 53. Deed Not in Possession of One Holding Under It — Possession may be under and conformable to a deed although the deed is not in posses- sion of the one in possession of the land. " If property passes through a dozen hands in the course of 40 years, each keeping in his own pos- session the deed given to him, the possession of all is equally under the first deed, which may be given in evidence as an ancient deed, although never seen by any but the first grantee to whom it was given." Williams v. Conger, 125 U. S. 397, S Sup. Ct. 933. ' 54. Walton v. Coulson, l Mc- Lean 120, 29 Fed. Cas. No. 17,132. 55. It is not necessary in order to enable an instrument to be read as an ancient deed, to prove a cor- responding possession of every por- Vol. I tion of the premises which it pur- ports to convey. A possession of a part under the deed affords evidence of its authenticity of as high a char- acter as though that possession ex- tended to the whole. Jackson j/. Davis, S Cow. (N. Y.) 123, 15 Am. Dec. 451 ; Jackson i'. Luquere, 5 Cow. (N. Y.) 221; Townsend v. Downer, 32 Vt. 183. 56. Under the rule of 30 years possession is not meant that where there are ten devisees of separate parcels to ten persons, a possession in each devisee of more than 30 years must be made out before the will can be read as ancient. Jackson v. Luquere, 5 Cow. (N. Y.) 221. 57. Paying Taxes on Wild land Suificient Williams i'. Hillegas, S Pa. St. 492. Land tjnoccupied and Considered Worthless. — In Havens t'. Sea Shore L. Co., 47 N. J. Eq. 365, 20 Atl. 497, the land in question had until a few years before the trial remained unoccupied and had been deemed worthless. The deed of- fered was shown to be more than 100 years old, had been passed on to successive grantees of the land, had been referred to in subsequent deeds and in one recorded deed and had the appearance of genuineness. The deed was admitted on this show- ing. Rule Requiring Possession Not Applicable. — When it is admitted by both parties that the lot was a wild lot and was never occupied by any one until shortly before the suit was brought. Pridgen v. Green, 80 Ca. 737. 7 S. E. 97- ANCIENT DOCUMENTS. 871 session may be explained so as to avoid the rule reciuiring it.-'^ Instruments not usually followed by possession are admitted with- out proof of it.'^'-' Where both parties claim under the document possession need not be shown."" The rule requiring possession to be proved was relaxed as to documents of great antiquitv.'^^ (2.) Rulings That it Is Not. — But the highest authority now holds that without possession other corroborative evidence may suffice,"- 58. Explaining Want of Posses-, sion. — In Jackson f. Larouay, 3 Johns. Cas. (.N. Y.) 28J, it appeared that for years after the testator's death the lands devised were wild and unoccupied and that for many years after they had been occupied by defendant's predecessors the plain- tiff's ancestor, claiming under the will, had no notice of such occupancy. It was held that these facts so ex- plained want of possession that the will should be admitted if other circumstances appeared sufficient to raise a presumption in its favor. 59. A Mortgage. —Cunningham ^•. Davis, 175 Mass. 213, 56 N. E. 2. 60. Giddings v. Smith, 15 'Vt. 344- 61. Where the transaction is so ancient that proof of contem- poraneous acting, such as possession or the like, is not probabl\' to be ob- tained, its production is not required. Still it is necessary to prove some acts of modern enjoyment with reference to similar documents or that modern possession or use should be shown in corroboration of the ancient documents. Former Heirs v. Eslava, 11 Ala. 1028. 62. United States. — Applegate v. Lexington etc. Min. Co., 117 U. S. 255. 6 Sup. Ct. 742 ; Tempieton v. Luckett, 75 Fed. 254. Alabama. — Former Heirs v. Es- lava, II Ala. 1028. Massaclnisctts. — Cunningham v. Davis, 175 Mass. 213, 56 N. E. 2. Missouri. — Long v. McDow, 87 Mo. 197. New York. — Jackson v. Laroway, 3 Johns. Cas. 283 ; Hewlett v. Cock, 7 Wend. 371. Pennsylvania. — Williams i'. Hil- ligas. 5 Pa. St. 492 ; Walker v. Walker, 67 Pa. St. 185. South Carolina. — Swygait v. Tay- lor, I Rich. Law 54. Te.ras. — Stroud z: Springfield, 28 Te.x. 649; Johnson v. Timmons, 50 Tex. 521 ; Holmes v. Coryell, 58 Tex. 680; Williams i: Hardie (Tex. Civ. .\pp.), 21 S. W. 267; Lunn V. Scar- borough, 6 Tex. Civ. App. 15, 24 S. W. 846; Ammons v. Dvvyer, 78 Tex. 639, IS S. W. 1049. Vermont. — Williams v. Bass, 22 N't. 352. Other Circumstances May Be Re- sorted to, to raise the necessary pre- sumption. Clark V. Owens, 18 N. Y. 434 ; in that case it was held suffi- cient to let in an ancient lease that the lessee had paid rent under it, had referred to it in conversation and had been shown the lease at least twice. Possession 'Wanting; Document to be Reasonably Accounted For. Jackson ;•. Laroway, 3 Johns. Cas. (N. Y.) 283. On Proof of Execution Except De- livery A deed more than 30 years old, unaccompanied by possession under it, was admitted where all the elements of its e.xecution were proved, except delivery. Thursby v. .Myers, 57 Ga. 155. Rule in Pennsylvania In Walker v. Walker, 67 Pa. St. 185, it is said that it has never been e.x- pressly decided in Pennsylvania that nothing but proof of actual posses- sion for 30 years under the deed will suffice to raise a presumption of its authenticity ; but where posses- sion is the only circumstance relied on, nothing less than proof of pos- session for 30 years will suffice. In 'Virginia. — After an elaborate review of the authorities, the court overrules Dishazer v. Maitland, 12 Leigh (Va.) 524, and holds that proof of possession is only one of the means of raising a presumption of genuineness, and that there are other means which should not be excluded. Carruthers v. Eldridge, 12 Gratt. (\'a.) 670. Vol. I 872 A \-CIEN T DOC U MEN TS. but that in absence of possession there must be e(|Uivalent explana- tory proof."-' C. Other Coi. — So, too, are acts of ownership consist- ent with the document.'''' 63. Former Heirs v. Eslava, ii Ala. 1028; Carter v. Chaudron, 21 Ala. 72; White 'e. Karris, 124 .Ma. 461, 27 So. 259. See also .\lleii v. .McTavish, 28 Grant's Ch. (Can.) 539. Possession Not the Only Corrobo- ration. — Frost c'. Frost. 21 S. C. 501 ; Harlan v. Howard, 79 Ky. 373 ; Wilson V. Betts, 4 Denio (N. Y.) 201. Character of Corroboration De- pends on Instrument. — What cir- cnmstances of corrohoration sliall he necessary must depend in each case npon the purpose and character of the instrument. They must be au-xiliary to its apparent antiquity and sufficient to raise a reasonable presumption of its genuineness. Stroud V. Springfield, 28 Tex. 649. See also Williams ;■. Conger, 49 Tex. 582; I. an V. Mumnia. 43 Pa. St. 267. 64. Even if Not in Place Required by Law Whitman v. Heneherry, 7.^ 111. 1 01). Improperly Certified and Recorded. llcdger r. Ward. 15 I'.. Mnn. ( Ky. ) 106. Recording ^With Other Facts. Stoddard v. Chambers, 2 How. 284 ; King V. Sears, 91 Ca. 577, 18 S. E. 830. Acknowledgment, With Other Facts "The court did not err in admitting in evidence as an ancient instrument a conveyance dated June 12, 1855, and acknowledged Mar. 31, 1859, notvvitlistanding there was no proof of possession under or referable to said' deed. Proof that the signature of the acknowledgment was in the handwriting of the de- ceased officer who purports to have taken it in connection with other corroborative circumstances, is suffi- cient to raise a reasonable pre- sumption of genuineness." Williams V. llardie (Tex. Civ. .-Kpp. ). 21 S. W. 267. Vol. I , Attestation Evidence of Delivery. Huff V. Crawford (Tex. Civ. .\pp.), i2 S. W. 592. In Missouri by Statute, the mere fact that an instrument was recorded more than 30 years before it is offered in evidence suffices to let it in. Cris- pen V. Hannavan, 12 Mo. 548. By a later statute the period was reduced to ten years hut possession or claim of title under it for that titne must also be shown. Hoge v. Huff, 94 Mo. 489, 7 S. W. 443. ( Doubtless the statutes in other states, admitting without proof in- struments that have been properly recorded, apply to ancient documents as well as to others.) 65. Schuner v. Russell, 83 Tex. 83, 18 S. W. 484; Von Rosenburg v. Haynes, 85 Tex. 357, 20 S. W. 143 ; Wliite V. Farris, 124 .-Ma. 461, 27 So. 259. For Thirty Years. — Cox v. Cock, S9 Tex. 521 ; Williams v. Hillegas, 5 Pa. St. 492. Possession of Deed and Paying Taxes. _Iu Ryder v. Fash, 50 .Mo. 476, it was held that possession of the deed itself and paying ta.xes on the land was enough to let in the deed as ancient without further proof. It does not appear for how long a period taxes were paid, nor whether the land was actually occu- l)icd or by whom. But in Shaw v. Pershing, 57 Mo. 416, it appears that the land there involved was never actually occupied for more llian 30 years after the execution of the deed, during all which time the grantee had kept the deed and had paid ta.xes on the land. 66. Chamberlin v. Showalter, 5 Tex. Civ. ,\pp. 226, 2^ S. W. 1017. After Forty Years Acquiescence by the Assignor, proof of execution of a land warrant cannot be required by a stranger to the transaction. Botls V. Chiles, 21 B. Mon. (Ky.) 36. A -VC 7/1 A" V nOC ■ UMEX TS. 873 d. .issciiioii of Kii^hts. — Courts have reqiiiiL'il it to be shown that the document has been in some manner acted on :'■' that it appear that some claim has been asserted under it.''" D. Legal Execution. — a. Must Shoiv Compliance With Lazi'. The instrument must contain e\"ery essential recpiirement of the law under which it was made."''' This rule applies wliere certain formalities were recjuired in case of deeds executed by married women.'" b. Prcsii Illations in Favor Of. — But in other cases liberal pre- sumptions have been indulged in favor of due execution of ancient instruments.'' c. Informalities Do Not I'itiate. — lUit the alisence of formalities usual but not going to the validit\ of the instrument may be explained."- 67. Wilson z: Simpson. 8o Tex. 2/9, l6 S. W. 40; Lau J'. Mnnniia, 43 Pa. St. 267. 68. Stoddard v. Chambers. 2 How. 284; Fulkerson r. Holmes, 117 U. S. 389, 6 Sup. Ct. 780; Walton v. Coulson, I McLean 120, 29 Fed. Cas. No. i7,i.?2; Barr v. Gratz, 4 Wheat. ■Where a 'Wm Had Not Been Treated as 'Valid, as no claim has been set up under it, and all the heirs have acted in regard to the estate of their father as though he had died intestate, the will cannot be admitted without such proof as would be required in the case of writings not ancient. Meegaii z'. Boyle, ig How. 130. 69. ^leega^ v. Boyle, 19 How. 130 ; in that case the law required that a will be proved by the attesting witness within one month after de- cease of the testator and be recorded, and it appeared that no such steps ha. 640. 20 S. W. 1007; Ehrenbey v. Babee (Tex. Civ. App.), 54 S. W. 435. 22. Copy Lacking Name of Witness. Dodge '■. Briggs, 27 Fed. 160, where the record showed only one witness where the law required two as a prerequisite to recordation. Although the Record Shows No Copy of a Seal or memorandum thereof, provided possession has fol- lowed the deed. 'Williams v. Rass, 22 \'t. 352. Copy Considered With Other Facts. Standing alone the record of a deed apparently not entitled to record is not evidence of the existence or ex- ecution of the deed. But such record may be considered in con- nection with other facts to establish the deed. Townsend v. Downer, 32 Vt. 183. 23. Schumer z: Russell, 8^ Tex. 83, 18 S. W. 4R4- 24. Patterson ?•. Winn, 5 Pet. 233; Vol. I Kingston ?■. Lesley, 10 Serg. & R. (Pa.) .AV Proof Need Not Be Strict and Technical. — The proof of the loss being addressed exclusively to the court and for the satisfaction of the judge, need not be as strict and technical as is required by the gen- eral rules of evidence. Fetherly "'. Waggoner, 11 Wend. (N. Y.) 599. Showing That Place of Proper Custody Was Burned. — Isliam f. Wallace, 4 Sim. 25. 25. In Beall ?: Dearing. 7 .Ala. 124, it is held that where a bill of sale of slaves had never been in possession of the party wishing to introduce it, and was not an in- strument likely to be preserved so long as thirty years, only a slight showing of loss or inability to pro- duce it was necessary to let in secondary evidence. In that case it was proved that inquiry had been made of persons likely to have knowledge of the deed and an in- effectual attempt made to take dep- osition of one person supposed to be able to say that the deed was lost. This was held sufficient search and that secondary evidence of con- tents could be given. 26. In Allison z: Little, 85 Ala. 512, s So. 221, where a certified transcript of a deed over thirty years old was admitted, it was held that the grantees being deceased there was no presumption that their successors in trust had custody of the original deed and hence no ne- cessity arose for accounting for the loss of such original before in- troducing the copy. To same effect, Beard i'. Ryan, 78 .Ma. 37. ANCIENT DOCUMENTS. SS3 3. Competency of Original. — A. Mist I'.i-: Shown. — It must first be shown that the original would be competent.-' B. JMetiiod of Showing. — And this may be by such evidence as would suffice if the original were produced.-'* But this rule has been questioned,-" and it has been suggested that more evidence of genuineness will be required in the case of ancient papers that have been lost than of such as are produced in court.'"' VI. OBJECTIONS TO INTRODUCTION. Objections to the introduction of documents as ancient should be specific.-'^ 27. Smith v. Cavitt, 20 Te.x. Civ. App. 538. 50 S. W. 167. 28. Showing of Authority and Custody of Original McReynolds f. Longeiilierger. 57 Pa. St. 13. Circumstances to Prove Original. It Ijeiiig out of the power of the plaintiff to produce the original, and the instrument being so old as to render direct evidence of its ex- ecution improbable, we are of the opinion that he should be permitted to show its execution by circum- stances. Long possession under it, the payment of taxes upon the land, the marks of age upon the paper it- self, are all circumstances which might be looked to. Schumer v. Russell. 83 Tex. 83. 18 S. W. 484- Mode of Proving Lost Paper. It was shown that search had been made for a supposed deed and that it could not be found. A former clerk of the county court testified that at the time the deed was supposed to have been made he was clerk of the court ; that he knew the grantor in the deed and his writing; that he knew the witness subscribing the deed. Tliat from his record in his own hand he knew that he had recorded such a deed on proof of the subscribing witness ; he testified he would not have done so had not the original been executed in the hand of the grantor. The grantor and witness were dead, and the grantee also. It was held that the record showed delivery of the deed and hence tilled the requirement that deeds must come from proper custody. That the record proved the antiquity of the deed and the deed was admitted on proof of taxes paid and claims to the property made bv the grantee. Holmes r. Coryell, 58 Tex. 680. 29. It was suggested in Jones t. Morgan, 13 Ga. 515. that the rules admitting ancient documents without full and direct evidence of execution might not apply unless the original document itself was before the court. But in that case there was not only no direct proof of execution, but no evidence of possession under the deed for several years after its date. 30. " Indeed, we think it possible to make a case under which the copy would be admissible as the copy of an ancient instrument, but, certainly, it should require much stronger corroborating proof than where the original is produced before the court, bearing the appearance of age and autheulicitv upon its face." Schumer v. Russell. 8? Tex. 8^. 18 S. W. 484. 31. Sullivan v. Richardson, 33 Fla. I, 14 So. 692. See Houston v. Blythe, 60 Tex. 506. Where the objection was that one of the witnesses to the will was living and had not been called, but the objection did not point out the fact that the attestation clause of the will failed to state that the witnesses signed in the testator's presence, the objection was held insufficient, be- cause independently of that failure the will could properly be read as an ancient will without calling the wit- ness. Jackson v. Christman, 4 Wend. (N. Y.) 277. Where the objection was that " ex- ecution has not been proved " the appellate court will not consider whether or not the deed was pro- Vol. I 884 ANCIENT DOCUMENTS. VII. PROVINCE OF COURT AND JURY. 1. Competency. — A. For Court. — The question of the com- petency of an instrument as ancient is for the court. "- B. What Testimony Heard As To. — The court usually hears only what is adduced by the party offering the paper."" C. Discretion of Court. — And it has been said to be in the court's discretion to admit the paper on less proof than is usually required.'* 2. Genuineness. — A. Instructions Th.\t Paper Is Genuine. If the preliminary showing is convincing and nothing contrary appears later in the case, the court may instruct that the paper is geiuiine.^^ duced from proper custody. Ale.x- ander '■. Wheeler, 78 Ala. 167. 32. Harlan v. Howard, 79 Ky. 373; Stooksberry v. Swan (Te.x. Civ. App.), 22 S. W. 963; Chamberlain v. Showalter, 5 Tex. Civ. App. 226, 23 S. \V. 1017; Kellogg T. McCabe. 14 Tex. Civ. App. 598. 38 S. W. 542; Shaller v. Brand, 6 Binn. (Pa.) 435; Kennard v. Withrow (Tex. Civ. App.), 28 S. W. 226; Wisdom V. Reeves, no Ala. 418, 18 So. 13. " The True Rule for Receiving Documents, ancient or modern, in evidence, is conceived to be this : The party offering the paper must make out a prima facie case for its reception. He must show that the paper is apparently as he contends. If he wholly fails to do this, the court should reject the paper; but, if there be a reasonable 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." Gibson v. Poor, 21 N. H. 446; Laurence v. Tennant, 64 N. H. 532, 15 Atl. 543 ; Beaumont Pasture Co. v. Preston, 65 Tex. 448. 33. In Beaumont Pasture Co. v. Preston, 65 Tex. 448, the court said : " In making the proof upon which such paper gets to the jury, the party offering it proceeds ex parte. If, without considering any other evi- dence than that produced by him, there is enough to raise an issue of fact upon the genuineness of the document, it is proper for the court to allow the paper to go before the Vol. 1. jury, and the issue of fact is then determined by them, after hearing all the testimony on both sides." 34. Pendleton t. Robertson (Tex. Civ. App.), 32 S. W. 442. Deed admitted to be read to the jury without any introduction, when there was a possibility that it might be proved to have come from the proper custody, etc., being over thirty years old. Burgin v. Chenault, 9 B. Mon. (Ky.) 285. See also Jackson V. Lamb, 7 Cow. (N. Y.) 431. 35. Stooksberry v. Swan (Tex. Civ. App.), 22 S. W. 963, where the court said : " If, on proper and un- controverted testimony, a deed be admitted as an ancient instrument, then, in the absence of evidence, subsequently admitted, tending to show that it is not genuine, a court might, without violation of the stat- ute, instruct a jury to consider the execution of the instrument proved." Nothing to Rebut Inference of Genuineness. —Where the instrument is not assailed as a forgery and there is no evidence tending even to rebut the inference of genuineness deducible from the testimony under which it was admitted, there is no controverted issue of the fact on the question of its proper execution to be submitted to the jury, the court being justified in assuming that its ex- ecution had been established. Pen- dleton V. Robertson (Tex. Civ. App.), 32 S. W. 442. Contra. — In Pridgen v. Green, 80 f^'S. 737, 7 S. E. 97, the defendant sought to show by the deed itself that it was a forgery, relying on the AN CI EN r D O L ' UMEN TS. 885 B. \\'iiE.\ Question Is for Jukv. — Otherwise the question of genuineness of a document admitted as ancient is for the jury,^* (especially if the evidence is conflicting^,''") ujion all the evidence including that produced after such admission."'*' C. BuKDKx OF Proof. — The burden of proof is on him who olTers the paper.-"' But some cases hold the contrary as to the recitals in the deed and its general appearance to convince the jury. The court, by its charge, did not allow the jury to consider the tlieory of the defendant. The court said : " It does not follow that because the deed was thirty years old, and for that reason adniissiljle as evidence before the jury, the jury could not look to the face of the deed, and the entries thereon, and determine that it was a forgery, without resort- ing to aliunde evidence." 36. Harlan t'. Howard, 79 Ky. i73 ; Kellogg v. McCabe, 14 Te.K. Civ. App. 598, 38 S. W. 542; Cham- berlain I'. Showalter, 5 Tex. Civ. App. 226, 2? S. W. 1017; Shinn v. Hicks, 68 Tex. 277. 4 S. W. 486; Warren f. Frederichs, 76 Tex. 647, 13 S. W. 64,? ; Beaumont Pasture Co. V. Preston, 65 Tex. 448; Amnion v. Dwyer, 78 Tex. 639, 15 S. W. 1049; JMcCelvey v. Cryer, 8 Tex. Civ. App. 437, 28 S. W. 691 ; McWhirter v. Allen, I Tex. Civ. App. 649, 20 S. W. 1007; Stooksberry f. Swan (Tex. Civ. App.), 21 S. W. 694, where the court said : " Whether testimony is admissible is. addressed to, and must be determined by, the court ; but the weight to be given to cor- roborative evidence on which a deed is admitted as an ancient instrument, including the appearance and age of the paper itself, as well as to all evidence introduced and tending to show that the paper is not genuine, must be left for the ultimate decision of the jury, under all the relevant testimony permitted to go before them." 37. Holt V. Maverick, 86 Tex. 457. 23 S. W. 751- " The age of the deed rendered it admissible in evidence. It placed it, however, in no better attitude before the jury than if an attesting witness had appeared before them, and testified that he saw the grantor. Robert W. Hamilton, execute it. Holmes v. Coryell, 58 Tex. 689. As the effect of its age, which would otherwise have l)een conclusive of its gemiincness, was denied by the testimony of the witness Hamilton, we think that this litigated fact should have been left to the deter- mination of the jurv." Stooksberry V. Swan (Tex. Civ. App.), 21 S. W. 694. 38. Albright -■. Jones, 106 Ga. 302, 31 S. E. 761 ; Patterson r. Col- lier, 75 Ga. 419; Beaumont Pasture Co. I'. Preston, 65 Tex. 448 ; Pridgen v. Green, 80 Ga. 737, 7 S. E. 97; Sibley z: Haslam, 75 Ga. 490 ; Hous- ton V. Blythe, 60 Tex. 506: Williams V. Conger, 125 U. S. 397, 8 Sup. Ct. 933 ; Chamberlin ?•. Torrence, 14 grant's Ch. (Can.) 181. Showing Forgery To prove the deed a forgery it may be shown that there was not at the time the deed was e-xecuted any justice of the peace bearing the name affixed to the certificate on the deed. Parker V. R. Co., 8i Ga. 387, 8 S. E. 871. ( For rules governing the intro- duction of evidence for and against the genuineness of documents sec the article, " Private Writings.") 39. The genuineness of the deed should be left to the jury, under an instruction requiring them to look to all the evidence permitted to go before them, without any intimation that the admission of the deed relieves the defendants from the ne- cessity to produce a preponderance of evidence in favor of its genuine- ness. Beaumont Pasture Co. v. Preston, 65 Tex. 448. The rule under which ancient instruments are admitted in evidence without direct proof of their execution is based on the usual relation of ascertained facts to some ulterior fact, not directly proved, which the common e.xperience of men shows usually to Vol. I 886 ANCIENT DOCUMENTS. burden of proof,""' and one case seems to liokl tliat tlic jurv sliould not be told that the Inirden of proof is on one side or the other. *^ VIII. KELEVANCY. 1. Rule. — It lias been said that the relevancy of a ])aper is not affected by its antiquity. ''- 2. Exceptions. — But ancient papers have often been held to be admissible as evidence of facts not provable by similar recent docu- ments : for example, boundaries,'*'' ancient possessions, ''■' title,^'' pedi- gree,''" custom,'' reputation,''* existence and location of highways,'" and of water courses ;■"'" or to establish the citizenship^' or identity of a person named therein.''- exist. The fact not directly proved is said to be presumed, but the pre- sumption is only one of fact, and when the fact to be presumed is con- troverted by direct testimony the jury may indulge or reject the pre- sumption, as the entire evidence may justify. Stooksberry v. Swan (Te.K. Civ. App.), 21 S. W. 694. *0. 'Wisdom f. Reeves, 110 Ala. 418, 18 So. 13. Although Affidavit of Forgery Is Filed. — In Masterson v. Todd, 6 Tex. Civ. App. 131. 24 S. W. 682, it was said that the party attacking an ancient document admitted in evi- dence has the burden of proof and cannot relieve himself of it by filing an afifidavit of forgery. But the ruling in the case was that a charge requiring the jury to be satisfied of the forgery before finding against genuineness, imposed on the party attacking the deed more than the mere burden of proof and was there- fore error. 41. Stooksberry r. Swan (Tex. Civ. App.), 21 S. W. 694. ( The apparent conHict in the cases is probably to be explained by the use of the phrase " Burden of Proof " in different senses.) Sec article, " Burden of Proof." 42. King V. Watkins, 98 Fed. 913 ; Jackson v. 'Witters, 2 Johns. (N. Y.) 180. An ancient pedigree, dated 1733, with a certificate of its correctness attached, the handwriting and sig- natures to which were proved, found in a locked room by a purchaser of part of the estate of an ancestor under whom the demandant claimed. Vol. I purporting to be " collected from parish registers, wills, monumental inscriptions, family records and his- tory," held inadmissible on the ground that it was secondary evi- dence, and the registers, etc., should be produced. Per Tindal, C. J., in Davies ?'. Lowndes, 5 Bing. 161. 43. Sec article, " Boundaries." 44. ^cc article, "Possession." 45. See article, " Title." 46. See article, " Pedigree." 47. See article. " Custom." 48. Reputation. — Sec article, " Reputation." 49. Almy v. Church, 18 R. I. 182, 26 Atl. 58; Whitman z: Shaw, 166 Mass. 451, 44 N. E. 333- See article, " Highways." 50. Lawrence r. Tennant, 64 N. H. 532, 15 Atl. 543; Whitman v. Shaw, 166 Mass. 451, 44 N. E. 333- 51. The question was whether " A " was a citizen of Mexico in 1837. " The only direct statement as to his citizenship is that contained in a power of attorney which he executed and which begins as fol- lows : ' In the city of Mexico on the loth day of Jamiary, 1837, before me, a notary public and witnesses, personally appeared " A," a citizen and of the commerce of this place, in whom I have faith and know ' etc;" held, that this recital was evi- dence of the citizenship of " A." Williams !■. Conger. 125 U. S. 397, 8 Sup. Ct. 933. 52. In Howard r. Russell. 75 Tex. 171, 12 S. W. 525, a copy of minutes fifty years old of a lodge of Masons, showing that on a certain day a certain person was present in the ANCIENT DOCUMENTS. 887 A recital in sucli a document may lie evidence of the fact recited, as of an assignment.'"' or release,''* or that a certain map was accepted as correct,"" or that a certain document existed ;"" and such papers are used to prove handwriting by comparison.''" lodge, was offered in evidence. It was shown that tlie original minutes could not be had and it was proved by the testimony of the secretary of the lodge that he was the custodian of the minutes and the writing offered was a true copy ; held, that this evidence tended to prove identity of person and was relevant and admis- sible as a copj' of an ancient doc- ument ; that the entry being more than 30 years old the presumption should be that the entry was cor- rectly made ; that in order to prove a fact occurring fifty years ago, the record of an ancient and well estab- lished society may be resorted to upon a question of pedigree 53. Chandle ;6. 54. Miss. 55. Hughes r. 482. Whitman v. Wilson, "7 Wilkinson, Me. 37 4-r. 44 N. E. 333, Shaw, 166 Mass. and to show that the map was a part of actual trans- actions. 56. Havens x: Seashore L. Co., 47 N. J. Eq. 365. 20 Atl. 497. 57. A deed proved to be thirty years of age, purporting to be signed by the alleged grantor, and under which he surrendered possession to the person purporting to be the grantee, who, by himself and his privies in estate, remained in pos- session, was so far proved to be the genuine deed of the alleged grantor, and so far established the genuineness of his signature thereto, as to authorize its admission in evi- dence, for the purpose of a com- parison of handwriting, upon the trial of a cause involving the ques- tion of the genuineness of the sig- nature of such grantor to another instrument. Goza v. Browning, 96 Ga. 421. 23 S. E. 842. See also Strother v. Lucas, 6 Pet. 763. ANCIENT LIGHTS.— See Easements; Prescription. Vol. I ANIMALS. By A. B. Young. I. OWNERSHIP OF ANIMALS, 889 I. J\Iarks and Brands, 88y A. //( General, 889 B. Brands Recorded Under Statutes, 890 C. Burden of Provin^i^ Record, 890 D. Certified Copies of Recorded Brands, 890 E. Distinction Betu'een "Brand" and "Mark." 891 F. Written Transfers As Evidence, 891 G. Oral Evidence of Transfer of Recorded Brand. 891 II. IMPOUNDING ANIMALS, 891 1. Memoranda Kept by Found Keeper, 891 2. Oral Ei'idence to S'liozi' Creation of Pound, 892 III. INJURIES BY ANIMALS, 892 1. 'To Properly, 892 A. Burden of Proof, 892 2. To Persons, 892 A. In General, 892 a. Character of the Animal, 892 (I.) Presumption of Oiuner's Knowledge, 892 (A.) Wild Animals, 892 (B.) Domestic Animals, 893 (2.) Former Instances of Viciousncss, 894 (3.) Evidence Other Than Conduct of Animal. 894 (4.) Conduct Subsequent to fnjurx, 89; (5.) Habits, 895 B. Injuries by Dogs, 896 a. Matters As to Liability, 896 (I.) The Keeping, 896 (A.) Circumstances. 896 (B.) Sutfering Dog's Presence About Premises, 896 (2.) Character of the Dog, 897 (A.) Previous Injury to Others, 897 (B.) Knoivledge of the Oivner, 897 (a.) Express Notice Not Necessary, 897 (h.) Vicious Acts, 897 (c.) Knowledge of Agent. 89S Vol. I ANIMALS. 889 (d.) Rcpiilalloii of Dog, 898 (e.) Conduct Contrary to General Habits, 899 (3.) Daniai^cs, 899 (A.) Peculiar Painfiilness of Injury, 899 (B.) Dread of Hydrol^hobia. 899 (C.) Expression Indicative of Mental Suf- fering, 899 b. Matters of Defense, 900 ( I.) Contributory Negligence. 900 IV. ANIMALS INJURED OR KILLED, 900 1. Failure to Maintain I'tsibte Cattle Guards, 900 2. Circumstances to fi.v Prima Facie Liabilitx, 900 3. Footprints of Animals Near Place of Injury. 901 4. Proof of Value of Animals, 901 A. Special Usefulness of Dog, 901 B. Pedigree, 901 C. Opinions of I'arniers and Others, 902 D. Matters in Mitigation, 902 a. Bad Habits, 902 I. OWNERSHIP OF ANIMALS. 1. Marks and Brands. — A. In General. — It has been held that flesh marks on animals are competent evidence on an issue as to the ownership of the animals.' And it has been also held that brands which are inadmissible as evidence of ownership because not recorded as required by statute may still be regarded as such flesh marks,- and received for the purpose of identifying the animals.' 1. People z: Bollinger. 71 Cal. 117, II Pac. 799; Territory v. Chavez (N. M.), 30 Pac. 903; Tittle ~e. State, 30 Tex. App. 597, 17 S. W. II 18; Allen V. State, 42 Tex. 517. 2. Turner '■. State, 39 Tex. Crim. App. 322, 45 S. \V. 1020 ; Chowning V. State (Tex. Civ. App.), 51 S. W. 946. In every case where it is question- able whether the proof of ownership depends upon flesh marks or upon the brand which is unrecorded, it is the duty of the court in such cases to limit the testimony of such unre- corded brand that the same can be used merely as a flesh mark and not as evidence of ownership as in the case of a recorded brand. Childers v. State, ,37 Tex. Crim. .App. 392. 35 S. W. 654. 3. Tittle V. State, 30 Tex. App. 597. 17 S. W. 1 1 18; State z: Hanna, 35 Or. 19s, 57 Pac. 629 ; Chesnut Z'. People, 21 Colo. 512, 42 Pac. 656; State z: King, 84 N. C. 737. " The court did not err in admit- ting evidence showing the character and description of the brand used by Prather. although this brand had not been recorded. The evidence was not oft'ered or relied upon to prove title, but for the purpose, in connection with the other evidence before the jury, of identifying the steer referred to by the witnesses with the one described in the indict- ment." Poag r. State, 43 Tex. 15T. Tol. 1 890 ANIMALS. B. Brands Recokdico Under Statutes. — Under statutes requir- ing brands to be recorded as therein provided before such brands are evidence of ownership of the animals branded, a brand is not admissible as evidence of such ownership unless the statute has been complied with.* The Purpose of Authorizing the Registration of Marks and Brands is til pcrjjetuate and su])ply evidence as to the ownership of animals.^ Recorded Brands Not Exclusive Evidence. — It has been held, how- ever, that recorilcd brands are never exclusive evidence of owner- ship.^' C. Burden oE Proving Record. — It has been held that it is only when the state relies solely upon proof of a brand to show the ownership of an animal that the state has the burden to show the brand to have been recorded." D. Certified Copies oe Recorded Brands. — Under the statutes before referred to requiring the registration of marks and brands, a properly certified copy of such registration or record establishes prima facie that the animal bearing such mark or brand is owned bv the person in whose name it was registered.''* And it is held also 4. AIcKenzie i: Stale. .32 Tex. Crim. App. 568, 25 S. W. 426, 40 Am. St. Rep. 795 ; Debord r. John- son, 10 Colo. App. 402, 33 Pac. 255 ; l\hn"ray v. Trinidad Nat. Bank. 5 Colo. App. 359, 38 Pac, 615. " No brands except .snch as are recorded by the officers named in this act shall be rccogni::cd in law as any evidence of the ownership of the cattle, horses or mnlcs upon which the same may be nsed." " When a party or the state desires to introduce the inark and brand as evidence, preliminary proof that the same is recorded is absolutely neces- sary." Allen V. State. 42 Tex. 517. 5. Dickson z: Territory (.^riz.), 56 Pac. 971 ; Walden z\ Murdock. 23 Cal. 540, 83 Am. Dec. 135; Chesnut 7'. People, 21 Colo. 512, 42 Pac. 656; Debord v. Johnson, 10 Colo. App. 402. 53 Pac. 255 : Murray f. Trinidad Nat. P>ank, 5 Colo. App. 359. 38 Pac. 615; Territory z: Chavez (N. M.), 30 Pac. 903; Gale z: Salas ( N. M.), 66 Pac. 520; State z: Cardelli, 19 Nev. 319, 10 Pac. 433; ^IcKenzie z'. State, 32 Tex. Crim. App. 568, 25 S. W. 426, 40 Am. St. Rep. 795; De Garcia v. Galvan. 55 Tex. 53 ; Allen z'. State, 42 Tex. 517; Beyman z: Black, 47 Tex. 558. " Nor was it necessary for the state to show a recorded brand since the Vol. I ownership was cstalilishcd positively and emphatically independently of the brand." Wolf z\ State. 4 Tex. App. 332. 6. Territory z: Chavez (N. M.). 30 Pac. 903 ; Fisher z\ State, 4 Tex. .'\pp. 181 ; Hutto z: State, 7 Tex. .\pp. 44; Debord z\ Johnson, 10 Colo. .A.pp. 402, 53 Pac. 255 ; Cragin v. Dickey. 113 Ala. 310, 21 So. 55; Gale z: Salas (N. U.). 66 Pac. 520. 7. Fisher z: State. 4 Tex. App. 181. And in every case where the fact of ownership depends alone upon an unrecorded brand and the verdict is procured on such testimony it can- not be permitted to stand ; and in every case where it is questionable whether the proof of ownership de- pends upon flesh marks or upon the brand which is unrecorded, it is the duty of the court in snch cases to limit the testimony of snch unre- corded brand, that the same can be used merely as a fiesh mark and not as evidence of ownership as in the case of a recorded brand. Childers z'. State, 37 Tex. Crim. App. 392, 35 S. W. 654; Poag z: State, 40 Tex. 151 ; Allen z: State, 42 Tex. 517; Hutto z: State, 7 Tex. App. 44; State z'. Cardelli. 19 Nev. 319. 10 Pac. 4.^3■ 8. Dickson <■. Territory (Ariz.), ANIMALS. 891 that such copy may be used as evidence in counties other than that where the brand was registered." E. Distinction Between " Brand '" and " Mark." — It has been held that statutes requiring the registration of marks and brands, but providing that brands only shall be evidence of owner- ship, do not constitute the registration the best evidence of a mark.'" F. W'ritten Transfers As Evidence. — It has been held that bills of sale and other written transfers of live stock are competent though not conforinable to the statute.^' G. t)RAL E\'inENCE OF Transfer of Recorded Brand. — Oral evidence is admissible for the purpose of showing the transfer of ownership of a recorded brand. '- II. IMPOUNDING ANIMALS. 1. Memoranda Kept by Pound Keeper. — Memoranda and certifi- cates required b\- law to lie made and filed with pound keepers and 56 Pae. 971; Yale i: Salas (N. j\l.), 66 Pac. 520; McKenzie v. State, 32 Tex. Crim. App. 568, 25 S. W. 426, 40 Am. St. Rep. 795. Purpose of Registration of Brand Notice Prima Facie Proof The very purpose of the law in requiring the registration of a brand is that it shall be f'liiiia facie proof of own- ership. De Garcia i'. Galvan, 55 Tex. 53. " The object of branding and marking cattle is for the purpose of identification that their ownership may be known and distinguished from other stock, that it may be known to whom the particular cattle belong." State v. Cardelli, 19 Nev. 319, ID Pac. 433. 9. Atterberry v. State, 19 Tex. App. 401 ; Chesnnt f. People. 21 Colo. 512, 42 Pac. 656. 10. Johnson v. State, i Tex. App. 333 ; Lawrence z\ State. 20 Tex. App. 536. Mark Unrecorded May Be Proved. .\ mark may he proved without show- ing it to have been recorded. The rule that no brands except such as are recorded shall be recognized in law as evidence of ownership is not applicable to marks. Love i'. State. 15 Tex. App. 563. The latter article provides that no brands except, etc. If this latter article applied at all to sheep, which are not mentioned in it, it does not apply to inarhs, but to brands only. Dreyer z: State. 1 1 Tex. App. 631 ; Dixon V. State, 19 Tex. 134. 11. Brill V. Christy (Ariz.), 63 Pac. 757; Gale v. Salas (N. ^L), 66 Pac. 520; Nance t. Barber (Tex. Civ. App.). 26 S. W. 151. 12. Transfer of Recorded Brand May Be Proved Orally A brand had been recorded as the property of two brothers. On the trial, after introducing the recorded brand in evidence, one of the brothers was permitted to testify that at the time of the larceny he owned the animal in question and the brand. The court held it was not error to permit this testimony. " The brand was recorded as required by law, and, while it was prima facie evidence that L. and H. Huning were owners of the brand at the time of record, it was not conclusive evidence of ownership in them." Territory v. Chavez (N. M.), 30 Pac. 903. Exception. — But where statutes provide fur the sale of stock run- ning in the range by sale and de- livery of the brands and marks, and requiring that instruments evidencing such sales be recorded as well as noted on the record of original brands, oral proof is not admissible to establish ownership of such re- corded brand. Nance v. Barber (Tex. Civ. App.), 26 S. W. 151. Vol. I 892 ANIMALS. other officials charged witli ikuies rcs]3ccting impounded animals are achnissiblc as otlior official documents.'^ 2. Oral Evidence to Show Creation of Pound. — W here it does not appear from the record that officials of distinct localities united in providing a pound for their common use it is competent to establish the fact of such joint official action by oral testimony.'* III. INJURIES BY ANIMALS. 1. To Property. — A. Burden of Proof. — The burden of proof rests upon the owner of animals found upon another's close to excuse or justify their presence there except as it may otherwise be provided by statute.'^ 2. To Persons. — A. Ix Gener.^l. — a. Character of the Animal. (1.) Presumption of Owner's Knowledge — (A.) Wild Anim.^ls. — In ac- tions to recover for injuries by wild beasts or animals that are in their nature ferocious, the owner is conclusively presumed to know them to be mischievous." And negligence will be presumed from the fact that he has permitted them to be at large.'" 13. Bruce f. Holdcn. _'i Pick. (38 Mass.) 187. Records of awards of damages for injuries by trespassing animals re- quired by statute to be made by designated officials and by them filed for record are competent evidence of such assessments where the original award cannot be found. Lyons v. Van Gorder, 77 Iowa 600, 42 N. W. 500. 14. Albright v. Pavne, 43 Ohio St. 8, I N. E. 16. 15. Wells V. Howell, 19 Johns. (N. Y.) 385; Lyman v. Gipson. 18 Pick. (Mass.) 422; Lorance v. Hill- yer, 57 Neb. 266, 77 N. W. 755 ; Story V. Robinson. 32 Cal. 205 ; Pet- lit V. May. 34 Wis. 666. " In trespass for damage done by the defendant's sheep to the plain- tifif's close, if it is admitted that the sheep were upon the plaintff's land, the burden is upon the defendant to show some justification or e-xcuse ; and j^f they entered from the high- way, and no justification or e.xcuse is shown for their being in the high- way, the plaintiff is entitled to dam- ages." Hodson V. Kilgore, 77 Me. Actual Knowledge Not Always Necessary to Be Shown. — And in connection with evidence tending to show actual knowledge, it is com- Vol. I petent to show that the animals in question were bought from a locality known by the person complained of to be infected and liable to communi- cate disease as tending to establish such knowledge by implication. Lynch v. Grayson. 5 N. M. 4S7. 25 Pac. 992; Grayson j'. Lynch. 163 V. S. 468; Croff V. Crcsse, 7 Okla. 408, 54 Pac. 558; State !■. Turner (Kan.), b5 Pac. 217. 16. Manger i'. Shipman. 30 Neb. 352, 46 N. W. 527; Earl i: Van .-Clsline. 8 Barb. (N. Y.) 630; Van Leuven v. Lyke, i N. Y. 515. 49 .\m. Dec. 346. Animal's 'Viciousness Presumed. "Though the owner have im parti- cular notice that he did any such thing before, yet if he be a beast that is feme naturae, if he get loose and do harm to any person, the owner is liable to an action for the dam- age." I Hale P. C. 4.^0. The owner of beasts that are ferae naturae must always keep them up at his peril and an action lies with- out notice of the quality of the beasts. Re.x. 7'. Huggins. 2 Lord Raym. 1574. The owner's knowledge of the ferocity of a tiger will be presumed from the nature of the aniirial. Laverone Z'. Mangianti. 41 Cal. 138, 10 .^m. Rep. 269. 17. England. — y\:\y r. P.urdctt. ANIMALS. 893 (B.; Domestic Animals. — The owner of domestic animals is not presumed to know that they are vicious."* 58 Eng. C. L. lOi ; May v. Burdett, 9 Q. B. loi. L'liilcd States. — Spring Company v. Edgar, 99 U. S. 645. Co)i)iccticut. — Sellcck ;■. Selleck. 19 Conn. 500. ////)io/.j. — Ahlstrand r. Bishop, 88 HI. App. 424; Hammond r. Melton, 42 111. App. 186; Stumps 7: Kelley, 22 111. 140. Indiana. — Graham v. Payne, 122 Ind. 403, 24 X. E. 216. ■ lozi'a. — Marsel v. Bowman, 62 Iowa 57, 17 N. W. 176. Kentucky. — Brooks v. Brooks, 21 Ky. Law Rep. 940, 53 S. W. 645; Pfaffinger v. Gilman, 18 Kv, Law- Rep. 1071. 38 S. W. 1088. Maine. — Decker v. Gammon, 44 Me. }22. 6g Am. Dec. 99. Massachusetts. — Linnehan v. Samp- son, 126 Mass. 506, 30 Am. Rep. 692; Lyons t: Merrick, 105 iNIass. 71. Missouri. — Speckman z\ Kreig, 79 Mo. App. 376. Xe7(' York. — Malone v. Knowlton, 39 N. Y, St. 901, 15 N. Y, Supp. 506; Wheeler z\ Brant, 23 Barlj. 324; Rider v. White, 65 N. Y. 54. 22 Am. Rep. 600; Earl v. Van Al- stine, 8 Barb. 630. Pennsvlvania. — Dolph ?'. Ferris, 7 Watts. & S. 367. Tc.vas. — Triolo v. Foster (Tex. Civ. App.), 57 S. W. 698. I'ennont. — Oakes %>. Spaulding, 40, \'t. 347. 94 Am. Dec. 404. Evidence That Vicious Animal Was Not Restrained Renders Owner Liable — In an action against the proprietor of a park for injuries sustained by the plaintiff from an attack by a male deer, which with other deer was permitted to roam in the park. The evidence showed that the park was open to visitors : that plaintiff was in the habit of visiting it. and when lawfully there was attacked by the deer and se- verely injured ; that she had often seen the deer, about nine in number, three being bucks, the oldest four years old — running about the lawn and persons playing with them, and had there seen a sign " Beware of the buck;" that the park contained about eleven acres ; that notices were put up there about a year or two before cautioning the visitors not to tease or worry the deer ; that plaintiff had no knowledge prior to this attack that the deer were dan- gerous if not disturbed. There was expert testimony that in the opinion of such witnesses the male deer was a dangerous animal at the season of the injury. There was no evidence offered by defendant. The court held that the verdict in favor of the plain- tiff was justified. Spring Company V. Edgar, 99 U. S. 645. Distinction in Case of Bees. Animals classed as ferae naturae may become practically tame, and as in the cases of bees, an owner will not be held liable, at all events for their accidental injuries, in absence of proof of knowledge on his part that it is dangerous to keep them in a given situation. Earl z'. Van Alstine, 8 Barb. (N. Y.) 630. 18. Georgia. — Reed v. Southern Exp. Co., 95 Ga. 108, 22 S. E. 133. SI Am. St. Rep. 62. Minnesota. — Erickson v. Bronson, 81 Minn. 258, 83 N. W. 988. jV^tc York. — Vrooman v. Lawyer, 13 Johns. 339; Van Leuven v. Lyke, I N. Y. 515, 49 Am. Dec. 346; Law- lor z'. French, 12 App. Div. 140. 37 N. Y. Supp. 807 ; Bennett v. Mallord, ^T, Misc. 112, 67 N. Y. Supp. 159; Dickson v. McCoy, 39 N. Y. 400; Benoit v. Troy & L. R. Co., 154 N. Y. 223, 48 N. E. 5^4- Oregon. — Dufer z\ Cully, 3 Or. Z77. " In an action for the death of plaintiff's intestate, caused by a kick from a horse, used by defendant on his theatrical stage, evidence that the horse at one time pressed a witness against another horse as he went into his manger, and that he, several months before the accident, when teased by those around him, snapped at them, and that on another oc- casion had kicked another man, is insufficient to prove that the manager of the theater had knowledge that the horse was vicious, so as to render Vol. I 894 ANIMALS. (2.) Former Instances of Viciousness. — It is competent to give evi- dence of former instances of viciousness similar to that in question of which the owner had, or ma\- lie assumed to have liad, notice.'" (3.) Evidence Other Than Conduct of Animal. — Evidence other than that furnished by the con(hict of the animal at the time of the injury complained of is ordinarily essential to fix a vicious character upon such animal.-" the owner lialile. Williams and O Brien. J. J., dissenting." Lawlor T. French, I2 App. Div. 140. 37 N. Y. Supp. 807. "If damage is done by any domes- tic animal kept for use or conven- ience, the owner is not liable to an action on the ground of negligence without proof that he knew 'that the animal was accustomed to do mis- chief." Vrooman v. Lawyer, 13 Johns. (N. Y.) 339- 19. Arnold v. Norton. 25 Conn. 92; Kittredge v. Elliott, 16 N. H. 77, 41 Am. Dec. 717; Looniis v. Terry, 17 Wend. (N. Y. ) 496; Cockerham z\ Nixon, 11 Ired. (N. C.) 269; Johnson v. Eckberg, 94 111. .■\pp. 634. Animal's Vicious Propensity, What Is Evidence Of. — ■ W hen, as here, Lovelace and Trcece had been sent upon an independent mission, and put in complete charge of the animal, they stood in the performance of their task in the place of the de- fendant, and the question of defend- ant's responsibility will be answered as may be answered the inquiry, what would have been the master's responsibility and liability had he personally been in charge of the animal ? To this there can be but one answer : He would have been liable. Twice before on that very day had the bull evinced its ugly disposition by attacks actual and threatened. Here was ample proof of the fact of viciousness, and of the knowledge of that fact brought home to the master." Clowdis v. Fresno Flume & Irrigation Co., 118 Cal. ,315, 50 Pac. 373, 62 .\m. St. Rep, 238. " It is not necessary tliat the vicious acts of a domestic animal, brought to the notice of the owner, should be precisely similar to that upon which the action against him is founded. If it were, there would be no actionable redress for the first injury of a particular kind committed by such an animaJ, because its owner would necessarily be exempt from all liability until it should commit another injury of exactly the same kind. It is enough to say that the law sanctions no such absurdity. " Neither is it necessary, in order to fasten a liability upon the owner, that we have notice of a previous injury to others." Reynolds v. Hussey, 64 N. H. 64, 5 xA.tl. 458. To prove the bad habits of a horse at the time of the accident, evidence of particular instances of vicious conduct is admissible. " \\'e think also that the court, in its discretion, might receive evidence of particular acts extending as far back as the spring before the accident." Whit- tier z'. Town of Franklin, 46 K. H. 23. 88 Am. Dec. 185. 20. Holliday v. Gardner ( Ind. App.), 59 N. E. 686; Hammack v. White, II C. B. (N. S.) 588: Renoit ?■. Troy & L. R. Co., 154 N. Y. 223. 48 N. E. 524- Horse's Single Act of 'Viciousness Does Not Establish Character. — 'A cart horse becommg suddenly un- manageable, backed off the dock into the water and was lost. It was held that the fact that the horse was for the moment beyond control did not show that he was vicious and un- safe, or that the owner was care- less. Kennedy v. Mayor etc., 73 N. Y. 365, 29 Am. Rep. 169. " It does not appear that the injury resulted from the negligence of either the plaintiff or the defend- ant. The mere fact that the horse became unmanageable on the occasion of the injury docs not show that he was vicious or generally unsafe, nor does it prove that the statement of the defendant that the horse was Vol. I JNIMALS. 895 (4.) Conduct Subsequent to Injury. — It has been held that evidence of condnct of the animal subsequent to the injur)- complained of is not admissible upon the question of disposition manifested at the time of the injury.-' But when the time intervening is so short, and the circmnstances such as to render it iniprobalile that the habit was lately formed or the vice newly acquired, evidence of such after conduct is competent. -- (5.) Habits. — Evidence is admissible which tends to show a habit of the animal in question to commit the species of viciousness dis- played when an injury is caused by it.'-"' gentle was untrue. Kennedy v. Mayor, 73 N. Y. 365." Finney v. Curtis, 78 Cal. 498. 21 Pac. 120. Contra. — One attempt of a bull to gore a human being sufficient. Cockerham v. Ni.xon, 11 Ired. (N. C.) 269. 21. " The conduct of the horse after the accident was not material in any view of the case. Vicious dis- position and knowledge thereof by the defendant before the accident, must concur in order to sustain the action." Knickerbocker Ice Co. f. DeHaas. iJ 111. App. 195. In an action to recover injuries from the kick of a horse, the question, whether he was vicious to the knowledge of the [defendant, being strongly contested at the trial, it was held to have been error to admit testimony of one to whom the horse was sold after the injury that he had owned him some months, that he was a good dispositioned horse in his judgment, and that he never .saw him kick at anythmg unless he was playing around. Woodward v. Looinis. 64 .^pp. Div. 2y, 71 N. Y. Supp. 6go. Contra. — When the question is as to the e.xistence of certain vicious habits in a horse at a given time the fact that the horse exhibited the same vices six or eight months after the time specified, may be competent evidence, in the discretion of the court, if accompanied with proper in- structions as to application. Cham- berlain V. Enfield, 43 N. H. 356. 22. Hine v. Wooding, yj Conn. 123; Kennon t'. Gilmer, 131 U. S. 22: Chamberlain v. Enfield, 43 N. H. In an action to recover for in- juries inflicted by a vicious mare, the trial court rules that a horse trainer, in whose charge she was placed two days after the injury, might testify as to the condition she was then in, on the ground that the time intervening between the tiine of the accident and his reception of the mare was not of such duration as to effect any change in her char- acter by training or similar means. Brown %•. Green, i Penn. (Del.) .S3.S. 42 Atl. 991. 23. Tolmie r. Standard Oil Co., 59 App. Div. 3:>,2. 69 N. Y. Supp. 841 ; Lynch v. Moore, 154 Mass. 335, 28 N. E. 277; Todd V. Inhabitants, 8 Allen (Ma.ss.) 51; Maggi v. Cutts, 123 Mass. 535. Habit of Acting in a Given Vicious Manner May Be Shown. "The basis of the plaintiff's cause of action was the negligence of the de- fendant in knowingly permitting a dangerous horse, a track bolter, to run in a race controlled by it, and in which the plaintiff rode and was injured, without informing her of the vicious character of the horse, of which she was ignorant. On the trial there was evidence tending to show that the horse, to the knowledge of one of the officers of the defend- ant, would bolt in practice; also that the horse came upon the race track wearing blinkers. Held, that it was not error for the trial court to receive evidence to show that a race horse which bolts in practice will usually do so in an actual race ; and, further, for wdiat purpose blinkers are put on race horses." Lane r. Minnesota State Agricultural Soc. ( N. D.), 69 N. W. 463. Habits May Be Shown As Imply- Vol. I 896 ANIMALS. B. Injuries by Docs. — a. Matters .Is to Liability. — (i.) The Keeping.— (A.) Circumstancics. ■ — In actions based upon alleged inju- ries from vicious dogs, the fact that the defendant owned or kept the animal in question may be shown by circumstances as well as by direct proof.-"' (B.) Suffering Dog's Presence About Premises. — But mere evidence that a defendant sufifered a dog owned by another to stay about his premises will not necessarily render him responsible for injuries committed bv such doe."^ ing Notice to Owner Evidence of the reputation of a liorse among those employed in the stable where he is kept, while not competent to show his disposition, is so for the purpose of establishing notice to the owner of such disposition. Short f. Bohle. 64 ]\Io. App. 242. 24. California. — Wilkinson v. Parrott, 32 Cal. 102. Connecticut. — McCormack v. Mar- tin, 71 Conn. 748, 43 Atl. 194. /oti'o. — Shultz V. Griffith, 103 Iowa 150, 72 N. W. 445; O'Harra v. Miller, 64 Iowa 462, 20 N. W. 760; Trumble ''. Happv (Iowa), 87 N. \\. 678. Maine. — Mitchell v. Chase, 87 Me. 172, 32 Atl. 867. Massachusetts. — Com. v. Gorman. 16 Gray (82 Mass.) 601 ; Biiddington V. Shearer. 22 Pick. (39 Mass.) 427; Ingraham z>. Chapman. 177 Mass. 123, 58 X. E. 171 ; Com. V. Coates, 169 Mass. 354, 47 N. E. ion; Bar- rett v. Maiden and Melrose R. Co., 3 Allen (85 Mass.) loi. Michigan. — Newton v. Gordon, 72 Mich. 642, 40 N. W. 921 ; Jenkinson r. Coggins, 123 Mich. 7, 81 N. W. 974; Burnham r. Strother, 66 Mich. 519. 3.1 N. W. 410. New York. — Kessler v. Lock- wood, 42 N. Y. St. 563, 16 N. Y. Supp. 677; Quiltv I'. Battle. 135 N. Y. 201, S2 N. E. 47, 17 L. R. A. I'ermont. — Plummer v. Ricker. 71 Vt. 114, 41 Atl. 1045, 76 Am. St. Rep. 757. In an action for injuries by a vicious dog, the defendant denying ownership of the dog, placing it in her son, twenty-eight years old, who made his home with her at Flint, working for her on the farm Vol. I near there, the evidence showed sub- stantially that defendant owned everything else about the premises, the son being really a hired man, getting his keep and one-third of the crops for his services. The court saying that it appeared from the testimony that the home of Martin was with the defendant, andjthat the only home the dog had was upon the premises owned and controlled by the defendant and that the trial court very properly said to the jury the defendant was the keeper of the dog. Jenkinson v. Coggins. 123 Mich. 7, 81 N. W. 974- 25. McLaughlin v. Kemp, 152 Mass. 7, 25 N. E. 18; Whittemore V. Thomas, 153 Mass. 347, 26 N. E. 875 ; CoUinghill v. City of Haverhill, 128 Mass. 218; Lynt v. Moore, 5 App. Div. 487. 38 N. Y. Supp. 1095. One Merely Suffering Dog of Another to Remain on His Premises Is Not Keeping It. — The fact that the defendants treated a dog the same as anybody would that had a dog at their home would not show as matter of law that they were keepers of it, notwithstanding the fact that the dog belonged to their nephew who was a boarder with them, nor because defendants ex- ercised some control over and cus- tody of the dog could they be held responsible for him as keepers. Boy- Ian V. Everett, 172 Jilass. 453, 52 N. E. S4I. ■' One who suffers a dog to remain temporarily on his premises is not, as matter of law, its keeper. Nor do we think is one who harbors one for a short time liable under all circumstances as a keeper." O'Don- nell V. Pollock, 170 Mass, 441. 49 N. E. 745- ANIMALS. 897 (2.) Character of the Dog-. _(A.) Previous Injuriks to Others — It has been held in case of injury to a person that it is not necessary to show that the clog in question had previously bitten any human being.-" (P..) Knowi.kix-.f. ov the Owner. — (a.) li.vl^ress Noticr Xnt Necessary. It is not necessary that express notice to the owner of the vicious propensity of a dog be shown.-' (b.) I'icwus Acts. — -It has been held that one single vicious act of a dog may be of such character and attended by such circumstances as to imply the owner's knowledge of the savage propensity thus displayed.-'^ Rut in order to justify such implication the facts relied 26. Rider v. White, 65 N. Y. 54, 22 Am. Rep. 600; Warner v. Cham- berlain (Del.), 30 Atl. 6,^8; Johnson V. Eckberg. 94 111. App. 634; Mont- gomery J'. Koester, 35 La. Ann. 1091, 48 Am. Rep. 253 ; Goode v. Martin, 57 Md. 606, 40 Am. Rep. 448; Mar- sel V. Bowman, 62 Iowa 57, 17 N. W. 176. In the action against the keeper of a dog it need not be proved that he had previously bitten mankind. It is sufficient to prove that the dog was of a ferocious nature, and that its keeper from his knowledge thereof, had reason to apprehend that under some circumstances it would bite mankind. Godeau v. Blood, 52 Vt. 251, 36 Am. Rep. 751. The defendant testified that while he kept always " half a dozen clogs, they were always chained day and night, at night tied out to the Luild- ings, in the daytime in the house, never unchained." The court said : " Again if the dog was defendant's dog, the very purpose for which he kept him charges him with knowl- edge of his character, and he is therefore chargeable with negligently keeping him. although it did not appear that he had actually bitten another person before he bit the plaintiff." Brice i'. Bauer. 108 N. Y. 426, 15 N. E. 695, 2 Am. St. Rep. 454- 27. Colorado. — Melsheimer v. Sul- livan, I Colo. App. 22, 27 Pac. 17. Counecticut. — Sim m o n d s v. Holmes, 61 Conn, i, 23 Atl. 702, 15 L. R. A. 253. Delaware. — Barclay j'. Hartuian, 2 Marv. 351, 43 Atl. 174; Freidnian ''. McGowan, (Del.), 42 .^tl. 723; War- 57 ner f. Chamljerlain. (Del.), 50 Atl. 638. Illinois. — Johnson v. Eckberg, 94 III. App. 634. /onw. — Cameron ;■. Bryan, 89 Iowa 214, 56 N. W. 434; Sanders 7'. O'Callaghan. in Iowa 574, 82 N. W. 969. Louisiana. — Montgomery v. Koester, 35 La. Ann. 1091. 48 Am. Rep. 253. Michigan. — Knowles v. Mulder, 74 Mich. 202, 41 N. W. 896, 16 Am. St. Rep. 627. New York. — Earl r. Van Alstine, 8 Barb. 630; Brice v. Bauer, 108 N. Y. 428, 15 N. E. 69.i, 2 Am. St. Rep. 454; Hahnke i'. Friederich, 140 N. Y. 224, 35 N. E. 487 ; Lynch v. JIcNally, 73 N. Y. 347; Rider v. White, 65 N Y. 54, 22 Am. Rep. 600; Jacoby z: Ockerhousen, 59 Hun 619, 13 N. Y. Supp. 499. I'erniont. — Worthen i'. Love, 60 Vt. 285. 14 Atl. 461 ; Godeau v. Blood, 52 Vt. 251, 36 Am. Rep. 751. IVashington. — Robinson i'. Marino, 3 Wash. 434. 28 Pac. 752. 28 .\m. St. Rep. 50. Express Notice of Viciousaess Unnecessary. — " Proof that the ani- mal is of a savage and ferocious nature is equivalent to proof of ex- press notice." Earl i'. Van Alstine, 8 Barb. (N. Y.) 630. The defendant testified that he kept the dog chained up in the day- time so that it would not bite people. This was evidence of its vicious character and of defendant's knowl- edge thereof. Sanders 7'. O'Calla- ghan, III Iowa 574, 82 N. W. 969. 28. Bauer v. Lyons, 22 App. Div. 204, 48 N. Y. Supp. 729: Mont- Vol. I 898 .IXJM.ILS. upon must point to the particular proi)cnsity conducing to the injury then in cjuestion.-" (c.) Knozi-lcdgi' of .IgcnI. — It is com]X'tent to give evidence tending to show that an agent had knowledge of the vicious propensity of a dog owned by his principal when the circumstances are such as to render such knowledge imputable to the owner.'" (d.) Reputation of Dog. — Evidence of a general neighborhood reputation of a dog for viciousness is admissible, not to show the fact of his dangerous propensit\-, but the public notorietv, and as tending to support the inference of the owner's knowledge of such vicious propensity.''^ gomery f. Koester, 35 La. Ann. logr, 48 Am. Rep. 253 ; Goode v. Martin, 57 Md. 606, 40 Am. Rep. 448; Mar- sel V. Bowman, 62 Iowa 57. 17 N. W. 176; Smith z\ Pelah, 2 Str. 1264; .■\rnold V. Norton, 25 Conn. 92 ; Loomis ?'. Terry, 17 Wend. (N. Y.) 496. Evidence of a single instance of killing a sheep by defendant's dog coming to his knowledge is suffi- cient to render him liable for in- juries inflicted by the dog. Kitt- redge v. Elliott, 16 N. H. 77. 4r .\m. Dec. 717. The plaintiff, servant of defendant, stepped out of the house in the evening to get a pail when the dog without any warning sprang upon and bit her. " This act is sufficient to stamp the character of the dog as vicious and dangerous and the master was bound to keep him in subjection without further notice." Brice v. Bauer, 108 N. Y. 428. 15 N. E. 695, 2 Am. St. Rep 454; Webber v. Hoag, 28 N. Y. St. 6^0, 8 N. Y. Supp. 76. 29. Norris v. Warner, 59 111. .\pp. 300; Wormley v. Gregg, 65 111. 251; Dearth v. Baker, 22 Wis. 70; Kcightlingcr v. Egan, 65 111. 235. Knowledge Imputed From Habits of Dog Evidence is competent which tends to show the habit of a dog to act in a manner correspond- ing to that tiianifested on the occa- sion of a particular injury in ques- tion. Broderick v. Higginson, i6g Mass. 482. 48 N. E. 269. 61 .\m. St. Rep. 296; Kennett i: Engle, 105 Mich. 693, 63 N. W. 1009; Dover v. \\'inchester, 70 Vt. 418, 41 Atl. 445. 30. Corliss T'. Smith, 53 Vt. 532; Vol. I Harris v. Fisher, 115 N. C. 318, 20 S. E. 461, 44 Am. St. Rep. 452; Niland z: Greer, 46 .^pp. Div. 194, 61 N. Y. Supp. 696; Turner z\ Craig- head, 63 N. Y. St. 853. 31 N. Y. Supp. 369; The I^ord Derby, 17 Fed. 265. A servant's kno\\ ledge of the vicious character of a dog accus- tomed to follow him about in the inaster's business but not put in his charge by the master, is not imputable to the latter. Twigg v. Ryland. 62 -Md. 380, 50 .\m. Rep. 226. 31. Cuney z: Campbell. 76 Mimi. 59, 78 N. W. 878; Murray z: Young, 12 Bush (Ky.) 337: Freidman f. McGowan (Del.), 42 .\tl. 723; Chenny z\ Russell, 44 Mich. 620, 7 N. W. 234: Trinity & S. R. Co. r. O'Brien, 18 Tex. Civ. .'Vpp. 6go. 46 S. W. 389: Cameron z\ Bryan, 89 Iowa 214. 56 N. W. 434: Triolo z\ Foster (Te.x. Civ. App. ), v S. \V. 698. Knowledge May Be Inferred From Notorious Reputation of Dog. — If one keeps upon his premises a dog which has attacked or bitten a con- siderable number of persons coming upon or passing by them, and is notoriously cross and vicious, it may safely be assumed that the owner has some knowledge of the fact. The evidence of general repute is, in such cases, received not to prove the particular fact of the dangerous propensity of the animal, but the public notoriety, and as tending to support the inference of knowledge on the part of the owner, of such propensity." Fake z: .\ddicks. 45 Minn. 37, 47 N. W. 450, 22 .Am. St. Rep. 716. ANIMALS. 899 (e.) Conduct Contrary to General Habits. — It is not competent for the owner of a clog to give evidence tending to sliow that the con- duct of the dog on a given occasion was contrary to his general habits for peaceableness.-'- (3.) Damages — (A.) Pixti.iak Paimulness of Injvrv. — It is com- petent to show by medical experts that wounds from dog bites are more painful and more difificult to heal than those made from clean instruments requiring altogether different treatment/''' (B.) Dreau or HviiRopHoiiiA. — Testimony of the injured person as to dread of hydrophobia as the result of a bite of a dog is admissible upon the question of damages. ^■' (C.) Expression iNnicATivE ok Mental Sufi-ering. — Testimony of physicians and others respecting expressions uttered in their hearing by persons injured by dogs as indicative of mental suffering is not admissible."^ 32. Buckley v. Leonard. 4 Dc-nio (N. Y.) 500; Linck -■. Scheffel. 32 111. App. 17. In an action for injuries caused by a dog jumping at the head of a horse plaintifif was driving along the highway and causing it to run away and throw plaintiff out of the vehicle, it was held that the defendant was not entitled to show that the actiors of the dog. a the time of the injury, as claimed liy the plaintiff, were con- trary to his habits and disposition. Willett -' Goetz, 12=; Mich. s8i, 84 N. W. 1071. At the trial, it appearing the dog had bitten the plaintiff while he was walking in the highway. It was held that the trial court properly e.xcluded offered proof that the dog was peaceable and had not been known to attack anyone but the plaintifif. Kelly 7'. .\lderson, ig R. I. 544. 37 Atl. 12. Injury From Party's Own Wrong Not Actionable. — " The supposed kicking of the dog did not appear to have been done for a justifiable purpose, the only evidence on the subject being an admission of the plaintifif, which was testified to, that he kicked the dog. and it bit him. If the plaintiff wantonly irritated and aggravated the dog, and the dog bit him, in repelling the ag- gression, and not from a miscliievous propensity, which we understand to be the purport of the instruction, then the plaintiff should not be al- lowed to recover for damages caused by his own wrong." Keightlinger v. Egan. 65 III. 235. 33. Expert Medical Testimony As to Peculiar Nature of the Dog Bite Wound. — In an action to recover damages for bite of a vicious dog it was held competent for plaintiff to show by expert medical testimony that a wound made by a dog is more painful to the patient than one made by a clean instrument ; and that " a wound of this kind — a lacerated wound by a dog or any other animal, is considered by recent surgeons as being altogether different, and is treated differently from wounds made by clean instruments or from wounds made by the surgeon's knife and for the reason that there is more tearing of the tissue." Sanders r. O'Callaghan. in Iowa 574, 82 N. W. gfig. 34. Godcau v. Blood, 52 Vt. 2SI, 36 Am. Rep. 751 ; Trinity & S. R'. Co. !■. O'Brien. 18 Tex. Civ. App. 600. 46 S. \V. 380. Hydrophobia. Evidence of Dread of, Admissible It was held com- petent to put to the plaintifif in an action to recover damages for the bile of a dog, the question : " Have you or not been afraid of hydro- phobia ever since you were bitten by this dog? " Friedman ,'. AIc- Gov.-an ( Del). 42 .\tl. 723. 35. Exclamations Indicative of Mental Suffering Inadmissible It is not competent to admit statements Vol. I 900 AXJM.ILS. b. Matters of Defense. — -(I.) Contributory Negligence. — Evidence of negligence in the ordinary sense not being required to fasten liability upon the owner of a vicious dog for his acts, neither is evidence of contributory negligence in the ordinary sense admissi- lile in extenuation or defense of an action predicated upon such acts.^" But it is competent to prove facts tending to show that the person injured brought the injury upon himself by his own wrong or received it while in the commission of an unlawful act directly contributing thereto/'" IV. ANIMALS INJURED OR KILLED. 1. Failure to Maintain Visible Cattle Guards. — In actions against railroad companies for stock killing it is competent to show as bearing upon the charge of negligence that essential cattle guards were suffered to fill up with sand and become obscure from the view of live stock by the growth of weeds, grass and other vegeta- tion."-'* 2. Circumstances to Fix Prima Facie Liability. — Circumstances alone, unsupported by testimony of any eye witnesses, mav be suffi- cient to establish a prima facie liability upon the part of a railroad company for injury to an animal from one of its trains.'"' 01 a physician respecting exhibitions of anguish made by a patient on being informed of the possible re- suhs from the bite of a dog. Trinity & S. R. Co. z: O'Brien, i8 Tex. Civ. App. 690, 46 S. W. .?89. Words Spoken in Sleep. — " Take him off the dog was biting him " ut- tered by a boy two or three niglits after being assauhed by a dog, lield inadmissible. Phinnner v. Ricker, 71 Vt. 114, 41 Atl. 1045, 76 Am. St. Rep. 757. 36. iMuUer r. McKesson, 73 N. Y. 195, 29 Am. Rep. 123; Van Bergen -i'. Eulberg, III Iowa 139. 82 N. W. 483 ; Fake r. Addicks, 45 Minn. 37, 47 N. W. 450, 22 Am. St. Rep. 716; Lynch V. McNally, 73 N. Y. 347 ; Linck z'. Scheffel, 32 111. App. 17; Raymond v. Hodgson, 161 Mass. 184, 36 N. E. 791 ; Wolff f. Lamann. 21 Ky. Law 1780. 56 S. W. 408: Plum- ley 7>. Birge, 124 Mass. 57, 26 Am. Rep. 645. 37. Keightlinger z'. Egan, 65 111. 235 ; Stuber v. Gannon, 98 Iowa 228, 67 N. W. 105 ; Chickering r. Lord, 67 N. H. 555, 32 All. 773 : Bush v. Wathen, 20 Ky. Law 731, 47 S. W. 599; Sanders z'. O'Callaghan. iti Iowa 574, 82 N. \y. 969. Vol. I 38. Evidence to Show Previous Bad Condition of Cattle Guards Competent Evidence showing the condition of cattle guards and fences at place where animals killed got on right of way a year before, followed by proof of their continuous bad condition from then until the time of the injury, is competent. Chicago & E. I. R. R. Co. V. Chipman, 87 111. App. 292. 39. Burlington & M. R. R. in Neb. I'. Campbell, 14 Colo. App. 141, 59 Pac. 424; Louisville & N. R. Co. v. Solomon, 127 Ala. 189, 30 So. 491 ; Louisville & N. R. Co. v. Lancaster, 121 Ala. 471, 25 So. 733. " There was evidence from which the jury might have inferred that the engineer could have seen the ani- mals on the track in time to have stopped short of striking them. If tliis were true, it was his duty to see them, and a failure to perform that duty was damnifying negligence. " There was no burden on the plaintiff to prove that the tracks tes- tified to by one witness were made by the mare or colt, or by the colt alone, at the titne of the killing. That may have Ijeen important evi- dence for the plaintiff, but to say ANIMALS. 901 3. Foot-Prints of Animals Near Place of Injury. — Evidence of foot-])rint.s of animals near the ]5lace of injnry is not only compe- tent, but may have the effect to outweigh the testimony of eye wit- nesses upon given points of proof.'"' 4. Proof of Value of Animals. — A. Special L'si:i"llxess of Dog. In actions wherein the supposed pecuniary value of the dog may come in question, and there be no statutory guide nor attainable market standard, it may still be competent to introduce evidence tending to show that by his usefulness and services the dog has rendered himself of some special pecuniary value to his owner.''^ B. Pkdicrek. — As respects animals of certain exceptional quali- ties, l)red and maintained for especial ijurposes, evidence of pedigree is admissible as affecting the estimate of value.''- And it is held that the burden was on him to pro- duce it is inapt, confusing and mis- leading. The jury might well have been reasonably satisfied that the tracks were made by the animals killed, or one of them, and still have had a doubt on that point." Louis- ville & N. R. Co. V. Brickerhoff, iig Ala. 6o6, 24 So. 892. Circumstances Unsupported by Eye 'Witnesses Sufficient Prima Facie. — The plaintiff described his animal as "a four year old half bred polled Angus bull, branded M. K. on the left side, and a piece cut out of his ear." Two other wit- nesses .testified that the bull was plaintiff's: the evidence further showed that it was snowing up to 9 p. M. of the night of the killing, that tlie tracks at the place of killing were straight for a mile or more ; that there were tracks between the rails for some distance to where the first bull was knocked ofif the track, and some twenty steps fur- ther to where the second bull was struck. There was snow on the ground ; the animals were black. The court said : " We think suffi- cient was shown by plaintiff to put the defendant to its proof. In fact, we do not well see, in the absence of an eye witness, how more could be proved by plaintiff." Kelly v. Oregon Short Line R. Co. (Idaho), 38 Pac. 404. 40. Illinois Cent. R. Co. v. Aber- nathey (Tenn.'), 64 S. W. 3; Louis- ville & N. R. Co. V. Brinkcrhoff, 119 Ala. 606, 24 So. 892. 41. Spray i'. Ammerman, 66 111. 309. Evidence of Either Market or Peculiar 'Value to Owner Is Compe- tent The value of a dog may be either a market value, if the dog has any, or some special or pecuniary value to the owner that may be as- certained by reference to the useful- ness and services of the dog. Heiligmann 7'. Rose, 81 Tex. 222, 16 S. W. 931, 26 Am. St. Rep. 804. Farmers who know the value of a shepherd dog, which is chiefly valuable for its ability to herd cattle and horses, can give their opinions as to the value without showing that the dog has any marketable value on account of his breed or peculiar qualities which make him salable at some appro.ximately regular price. Bowers v. Horen. 93 ^lich. 420. 53 S. W. 535, 32 .Am. St. Rep. 573, i7 L. R. A. 773. 42. Pacific Exp. Co. v. Lothrop, 20 Tex. Civ. App. 339, 49 S. W. 888; Ohio & Miss. R. Co. •:■. Stribling. 38 111. App. 17. Evidence of Pedigree Admissible on ftuestion of Damages In an action for alleged negligent killing of a race horse by a railroad, it was held competent to show the pedigree of the animal as shown by the. Amer- ican Stub books ; the court said : " Undoubtedly the pedigree of a race horse constitutes an important element in determining its value, as it is matter of common knowledge that a much larger proportion of thoroughbred horses are successful Vol. 1 ')()2 ANIMALS. also that evidence of pedigree admissible in cases involving- animals more purely domestic may be given in the case of a dog/'' C. Opinions of Farmers and Others. — In localities where the business of buying and selling animals is not carried on to the extent of establishing a general market value, farmers and others who have owned and used, bought and sold animals of similar character, are competent witnesses to give their opinions as to value.*'' D. Matters in Mitigation. — a. Bad Habits. — Evidence of the bad habits of a dog may be given in evidence in an action to recover racers than horses not so bred." Louisville & N. R. Co. v. Kice, 22 Ky. Law 1462. 60 S. W. 705. In an action against a railroad com- pany for kilhng and injuring horses il was held competent, as effecting the estimate of value, to give evi- dence of the pedigree of a certain mare, showing her blood relationship to Jay Eye See, and other noted trotting horses; and that for the pur- pose of proving the speed of sucli trotters it was held competent to introduce records of the American Trotting Association evincing it, but not by statements of one who pur- ported to have read such record. Pittsburgh C. C. & St. L. R. Co. f. Sheppard, 56 Ohio St. 68, 46 N. E. 61, 60 Am. St. Rep. 732. Evidence as to the name of the sires of the animal and unborn foal is admissible as an element of market value. Ohio & Miss. R. Co. v. Slribling. 38 III. App. 17. The blood and excellence of th" sire and dam of the animal alleged to have been killed were circum- stances merely for the jury's con- sideration in passing upon the evi- dence which was offered to prove the market value of the bull for whose death the recovery was sought. Richmond & D. R. Co. v. Chandler (Miss.). 13 So. 267. 43. Hodges z>. Causey, 77 Miss. 3.=;3, 26 So. 945, 78 Am, St. Rep. 525; Hamilton & Son z: Wabash, St. L. S: P. R. Co., 21 INIo. .A.pp. 132. Pedigree, When Evidence of, Ad- missible In an action for the in- jury and killing of a dog much evidence was given on the trial upon the question of the dog's pedigree and ancestry. The court said : " It is shown that certain books are kept, and in them there is a registration of pedigrees kept for the information of the public, not only as to horses, but also, as to cattle and dogs. Upon the general question as to the admis- sibility of evidence of the dog's pedigree, and the qualities and per- formances of his ancestors, we think there can be no doubt but that such evidence is competent. The question of pedigree is really important so far only as it bears upon the question of value of the animal killed." Citizens Rapid Transit Co. i'. Dew, 100 Tenn. 317, 45 S. W. 790. 44. Opinions of Farmers Admis- sible as to Value — " The witnesses who testified as to value of the mare were owners of similar animals, used them, and had for years, in their occupation as farmers ; had bought them. and. in some instances, sold animals of this character ; and we think that under such circumstances their opinion as to the value was com- petent, and of weight and should not be rejected because there did not happen to be an established and gen- eral market value for such animals in that community, there being no [per- son in that neighborhood engaged ac- tively in the business of buying and selling horses, so as to establish a market value." Burlington &|M. R. R. in Nebraska v. Campbell, 14 Colo. .\pp. 141. 59 Pac. 424. The testimony as to the value of the horse by the appellee and his neighbors who knew it. was com- petent although they did not profess Vol. I ANIMALS. 903 damages for liis killing-, not in bar of the action, bnt in mitigation of damages.^'* to lie experls. Louisville & N. R. 45. Reynolds ?■. Phillips, 13 111. Co. f. Tones. 21 Kv. Law 749. c,2 App. 557; Dunlap i'. Snvder, 17 Barb. S. W. 938. (N. Y.) 561. ANNUITIES. — See Insurance- Value ; Expectation of Life ; Mortality Tables. Vol. I ANSWERS. By John D. Works. I. SCOPE OF THE ARTICLE, (joC II. ANSWERS IN SUIT IN EQUITY, .jor. 1. Coin[>ctc>it lii-idcncc for Defendant, 906 2. Not Competent, Read by Opposing Party, Eridcnee for All Purposes, 907 3. Jl'/iat AU'cessary to Overcome Effect of, 907 A. IVIien by Documentary Evidence, 910 B. Where Bill Is J'erified, 910 C. Rule Has Its Exceptions, 912 D. Offered iii Action at La/rc, Rule Ahit Applicable. i)i2 E. Where Plaintiff Offers in Action at Laiv, 913 4. Cannot Contradict ll'ritten Agreement, 913 5. Competency of Not Dependent on Defendant's Conipeleucy As a Witness, 913 6. Cannot Be Weakened by Impeachment of Defendant, 1^13 7. But May Be by Defects or Contradictions, 914 8. And by Defendant's 'I'estimony at Trial, 915 9. Contradicted in Material Point Effect of, 916 10. Dismissal of Bill Destroys as Evidence, 916 11. Not Evidence for Defendant in Another Action, 916 A. To Bill of Disco-i'cry Offered in Action at Lai^'. ijif' 1). Jl'hen Offered on an Issue of Pact, 917 12. I'aken To Be 'True Until Disproved, 917 A. Complainant May Disprove, 917 a. Rule Where Bill Is for Discovery Only, 917 JJ. Must Be Direct, Responsive and Without Evasion. 91S a. General Denial, Wlicn Sufficient, 919 b. .Irgumentative, Not Competent, 920 c. What Is Responsive, ()20 (1. /;( .-ivoidance Not Evidence, 921 e. Is .Answer of Payment Responsive, 925 f. When .-Idniission and Avoidance One Fact. 1)25 g. // Responsive Competent, Whether Affirmative or Negatiir, 926 Vol. I ANSWERS. <>(I5 h. Competent Only Where Evideiiee of Juiet Would Be, 926 i. Part Dcfectk'e, Balance Competent. i;2f) j. Hearsay Not Evidence, 926 13. 0;/ Heaving on Bill and Answer, 926 A. Ansu'er Taken To Be True, 926 a. Statutory Modification, 928 1). Kule Applies Only to Pertinent Facts, 928 c. Admission in Must Be Considered , 928 (1. li'hen Rule .Ip plies, 928 14. On Bill. Ansii'cr and Replication, 928 15. Effect of Calling For, Modified by Statute. 982 16. Under Oath JFait'cd, Inconifetent for Defendant, 929 A. JVaizrr Must Be in the Bill, 929 B. Competent in Support of Motion to Dissokr Injunction, 932 17. Not Verified Not Competent for Defendant, 932 18. J'erified by One Not Having Knoivledge, 933 19. Must Be J'erified by Defendant, 934 20. Oil Belief or Information and Belief, 934 21. Of Corporation Szcorn to by Officer, 935 22. Of Corporation Under Seal, 936 2^. Wlieii Competent in Favor of Co-Defendant, 937 24. E.vecution of Instrument A^ot Proved, 939 25. When Not Evidence 011 Appeal, 939 CROSS-REFERENCES. Admissions; Best and Secondary Evidence; Corporations; Pleadings; Witnesses; Written Instrnments. Vol. I 90f. ANSWERS. I. SCOPE OF THE ARTICLE. The effect of answers as evidence of admissions has heen con- sidered.^ Answers under the common law and code systems of pleading need no special treatment under this head. They are not competent as original affirmative evidence, in favor of the party pleading them to establish any fact they may set up. Therefore it is as admissions, almost entirely, that such answers are competent as evidence. They, like other pleadings, may be received to show tliat such a pleading was filed in a given case, or what the issues in that case were and the like, but no farther. As to the competency of evidence under the issues formed liy the pleadings, depending upon whether the answer is sufficient or in proper form to admit proof, it will be taken up under the title " Pleadings." II. ANSWEES IN SUIT IN EQUITY. The effect of the answer in equity as evidence constituting ad- missions of the defendant has been considered in another place.- In this article its effect as original evidence in favor of the defendant will be treated. 1. Competent Evidence for Defendant. — The most important dif- ference between answers in suits in equity and in actions at common law, and under the codes, is that they are, ivherc called for undcv oath by the bill, ami respoiisi7'e thereto, competent and material evi- dence for the defendant. •'• 1. Sec " AiiMissioNs." p. 452. 2. See " AiiMissiONs," p. 443. 3. When Competent Evidence for the Defendant Story's Eq. PI., § 849a ; Beach Mod. Eq., § 366. United States' — Farley i'. Kitt- son, 120 U. S. 303, 7 Sup. Ct. 5.34; Morgan v. Tipton, 3 McLean ag, 17 Fed. Cas. No. 9809; Slessinger v. Buckingham, 17 Fed. 454. Alabama. — Hogan v. Smith, 16 Ala. (N. S.) 600; Walthall v. Rives, 34 Ala. 91 ; Marshall v. Croom, 52 Ala. 554- Arkansas. — Morrison v. Peay, 21 Ark. no; Magness v. Arnold, 31 Ark. 103; Scott V. Henry, 13 Ark. 112; Roberts v. Totten, 13 Ark. 609. Dehnvarc. — In Wharton v. Clem- ents, 3 Del. Ch. 209, it was contended that an answer should not be al- lowed as evidence in a suit charging the defendant with fraud. But the court held that the answer was com- petent the same as in other cases. Georgia. — Eastman i'. McAlpin, i Kcllcy 157. Vol. I Illinois. — Mev ■ Achev GuUiman, 105 ■■. Stephens, 8 Indiana Ind. 411. .Maryland. — Stewart v. Duvall, 7 Gill. & J, 179; Dillv 1: Barnard, 8 Gill. & J. 170. Micltigan. — Schwarz v. \\'endell, i Walk. 267 ; Darling v. Hurst, 39 Mich. 765. Mississij^t'i. — Petrie v. Wright, 6 Smed. & M. 647. North Carolina. — Hughes v. Black- well, 6 Jones Eq. 7i\ Morrison v. Meacham. 4 Ired. Eq. 381. Pennsylvania. — Eberlv v. Groff, 21 Pa. St. 25I. South Carolina. — President etc. of Branch Bank of Columbia v. Black, 2 McCord Eq. 344. Tennessee. — Jones v. Perry, lO Verg. 59: McConnell 7'. Com'rs. etc., 2 Humph. 53: Shown v. McAIakin, 9 Lea 601, 42 Am. Rep. 680. Vermont. — Blaisdell v. Bowers, 40 V't. 126. Virginia. — Chapman f. Turner, i ANSWERS. 907 2. Not Competent, Read by Opposing Party, Evidence for All Pur- poses. — And where the answer, not being competent in favor of a defendant, is read in evidence by the opposing party, it thereby becomes evidence for all ]nirposes, and so much tliereof as is bene- ficial to the defendant inures to his benefit.^ 3. What Necessary to Overcome Effect Of. — The answer is gen- erally held to be of such force and weight, as evidence in favor of the defendant, that it must be overcoine by evidence of greater weight than that of one witness.'' Call 280. I Am. Dec. 514; Major i\ Ficklin. 85 Va. 732, 8 S. E. 715. Ill Ponieroy i'. Manin, 2 Paine 476, 19 Fed. Cas. No. 11.260, it was con- ceded tliat in the slate of Connecti- cut an answer in cliancery is not evi- dence for the defendant nnless the complainant seeks a disclosure, by an appeal to the conscience of the defendant, but, that, in the United States courts, a diflferent rule obtains and that, upon a removal to the federal court, the practice in the state court would not be followed. In Tracy v. Rogers, 69 111. 662, it was held that the rule in chancery making the answer of the defendant evidence in his favor, applied to an action to foreclose a mechanic's lien. In Chaffin z'. Chaffin, 2 Dev. Eq. 255. the question was as to the effect of answers to interrogatories, by the defendant, the suit being one for an accounting and it was held that the answer to interrogatories stood on the same footing, as evidence, as an answer to the bill. 4. Roberts v. Tennell, 3 B. Mon. (Ky.) 247. 5. 'What Degree of Proof Neces- sary 10 Overcome Answer i Story Eq. PI., §8493; Beach .Mod. Eq., §366. England. — Evans v. Bicknell, 6 Ves. 174, 5 Rev. Rep. 245; Cooth v. Jackson. 6 Ves. 12; lilortimer v. Orchard, 2 Ves. Jr. 243 ; East India Co. V. Donald, 9 Ves. 275 ; Cooke v. Clayworth, 18 Ves. 12, II Rev. Rep. 137; Savage v. Brocksopp, i8 Ves. 336; Walton V. Hobbs, 2 Atk. 19; Sanson v. Rany, 2 Atk. 140; Only v. Walker, 3 Atk. 407. United Slates. — Hughes t'. Blake, 6 Wheat. 453 ; Southern Develop- ment Co. 7'. Silva, 125 U. S. 247, 8 Sup. Ct. 881 ; Union Bank v. Geary, 5 Pet. 99 ; Voorhees v. Bonesteel, 16 Wall. 16: Carpenter z: Providence etc. Ins. Co., 4 How. 185 ; Morrison I'. Durr, 122 U. S. 518, 7 Sup, Ct. 1215; Vigel v. Hopp, 104 U. S. 441; Oilman r. Libbey. 4 Cliff. 447, 10 Fed. Cas. No. S44=i ; Scammon v. Cole, 3 Cliff. 472", 2"i Fed. Cas. No. 12,432; Parker v. Phetteplace, 2 Cliff. 70, 18 Fed. Cas. No. 10,746; Dadger f. Badger, 2 Cliff. 137. 2 Fed. Cas. No. 718; Delano v. Winson, I Cliff. 501, 7 Fed. Cas. No. 3754: Cushing z'. Smith, 3 Story 556, 6 Fed. Cas. No. 3511 ; McNeil v. Magee, S Mason 244, 16 Fed. Cas. No. 8915; Towne z'. Smith, i Woodb. 6 M. 115, 24 Fed. Cas. No. 14,115; Slessinger z\ Buckingham, 17 Fed. 454- Alabunia. — Hogan z: Smith, 16 .\la. (N. S.) 600; Edmonson i'. Mon- tague, 14 Ala. (N. S.) 370; May v. Barnard, 20 Ala. 200; McMekin z'. Bobo, 12 Ala. (N. S.) 268; Camp I'. Simon. 34 .Ma. 126: Beene v. Randall. 23 Ala. 514; Bryan v. Cowart, 21 Ala. 92; Marshall v. Howell, 46 Ala. 318; Marshall v. Croom, 52 Ala. 554; Turner Z'. Flinn, 67 Ala. 529; Tompkins v. Nichols, 53 Ala. 197; Smith z\ Rogers, i Stew. & P. 317. Arkansas. — Cummins z: Harrell, 6 Ark. 308; Wheat z: Moss, 16 Ark. 243; Jordon z'. Fenno, 13 .Ark. 593; .A.iken z\ Harrington. 12 Ark. 391 ; Byrd z\ Belding, 18 Ark. 118; Dunn z'. Graham, 17 Ark. 60; Spence v. Dodd, 19 Ark. 166. Dclazvare. — Pickering -■. Day, 2 Del. Ch. 333; Davidson v. Wilson, 3 Del. Ch. 307 ; McDowell -'. Bank of Wilmington etc., i Harr. 369; Small r. Collins, 6 Houst. 273. Florida. — White z: Walker, 5 Fla. 478; Carr z'. Thomas, 18 Fla. 736; Vol. I 908 ANSWERS. Some of the cases hold that the answer must prevail unless over- Stephens I'. Ornian, lO Fla. 9; Fos- ter V. Ambler, 24 Fla. 519, 5 So. 263. Georgia. — Gait v. Jackson, 9 Ga. 151 ; Williams v. Pliilpot, 19 Ga. 567; Harris v. Collins, 75 Ga. 97; Durham v. Taylor, 29 Ga. 166; White V. Crew, 16 Ga. 416; Robin- son V. Hardin, 26 Ga. 344 ; Low v. Argrove, 30 Ga. 129. Illinois. — Mey 7'. Gulliman, 105 111. 272; O'Brian v. Fry, 82 111. 274; Walton r. Walton, 70 111. 142; Trout V. Emmons. 29 111. 433, 81 Am. Dec. 326; Marple •:■. Scott, 41 111. 50; Panton v. TefFt, 22 111. 367; Stauffer V. Machen, 16 111. 553; Swift v. Trustees of Schools, 14 111. 493 ; Martin v. Eversall. 36 111. 222; Bar- ton V. Moss, 32 111. so; Myers v. Kenzie, 26 111. yi ; Wildey v. Web- ster, 42 111. 108; Blow V. Gage, 44 III. 208; Fish V. Stubbings, 65 111. 492; Russell V. Russell, 54 111. 250; Martin j'. Dryden, i Gilni. 187 ; Richeson r'. Richeson, 8 111. App. 204. Indiana. — Green z\ Vardiman, 2 Blackf. 324; Pierce v. Gates, 7 Blackf. 162; Nash v. Hall, 4 Ind. 444; Calkins v. Evans, 5 Ind. 441; McCormick v. Malin, 5 Blackf. 508; Jenison z'. Graves, 2 Blackf. 440. Koitucky. — Vance v. Vance, 5 T. B. Mon. 521 ; Hudson v. Cheatham, 5 J. J. Marsh. 50; McCrum v. Pres- ton, 5 J. J. Marsh. 332; Patrick v. Langston, 5 J. J. Marsh. 654 ; Sulli- van V. Bates, l Litt. 41 ; Pringle v. Samuel, I Litt. 43, 13 Am. Dec. 214; Patterson v. Hobbs, i Litt. 275 ; Lee V. Vaughn, i Bibb. 235; Bibb v. Smith, I Dana 580. Maine. — Gould v. Williamson, 21 Me. 273; Appleton v. Horton, 12 Me. 23. Maryland. — Hagthorp v. Hook, I Gill. & J. 270; Hopkins v. Strunip, 2 Har. & J. 301 ; Rider r. Reily, 22 Md. 540; Glenn v. Grover, 3'Md. 212; West V. Flannagan, 4 Md. 36; Brooks V. Thomas, 8 Md. 367; Turner 7'. Knell, 24 Md. 55 ; Gelston V. Rullman, 15 Md. 260; Ing v. Brown, 3 Md. Ch. 521 ; Beatty v. Davis, 9 Gill 211; Roberts v. Salis- bury, 3 Gill & J. 42s; Thompson v. Vol. I Diffenderfer. i Md. Ch. 489; Rich v. Levy, 16 Md. 74. .Mississippi. — Johnson v. Crippen, 62 Miss. 597; McGehee v. White, 31 Miss. 41 ; Lee v. Montgomery, I Miss. 109; Nichols v. Daniels, i Miss. 224. Missouri. -^ Hcwes v. Musick, 13 Mo. 395 ; French t'. Campbell, 13 Mo. 485 ; Roundtreo v. Gordon, 8 IMo. 19 ; Bartlett v. Glascock, 4 Mo. 62. Ne-M Hampshire. — Miles v. Miles, 32 N. H. 147, 64 Am. Dec. 362: Moors V. Moors, 17 N. H. 481; Hol- lister v. Barkley, 11 N. H. 501; Page V. Page, 8 N. H. 187; Lawton v. Kittredge, 30 N. H. 500; Warren v. Swett, 31 N. H. 332. Neiv Jersey. — De Hart j'. Baird, 19 N. J. Eq. 423 ; Stearns v. Stearns. 23 N. J. Eq. 167 ; Chance z\ Teeple, 4 N. J. Eq. 173; Neville v. Demeritt, 2 N. J. Eq. 321 ; Wilson v. Cobb, 28 N. J. Eq. 177; Calkins z: Landis, 21 N. J. Eq. 133; Bird v. Styles, 18 N. J. Eq. 297 ; Force v. Dutcher, 18 N. J. Eq. 401 ; Vandegrift Z'. Herbert, 18 N. J. Eq. 466; Brown v. Bulkley, 14 N. J. Eq. 294 ; Bent 7'. Smith, 22 N. J. Eq. 560; Kinna v. Smith, 3 N. J. Eq. 14 ; Bent j'. Smith, 20 X. J. Eq. 199; Marlitt v. Warwick, 18 N. J. Eq. 108; Frink 7'. Adams, 36 N. J. Eq. 48s. Nezi' Mexico. — Kcencv 7'. Carillo, 2 N. M. 480. Nezi' York. — Smith i'. Brush, i Johns. Ch. 459; Dunham v. Jackson, 6 Wend. 22 ; Clason 7'. Morris, 10 Johns. 524, 4 N. Y. C. L. 1137; Mason 7'. Roosevelt. 3 Johns. Ch. 627 ; Atkinson z'. Holroyd, I Cow. 691, 7 N. Y. C. L. 664: Stafford v. Bryan, I Paige Ch. 239, 2 N. Y. Ch. 631 ; Johnson 7'. Johnson, i Edw. Ch. 439, 6 N. Y. Ch. 201 ; Cushman V. Shepard, 4 Barb. 113; Jacks 7'. Nichols, s N. Y. 178. North Carolina. — Bruce v. Child, 4 Hawks. 372 ; Lewis 7'. Owen, I Ired. Eq. 290; Averitt Z'. Foy, 2 Ired. Eq. 224; Alley 7'. Ledbctter, I Dev, Eq. 449; Hill 7'. Williams, 6 Jones Eq. 242. Ohio. — Washburn v. Holmes, Wright 67; Miami Importing Co. v. Bank of U. S., Wright 249. ANSWERS. 909 cunie b\' the satisfactorv evidence of two witnesses, or of one witness Pennsylvania. — Reed's Appeal CPa. St.), 7 Atl. 174; Pusey v. Wright, 31 Pa. St. 387; Galbraith 7: Galbraith, 190 Pa. St. 225, 42 Atl. 683 ; Delaney Z'. Thompson, 187 Pa. St. 343, 40 Atl. 1023 : Horton's Ap- peal, 13 Pa. St. 67; Eberly v. Groff, 21 Pa. St. 251; Campbell i'. "Patter- son, 95 Pa. St. 447 ; Nulton's .\ppeal, 103 Pa. St. 286; Rowley's Appeal, 115 Pa. St. 150, 9 Atl. 329. South Carolina. — Moffat 1: Mc- Dowall, I McCord Eq. 434; Mc- Dowell I'. Teasdale, i Des. Eq. 457; Martin z: Sale, Bailey Eq. i ; John- son z'. Slawson, Bailey Eq. 453; ^IcCaw z: Blewit, 2 McCord Eq. 90. Tennessee. — Spurlock ?'. Fulks. i Swan '289; Searcy f. Pannell, 3 Cooke no; Meek v. McCormick (Tenn.), 42 S. W. 458; Van Wyck z'. Norvell, 2 Humph. 192 ; Baker v. Barfield, 23 Tenn. 515 ; Davis v. Turner, 10 Heisk. 447 ; Tansel Z'. Pepin, 13 Tenn. 452; Gray Z'. Faris, 15 Tenn. 154; Copeland t'. Murphey, 2 Cold. 64; Carrick z\ Prater, 29 Tenn. 270. i'crmont. — Pierson v. Catlin, 3 \t. 272; Field V. Wilbur, 49 Vt. 157; Veille V. Blodgett, 49 Vt. 270. Virginia. — Major v. Fincklin, 85 Va. 732, 8 S. E. 715; Love v. Brax- ton, 5 Call 537; Heffner v. Miller, 2 Munf. 43 ; Auditor etc. v. Johnson, i Hen. & Munf. 537 ; Beatty z: Thomp- son, 2 Hen. & Munf. 395 ; Wise v. Lamb, 9 Gratt. 294; Beatty v. Smith, 2 Hen. & Munf. 395; Beverley v. Walden, 20 Gratt. 147. Wisconsin. — Smith v. Potter, 3 Wis. 384; Walton v. Cody, i Wis. 364; Parish v. Gear, i Finn. 261. " The general rule that either two witnesses or one witness with prob- able circumstances will be required to outweigh an answer asserting a fact responsively to a bill, is admit- ted. The reason upon which the rule stands, is thus : The plaintiff calls upon the defendant to answer an allegation he makes, and thereby admits the answer to be evidence. li it is testimony, it is equal to the testimony of any other witness ; and as the plaintiff cannot prevail if the balance of proof be not in his favor, he must have circumstances in ad- dition to his single witness, in order to turn the balance. But certainly there may be evidence arising from circumstances stronger than the testimony of any single witness." Clark's Executors v. Van Riemsdyk, Q Cranch 153. " It has long been the settled law of this state, that if a bill charges fraud, and the answer denies it, the answer, if uncontradicted, is con- clusive evidence for the defendant. Smith V. Rogers, i Stewart & Porter 317: Br. Bank HuntsviHe v. Mar- shall, 4 Ala. 60. The rule announced in these decisions, however, is not confined in its operation to charges of fraud alone. In all cases in our system of equity jurisprudence where the answer is verified m obedience to the requirement of the bill, it oper- ates, so far as responsive, as evi- dence for the defendant, and must prevail unless disproved by two wit- nesses, or by one witness with cor- roborating circumstances, i Brickell's Dig. 738, and cases cited in section 1466. In the language of Judge Story : ' It is an invariable rule in equity, that where the defendant in express terms negatives the allega- tions of the bill, and the evidence is only of one person affirming as a witness what has been so negatived, the court will neither make a decree nor send the case to be tried at law, but will simply dismiss the bill. The reason upon which the rule stands is this: The plaintiff calls upon the defendant to answer an allegation of fact, which he makes ; and thereby he admits the answer to be evidence of that fact. If it is testimony, it is equal to the testimony of any other witness ; and as the plaintiff cannot prevail unless the balance of proof is in his favor, he must either have two witnesses, or some circumstances in addition to a single witness, in order to turn the balance.' 2 Story's Eq. Jur. § 1528." Marshall v. Croom, 52 Ala. 554. " In this case, when the sworn answer of defendant Mey was filed, Vol. I 910 ANSWERS. corroborated by circumstances which are equivalent in weight to another witness.'' \\'hile in others the contrary is held, and the rule further declared that the answer may be overcome by circum- stances alone if sufficiently strong to give sufficient weight to the complainant's case.' A. When by Documentary ExidencE. — While the rule is gen- erally so stated, the testimony of a witness is not a necessary part of the evidence required to overcome a s^worn answer. It may be overcome by documentary evidence alone." B. Where Bill Is \'erified. — A distinction has been made in August, 187s, it became evidence against the complainant in his favor, of such force that complainant could have no decree against him until the same was proven false by evidence equal to that of one witness, and in addition thereto a preponderance of proofs sufficient to sustain the bill if the oath to the answer had been waived. If it be conceded that com- plainant may file another bill, and litigate the matters upon their merits, this sworn answer remains proof on record against her, and she can have no decree until this is over- come by a preponderance of other proofs." Mey -■. Gulliman, 105 III. 272. " The only material controverted fact is, whether the orators have es- tablished by the requisite measure of proof, that the barn was built by them at the request of the trustee, Mary E. Wilbur. She denies in her answer making any such request in connection with her husband, or otherwise, and the answer is in this respect responsive to the bill. The only direct witness to such request is the orator, S. M. Field. Where a material fact stated in the bill is denied in the answer, the rule is well settled that something more than the testimony of one witness is required to sustain the bill and entitle the orator to a decree. The orator must overcome the denial in the answer by what is deemed equal to the testnnony of two witnesses. Shattuck V. Gay ct al, 45 Vt. 87. This rule does not require that the denial in the answer shall be over- come by the testimonv of two living witnesses who were present and cognizant ot the fact m contro- versy. Circumstantial evidence may, if of equal weight and credibility, take the place of the testimony of one or both of such witnesses. The amount of testimony or evidence required to be produced by the orator in such cases, though ex- pressed numerically, is not always the same. If the defendant, by his answer, or otherwise, is shown to be a very reliable and credible witness, it is manifest that more weighty tes- timony should be required to over- come the denial in the answer, and to establish the averment in the bill, than there should be if the defend- ant was shown to be unreliable and entitled to but little credence. So, too. the testimony of witnesses, when to the same facts, is not always doubled by doubling the number. The rule must be construed and applied with good sense and reason, to each case, having reference to other well-established rules and principles in regard to weighing tes- timony. It requires that the credence and weight to be given to the answer, remembering that the orator has called the defendant into the case as a witness, is to be fairly overcome, and the averment in the bill is to be reasonably established by a prepon- derance which the law has denom- inated the testimony of a second witness." Field v. Wilbur. 49 Vt. 157- 6. Morrison v. Durr, 122 L'. S- 518. 7 Sup. Ct. 1215. 7. May Be Overcome by Proof of Circumstances Alone. — White v. Crew, 1(1 Ga. 410; Jones v. Abraham, 75 Va. 466. 8. Jones v. .Miraham, 75 \'a. 466. Vol. I ANSIVERS. •JU between cases in wliicli the bill is verified, and those in which it is not, as to the amount or weight of evidence necessary to overcome the answer, the court in weighing the evidence taking the sworn bill as equal to the sworn answer, leaving it necessary only for the complainant to offer such additional evidence as will give him the preponderance." But not where the bill is sworn to on information and belief.^" 9. Searcy z\ Burton, 3 Cooke (Tenii.) no; McLard ''. Linnville, 29 Teiin. 163. 10. Carrick z'. Prater, 10 Humph. (29 Tenn.) 270. Rule Stated. — The general rule and its limitations are tlius fully and clearly stated in Carpenter i'. Prov- idence etc. Ins. Co.. 4 How. (U. S.) 185: " But how much of evidence should he required to prove that allegation, under the principles applicaljle to the circumstances of this case, is one of some difficuhy, and is first to be set- tled. Where an answer is responsive to a bill, and, like this, denies a fact unequivocally and under oath, it must in most cases be proved not only by the testimony of one witness, so as to neutralize that denial and oath, but by some additional evi- dence, in order to turn the scales for the plaintiff. Daniel f. Mitchell, i Story's Rep. 188; Higbie i'. Hop- kins, I Wash. C. C. R. 230; The Union Bank of Georgetown v. Geary, 5 Peters 99. The additional evidence must be a second witness, or very strong circuinstaiiccs. i Wash. C. C. R. 230 ; Hughes v. Blake, i Mason's C. C. R. 514; 3 Gill & Johns. 425; I Paige 239; 3 Wend. 532; 2 Johns. Ch. R. 92; Clark's E.x'rs z: Van Riemsdyk, 9 Cranch 153, says, ' with pregnant circumstances.' (Nealc z'. Hagthrop, 3 Bland's Ch. S67 ; 2 Gill 6 Johns. 208.) ■■ But a part of the cases on this subject introduce some qualifications or limitations to the general rule, which are urged as diminishing the quantity of evidence necessary here, Thus, in 9 Cranch 160, the grounds of the rule are explained; and it is thought proper there, that something should be detracted from the weight given to an answer, rf from the nature of things the respondent could not know the truth of the matter sworn to. So, if the answer do not deny the allegation, but only express ig- norance of the fact, it has been ad- judged that one positive witness to it may suffice. I J. J. jSIarshall, 178. So if the answer be evasive or equiv- ocal. 4 J. J. Marshall 213; I Dana 174; 4 Bibb 338. Or if it do not in some way deny what is alleged. Knic'onsio uiiius )wn omniiio audiatus, when the main fact alleged in the bill was directly denied by the answer. But this rule has been gradually yielding to the experience, judgment, and enlightened juris- prudence of later times, when the matter is resolved into the credibility to be attached to the answer of the respondent under all the circum- stances. And where his answer is precise, clear, and positive, to the main facts alleged in the bill, he is to be considered as any other wit- ness, and when it is witness against witness, the chancellor will not decree, but dismiss the bill. Small and slight circumstances, however, will turn the scale, so sinall and slight, that it is impossible not to perceive that equity considers and appreciates the anoiualous position of the respondent. 2 Story's Equity, § 1528; I Brown's Ch. Rep. 52; 9 Cranch 160 ; Clark z'. Van Reims- dyk, Greenl. Ev. 297 ; Gresley's Eq. Ev. p. 4, and the numerous cases there cited. The whole of the evi- dence brings us irresistibly to the belief that Adam, in good faith and conscience, ought to be charged with the notes, and we perceive nothing in the rules of law and equity which prevents our deciding the case on that conviction." 21. Effect of Defendant's Tes- timony at the Trial Spencer's Appeal, 80 Pa. St. 317; Roberts v. Miles, 12 Mich. 297, In Michigan, the supreme court has slated the rule as follows : " In other words, the rule amounts simply to this, that a decree can never be made in favor of a complainant unless the evidence preponderates in his favor ; and that where answer and opposing witness are equally full, fair and explicit, there can be no such preponderance. See 2 Dan. Ch. Pr. 985. If, therefore, a defendant on the stand furnishes the means of destroying his own answer, and cor- roborating complainant's case, his tes- timony is preferable to his answer, for the same reason which makes any oral examination and cross ex- amination more favorable for elicit- ing the truth than a statement where the affiant is not pressed to answer questions too rapidly to enable him . to deliberate how he can best shape his response to secure his own ends. No one who desires to sift a witness would ordinarily prefer a discovery to an examination on the stand ; but under our present system, where both may be resorted to, the choice is not very important. Mr. Headlam is of opinion that now the whole force of the old rule is done away : 2 Head- lam's Dan. Ch. Pr. 3d ed. p. 676. He remarks : ' The defendant is now, as we have seen, enabled to obtain the benefit of his own testimony, and the court will probably not be bound by any previous decisions in bal- ancing his testimony against that of a witness.' This old practice has often been misunderstood and misapplied, and since the statute has removed the only reason which ever made a discovery bj' answer necessary, we think there is no longer any occasion for giving to the evidence of a wit- ness in one shape any more force than it would have in another. Strictly speaking, the old rule, when fairly carried out, may not have done so; but it is not to be denied that its existence has led practically, in many cases, to arbitrary and improper con- clusions. We are therefore of opin- ion that an answer in chancery responsive to . a bill is now to be Vol. I 916 ANSWERS. 9. Contradicted in Material Point, Effect Of. — It is held that where an answer is disproved in a material point, it loses all weight as evidence and stands only as a pleading necessary to fonn the issue. -- 10. Dismissal of Bill Destroys As Evidence. — The answer is given eiifect as c\idence only because it is called for and is responsive to the bill or cross-bill, as the case may be. Therefore, if tlie bill, or cross-bill, to which it is an answer, is dismissed, the answer cannot be read in evidence in favor of the defendant.-^ But where the original bill is dismissed, and an amended bill filed, the sworn answers to the original are coinpetent in favor of the defendant, although answer under oath to the amended bill is waived."* 11. Not Evidence for Defendant in Another Action. — The answer is evidence for the defendant only as against the bill to which it is opposed, and not in another action, or in support, in his favor, of another and different issue. ^^ A. To Bill of Discovery Offered ix Actio.v .\t Law. — It is regarded as of the same force which it would have were it the defendant's deposition as a witness." 22. Contradicted in Material Point Pharis i'. Leaclnnan. 20 Ala. 662; Giinn v. Brantley, 21 Ala. 633; Prout Z'. Roberts, 32 Ah. 427; Fay V. Oatley, 6 Wis. 45 ; Forsvth v. Glark, 3 Wend. (N. Y.) 637, 'lo N. Y. C. L. 495 ; Countz t'. Geiger, i Call (Va.) 190. 23. Dismissal of Bill Destroys. In Saffold z\ Home, 71 Miss. 762, 15 So. 639, the cross bill had been dis- missed and the answer thereto was held not to be competent thereafter as evidence in favor of the defend- ant. 84. Aley v. Gulliman. 105 111. 272. 25. Not Evidence in Another Action. — Pliillips r. Thompson, i Johns. Ch. (N. Y.) 131, i N. Y. Ch. 87; Thompson z'. French. 10 Ycrg. (Tenn.) 452. " .\n answer responsive to a bill avails the respondent in the hearing of the case in which it is part, but it is not evidence, for the party who makes it, in any other issue. It performs its office as a response to the bill it answers. Away from that, it has no function, and can serve no purpose of its author as evidence for him. It serves him only against the bill it answers. All tliat is found in the books as to the effect of an Vol. I answer has reference to its effect or influence as to the bill answered, and not to other and different issues. After the dismissal of the ill-advised cross bill in this case, the cause stood on bill and answer, and no evidence was admissible, except such as would have been if a cross bill had not been thought of. The idea seems to have obtained that a defendant to a bill for relief, called on to answer under oath, is entitled ever afterwards to use as evidence in his behalf his answer thus made. Such an idea is without any support whatever in principle or authority, as may be discovered by any one who will diligently examine the subject." Saf- fold f. Home. 71 Miss. 762, 15 So. 639. In Branch Bank v. Parker, 5 Ala. (N. S.) 731. the question arose under a statute of .■\labania providing for the propounding of interrogatories in actions at common law, the statute providing that answers to such inter- rogatories should be evidence at the trial of the cause, in the same man- ner, and to the same purpose and extent, and upon the same condition in all respects as if they had been procured upon a bill in chancery for discovery, but no further or other- wise. It was held that the answers could not be used as evidence unless they were offered by the opposite party by whom they were procured. ANSWERS. '117 held that in case of an answer to a pure l)ill of discovery used on a trial at law, it is used as a matter of evidence to he read as the testimony of a witness, and to have like weight.-" B. When Offered on an Issue of Fact. — When offered upon the trial of an issue of fact, the answer of a defendant is properly excluded when offered by the defendant, if it has been disproved by more than one witness.-^ And it is held not to be competent at all on the trial of such issue unless it is directed to be read as a part of the evidence in the order for the trial of such issue."* 12, Taken to Be True Until Disproved. — If the answer denies a fact under oath, and no proof is offered in sujiport of the fact In- the complainant, the answer must be taken to be true.-" A. CoMTLAiNANT May DISPROVE. — If the complainant calls for relief as well as a discovery, he is not bound by the answer, but may resort to other evidence to prove his case, leaving the defendant to use his answer in his own behalf."" a. Rule iriicrc Bill Is for Disan'cry Only. — A distinction has 26. Fain <■. Miller, i; Gralt. (Va.) 187. 27. Cartwriglit 7'. Godfrey, I Murph. Law (N. C.) 422. 28. Jackson f. Spivey, 63 N. C. 261. 29. Taken To Be True Until Dis- proved. — [")ii7<-rf States. — McCoy v. Rhodes, 11 How. 131; Gettings z'. Rurcli. 9 Cranch 372. Alabama. — Edniondson v. Mon- tague, 14 Ala. (N. S.) 370; Panlling I'. Sturgus, 3 Stew. 95; Henderson V. McVay, 32 Ala. 471 ; Lucas v. Bank of Darien, 2 Stew. 280; Branch of the Bank v. Marshall, 4 Ala. 60. Arkansas. — Cummins v. Harrell, 6 Ark. 308. Georgia. — Imlioden v. Etowah etc. Min. Co., 70 Ga. 86. Illinois. — Cassell v. Ross, :ii 111. 245 ; Duncan v. Wickliffe, 5 111. (4 Scam.) 452; O'Brian v. Fry, 82 111. 274. Maine. — .\lford t'. McNarrin, 44 Me. 90. Maryland. — Cowman i'. Hall, 3 Gill & J. 398; Nealc z: Hagthrop, 3 Bland 551. Mississi/^fi. — Fulton v. Woodman, =;4 Miss. 158; Petrie v. Wright, 6 Smed. & M. 647. Missonri. — Prior v. Mathews, 9 Mo. 267 ; Gamble r'. Johnson, 9 Mo. 605 ; Laberge v. Chauvin, 2 Mo. 145. iVt'tc Hampshire. — Dodge v. Dodge, 33 N. H. 487. Neit.1 Jersey. — Graham i'. Berry- man, 19 N. J. Eq. 29; Allen v. Cole, 9 N. J. Eq. 286, 59 Am. Dec. 416; Morris etc. R. Co. v. Blair, 9 N. J. Eq. 63s; Central R. Co. v. Hetfield, 18 N. J. Eq. 323- Nezv York. — ■ Miller -■. Avery, 2 Barb. Ch. 582; Murray v. Blatch- ford, I Wend. 583, 19 Am. Dec. 537. Pennsylvania. — Paul v. Carver. 24 Pa. St. 207, 64 Am. Dec. 649; Pea- cock z'. Chambers, 3 Grant Cas. 398. South Carolina. — ■ President etc. Branch Bank of Columbia v. Black, 2 McCord Eq. 344. H'iseonsin. — Coulsoii v. Coulson. 5 Wis. 79. 30. Complainant Not Bound By. .-ilabania.—'Dunn v. Dunn, 8 Ala. (N. S.) 784; Fenno v. Sayre, 3 Ala. 458. Illinois. — Chambers f. Warren, n 111. 319. Mississififi- — Carson r. Flowers. 7 Smed. & M. 99; Greenleaf v. High- land, I Miss. 37S. .Vi'Xf York'. — Jackson r. Hart. 11 Wend. 343. North Carolina. — Harrison v. Brad- ley. 5 Ired. Eq. 136. South Carolina. — Boyd v. Boyd, Harper Eq. 144. I'irgiiiia. — Maupin i'. Whiting, I Call 224; Tliornton z: Gordon, 2 Rob. 750; Blanton z: Brackett, 5 Call 232. Vol. I '118 ANSIVBRS. Ix'en made in some of the cases between an answer as a iileading and as evidence, it beino; hdd that so mnch of the answer as is in response to interrogatories seeking discovery, by the defendant, is evidence called for by the plaintiff, but that part of the answer which goes to the allegations of the bill, as a cause for relief, is a pleading and not evidence; and that, therefore, if the bill is for a discovery only, the answer is evidence, wdiolly, and not a pleading, and the answer made is conclusive on the complainant.'^ But other cases declare the rule that an answer to a bill of discovery, or that part of the bill calling for discovery, where the bill is for relief and discovery, is of no greater weight, as evidence, than a responsive answer to the charging part of the bill for relief, and may be dis- proved by the complainant in the same way and by the same kind and degree of evidence in the one case as in the other. ^- I!. ^lusT Be Direct, Responsive and Without Evasion. — This 31. Where Bill is for Discovery Only. — Miller z: ToUison, Harper Eq. (,S. C.) 119; Jackson i'. Hart, ii Wend. (N. Y.) 343- " An affirmative in the answer need not however be proved, if it be responsive to the stating or charging part of the bill, or an interrogatory anthorized by either of them (Fenno (■/ al. T'. Sayre & Converse, 3 .\la. 478) ; for in snch case the complain- ant has, by the frame of his bill, engaged to prove the negative. He has voluntarily assumed the onus, and cannot complain of the difficulty of the task he has undertaken. The complainant, in the formation of his liill, may at his election make as much or as little use of the defend- ant as he pleases, except that, ac- cording to the established course of chancery, he must receive a direct denial of his allegations ^y the de- fendant as evidence, as well as plead- ing. Responsive affirmations by the defendant, are most usually invited by the charging part of the bill, which is a negation of what are supposed to be the defendant's pretenses, or by the e.xtended scope of the interroga- tories. Neither of these it is said are essential parts of the bill, but are usually inserted, if with any definite object, to obtain a iiiore particular disclosure from the defendants. If the bill contains the stating part, with a prayer that the defendant may answer, omitting all charges and in- terrogations, the complainant will not be compelled to receive the defend- ant's oath beyond a mere denial of the equity of his bill. (See 2 Mad. Ch. Prac. 137; Partridge v. Haycroft, I Ves. 574; Wakeman v. Grover, 4 Paige's Rep. 23.)" Branch of the Bank v. Marshall, 4 Ala. 60. See, also, for a discussion of the twofold character chancery. Smith i Co., 2 Tenn. Ch. In Thompson of an answer in St. Louis L. Ins. 599- Clark, 81 Va. 422, it is directly held that where upon a pure bill of discovery the court re- tains and decides the cause, plaintiff cannot contradict the answer by other I vidence, because the plaintiff would thereby prove himself out of court. See, also, to the same effect, Fant v. .Miller, 17 Graft. (Va.) 187. 32. Rule the Same Whether Bill for Discovery or Not. — Chambers z\ Warren, 13 111. 319; Nourse v. Gregory, 3 Litt. (Ky.) 378; Williains :■. Waim, 8 Blackf. (Ind.) 477; .March v. Davison, 9 Paige Ch. (N. \.) 580; Curtiss Z'. Martin, 20 111. .-.V- In Greenleaf v. Highland, i Miss. 375, it is held that answers in chan- cery, whether to bills purely of dis- covery or those seeking relief also, are considered as the written con- .essions of the party making them, that they may be used as evidence ;i!;ainst him and that iriatters in avoid- ance therein are subject to be sup- ported or disproved by evidence oliuiidc on both sides. Vol. I ANSWERS. 919 rule of evidence giving such effect to the defenilant's answer, grew out of the practice of submitting, as part of the bill, interrogatories to be answered by the defendant under oath ; under this practice the evidence took the form of interrogatories and answers thereto, enforced at the instance of the plaintiff. And it is well settled that in order to give effect to the answer, as evidence for the defendant, it must be full, direct, responsive to the bill, and positive and with- out evasion."" It is not enough that the bill be answered literally. The answer must confess or traverse each charge in the bill.''* a. General Denial, When Sufficient. — But if a general denial is filed, the remedy of the complainant is to except to the answer, and if he does not, the answer will be held sufficient at the trial. ■'''' 33. Must Be Direct and Respon- sive. — United Slali-s. — Seitz v. Mitchell. 94 U. S. 580; Slater v. Maxwell, 6 Wall, 268. Alabama. — Grady v. Robinson, 28 Ala. 289; Smilie v. Siler, 35 Ala. 88; Cunimings v. McCuUough, 5 .-Ma. (N. S.) 324; Lucas v. Bank of Darien, 2 Stew. 280. .-i;-/ca;iji!.s. — Pelham v. Moreland, II Ark. 442. I'lorida. — While v. Walker, 5 Fla. 478. Illinois. — Derby v. Gage, 38 III. 27 ; Gregg v. Renfrews, 24 111. 621 ; Deimel v. Brown, 35 111. App. 303 ; Atkinson v. Foster, 134 111. 472, 25 N. E. 528. Indiana. — Green v. Vardinian, 2 Blackf. 324. Kentucky. — Price v. Boswell, 3 B. Mon. 13 ; Lewis v. Ontton, 3 B. Mon. 453 ; Phillips t'. Richardson, 4 J. J. Marsh. 212. Maine. — Buck v. Swazey, 35 Me. 41- Massachusetts. — New England Bank i'. Lewis, 8 Pick. 113; Leach V. Fobes, II Gray 506. Michigan. — Schwarz z'. Wendell, I Walk. 267 ; Newlove v. Callaghan, 86 Mich. 301, 49 N. W. 214. .Mississippi. — Rodd v. Durbridge, 53 Miss. 694; Toulnic v. Clark, 64 Miss. 471. Missouri. — Martin v. Greene, 10 j\Io. 652. AVtc Jersey. — Stevens v. Post, 12 N. J. Ecj. 408; Allen v. Cole, 9 N. J. Eq. 286, 59 Am. Dec. 416. New York. — Dunham v. Gates, I Hoff. 184. Pennsylvania. — Coleman v. Ross, 46 Pa. St. 180; Com. V. Cullen, 13 Pa. St. 133, S3 Am. Dec. 450; Eberly V. Groff, 21 Pa. St. 251. Tennessee. — Spurlock v. Fulks, I Swan 289; Sims t'. Sims, 5 Humph. 369- ■Vermont. — Blaisdell v. Bowers, 40 Vt. 126; Veile v. Blodgett, 49 Vt. 270; Rich V. Austin, 40 Vt. 416. I'lrginia. — Wilkins v. Woodfin, 5 Munf. 183. " The general rule of equity prac- tice is, that when a defendant has, by his answer under oath, expressly negatived the allegations of the bill, and the testimony of one person only has affirmed what has been negatived, the court will not decree in favor of the complainant. There is then I ath against oath. In such cases there must be two witnesses, or one with corroborating circumstances, to overbear the defendant's sworn an- swer. The reason for this is, that the complainant generally calls upon the defendant to answer on oath ; and he is, therefore, bound to admit the answer, so far as he has called for it, to be prima facie true, and as worthy of credit as the testimony of any other witness. This rule, however, does not extend to aver- ments in the answer not directly responsive to the allegations of the liill, for the complainant has not called for them." Seitz v. Mitchell, 04 U. S. 580. 34. Savage v. 119; Parkman :■. (Mass.) 231. 35. Parkman v. Welch, 19 Pick. Benham, 17 Ala. Welch, 19 Pick. Vol. I 920 ANSWERS. h. Arginiiciitatiz'c Not Coiiipi'tciit. — Under the rule that the answer must be direct and positive, matter of argument or infer- ence is not competent as evidence.'"' c. What Is Rcsponsiz'c. — It is not always easy to determine when an answer is sufificiently responsive to admit it as evidence for the defendant, and upon this the authorities are, not unnaturally, in conflict. Each case depends materially upon its own facts, and the best that can be done is to cite the cases bearing on the ques- tion." (Mass.) 231 ; Smith v. St. Louis L. Ins. Co., 2 Tenn. Ch. 599. In White v. Wiggins, 32 Ala. 424, it is said : " The defendant has not here contented himself with a denial, based upon, and referring to certain facts; but, in responding to a specific interrogatory, has taken up the sub- ject a second time, and given a flat denial, not dependent upon any statement of facts. This general denial, that the defendant was in- solvent as alleged in the bill, would, on exceptions to the answer, have been held insufficient, but for the rule of practice which prohibits ex- ceptions to answers where a verifica- tion by oath is waived, because a literal denial, not meeting the charge, is insufficient. Woods r. JNIorrell, I John. Ch. 103; 2 Dan. Ch. PI. and Pr. 835. But it is not the case of an omission to answer, because there is a plain denial of the allegation in the manner and form in which it is made. An admission of an allega- tion in a bill cannot be implied from the insufficiency of the answer to it. Savage v. Benham, sul^ra ; Parkman ?'. Welch, 19 Pick. 231." 36. Toulme v. Clark, 64 Miss. 471 ; Atkinson !■. Foster, 134 III. 472, 25- N. E. 528; Copeland v. Crane, g Pick. (Mass.) 73. 37. What is Responsive Matter. United States. — R^-ul ?•. McAllister, 49 Fed. 16. Alabama. — Ware v. Jordan, 21 Ala. 837 ; Manning v. \Ianning, 8 Ala. (N. S.) 138; Hanson ;■. Pat- terson, 17 Ala. 738; Wellborn v. Til- ler, 10 Ala. (N. S.) 305; Buc'^anaii V. Buclianan, 72 Ala. 55 ; Fenno v. Sayre, 3 .Ma. 458; Powell v. Powell. 7 Ala. (N. S.) 582; May v. Barn- ird, 20 Ala. 200; Green v. Casey, 70 Ala. 417. Vol. I Arkansas. — Pelham v. Moreland, II .\rk. 442; Wheat v. !Moss, 16 Ark. 243- Delaware. — Merriken f. Godwin, 2 Del. Ch. 236. Georgia. — Smith v. .Atwoorl, 14 Ga. 402; Laughlin v. Greene, 13 Ga. 359; Eastman v. Mc.\lpin, i Kelley 157. Illinois. — Gregg i'. Renfrews. 24 111. 621. .Maryland. — Neale v. Hagthrop, 3 Bland 551 ; Glenn v. Grover, 3 Md. 212; Turner v. Knell, 24 Md. 55; Philadelphia Trust etc. Co. z: Scott, 45 Md. 451. Michigan. — Schwarz v. Wendell, i Walk. 267. Mississippi. — Rodd f. Durbridge, 53 Miss. 694; Lockman f. Miller "(Miss.), 22 So. 822; Rossell v. Moffitt, 6 How. 303- Nni' Hampshire. — Bellows v. Stone, 18 N. H. 465. Neiv Jersey. — Cammack v. John- son, 2 N. J. Eq. 163: Merritt v. Brown, 19 N. J. Eq. 286. AVt£' York. — Dunham v. Gates, i Hoff. 184 : Dunham v. Jackson. 6 Wend. 22 : Hart z'. Ten Eyck, 2 Johns. Ch. 62; Jackson ?■. Hart, 11 Wend. 343. Pennsylvania. — Eaton's Appeal, 66 Pa. St. 483; Appeal of Kenney (Pa. St.), 12 .\tl. 589; Pusey 7'. Wright, 31 Pa. St. 387; Cresson's .Appeal, 91 Pa. St. 168; Appeal of Gleghornc, 118 Pa. St. 383, II Atl. 797: Bell r. Farmers' Dep. Nat. Bank, 131 Pa. St. 318, 18 -Atl. 1079; Appeal of Row- ley, lis Pa. St. 150, 9 Atl. 329: Hand V. Weidner, i=;i Pa. St. 362, 2; .\tl. 38. Rhode Island. — Ives v. Hazard, 4 R. I. 14, 67 .\m. Dec. 500: Parkes V. Gorton, 3 R. I. 27. Tennessee. — Walter r. JNIcNabb, I Heisk. 703 ; Meek z: McCormick AXSU'IiRS. 921 d. /;( .li'oiiiaiiCi' Xot H^idciicc. — It is only such matter as is responsive to the hill that is competent evidence for the defendant. Therefore, where matter in avoidance is pleaded, the answer is not competent evidence for the defendant, but the matter alleged must be proved by extrinsic evidence.-'*^ But some of the cases allow the (Teim.). 42 S. W. 458; Alexander j'. Wallace, 10 Yerg. 105; Gass v. Simpson, 4 Cold. 288 ; Hopkins 7'. Spiirlock, 2 Heisk. 152. rcnnoiit. — Mann ?■. Betterly. 2i Vt. 326; Rich V. Austin, 40 Vt. 416. In Laughlin i'. Greene, 13 Ga. 359, it is held that if the answer springs out of the allegations in the hill and its statements stand connected with the allegations although not literally and directly responsive, they are to go to the jury as evidence for tlie defendant for as much as they are worth. The general rule on the suhject is thus stated in Schwarz v. Wendell, 1 Walk. 267 : " The general rule is, that whatever is responsive to the bill is evidence for, as well as against, the defendant. But there is frequently much difficulty in apply- ing the rule, and regard must always be had to the case made by the bill, in determining what is, and what is not responsive. Is the fact stated in the bill, and answered by defendant, material to complainant's case, that is, must it be proved to entitle him to relief; or is it a cir- cumstance from which such material fact may he inferred? — for the com- plainant may prove his case, by either positive or presumptive evidence. If it is, the answer, as it regards such fact, is responsive to the bill, and is evidence in the cause. It may also, sometimes, be evidence of a fact not stated in the bill; as where llie bill sets forth part of complainants case, only, instead of the whole, and the part admitted and stated in the answer shows a different case from that made by the bill, and is not matter in avoidance merely. As where a bill, filed to redeem stock, alleged it had been pledged for five hundred dollars, and the answer stated it was pledged for eight hun- dred dollars, in addition to the five hundred dollars stated in the bill, the answer was held to be responsive. Dunham v. Jackson, 6 Wend. R. 22. Here the answer, instead of being responsive to a particular fact stated in the bill, was responsive to com- plainant's case, which tlie answer denied, by showing a different case. I'ut where the answer does not show a different case, l)ut, admitting the case made by the bill, sets up new matter in avoidance of it, the answer is not evidence of such new matter. .•\s where the defendant sets up usury, in his answer to a bill filed to fore- close a mortgage. Green z; Hart, I J. R. 850. Such arc the general prin- ciples, to be adduced from the cases, for our guide in determining what •> parts of an answer are responsive to the bill." In Merritt r. Brown, 19 N. J. Eq. 286, the interrogatory in the bill asked " for what purpose and consideration the said stock was assigned? " and it was held that an affirmative state- ment, in the answer, of tlie particulars of the transaction inquired about, was responsive. So it was held in Reid ■;•. McAl- lister, 49 Fed. 16, that in a suit to foreclose a mortgage against a hus- band and wife, an answer by the wife that her signature to the mort- gage was procured by the fraudulent representations of the complainant, was responsive. And the same conclusion w^as . reached in Appeal of Rowley, 115 Pa. St. 150, 9 Atl. 329, where the suit was by one claiming to have sub- scribed to the stock of a corporation seeking to enforce his rights as a stockholder, and the answer admitted that the plaintiff subscribed to the stock but alleged that it was with the understanding that his subscrip- tion was for the benefit of another. 38. Matter in Avoidance Must Be Proved by Defendant. — 2 Story's Eq. PI.. 849a. United Stales. — Keid 7: McAllis- Vol. I 922 ANSWERS. answer to be evidence for tlie defendant whether the matter therein ter, 49 Fed. i6; Lake Shore etc. R. Co. V. Felton, 103 Fed. 227, 43 C. C. A. 189; Carpenter v. Providence Ins. Co.. 4 How. 185 ; McCoy v. Rhodes, II How. 131; Tilghman v. Tilghman, 1 Baldw. 464, 2T, Fed. Cas. No. 14,045 ; Morgan v. Tipton, 3 McLean 339. 17 Fed. Cas. No. 9809. Alabama. — Goodloe v. Dean, 81 Ala. 479, 8 So. 197; Ware v. Jordan, 21 Ala. 837; Forrest v. Robinson, 2 Ala. (N. S.) 215; Hanson v. Pat- terson, 17 Ala. 738; Wellborn v. Til- ler, 10 Ala. (N. S.) 305; Buchanan I'. Buchanan, 72 Ala. 55 ; Lucas v. Bank of Darien, 2 Stew. 280; Gordon V. Bell, 50 Ala. 213; Webb v. Webb, 29 Ala. 588; Branch of the Bank v. Marshall, 4 Ala. 60; McGowan v. Young, 2 Stew. 276; Marks v. Cow- les, 61 Ala. 299; Green v. Casey, 70 Ala. 417; Holmes v. State, 100 Ala. 291, 14 So. 51. Arkansas. — Pelham v. Moreland, II Ark. 442; Stillwell v. Badgett, 22 Ark. 164; Magness v. Arnold, 31 Ark. 103 ; Byers v. Fowler, 12 Ark. 218, 54 Am. Dec. 271 ; Whiting v. Beebe, 12 Ark. 421 ; Scott v. Henry, 13 Ark. 112; Roberts v. Totten, 13 Ark. 609; Walker v. Scott, 13 Ark. 644; Wheat z\ Moss, 16 Ark. 243; Fatten v. Ashley, 3 Eng. 290; Cum- mins V. Harrell, 6 Ark. 308. Delaware. — Merriken v. Godwin, 2 Del. Ch. 236. Georgia. — Lee i'. Baldwin, 10 Ga. 208; Cartledge v. Cutliff, 29 Ga. 758; Neal V. Patten, 40 Ga. 363 ; Daniel V. Johnson, 29 Ga. 207. Illinois. — O'Brian z'. Fry, 82 111. 274; Roberts v. Stigleman, 78 111. 120; Mahoney v. }iIahoney, 65 111. 406; Cooper V. Tiler, 46 III. 462, 95 Am. Dec. 442 ; Brown z'. Welch, 18 111. 343. 68 Am. Dec. 549; Cummins v. Cummins, 15 111. 34; Lynn z'. Lynn, 10 111. 602; Walton z'. Walton, 70 111. 142; Harding z\ Hawkins, 141 111. 572, 31 N. E. 307. Indiana. — Green z\ Vardiman, 2 Blackf. 324; Wasson v. Gould, 3 Blackf. 18; Pierce z: Gates, 7 Blackf. 162. Iozkv. ■ — SchafFer "■. Grutzmacher, 6 Iowa 137. Vol. I Kentucky. — Lampton Z'. Lampton, 6 T. B. Men. 616; Vance z: Vance, 5 T. B. Mon. 521 ; Atwood v. Har- rison, 5 J. J. Marsh. 329; Todd v. Sterrell, 6 J. J. Marsh. 425 ; Prior v. Richards, 4 Bibb 356; Ballinger v. Worley, i Bibb 195. Maine. — Buck v. Swazey, 35 Me. 41 ; Gilmore z: Patterson, 36 Me. 544; O'Brien -'. Eliott, 15 Me. 125; Warren z: Levis, 53 ;\Ie. 463 ; Peaks z: Mc- .'\vey (Me.), 7 Atl. 270. Maryland. — Ringgold v. Ringgold, I Har. & G. 11, 8 Am. Dec. 250; Cecil V. Cecil, 19 Md. 72, 81 Am. Dec. 626; Jones -■. Belt, 2 Gill 106; McNeal z: Glenn, 4 Md. 87 ; Salmon v. Clagett, 3 Bland 125 ; Neale v. Hag- throp, 3 Bland 551 ; Gardiner v. Har- dey, 12 G. & J. 365 ; Fitzhugh z'. Mc- Pherson, 3 Gill 408; Hagthorp v. Hook, I Gill & J. 270. Massachusetts. — New England Bank Z'. Lewis, 8 Pick. 113; Leach z\ Fobes, II Gray 506, "i .Am. Dec. 732. Michigan. — Schwarz v. Wendell, 1 Walk. 267 ; Van Dyke z: Davis, 2 Mich. 144; Hunt v. Thorn, 2 Mich. 213; Hart I'. Carpenter, 36 Mich. 402; Millerd z: Ramsdell, Har. Ch. 373- Mississippi. — Dease v. Moody, 31 Miss. 617; Brooks v. Gillis. 12 Smed. 6 M. 538; Wofford V. Ashcraft, 47 Miss. 641; Miller z\ Lamar, 43 Miss. 383; Greenleaf v. Highland, I Miss. 375 ; Planters' Bank v. Stockman, 1 Frcem. Ch. 502. Nezv Hampshire. — Bellows v. Stone, 18 N. H. 465. Nezv Jersey. — Neville z'. Demeritt, 2 N. J. Eq. 321 ; Fisler Z'. Porch, 10 N. J. Eq. 243; Stevens v. Post, 12 N. J. Eci. 408; Roberts v. Birgess, 20 N. J. Eq. 139; Dickey v. Allen, 2 N. J. Eq. 40; Winans Z'. Winans, 19 N. J. Eq. 220; Miller v. Wack, I N. J. Eq. 204; Vanderhorf v. Clay- ton, 6 N. J. Eq. 192; Fey v. Fey, 27 N. J. Eq. 213 ; Brown v. Kahnweiler, 28 N. J. Eq. 311; Van Dyke v. Van Dyke, 26 N. J. Eq. 180; Wilkinson z: Bauerle (N. J. Eq.), 7 Atl. 514; Vorhees v. Vorhees, 18 N. J. Eq. 223. Nczi' York. — Hart v. Ten Eyck, ANSWERS. 923 is set up by way of denial, or as affirmative matter responsive to the bill.'''-' But the correctness of this rule, so far as it relates to the 2 Johns. Cli. 62 ; Dunham t. Gates, I Hoff. 184; Jackson v. Hart, 11 Wend. 343; Wakeman v. Grover, 4 Paige Ch. 23 ; Atwater v. Fowler, I Edw. Ch. 417; Sinison 1'. Hart. 14 Johns. 63: Dunham v. Jackson, 6 Wend. 22 ; Green f. Hart, i Johns. 58o._ North Carolina, — Lyerly v. Wheeler. 3 Ired. Eq. 599; Jones v. Jones, I Ired. Eq. 2>i-- Woodall v. Prevatt. Busb. Eq. 199; Fleming z>. Murph, 6 Jones Eq. 59; Johnson v. Person. I Dev. Eq. 364. O/iio. — Methodist E. Church v. Wood. T Ohio 285; Brown r'. Cutler, 8 Ohio '142. Pennsylvania. — Eaton's Appeal, 66 Pa. St. 483; Appeal of Kenney (Pa. St.), 12 Atl. 589; Pusey v. Wright, 31 1-a. St. 387 ; Volhner's Appeal, 61 Pa. St. 118; Appeal of Luburg (Pa. St.), 17 Atl. 245; Appeal of Gleg- horne. 118 Pa. St. 383, 11 Atl. 797; Bell V. Farmers' Dep. Nat. Bank (Pa. St.), 18 Atl. 1079. Rhode Island. — Ives v. Hazard, 4 R. I. 14, 67 Am. Dec. 500; Parkes V. Gorton, 3 R. I. 27. South Carolina. — Gordon v. Saun- ders, 2 McCord Eq. 151 ; Reeves v. Tucker, 5 Rich. Eq. 150. ■ Tennessee. — -Alexander 1'. Wallace, 10 Yerg. 105 ; Cocke r. Trotter, 10 Ycrg. 212; Wolfe v. Cawood, i Heisk. 597 ; Davis v. Clayton, 5 Humph. 445 ; State v. McAuJey, 4 Heisk. 424; Gass v. Arnold, 6 Ba.xt. 329 ; Beech v. Haynes, I Tenn. Ch. 569. Te.ras. — Thouvenin j'. Helzle, 3 Tex. 57; Jouett V. Jouett, 3 Tex. 150. I'erntont. — Mott v. Harrington, 12 Vt. 199; Spaulding i'. Holmes, 25 Vt. 491 ; Adams v. Adains, 22 "Vt. so; Cannon z\ Norton, 14 Vt. 178; Lane v. Marshall, 15 Vt. 85 ; Pier- son 1: Clayes, 15 Vt. 93 ; McDonald I'. McDonald, 16 Vt. 630 ; Sanborn V. Kittredge, 20 Vt. 632 ; McDaniels V. Barnum. 5 Vt. 279. Virginia. — Paynes v. Coles. I Alunf. 373 ; Leas v. Eidson, 9 Gratt. 277 ; Vathir f. Zane, 6 Gratt. 246 ; Purcell c'. Purcell, 4 Hon. & Munf. 507- _. ll'iseunsin. — Farmers' & Mechan- ics' Bank i\ Griffith, 2 Wis. 324; Smith r. Potter, 3 Wis. 384; Walton !■. Cody, I Wis. 364 ; Parish v. Gear, I Pinn. 261 ; Cooper v. Tappan. 9 Wis. 333. 39. Georgia. — Smith v. .\twood, 14 Ga. 402; Shields r. Stark, 14 Ga. 429. Michigan. — Schwarz v. Wendell, I Walk. 267. Nezi' Hampshire. — Bellows v. Stone, 18 N. H. 465. Neii.' Jersev. — Merritt v. Brown, 19 N. J. Eq" 286. Neiv York. — Woodcock v. Bennet, I Cow. 711. Pennsylvania. — ,\ppeal of Rowley, 115 Pa. St. 150, 9 Atl. 329. I'ermont. — Adams v. Adams, 22 Vt. 50. Rule the Same Whether Matter Affirmative or Negative. — lu Smith 1'. Atwood, 14 Ga. 402. it was held that where an interrogatory in the bill calls upon a defendant to show by what pretended claim he refuses to deliver possession of property, and the defendant, in his answer sets up an assignment from the hus- band of the complainant (who had the right to execute the same) as such evidence of claim, the matter set up, though in discharge, is yet responsive because directly called for by the complainant, and may be ad- mitted as proof of such assignment. So it i-s held that when the answer is necessarily connected with or ex- planatory of the responsive matter it will be competent evidence. In Bellows v. Stone, 18 N. H, 465, the rule is declared in general terms that the doctrine that if the plaintiff seeks to impeach the answer he must overcome it by more than the tes- timony of a single witness, is not limited to matters in the answer which deny what is stated in the bill, but extends to matter of affirm- ance, if the latter be in relation to a particular upon which the bill re- quires the defendant to make answer. Vol. I 924 ANSirERS. admission in evidence nt affirmative matter, although responsive to the bill, has been doubted.^" " It is indeed questionable, whether, when the plaintilT's claim rests npon a written contract, or admission, and the defendant is called upon in the bill to admit, or deny, its existence, and does admit it. which makes a full case for the plaintiff, the defendant can go farther, and show that it is not now of binding obligation upon him. The opinion of Chancellor Kent, in Hart v. Ten Eyck, 2 Johns. Ch. R. 62, restricts the rule, as to defendant's right to discharge him- self, when he is only charged by his admission in the answer, to the very same sentence, and to the same trans- action. This case was. indeed, re- versed in the court of error upon this point, as stated in a note to Wood- cock V. Bennet, i Cow. 744, where the rule is laid down, which is sub- stantially followed in the later cases in that state, that whatever is fairly a reply to the general scope of the claim set up in the bill, whether in the stating or charging part, and whether by way of denial, or excuse, or avoidance, is to be treated as evi- dence for the defendant. This is far more rational, and just, and easy of application, than the restricted rules contained in the case of Hart V. Ten Eyck ; but I am not sure that it is yet fully established." Adams V. Adams, 22 Vt. 50. " But it is claimed by the com- plainant that affirmative matter in avoidance, though responsive to the bill, is not evidence. Such, however, is not the rule. All matter strictly responsive, whether affirmative or negative, is evidence. But when the answer is direct to the allegation or interrogatory, either affirmative or negative, and in explanation or qual- ification, the defendant goes on to set up new matter to avoid the effect of his admission or denial, such new matter is not evidence; as if the bill alleged that the defendant, at a cer- tain time and place executed a prom- issory note, and the defendant in answer admits the execution of the note, but sets up a want of con- sideration, or, when the complainant Vol. I calls for an account, and charges receipt of money or property, and the defendant admits the receipt of the money or property and sets up (nat- ters in discharge, in such and similar cases, the matter of avoidance or discharge is not strictly responsive, and must be proved." Farmers' and Mechanics' Bank r. Griffith. 2 Wis. 324. 40. But Correctness of This Doc- trine Doubtful. — " The general rule undoubtedly is that an answer which, while admitting or denying the facts in the bill, sets up other facts in defense or avoidance, is not evidence of the facts so stated. Sto. Eo.. § 1529; Gresley's Eq. Ev.. 13. This rule, upon a careful review of the authorities, was considered as well settled by Ch. Kent in Hart v. Ten Eyck, 2 J. Ch. 88; and, although its application to the facts of that case was held erroneous by the court of errors, it has been approved by the supreme court of the United States in Clements v. Moore, 6 Wall. ,315, and by our supreme court in Napier v. Elam, 6 Yer. ii,v The qualification of the rule, or of its application, established by the court of errors of New York npon appeal in the case of Hart 7'. Ten Eyck. is stated to have been, for the decision was never reported, that if the facts in discharge or avoidance are a direct and proper reph- to an express charge or interrogatory of the bill, then the answer is evidence of those facts. Woodcock V. Bennet, i Cow. "44, note. And this distinction has also been adopted by our supretne court. Alexander z: Williams. 10 Yer. 109; Goss V. Simpson. 4 Cold. 288 : Walter r. McNabb. i Heisk. 703. And this whether the response be by a direct denial or by a statement of facts by way of avoidance. Hopkins 7: Spur- lock. 2 Heisk. 152. Some authorities arc quoted as holding that where a defendant, in response to the bill, once admits liability, there is no es- cape except by proof of the matters of discharge or avoidance. Dyre '•. Sturgess. 3 Dcs. 553 ; Paynes v. Coles, ANSU'ERS. ')2c e. Is Anszccr of Payment Kcspoiisk'c. — So it is held that an answer of payment is responsive and competent as evidence for the defendant/' But an answer of payment is certainly an affirmative defense in avoidance, and not a denial of any allegation in the bill. Therefore, the better rule would seem to be that such an answer is not competent evidence for the defendant. ■*- f. When Admission and Avoidance One fact. — And it is held that where the admission and avoidance constitute one single fact or transaction, the answer is evidence of both.^'' I :Miiiif. 395; Fisler z\ Porch, 2 Stock. 248. It is probable, however, that a careful analysis of the cases would show that the rule is substantially the same everywhere, but its application is varied by the particular facts of the several cases. " A qualification of the general rule is, that where the transaction is a continuous one, and the matters of charge and discharge occur at the same time, the whole statement must be taken together. Robinson ■;■. Scot- ney, 19 \'es. 582; Lady Ormond !■. Hutchinson, 13 Ves. 50; Thompson i\ Lambe, 7 Ves. 588. The qualifica- tion is more broadly stated under the English practice in 2 Dan. Ch. Pr. 835, thus : ' Where a plaintiff chooses to read a passage from the defend- ant's answer, he reads all the cir- cumstances stated in the passage. If the passage so read contains a refer- ence to any other passage, that other passage must be read also.' Bartlett v. Gillard, 3 Russ. 157; Nurse :■. Bunn, 5 Sim. 225. The old decisions went so far as to hold that a discharge in the same sentence with tjie charge would be evidence (be- cause the whole context must be read), when it would not have been if stated separately. Ridgeway i'. Darwin, 7 Ves. 404 ; Thompson z'. Lambe, 7 Ves. 588. The consequences of which was, as stated by Mr. Gresley in his work on Evidence in Equity, p. 15. that formerly much of the skill required in drawing an an- swer consisted in uniting by connect- ing particles miportant points of the defendant's case with admissions that could not be withheld. The answer in the case now before me seems framed on these old cases. But the modern decisions are governed bv the sounder rule of being controlled by the sense instead of the contiguity or grammatical structure of the sen- tences. Passages connected in mean- ing may be read together from dis- tinct parts of the answer. Rude v. Whitechurch, 3 Sim. 562. And, on the other hand, if the matter in avoid- ance has been skillfully interwoven into the sentences containing respon- sive admissions, the complainant will be entitled to have the matter of avoidance considered as struck out. McCoy !■. Rhodes, 11 How. U. S. 131 ; Baker v. Williamson, 4 Penn. St. 467, 3 Greenl. Ev., § 281." Beech z: Haynes, i Tenn. Ch. 569. 41. Is Answer of Payment Res- ponsive. — Grafton Bank z: Doe, 19 Vt. 463; King z: Payan, 18 Ark. 583; Britt -'. Bradshaw, i8 Ark. 530; Stevens z'. Post, 12 N. J. Eq. 408; McCaw V. Blewett, 2 McCord Eq. (S. C.) 90. 42. Of Payment Not Evidence for Defendant. — Json z: Ison, 5 Rich. Hq. (S. C.) 15; Walker z: Berry, 8 Rich. (S. C.) 33; Adams v. Adams, 22 Vt. so; Hickman z'. Painter, 11 W. Va. 386. 43. Appeal of Rowley, 115 Pa. St. 150, 9 Atl. 329; Cummins v. Cum- mins. IS 111. 34. Thus it is held that where the defendant admits the signing of an instrument, but alleges that his sig- nature was procured by fraud, the answer is evidence of both the sign- ing and that the signature was so procured. Reid z\ McAllister, 49 Fed. 16. " It would seem from these, that where the answer admits facts which charge the defendant, and sets up, also, matter which discharges him, the latter is not evidence for him. Vol. I 926 ANSWERS. g. If Rcspoiisii'C. Competent Jl'ltether Affinnative or Negathw And again the general rule is laid down that all matter strictly responsive to the bill, whether affirmative or negative, is evidence for the defendant.** h. Competent Only Where Evidence of Fact Would Be. — The answer cannot be taken to establish anything in bar of the relief prayed for which parol testimony would not be admitted to prove, as it is as evidence only that it is received." i. Part Defcctii'c, Balance Competent. — If the answer called for is insufficient in some of its parts, such defect does not render the balance of the answer, if sufficient, incomjjetent. The remedy of the complainant is to except and compel a full answer, and if he does not, he cannot object to the answer as evidence.*^ g. Hearsay Not Evidence. — The answer to be competent as evi- dence for the defendant must state matters within his knowledge, and not mere hearsay.*' 13. On Hearing on Bill and Answer. — A. Answer Taki-.x to Be True. — If instead of filing a replication, which puts in issue the allegations of the answer, the complainant sets the case down for hearing on the bill and answer, the answer must be taken to be true and cannot be controverted, and the allegations in the bill denied by the answer are taken as disproved.** And this is held unless the charge and discharge arise out of one transaction, in which case the defendant may state the whole transaction and it is all held respon- sive, and evidence in his favor. But perhaps this answer should he distin- guished from those which are held to charge and discharge the defend- ant, and that the latter are tnose only which, while admitting that the defendant was once liable to the charge set up in the bill, go to discharge him by some matter in avoidance. But here, although we think the answer admits facts enough, which, unexplained, prove the usury alleged, yet, if it avoids it at all, it does not do it on the hypothesis that the usury really once e.xisted, and is admitted and avoided, but by show- ing that it never did exist. And per- haps the phrase ' matter in avoid- ance,' as applied to an answer, relates only to such matter as avoids a con- ceded liability, and not to such as avoids the effect of facts admitted, which, if unexplained, might show the liability, but whicli, if explained, show that the liability never existed at all. So that a defendant, when answering a bill rliarging a Irans- action to havj been of a certain character, although compelled to ad- mit facts which would, alone, go lo show the charge true, may, neverthe- less, state other facts, which go to show that it really was of a different character, and be entitled to have the whole statement considered evi- dence for him." Cooper r. Tappen, 9 Wis. 3,«. 44. Responsive Evidence, Whether Negative or Affirmative. Farmers' & Meclianics' Bank ;•. Grif- fith, 2 Wis. 324; Canunack v. John- son, 2 N. J. Exj. 163 ; Hannah v. Car- rington. 18 Ark. 8^. 45. But Only Where Parol Evi- dence Competent. — Winn v. Albert, 2 Md. Cli. 169; Neale v. Hagthrop, 3 Bland (Md.) 551; Kent v. Car- caud, 17 Md. 291 ; Jones v. Slubey, 5 Har. & J. (Md.) 372; Carter v. Ben- nett, 6 Fla. 214; Forrest -•. Frazier, 2 Md. Ch. 14-; Trump r. Baltzell, 3 .M<1. 295. 46. Whitney Eq. 360. 47. Stevens ' 408; Brown 2Q4. 48. On Bill and Answer Latter . Robbins. 17 X. J. Post. 12 K. T. Eq. Bulklcy. 14 X. J. Eq. Vol. I ANSJVERS. 927 to be so where the answer is defective and not responsive to the bill.'*'' And where the answer is not jjositive, but on beHef.^" And Taken To Be True. —£)ig/(i»rf.— Bar- ker I'. Wyld, I Veni. Ch. 140. United States. — Leeds v. Marine Ins. Co. 2 Wheat. 380; In re. San- ford Fork & Tool Co., 160 U. S. 247, 16 Sup. Ct. 291; U. S. V. Scott, 3 Woods 334, 27 Fed. Cas. No. 16,242 ; U. S. V. Trans-Missouri F. ,\ss'n, 58 Fed. 58, 7 C. C. A. 15. Alabama. — Forrest t'. Robinson, 2 Ala. (N. S.) 215; Frazer v. Lee, 42 Ala. 25 ; White v. President etc. Florence Bridge Co., 4 Ala. (N. S.) 464. Illinois. — Kitchell v. Burgwin, 21 111. 40; Knapp z'. Gass, 63 111. 492; Mason v. McGirr, 28 111. 322. Io7i.'a. — State v. Jolly, 7 Iowa 15; Childs V. Horr, I Clarke 432. Maryland. — Ware v. Richardson, 3 Md. 505, 56 Am. Dec. 762 ; Mason V. Martin, 4 Md. 124; McKim 7'. Odom, 3 Bland 407 ; Coutee v. Daw- son, 2 Bland 264; Estep v. Watkins, 1 Bland 486 ; Eversole v. Maull, 50 Md. 95 ; Warren v. Twilley, 10 Md. 39- Massachusetts. — Taintcr i'. Clark, 5 Allen 66. Michigan. — Riihlig v. Wilgert, 49 Mich. 399. 13 N. W. 791. Mississifpi. — Russell v. Moffitt, 6 How. 303. Nc-M Jersey. — Hoff v. Burd, 17 N. J. Eq. 201. Nezi' York. — Brinkerhoff i'. Brown, 7 Johns. Ch. 217; Dale z'. McEvers, 2 Cow. 118. Ohio. — Gwin V. Sedlcy, 5 Ohio St. 97- Pennsylvania. — Russell's Appeal, 34 Pa. St. 258; Randolph's Appeal, 66 Pa. St. 178; Goodyear v. Peck (Pa. St.), 20 Atl. 693. Tennessee. — Martin v. Reese (Tenn.), 57 S. W. 419. I'cnnont. — Doolittle v. Gookin, 10 •Virginia. — Kennedy v. Baylor, i Wash. 162. West Virginia. — Copeland j'. Mc- Cue, 5 W. Va. 264. Wisconsin. — Walton v. Cody, I Wis. 364. " It is true, that when a cause proceeds to a hearing upon a bill and answer, the answer must be taken to be true in every particular. The reason for this rule is, that the com- plainant, failing to take issue by a replication, deprives the defendant of the opportunity to prove the matters set up in his answer. It is an admis- sion on his part, that he is content with the case as the bill and answer present it, and that he cannot deny, or does not seek to question or deny, any of the matters set up. But when the complainant puts in a replication, he thereby controverts all the facts contained in the answer. He com- pletes the issue between the parties. Then, as to all such matters as the complainant has addressed to the conscience of the defendant, the an- swer is evidence. It is evidence, as to such matters, because, and only because, the complainant has called the defendant as a witness to them. They are propounded by his bill. The answer responds to the bill, and so far is taken to be true." Walton V. Cody. I Wis. 364. 49. Even 'Where Not Responsive. De Wolf V. Long, 2 Gilm. (111.) 679; Perkins v. Nichols, II Allen (Mass.) 542 ; Doremus v. Cameron, 49 N. J. Eq. I, 22 Atl. 802; Huyck v. Bailey, 100 Mich. 223, 58 N. W. 1002. " If an answer is defective — if it is not responsive to the allegations of the bill, it should be excepted to. and on e.xception being allowed and the defendant ruled to put in a sufficient answer, on failing to comply, the bill is taken for confessed. If an answer is put in, no matter how defective, and there be no exceptions to it, and no replication, the cause is set down for hearing on hill and answer and exhibits, if any, and the answer is taken to be true, whether responsive to the bill or not." Kitchell v. Burg- win, 21 III. 40. 50. And on Belief — "Brinckcr- hoff V. Brown, 7 Johns. Ch. 217; Gates V. Adams, 24 'Vt. 70, Vol. I 928 ANSWERS. whether the answer is in denial or avoidance. '' And although it may be entirely improbable. '^- a. Statutory Moditjcatioii. — But a different rule prevails under statutory modifications in some of the states, it being held that the answer is taken to be true only so far as it is responsive to the bill.'*' b. Rule Applies Only to Pertinent Facts. — The rule that the answer is conclusive applies only to the facts alleged, and not to alleged intentions or motives,^* and to such matters only as are pertinent to the bill." c. Admission in Must Be Considered. — The admissions con- tained in the answer must also be considered, and they mav sustain the bill.''" d. ]Vhen Rule Applies. — The rule that the answer must be taken to be true applies only where the cause is set down for hearing, by order of the court, or by counsel, on the bill and answer, and not to a hearing on bill, answer and proofs.^" Therefore, if the defendant waives the filing of a replication, either expressly or by conduct amounting to such waiver, and the proof is taken, the rule does not apply."* 14. On Bill, Answer and Replication. — \\ here the case is submit- ted on the bill, answer and replication, the allegations of the bill, not controverted by the answer, and the allegations of the answer responsive to the bill, must be taken to be true, and all allegations of the answer not responsive to the bill, but in avoidance of it, tnust be taken as untrue."" 15. Effect of Calling for, Modified by Statute. — The rule that the 51. And Whether in Denial or 517; Keiffer v. Barney, 31 Ala. (N. Avoidance. — Atkinson v. Manks. i S.) 192. Cow. (N. Y.) 691. 54. Applies to Facts Alleged The reason given for holding that Only. — Belford v. Crane, 16 N. J. matters in avoidance must be taken Eq. 265. 84 Am. Dec. 155. to be true, is that by setting the case 55. And Matters Pertinent to the down on bill and answer the com- Bill. — Gunnell v. Bird, 10 Wall. 304. plainant deprives the defendant of 56. Admissions Must Be Con- the right to prove such matter, and S'dered. _ Lampley v. Weed, 27 Ala. he cannot, for that reason, be heard 621 ; Crawford v. Kirksey, 50 Ala. to sav that it is not true. Salmon 590- ... „ 7. Clageu, 3 Bland (Md.) 125; Bald- "• ^li*" ^^^^ Applies. - Cor- win V. Lee, 7 Ga. 186. bus ''■ Teed, 69 111. 205; Hengst s T -c 1 AT II TM 1 _ Appeal, 24 Pa. St. 413; Carman v. In Eversole v. Maull, so Md. 95, ,,r , , tt /m:,^\ ,,,. \\i^\ .1. , ■ » » J . u lu 1 »i, Watson. I How. ( AJ ss. ) 333 Wal- the rule is stated to be that the an- ; A . ,,,• ,^/ Vj"''.^. -. , , J J . • ton V. Cody, i Wis. 364 Forrest v. swer is to be considered as true in r> i,- ^ ai /-m c\ -,,.-. a,\;v,;.. J ., ,, .. ■ ■. 1 ■ 1 Robinson. 2 Ala. (N. b.) 215 White regard to al matters in it which are t-, j » . ci „ n-u™. susceptible of proof bv legitimate il' ^'T,^'" m^ ^^ «f ^ evidence. ' Co.._ 4 Ala. (N. S.). 464. To the same effect, Warren 58. Marple v. Scott, 41 111. 50; 10 me same eneci, warren v. Jordan 7'. Brunough, II Ark. 702. fwilley, 10 Md. 39- 59. Submitted on Bill, Answer 52. And Although Improbable. ^nd Replication, What Admitted. Booream v. Wells, 19 N. J. Eq. 87. u. S, v. Ferguson, 54 Fed. 28; Hop- 53. Under Statutes Must Be Re- kins v. McLaren, 4 Cow. 667, 8 N. Y. gponsive — Wynn v. Rosette, 66 Ala. C. L. 524. Vol. I ANSJFERS: 929 complainant, by requiring an answer inidcr oath, makes the answer evidence against him. whether he offers it in evidence or not, has been mocHfied bv statute in some of the states, where the doctrine has not lieen wholly overturned b\' enactment of the codes."" 16. Under Oath Waived, Incompetent for Defendant. — The answer, as we have seen, is made competent when made under oath, because such an answer is called for by the complainant, whereby he, in effect, makes the defendant a witness in the case. Therefore, if the coiuplainant, in his bill, waives an answer under oath, the reason for admitting the answer as evidence does not exist, and it is not competent evidence for the defendant even if made under oath."' A. W.MVKu Must 1!i; ix tiik Bill. — The waiver of the oath to be effectual, must be in the bill Ijefore answer, and cannot be made afterwaj'ds."- And must be unc|ualified.''"' But where a sworn answer has been interposed to the original ImII, the complainant mav, in an amended bill, waive an answer under oath to any new matter set up in the amended bill.''* But it has been held that the com- 60. Effect of Calling: for Answer on Oath Modified — Davis r. Crockett. 88 Md. 249. 41 Atl. 66; Manlev ■:: Mickle, 55 N, J. Eq. 563. 37 Atl. 738: Harrington i'. Harrington. 15 R. I. 341. .s Atl. 502; Brown z\ Knapp. 7 W. V^a. 678; Lowry v. BufSngton, 6 VV. Va. 24g ; Warren 1: Twillej-. 10 Md. 39: Taggart v. Boldin. 10" Md. 104; Mickle V.' Cross, 10 Md. 352. 61. Under Oath Waiver Not Com- petent for Defendant. — United Slates. — Hinitington i: Saunders, 120 U. S. 78. 7 Snp. Cl. .3.16; National etc. Co. J'. Interchangeable etc. Co.. 83 Fed. 26. Alabama. — Ooodloe 7'. Dean, 81 Ala. 470, 8 So. 197 ; Ladd f. Smith. 107 .\la. 506. 18 So. 19s : .Marks v. Cowles, 61 Ala. 299: Watts 7'. Eufania Nat. Bank, 76 Ala. 474; Rainey v. Rainey, 35 Ala. 282 ; Mos- ser V. Mosser, 29 Ala. 313. Georgia. — Iniboden i'. Etowah etc. Min. Co., 70 Ga. 86; Sims v. Ferrill. 45 Ga. 585 ; Woodward '■. Gates, 38 Ga. 205. Illinois. — James T. Hare Co. j'. Daily. 161 111. 379, 43 N. E. 1096; Wallwork f. Derby, 40 111. 527; Hop- kins V. Granger, 52 111. 504 ; Cham- bers V. Rowe. 36 111. 171 ; Willcn- borg V. Murphy, 36 111. 344; Adlard z: Adlard. 65 111. 212; Moore v. Hunter, i Gilm. 317; Patterson v. Scott, 142 111, 1,38, 31 N. E. 433- 59 Indiana. — Moore r. McClintock, 6 Ind. 209; Peck v. Hunter, 7 Ind. 295; Larsh V. Brown, 3 Ind. 234. Maine. — Peaks f. McAvey (Me.), 7 Atl. 270. Massaehnsetts. — Gcrrish 3 Gray 82. Ne'w Hamtishire. — Ayer 59 N. H. 279. Neiv Jersey. — Symmes 28 N. J. Eq. 131 ; Hyer z: N. J. Eq. 443 ; Walker Z' . Towne, . Mcsscr. . Strong. Little, 20 Hill. 21 N. J. Eq. 191 ; Sweet v. Parker, 22 N. J. Eq. 453- Nezv yor*. — Bartlett v. Gale, 4 Paige 503, 3 N. Y. Ch. 502 ; Lowry I'. Chautauqua Co. Bank, Clarke Ch. 67, 7 N. Y. Ch. 53. Rhode Island. — Harrington v. Har- rington, IS R. I. 341, 5 Atl. 502. Tennessee. — Lindsley ?■. James, 3 Cold. 477. Wiseonsin. — Flint v. Jones, 5 Wis. 424. 62. Waiver of Oath Must Be in the Bill. — Bingham v. Yoenians. 10 Cush. (Mass.) "58. 63. Must Be Unqualified — Wood- ward V. Gates. 38 Ga. 205. 64. Waiver as to New Matter in Amended Bill Jefferson v. Ken- nard, 77 111. 246. General Rule as to Effect of Waiver of Oath In Lindsley v. James, 3 Cold. (Tenn.) 477, the question was as to the effect of an Vol. I 930 AN SI VERS. plainant cannot, by waiving an answer under oath, take away tlie answer under oath where the oath was waived in the bill. It was there said: "Ordinarily, if the bill is for discovery of evidence, and the an- swer is directly responsive to the bill, the complainant is boimd by it, and no proof to sustain it is either req- uisite or necessary. Napier t. Elam, 6 Yer. 108-116. And this for the reason that the complainant, by seek- ing a discovery of the defendant, makes him a witness as to the facts sought to be disclosed, and cannot, because it is against him, object to the testimony. James v. Perry, 10 Yen 81 ; 2 Story's Eq. Jur., 1528. " This is the rule as established by repeated decisions in this state, when the answer is under oath ; but how is it when the oath is waived, and thereby loses its character as evidence? The Code, § 4317, de- clares: 'The plaintiff may, in his bill, waive an answer from the de- fendant, under oath ; in which case, the answer will be entitled to no more weight than the bill, as evi- dence.' " Language, it would seem, could not be clearer than the words of the statute; and all the difficulty that arises on the construction, grows out of the conflict of authorities, found in the books, in relation to the weight of an answer not under oatli. with- out reference to any existing statute. The answer of an individual not under oath, as the answer of a cor- poration under its common seal, seems, in our practice, only to create an issue in pleading, between the parties; and no decree without more, can be rendered, as to the issue thus created. Van Wyck v. Norvell, 2 Hum., 192-196; 2 Story's Eq. Jur., 1528. " True, the answer not under oath, as well as an answer regularly sworn to, either in a bill for discovery, or for general relief, may contain such admissions as would entitle the com- plainant to a decree; but if the oath is expressly waived by the bill, it cannot, even in a bill for discovery, and when the answer is directly re- sponsive tn the allegations in the bill, so far be treated as evidence, as to enable the defendant, without more, to a decree in his favor. Bartlett Z'. Green, 4 Page's R., 503 ; Fisher v. ^filler, 5 Page's R., 25." In Morris z'. Hoyt, 11 Mich. 9, the rule is thus stated : " The merits of the case depend mainly upon the facts admitted by the pleadings, no proofs having been taken except upon the reference after preliminary decree. The answer, being without oath, is but a pleading, and of no effect as mere evidence. So far as it admits the case made by the bill, as an admission in pleading, it re- lieves the complainant from proof; so far as it denies the facts, or con- troverts the case made by the bill, it puts the complainant to his proof. But so far as it alleges any new matter of avoidance, or any fact the burden of proving which would naturally rest upon the defendants, it is of no effect without proof. " It will be observed, the bill waives the oath of the defendant to his answer, yet notwithslanding, the defendant puts in a sworn answer, and claims the benefit of it, insisting that it must be overcome by the testimony of two witnesses. This is absurd, and it is very improper practice for the solicitor of a defend- ant, in a case where the oath is waived, to put in an answer under oath, a practice that ought to be rebuked. Waiving the oath, the an- swer becomes mere pleading, if put in under oath. However ' sharp ' the practice might have been supposed to be, by no possibility can the defend- ant derive any advantage from it; the answer still remains mere plead- ing. The testimony of the complain- ant was quite sufficient to establish the claim set up, and fully makes out the case stated in the bill." \Villen- borg V. Murphy, 36 111. 344. " In the present case the answer is not evidence, though sworn to, because, first, its denials, or the facts it alleges, are not within the knowl- edge, and are not averred so to be. of the parties who answer ; and be- cause, secondly, the bill prays an answer without oath. When this is done, the answer if sworn to is Vol. I ANSWERS. <)31 right of tlie defendant to verify his answer and tlnis make it evi- dence for himself."^ treated as if it were not. Stevens v. Post, I Beasley 408; Hyer z\ Little, 5 C. E. Green 443. The testimony of the complainant must be there- fore overruled." Sweet t'. Parker, 22 N. J. Eq. 453- 65. Authorities That Waiver Does Not Destroy Effective Answer as Evidence Armstrong r'. Scott, 3 G. Greene (Iowa) 433; Woodruff -'. Dubuque & S. C. R. Co.. 30 Fed. 91; White v. Hampton, 10 Iowa 238; Wliite V. Hampton, 9 Iowa 181 ; Amory v. Lawrence, 3 Cliff. 523, I Fed. Cas. No. 336 ; Clements v. Moore, 6 Wall. (U. S.) 299; Heath V. Erie Ry. Co., 8 Blatchf. 347, 11 Fed. Cas. No. 6306 ; Jones v. Ab- raham. 75 Va. 466 ; Thornton i'. Gor- don, 2 Rob. (Va.) 750; Fant v. Mil- ler, 17 Graft. (Va.) 187; Vanderzer V. McMillan, 28 Ga. 339. "The remaining question is as to the right of the orator to have the defendants Drexel, Morgan & Co., or the directors, prevented from voting upon the stock of others de- posited. It is urged for the orator that the transaction creates a trust for the corporation itself. Whether it does or not depends upon whether what is done in this behalf is done with corporate funds, for the cor- poration. The bill charges that it is so done. The answer denies this, and in this respect it is directly re- sponsive to the bill. By the law an answer so responsive is evidence which must be overcome by other evidence or stand. It is said that the orator waived an answer under oath, as the rules in equity provide may be done. This is not understood to take away the right to answer under oath, and, when a defendant does so answer, the effect of the an- swer as evidence would appear to rest upon the law of the subject, which the rules of court do not ap- pear to attempt to change. The an- swer must therefore, in this respect, for the purposes of this motion, be taken to be true." Woodruff v. Du- buque & S. C. R. Co., 30 Fed. 91. " Armstrong files a sworn answer, and it is now contended that inas- much as such answer was waived by the complainants, that it cannot be received as evidence. We do not so understand the law. The practice of waiving an answer under oath orig- inated in the state of New York^ l)y virtue of an express provision in the statute— wi'rf<7 N. Y. R. S., p. 175, § 44. This provision, Chancellor Walworth says, was incorporated in the revised statutes at his suggestion, and it introduced a new principle into the system of equitj- pleading. It was intended to leave it optional with the complainant to compel a discovery in aid of the suit, or to waive the oath of the defendant if the complainant was unwilling to rely upon his honesty, and chose to estab- lish his claim by other evidence. Burrus t. Looker, 4 Paige 227. Here is the origin of that practice whicli, we believe, has to some extent been adopted in our own state. It is purely statutory — an innovation upon long established chancery pleadings, and must be exclusively confined to those states that have adopted it by legis- lative enactment. It is not necessary, at this late period, to adduce reasons in support of the practice permitting the defendant to answer under oath, and such answer to be taken as tes- timony. We consider it a valuable feature in equity proceeding, and one that cannot be dispensed with without operating oppressively upon chancery defendants. Its antiquily, constituting as it does, one of the distinctive features between common law and chancery practice ; the pro- tection which it affords to those from whom discovery is sought; the only opportunity which it gives to purge the conscience; the continued acquiescence in such a practice, only interrupted by statute, are strong arguments in favor of its observance. We then lay down, as the settled doctrine, that a complainant cannot deprive a respondent from answering under oath. That notwithstanding such oath may be waived in the bill, yet he has a right to file a sworn answer, and such answer will be en- titled to the same weight as evi- Vol. I 932 AX SI VERS. B. Competent ix Stpport of Motion to Dissot.\'e Injunction. And the answer, if verified, is competent evidence in support of a motion to dissolve an injunction, althouoh answer tuider oath is waived.'^" 17. Not Verified. Not Competent for Defendant. — Tlie answer to be competent as evidence for llie defendant, must be verified. If not, it serves only to put the allegations of the bill in issue."' dence. as though the complainant called for an answer nnder oath. But admitting the answer of Arm- strong as testimony, there is still sufficient evidence to justify the decree." Armstrong v. Scott, 3 G. Greene (Iowa) 433. 66. Although Oath Waived Com- petent to Support Motion to Dissolve. Walker r. Hill, Ji X. J. Kc|. 191 ; Woodruff 7'. Dubuque etc. R. Co., 30 Fed. 91 ; Lockhart v. City of Troy, 48 Ala. 579; Gelston v. Rullman, 15 l\Id. 260; Dorsey v. Hagerstown Bank, 17 ?ild. 408: Ilubliard z: Mobray, 20 i\ld. 165. 67. Incompetent When Not Under Oath. — United Slates. — Union Bank V. Geary, 5 Pet. 99 ; Whittemorc -•. Patten, 81 Fed. 527. Alabama. — Buchanan v. Buchanan, 72 Ala. 55 ; Guthrie v. Quinn, 43 Ala. (N. S.) 561; Zelnicker v. Brigham, 74 Ala. 598. Illinois. — Hopkins '•. Granger, 52 111. 504; Jones ?■. Neely, 72 III. 449; \\'illis f. Henderson, 4 Scam. 13, 38 Am. Dec. 120: Harris z\ Rcece, 5 Gilm. 212. Marvland. — Dorn j'. Bayer, 16 !\Id. 144. Michigan. — Morris v. Hoyt, 11 Mich. 9; Adair v. Cummin, 48 Mich. 375, 12 N. W. 495. Neiv Hampshire. — Wilson v. Tovvle, 36 N. H. 129. Neu' York. — Miller v. Avery, 2 Barb. Ch. 582. Tennessee. — Dunlap v. Haynes, 4 Heisk. 476. Wisconsin. — Smitli ?'. Potter, 3 Wis. 384; Flint r. Jones, 5 Wis. 424. In Harris v. Reece, 5 Gilm. (Ill) 212, and in Willis f. Henderson, 4 Scam. (111.) 13, 38 .^m. Doc. 120, the rule is thus staled : " An answer put in without oath is not for any purpose evidence in the cause but performs the office of a pleading only." Vol. I Under the revised code of ."Mabama it was said by the supreme court of that state, in Guthrie v. Quinn, 43 Ala. 562 : " The answer of the de- fendant Lewis in the court below, is put in without oath. This takes from it the force that it otherwise would have been entitled to as evidence in the cause on behalf of the de- fendant. In such case it merely puts the cause at issue and is of no more weight as evidence than the bill. Rev. Code, § 3328: Rainey 7: Rainey, 35 Ala. 282. Then it did not require the testimony of two witnesses to overturn the answer and deposition of Lewis." Again, in Lockhart v. City of Troy, 48 Ala. 579, the court say: " The statements of the bill, upon which its equity is presumed to rest, are directly denied by the answers. But it is contended, that as these denials are made in answers made without the support of a verification by oath, they ought not to be per- mitted to overturn the allegations of the bill, which is a sworn bill, tjut the complainants waive any oath to the answers, yet require them to be made and put in. upon the penalty of admitting the bill to be true, upon decree pro confcsso. Tliis is a priv- ilege in favor of the complainants, which they can avail themselves of or not, as they choose. It takes from the answers their potency as evidence, and dispenses with the ne- cessity, which would otherwise existj of requiring two witnesses to over- turn them. Rev. Code, 5 3328. If, then, the complainants elect to waive the answers being made upon oath, it should not prejudice the defend- ant's rights beyond the limitation of the statute; that is, it leaves the answers in every other respect suffi- cient, except as testimony. Such un- sworn answers are ' entitled to no more weight as evidence tlian the ANSIJ-ERS. 933 18. Verified by One Not Having- Knowledge. — The answer must not unly be positive, but it nuist be verified h\- one bavins- knowledge of tbe facts to render it competent as evidence for the defendant."' bill.' It does not destroy its effect as a denial of tiie complainant's case. To treat them otherwise, would be to go beyond the purpose of the statute, and put it in the power of the com- plainants to use a privilege granted to them as a serious injury to the defendant beyond the purpose of the law. This would be neither equity nor justice, which is su))posed to prevail in all the proceedings in a court of chancery. 1 therefore think that answers, the oath to which is waived by the complainants, must be treated as answers on oatli, on motion to dissolve an injunction." See also Zelnicker r. Brigham, 74 Ala. 598 : " We encounter a fatal objection to this decree at the very threshold to the case. The right of the complainants to invoke the inter- ference of a court of equity depends on the truth of the allegations in the bill, that they are the heirs at law of Thomas Botkin, deceased. This averment is denied by the answer. There is not a particle of proof to sustain it. Any further investigation of the cause would be profitless. It will be in time to do that when the complainants show a right to demand it. The fact that the bill dispenses with the oaths of the defendants to their answers does not relieve the complainants. It was still incum- bent on them to sustain by proof the allegations of the bill put in issue by the answer. The answer in such case only ceases to be evidence for the defendants, it still puts in issue the averments of the bill, and throws on the complainants the burden of proving them to be true. The only difference is as to the amount of the proof necessary to do this. The same amount of evidence, which would sustain the material averments of a declaration when denied by a plea, would be sufficient." 68. Answer Without Knowledge Not Evidence — i'uilcd Slates.— Car- penter v. Providence etc. Ins. Co., 4 How. 185; Dutilh I'. Coursault, 5 Cranch C. C. 349, 8 Fed. Cas. No. 4206; Brown r. Pierce, 7 Wall. 205. .Ilabanui. — Waters v. Creagh, 4 Stew. & P. 410; Garrow v. Carpen- ter, I Port. 359; Gibbs r. Frost, 4 .\\a. 720 ; Godwin '<■. Young. 22 Ala. 553- Arkansas. — Fairhurst 7\ Lewis, 23 Ark. 435; Biscoe v. Coulter. 18 Ark. +23. Delaware. — Lattomus i'. Garman, 3 Del. Ch. 232. Illinois. — Fryrear v. Lawrence. 5 Gilm. 325. Indiana. — State v. Holloway, 8 Blackf. 45 ; Townsend v. Mcintosh, 14 Ind. 57. Kentucky. — Young z'. Hopkins, 6 T. B. Mon. 19; Combs i'. Boswell, I Dana 473 ; Harlan r. Wingate, 2 J. J. Marsh. 139; Williamson v. Mc- Connell, 4 Dana 454. Maryland. — Dugan z'. Gittings, 3 Gill 138, 43 Am. Dec. 306; Perming- ton z: Gittings, 2 Gill & J. 208. Nezv Jersey. — Lawrence z'. Law- rence, 21 N. J. Eq. 317; Sweet z: Parker, 22 N. J. Eq. 453. rerniont. — Loomis v. Fay, 24 Vt. 240 ; Wooley z'. Chamberlain, 24 \'t. 270. I'irginia. — Tabbs z'. Cabell, 17 Gratt. 160 ; Jones %•. .A.braham, 75 \'a. 466. " While we are not disposed to controvert the existence of the gen- eral rule, that one witness alone, however positive, cannot overturn the denial of a defendant, as to a fact resting within his knowledge, we are not disposed to admit that it can, in this case, bring out the appellees. The answers, of the assignee on this point, cannot be relied on for that purpose. They have no knowledge of the facts, and therefore their answ-ers cannot be taken as doing more than putting the fact in issue ; than asserting their ignorance, and requiring proof. Any satisfactory testimony, therefore, must be held sufficient to establish the fact against such answers. The answer of Hop- kms must, therefore, contain the denial relied on, and the rule will not support it." Young z: Hopkins, 6 T. B. Mon. (Ky.) 19. Vol. I 934 ANSIFURS. 19. Must Be Verified by Defendant. — If the answer is called for under oalh liy the bill, necessaril}- it must be sworn to by the defend- ant to bring- it within the rule that the answer must be true unless overcome by the required evidence to the contrary."" 20. On Belief, or Information and Belief. — An answer on mere belief, or on information and belief, is not such an answer as will stand as evidence for the defendant, but merely raises an issue that casts the burden of proof on the complainant, and the rule that the answer must be disproved by more than one witness does not apply.^" In some of the cases the fact that the answer is made on belief, or without knowledge, is treated as going to the weight and not to the competency of the answer." 69. McGuffic r. Planters' Rank, i Freem. Ch. (Miss.) 383. 70. On Information and Belief, Not Evidence. — United States. Lake Shore etc. R. Co. v. Felton, 103 Fed. 227, 43 C. C. A. 189; Han- chett V. Blair, 100 Fed. 817, 41 C. C. A. 76; Brown v. Pierce, 7 Wall. 205 ; Berry v. Sawyer, 19 Fed. 286 ; Slater v. Ma.xwell, 6 Wall. 268; Robinson i'. MandcU, 3 Cliff. 169, 20 Fed. Cas. No. 11,959; Holladay Case, 27 Fed. 830. Alabama. — Newman v. Newman, 12 Ala. 29; Paulding ?'. Watson, 21 .\la. 279; Pearcc t. Nix, 34 Ala. 183. Arkansas. — ^^ atson t". Palmer. 5 Ark. SOI. Georgia. — Arlinc v. Aliller, 22 Ga. 330. Illinois. — Deimel t'. Brown, 35 111. App. 303 ; Cunningham %'. Ferry, 74 111. 426. Kentucky. — Price ?'. Boswell, 3 B. Mon. 13 ; Whittington v. Roberts, 4 T. B. Mon. 173. Maryland. — Philadelphia Trust etc. Co. z'. Scott, 45 Md. 451 ; Dorsey v. Gassaway, 2 Har. & J. 402, 3 Am. Dec. 557; Doub ?■. Barnes, i Md. Ch. 127. Massachusetts. — Copeland v. Cran.-, 9 Pick. 73 ; Buttrick v. Holden, 13 Mete. 355- Mississippi. — McGuffie v. Planters' Bank, I Freem. Ch. 383 ; Toulmc ;•. Clark, 64 Miss. 471 ; Carpenter r. Edwards, 64 Miss. 595 ; Snell v. Fewell, 64 Miss. 655. New York. — Town v. Needham, 3 Paige Ch. 54S> 3 N. Y. Ch. 268, 24 Am. Dec. 246; Dunham i: Gales, I Hoff. 184, 6 N. Y. Ch. mo; Knic- Vol. I kerbacker f. Harris, I Paige Ch. 209. 2 N. Y. Ch. 207. Rhode Island. — Athnuc F. & ^I. Ins. Co. V. Wilson, 5 R. I. 479. Tennessee. — McLard f. Linnvillc, 29 Tenn. 163; McKissick v. Martin, 12 Heisk. 311; Wilkins v. May, 3 Head 173. Vermont. — Wooley v. Chamber- lain, 24 Vt. 270. 71. In Some Cases Treated as Going to Weight of Answer. Clark V. Van Riemsdyk, 9 Cranch 153; Purvis V. Woodward (ISIiss.) 29 So. 917; Copeland v. Crane, 9 Pick. (Mass.) 73; Gamble v. John- son, 9 Mo. 60s ; Allan v. O'Donald, 28 Fed. 17 ; Givens v. Tidmore, 8 Ala. JN. S.) 745- " The weight of an answer must also, from the nature of evidence, depend, in some degree, on the fact stated. If a defendant asserts a fact which is not and cannot be within his own knowledge, the nature of his testimony cannot be changed by the positiveness of his assertion. The strength of his belief may have be- trayed him into a mode of expression of which he was not fully apprised. When he intended to utter only a strong conviction of the existence of a particular fact, or what he deemed an infallible deduction from facts which were known to him, he may assert that belief or that deduction in terms which convey the idea of his knowing the fact itself. Thus, when the executors say that John Inncs Clark never gave Benjamin Munro authority to take up money or to draw bills, when they assert that Riemsdyk, who was in Batavia, did not take this bill on the credit ANSIVEKS. 935 21. Of Corporation Sworn to by Oificer. — The rule thai a sworn answer must be overcome by evidence greater in weight than that of one witness, apphes to the answer of a corporation sworn to by one of its officers on his personal knowledge.'- Hut it has been of the owners of the Patterson, but (in the sole credit of Benjamin Munro, they assert facts which can- not be within their own "knowledge. In the first instance they speak from hehef: in the last they swear to a deduction which they make from the admitted fact that IS'hmro could show no written authority. These traits in the character of testimony must be perceived by the court, and must be allowed their due weight, whether the evidence be given in the form of an answer or a deposition. The respondents could found their as- sertions only on belief ; they ought so to have expressed themselves ; and their having, perhaps in- cautiously, used terms indicating a knowledge of what in the nature of things they could not know, cannot give to their answer more effect than it would have been entitled to, had they been more circumspect in their language." Clark's E-xecutors .'. \'an Riemsdyk, 9 Cranch 15,^ 72. Effect of Verification by Officer of Corporation. — Kane v. Scluiylkill Fire Ins. Co. (Pa. St.), 48 Atl. 989; Lindsley Z'. James, 3 Cold. (Tenn.) 477. " The important question in this case, by which all the others are more or less affected, is whether an a;iswer in equity of a corporation, sworn to by an officer on his per- sonal knowdedge, is entitled to the benefit of the equity rule that a responsiv'e answer is evidence only to be overcome by the testimon}' of two witnesses, or of one witness with corroborating circumstances, or whether it is to be regarded as mere pleading. The precise origin of the rule has been the subject of differ- ence of opinion among text writers, as is shown by the learned referee in this case. But the reason for it is fairly apparent. Cases in equity are those in which the law affords no adequate remedy. They are therefore exceptional, and. before a party should be granted exceptional and extralegal relief, his case should be estabhshed clearly. In issues at law all cases are clear in theory. If there is witness against witness and oath against oath, the jury decides which to believe, and finds a verdict for one party or the other. There is no room for doubt. But in equity, if there is oath against oath, or- dinarily on paper, by depositions or testimony before an examiner, the matter as the early expression was, is in equilibrio, and there is no clear case for the chancellor to act upon. The complainant, having the burden of proof, must fail. But, whatever its origin, the rule is settled, and is a part of universal equity practice. The respondent is brought into court without his consent, and put to com- pulsory answer and disclosure of his knowledge on the subject of the suit for the benefit of his adversary. By the action of the plaintiff the tes- timony of defendant is thus made evidence, and it is only proper and just that, if the plaintiff does not find it all in his favor, he should be required to overcome it by a prepon- derance of evidence to the contrary. No sufScient reason has been pre- sented ■why a corporation should not be entitled to the protection of the rule. It is said that a corporation cannot answer under oath, but only under seal. This is conceded, but it is purely technical. A corporation can only act through the persons of its officers or other agents. Its cor- porate seal is not action, but only evidence of action by the proper offi- cers. When, therefore, to the answer under seal there is added the oath of an officer on his own knowledge, the wdiole becomes a corporate act, with all the advantages to the plaintiff of compulsory disclosure of the truth which he would have had in a suit against an individual, and he should take such advantages in the same manner cton oncrc. The point has not been much discussed in Penn- sylvania, but the opinion of this court was indicated by the late Chief Jus- tice Sterrctt in Riegel v. Insurance Vol. I 936 ANSJJ'ERS. held tliat a verification by an officer does not meet the requirements of the rule for the reason that such officer is not a party defendant.'-' And that the proper officer may be made a party for the purpose of enforcinj^ discovery 1iy him imder oath.''' 22. Of Corporation Under Seal. — The use of its seal by a corpora- tion will not take the place of an oath, and an answer under seal, without verification, is not competent evidence for the defendant.'^ Co., 153 Pa. 134, 143, 25 Atl. 1070; and in Waller f. Coal Co., 191 Pa. 193, 202, 203, 43 .Vll. 235, an express ruling in accordance with our pres- ent views was made by the court below, and necessarily by this court in affirming the decree on his opin- ion. The learned referee was of opinion that ' the very great weight of American authority is contrary to the view ' of appellant, but the au- thorities do not sustain him. If we take out of the list of citations those which deal with answers under cor- porate seal only, there is no unifor- mity shown ; and in the weightiest authority, the supreme court of the United States, the practice is settled in accordance with our views. Car- penter V. Insurance Co., 4 How. 219, II L. Ed. 931. We are therefore of opinion that the ruling of the referee was erroneous, and the tenth assign- ment must be sustained." Kane v. SchuylUill Fire Ins. Co. (Pa.). 48 All. 980. 73. Officer Not Party, Oath In- sufficient. — Van Wyck z: Norvell, 2 Humph. (Tenn.) 192. " It is insisted, however, that the facts hereinbefore stated, are proved only by one witness ; and that as the answer contains a direct denial of them, there should be two witnesses, or corroborating circumstances, in ad- dition to Norvell's testimony. This rule, has no application to a case like the present. The defendant here is a corporation. It answers by its corporate seal. It cannot swear to the answer, so as to oppose the oath of the defendant, to the oath of one witness, and thereby create the rea- son for two witnesses. Its answer does no more, therefore, than to create an issue in pleading between the parties. 6 Paige's Rep. 54. But it is said, the cashier of the bank has sworn to the answer. It may be replied, the cashier is no party to Vol. I this suit. He is an entire stranger to the proceeding; as much so as he would be to a suit between two of his neighbors, the facts in relation to which he might happen to know. His affidavit in such a case, would have just as much efficacy as it can have in this case." Van Wyck v. Norvell, 2 Humph. (Tenn.) 192. 74. Officer May Be Made Party to Enforce Answer Under Oath. Lindsley v. James, 3 Cold. (Tenn.) 477; Smith V. St. Louis L. Ins. Co., 2 Tenn. Ch. 599. " Admitting that the bill had been properly framed as a bill of discovery, were the defendants, John D. James and the bank, bound to answer? The discovery is sought, and the answer of the defendants, under oath, ex- pressly waived. The bank, as a cor- poration, cannot answer, e.^ccept under its corporation seal ; and a disclosure, under the common seal of the cor- poration, however false, would sub- ject the corporation to no punish- ment ; and it would, therefore, of course, answer nothing to its prej- udice. To av( id this difficulty, when it is necessary to obtain a disclosure from a corporation, it seems to be allowable to make a principal officer or agent of the corporation, a party, so far as the bill seeks for dis- covery ; and that may be done, al- though such officer or agent, has no individual interest in the suit, and no relief can be had against him. I Dan. Ch. Pr., 180, 181. note i; Story's Eq. PL. § 235: 2 Story's Eq. Jur., §§ 1500. 1501." Lindsley T. James. 3 Cold. (Tenn.) 477. 75. Answer of Corporation Under Seal Not Competent Evidence. England. — Wych z: Meal, 3 P. Wms. 310. United States. — Union Bank i'. Geary, 5 Pet. 99. .Alabama. — Griffin ;■. State Bank. 17 Ala. 258. ANSJJ'ERS. 937 But it is sufficient to raise an issue and put the plaintiff to the proof.'" 23. When Competent in Favor of Co-Defendant. — Tlie answer of one defendant is siinietinies held eonii)etent evidence for a co- defendant where it is responsive to the interrogatories in the bill, but not otherwise.' ' Uut it is declared to be the general rule that the answer of one defendant is not competent evidence for his co- defendant.'" If, however, the defendants are jointlv liable and the Marylaiul. — Maryland etc. Co. i'. Wingert, 8 Q\\\ 170; Bouldin v. Mayor etc. of Baltimore, 15 Md. 18; Farmers' and M. Bank '■. Nelson, 12 ild. 35. , Ncii< y ork. — Lovett r. Steam Saw Mill Ass'n. 6 Paige 54, 3 N. Y. Ch. 896. Tennessee. — Lindsley z'. James, 3 Cold. 477 ; Van Wyck v. Norvell, 2 Humph. 192 ; Smith %■. St. Louis Mut. L. Ins. Co., 2 Tenn. Ch. 599. Virginia. — Baltimore & O. R. Co. V. City of Wheeling, 13 Graft. 40. But see to the contrary, Hogan v. Branch Bank, 10 Ala. 485 ; Haight v. Morris Aqueduct, 4 Wash. C. C. 601, II Fed. Cas. No. 5902. 76. But Sufficient to Raise an Issue. — Smith v. St. Louis j\Iul. Ins. Co.. 2 Tenn. Ch. 599 ; Fulton Bank v. New York etc. Canal Co., i Paige Ch. 311, 2 N. Y. Ch. 659. '■ There are other circumstances which go very far to take this case out of the application of the rule which requires corroborating evi- dence to support the testimony of a single witness against the answer. This is an injunction bill, filed upon the oath of the complainant. An an- swer in all cases, according to the course and practice of courts of chancery, must be sworn to unless dispensed with by order of the court under special circumstances. In the present case, the answer being by a corporation, it is put in under their common seal, unaccompanied by an oath. And although the reason of the rule, which requires two wit- nesses, or circumstances to cor- roborate the testimony of one, to out- weigh the answer, may be founded in a great measure upon the con- sideration that the complainant makes the answer evidence by calling for it : yet this is in reference to the ordinary practice of the court, re- quiring the answer to be on oath, but the weight of such answer is very much lessened, if not entirely de- stroyed as matter of evidence, when unaccompanied by an oath ; and in- deed we are inclined to adopt it as a general rule, that an answer not under oath is to be considered merely as a denial of the allegations in the bill, analogous to the general issue at law, so as to put the complainant to the proof of such allegations." L'nion Bank z\ Geary, 5 Pet. 99. 77. When Competent in Favor of Co-Defendant. — Pclaz.-are. — Pleas- anton v. Raughley, 3 Del. Ch. 124. Georgia. — Ligon z\ Rogers, 12 Ga. 281. Marxland. — Powles v. Dillev, g Gill 222. Massachusetts. — Mills r. Gore, 20 Pick. 28. Mississipj'i. — Salmon -■. Smith, 58 Miss. 399. iVfti.' Jersey. — Hoff v. Burd, 17 N. J. Eq. 201. Tennessee. — Davis v. Clayton. 5 Humph. 44^; McDaniel v. Goodall, 2 Cold. 3pi. ' ■Vennont. — Cannon v. Norton, 14 Vt. 17S. 78. General Rule Against Com- petency. — Gilmore v. Patterson, 36 Me. 544; Cannon !■. Norton, 14 Vt. 178; Blodgett v. Hobart, 18 Vt. 414: Lenox V. Notrebe, Hempst. 2^1, 15 Fed. Cas. No. 8246c; Carr v. Weld, 19 N. J. Eq. 319; Morris 7'. Ni.xon, I How. (U. S.) 118. .-Vs to the general question whether an answer of one defendant is com- petent evidence in favor of another defendant, see Dunn v. Graham, 17 .^rk. 60. in which it is said: "It is perfectly clear, that had Varn's an- swer been the opposite of what it was, it could never have been read by the complainants against Graham, unless, in connection with other tes- Vol. I 938 ANSIVERS. answer of one defendant defeats the action as to liim. it necessarily has the effect to defeat it as to his co-defendant, wlio can only be timony establishing — not a com- munity of interest merely, like that of tenants in common — but such an absolute unity and identity of in- terest and design between Graham and Yarn, by means of the fraud charged against them in the bill, as, under the ordinary rules of law, would have made the acts or admis- sions of either the acts or admissions of the other — like the acts or admis- sions of co-partners, or joint tenants, having a complete unity of title and interest, or of co-con- spirators identified in common design. !And this, because of the establislied xule, no longer open to question, Jthat the answer of one defendant can- iiot be read in evidence against his co-defendant, unless he refers to such answer as correct, or is so combined and identified with the answering defendant, as to be bound, under the ordinary rules of law, by his con- fessions, declarations and admissions. Blakeny v. Ferguson ct al, 14 Ark. 641, and cases there cited. " But although that proposition is perfectly clear, it is equally clear, that Graham could not, nevertheless, insist that that answer should enure to his benefit by way of a legitimate operation, against the complainants. " The adjudged cases, favoring the aflirmative of the proposition, so far as they have come under our ob- servation, do not go the length of holding that in every case, where the responsive answer of the responding defendant goes to destroy the foun- dation of the case made in the bill, it shall enure to the benefit of the co-defendant, by operating as evi- dence against the complainant in the whole case; but the reasoning, upon which these adjudged cases are based, and by which they are sup- ported, does seem to go that far. They are, so far as we have seen case's, where the defendant, protected in this wise, was either claiming under the responding defendant, as in the case of Field ct al. v. Holland ct al. 6 Cranch Rep. 8-24: and sec, also. Judge Baldwin's exposition of that case' in Pettit v. Jennings, 2 Robinson's (Va. Rep. 581) ; or else- where lie occupied the attitude of a stake-holder for the complainant and his co-defendant, as in the case of Mills V. Gore, 20 Pick. Rep. 35. See, also, Greenl. Ev.. vol. 3. § 28.3. p. 269. " The reasoning, in support of the ruling in both of these classes of cases, is to the effect, that the com- plainant, having called upon the responding defendant for discovery, as to the whole case made in his bill, has thereby made him a credible witness against himself, as to his whole case; having interrogated him only as he desired ; upon allegations framed in the manner most favorable to his own interest, and obtained the discovery sought, by searching and leading questions, the response has been obtained under the most favor- able auspices for the complainant; and that the response, thus obtained, is not, as against the complainant, obnoxious to the objection for want of cross-examination, as it would be, if allowed to be used against a co-defendant. Hence it was sup- posed not unfair to hold in these cases, that it should not lay in the mouth of the complainant — when the response thus obtained went to de- stroy the foundation of the case made in his bill, to say it was not evi- dence against himself on the whole case made by his bill; in imperfect analogy to the rule, which holds a party to the answer of his own wit- ness, who unexpectedly testifies the very opposite of what he anticipated. " The argument to the contrary is, that the answer to a petition for discovery, stands as a deposition, and is not evidence, for any purpose, vmtil read by the party obtaining it, who may read it. or not. at his election. ' Comvay & Reyburn v. Turner & Woodruff. 3 Eng. Rep. 362, and cases there cited. But con- ceding this to be so, do the reasons, which sustain the rule, apply with full force, when the bill is not only for discovery, but also for relief consequent thereon ; and that, too, in some one aspect of the bill, against all the defendants therein?" Vol. I ANSJVERS. 939 liable with the defendant answering. So, in such case, the answer of one defendant goes to the relief of the other, and in that sense is evidence in his favor. ''■' 24. Execution of Instrument Not Proved. — A written instrument ma}- be referred to and attached to the answer, but this does not amount to proof of its execution.*" 25. When Not Evidence on Appeal. — If the court below finds the answer to be untrue, it is no evidence of the facts relied upon on behalf of the defendant in the appellate court on the hearing on appeal.*^ 79. When Answer of One Defeats Joint Cause of Action. — McDaniel V. Goodall, 2 told. (Tenn.) 391; Clierry v. Clements, 29 Humph. (Tenn.) 551 ; Hartley v. Mathews, 96 .\la. 224, II So. 452. 80. Execution of Instrument Not Proved By. _ Shcpard v. Shepard, 36 Mich. 173. 81. Callender z: Colegrove, 17 Conn. I. APPEAL.— See Appeal Bonds. Vol. I APPEAL BONDS. I. THE BOND, 940 I. E.YCciition, 940 II. PRESUMPTIONS, 940 1. Authority to Execute, 940 2. Delivery, 941 3. Filing and Approivl, 941 4. Justification, 941 * 5. Jl'aiz'cr of Objection, 941 III. THE APPEAL, 942 1. Taking of Appeal, 942 2. Affirmance of Appeal, 942 3. Remittitur. 942 IV. COSTS AND DAMAGES, 942 CROSS-REFERENCES. I'onds ; Estoppel ; Judgments ; Principal and Surety; Records. I. THE BOND. 1. Execution. — A recital in the liill of exceptions is incompetent to prove the execution,^ but in case of loss of the bond, the obligor's signature thereto may be proved by secondary evidence, either written or oral.- II. PRESUMPTIONS. 1. Authority to Execute. — Authority to execute an appeal bond regular on its face will be presumed from its acceptance and approval, whether executed by an agent.'' or by an attorney.* or a suretyship corporation.^ 1. Hydraulic Co. z'. ZepiK-nfcld, g 40 Miss. 500; Belew -'. Jones, 56 Mo. App. 595. Miss. 592; Union Co. v. Bank, 2 2. Cincinnati Ins. Co. v. Harrison, p^j^ ^^^^ 25 La. Ann. i; Commercial Bank v. ' ' ~', ^ ,,. ,,, , Harrison, 24 La. Ann. 361. *• Sullivan r. Dolhns, 11 111. 16. 3. Lindner v. Aaron. 5 How. 5. Gutzeil v. Pcnnie, 95 Cal. 598, (Miss.) 581; Robertson v. Johnson, 30 Pac. 836. Vol. I APPEAL BONDS. 941 2. Delivery. — The filing of an appeal bond with the clerk of the court," or his ol^cial indorsement thereon, when authorized to receive the same, is competent evidence of its delivery.' Bond As Evidence. — The jjroduction of the ajjpeal bond itself in an action thereon is prima facie evidence of proper delivery.'* 3. Filing and Approval. — That an appeal bond was filed within time, is presumed from evidence of its acceptance and api)roval." though the date of approval is shown onlv b\- that of filing,'" or by that of tlie bond.'' Due Filing. — Due filing of the bond will be presumed from evi- dence of its presence in the transcript.'- if it it also approved.^'' Oral evidence is admissible to prove the filing and approval of an appeal bond,'* and the records in the case are also proper evidence.'^ Approval. — The approval of an aj^peal bond is established as a prima facii; presumption by evidence of its filing,"' or of its accept- ance," or of both,"* or of its presence in and as a part of the transcript,^" or of affirmation of judgment on appeal,-" or bv signing the citation and witnessing the bond by the court o i/i/o.-' 4. Justification. — Justification of sureties on an appeal bond ma\- be presumed from evidence of the filing. -'- 5. Waiver of Objection. — Waiver of objection to an appeal bond on the grountl of its insufficiency will be ]3resumed, in absence of proof to the contrary, where it is shown to be filed and approved,-^ as will the objection to its filing beyond the time limit. -^ Giimore (Colo. App.), 6. Dore z\ Covey, 13 Cal. 502; Holmes v. Ohm, 23 Cal. 268. 7. Byers f. Gilmore (Colo. App.), 50 Pac. 370. 8. Byers i 50 Pac. 370. 9. Carroll v. City of Jacksonville, 2 111. App. 481 ; McLanc v. Russell. 29 Tex, 127. 10. Robinson t'. Chadwick, 22 Ohio 527. 11. Evans -■. Pigg, 28 Tex. 586. 12. Evans v. Pigg. 28 Tex. 586. 13. McLanc v. Russell, 29 Tex. 127. 14. Woodliurn 7'. Fleming. i Blackf. (Ind.) 4; Miller f. O'Reilly. 84 Ind. 168; McCrory v. Anderson. 103 Ind. 12. 2 N. E. 211 ; Carothers I'. Wheeler, i Or. 94. 15. Hartley i'. Cole, 120 Ind. 247. 22 N. E. 130. 16. Robinson 7'. Cnadwick. 22 Ohio 527 ; Rawson ■:■. Dofncr. 143 Mass. '76, 8 N. E. 892 ; Keene r. Whittington, 40 Md. 489 : Clapp i'. Freeman. 16 R. T. 344, t6 .^tl. 207. 17. Marshall ?•. Crooni. =;o .Ma. 479; Williams f. iMcConico, 25 Ala. 538. 18. Hanaw v. Bailey. 83 Mich. 24. 46 N. W. 1039; McCloskey v. Indianapolis Union, 87 Ind. 20; Asch f. Wiley. 16 Neb. 41, 20 N. W. 21. 19. Ohio R. Co. r. Hardy, 64 Ind. 454: Evans r. Pigg. 28 Tex. 586; i\IcLane v. Russell. 29 Tex. 127; Rogers ?■. Ferguson. 32 Tex. 533; Lacy 7'. Fairman, 7 Blackf. (Ind.) 558; Jenkins r. Emery, 2 Wyo. 58. 20. Courson z-. Browning, 78 111. 208. 21. Davidson t. Lanier, 4 Wall. 447- 22. Keene 7'. Whittington, 40 Md. 489. Waiver of justification of sureties may be presumed from evidence of the bond being found in the case prepared and adopted by the court a quo. Gruber 7'. Washington R. Co., 92 N. C. I ; Moring 7-. Little. 95 N. C. 87. 23. Hancock 7'. Bramlett. 85 N. C. 303 : Dore 7'. Covey, 13 Cal. 502. 24. Taliaferro 7'. Herring, 29 Vol. I 942 APPEAL BONDS. III. THE APPEAL. 1. Taking of Appeal. — In establishing the fact of an appeal taken, the bond itself is not competent evidence, except so far as its recitals may explain an ambiguity in the record, such as deter- mining which of the parties appealed,-^ or the omission to enter the prayer and grant of appeal,-" or to what court the appeal was prayed.-' 2. Affirmance of Appeal. — A properly certified transcript of the record or order affirming the judgment from which an appeal is taken, or the record itself, is competent evidence of affirmance, in an action on the appeal bond.-* 3. Remittitur. — The order of the appellate court aflirming the decree or judgment from which the appeal was taken is conclusive evidence to establish the regularity of the appeal,-" and is held prima facie evidence that the decree affirmed was the one appealed from.^" IV. COSTS AND DAMAGES. Appeal bonds being intended to secure the appellee from all costs and damages consequent on the failure to sustain appellant's plea, the nature and extent of such costs and damages must be proved. ^"^ Julin, 13 Tenn. (5 Howard, 10 Tenii. Tenn. (10 Humph.) 271; Singer Co, I'. Barrett, 94 N. C. 219. 25. Cooly Yerg.) 439. 26. Lawler (Meigs) IS. 27. Rogers v. Cochran, 11 Tenn. (3 Yerg.) 311. But in Hydraulic Co. i'. Neumeis- ter, 15 Mo. App. 592, it was held that the fihng of the bond and the clerk's indorsement thereon were evidence of the talcing of an appeal. 28. Grashaw v. Wilson (Mich.), 82 N. W. 73; Miller v. Vaughan, 78 Ala. 323; Robert v. Good, 36 N. Y. 408; Pierce v. Banta, 9 Ind. App. 376, 31 N. E. 812; Pray v. Wasdell, 146 Mass. 324, 16 N. E. 266; Harding f. Kuessner, 172 111. 125, 49 N. E. looi ; Gille z'. Emmons (Kan.), 59 Pac. 338; Jenkins v. Hay, 28 Md. 547. 29. In Hill z: Burke, 62 N. Y. 1 11, in an action on an appeal bond, the remittitur of the court of appeals was in evidence, showing appeal and affirmation of judgment, and the court said : " This was, I think, con- clusive evidence that an appeal had been duly taken by the filing of the notice with the undertaking, the ser- Vol. I vice of the same, and of a copy of the undertaking as the code requires, and it was not necessary to estab- lish, by other and independent evi- dence, that these preliminary steps, which are required to perfect the ap- peal, had been taken." 30. Pearl v. Wellmans, 11 111. 352; McDonald z: Allen, 12S 111. S21, 21 N. E. 5.37- In an action on an appeal bond alleging failure to prosecute with effect, it being shown that the judg- ment was affirmed more than ten years before, it was held that the due filing of a certified copy of the opinion of the court affirming judg- ment would be presumed. Buchanan v. Milligan, 125 Ind. 332, 25 N. E. 349- 31. Proving Rental Value of Realty. — Gilliam t'. Coon. 10 111. App. 43 ; Shunnick Z'. Thompson, 25 Ili. .i^pp. 619; Higgins V. Parker, 48 111. 44.S. Judgments in Foreclosure Scott V. Marchand, 88 Ind. 349; Willson v. Glenn, 77 Ind. 585. In General. _ Sanger z: Nadle- hoffer, 34 111. App. 252; Bank v. Swann, 4 Cranch C. C. 139, 2 Fed. APPEAL BONDS. ;44 A. Approi'iil uf Imtcntiirc, 944 B. Staiiipiiii; of Indenture, 944 2. Unsealed Contract, 945 II. PROVING THE INDENTURE, 945 1. Indenture from Sister State. 945 2. Foreign Indenture, 945 3. Proof by Subscribi)ig Witness, 943 4. Counterparts, 945 5. Record, 946 6. Secondary Evidence (iCncraUv. (;4(i III CONSENT OF PARTIES, 946 1. To the Contract. 94O J. To Assignment, 946 3. 7'o Remoi'al, c)47 4. 7"f) Discharge, 947 IV. AGE OF APPRENTICE, 947 V. BREACH OF .COVENANTS, 947 I. PROVING APPRENTICESHIP. 1. By Indenture. — Apprenticeship is proved by producing in evidence the indenture liy whicli the relation of ma.ster and appren- tice is created.^ .\. ArPRONAL OF Indenture. — An indenture of apprenticeship is admissible in evidence, if the approval of the justices of the peace appears anywhere in, or upon, the indenture. - 15. St.nmi'inc, 01-' iNDEXTrKE. — An unstamped indenture of apprenticeship, which by law should be stamped, is inadmissible in evidence.'' 1. Proof of Apprenticeship. Si. Clair r. Jones, .•'ickl. (Pa.) 343; William.^ ;'. Voiinglnisband, i Stark. Skillnian v. Quick, 4 N. J. Law 102; 139; Williams !•. Morgan. 15 .\d. & PoUer t'. Hyndman. i Llarr. (Del.) K. 7ST. ' 123; Owen 7'. State, 48 Ala. 328. An Indenture of Apprenticeship 2. Indenture — U'Jirii Admissible. Regarded as a Deed, and when of- State !•. llooinr. i Houst. Crini. Cas. fired in evidence its e.xecntion must (Del.) 17. l)e proved as other deeds are proved. 3. Sec article " Stamp Acts." Vol. I APPRENTICES. 945 2. Unsealed Contract. — A contract of apprenticeship must com- ply with all the requirements of the statute. It must be in writing/ and signecP and sealed" by the parties ;" and lacking any of these requisites it is void and inadmissible in evidence to jirove a binding contract.' II. PROVING THE INDENTURE. 1. Indenture From Sister State. — A copy of the record of an indenture made in one state, authenticated under the acts of Con- gress of 1790, 14, or 1804, 15, without proof of being entitled to registry or entitled to full faith and credit in the courts of such state is inadmissible in evidence in another state.'-' 2. Foreign Indenture. — An indenture of apprenticeship, executed by the orphan's court of a foreign state, is binding under a pecu- liar jurisdiction, given by statute, and the statute of such state should be given in evidence in connection w'ith the indenture.'" 3. Proof by Subscribing Witness. — An indenture is admissible in evidence, on proof of its execution by one, only, of the subscrib- ing witnesses. '' 4. Counterparts. — ^\"hen an indenture is executed in counter- 4. Owtn V. Slate, 48 Ala. 328; St. Clair v. Jones, Add. (Pa.) 343; Phelps V. Pittsburg etc. R. Co., 99 Pa. St. 108; Overseers of Poor V. Overseers of Poor, 2 Cow. (N. Y.) 537. 5. The Contract of Apprenticeship Must Be Signed. — Phelps r. Pitts- burgh etc. R. Co., 99 Pa. St. 108; Tague z'. Hayward, 25 Ind. 427 ; Rex z'. Newton, i Ad. & E. 238 ; Cora. v. Atkinson, S Phila. (.Pa.) 375; Parish of Castor and Accles, 1 Salk. 68; Overseer of Poor v. Overseer of Poor, 2 Cow. (N. Y.) 537; Lally v. Cantwell. 40 Mo. Api). 44 ; Owen v. State. 40 Ala. 328. Signature of Counterpart by Mas- ter is not essential to the validity oi an indenture. Rex v. Fleet, Cald. 31 ; Rex V. St. Peter's on the Hill, 2 Bolt. P. L. 367. G. The Contract Must Be Sealed. Com. V. Wilbank, 10 Serg. & R. (Pa.) 416; Overseers of Poor v. Overseers of Poor, 6 N. J. Law 169; Hopwell V. Aniwell, 3 N. J. Law ib. An Instrument Not Having Af- fixed Thereto a Seal of Wax or Wafer Susceptible of Receiving An Impression Ikis been held in Xew Jersey to be void as a contract of apprenticeship. .\ scroll or scribble 60 of ink is insufficient for the purpose of a seal. Hopwell v. Amwell, 3 N. J. Law 169; Perrine v. Cheese- inan, II N. J. Law 174; Flanigan v. The C. M. Ins. Co.. 25 N- J- Law 506. 7. The Contract Must Be in Writing and Signed and Sealed by the Parties Rex v. White Church. Burr. Sel. Cas. 540; i Botl. P. L. 532; Phelps V. Pittsburgh etc. R. Co., 99 Pa. St. 108; Rex V. Strallon, Burr. Sel. Cas. 272; Rex. v. All Saints in Hereford, Burr. Sel. Cas. 656. 8. When Void and Inadmissible in Evidence. — Tague v. Hayward, 25 Ind. 427 ; Respublica v. Keppele, 2 Dall. (U. S.) 197; Overseers of Poor V. Overseers of Poor, 2 Cow. (N. Y.) 537; Reg. ■;■. Callingwood, 2 Ld. Rayin. 1116; Phelps r. Pius- burgh etc. R. Co., 99 Pa. St. 108. 9. See " Best and SiccoNn.vKV Evidence ; " " Recokds." 10. Indenture, Under Peculiar Statute, When Admissible Potter V. Hyndman. i llarr. (Del.) 123; .Moore v. Ann. 9 B. Mon. ( Ky. ) 36. 11. Admissible on Testimony of One of the Subscribing Witnesses. Mc.\dams Exrs -■. Stilwell. 13 Pa. St. 90; Belbin v. Skeats, i Sw. & Tr. 148: Wright v. Doe d'Talham, I .\A. & E. 3; Melcher v. Flanders, 40 N. H. 1.^9- Vol. I 946 APriiENTICES. parts, each part is the best evidence against the jjarty executing it, and those in privity with him.'" When Secondary Evidence. — When an indenture is executed in counterparts, each j^art is secondary evidence against the party executing the other part, and those in privity with him.' ' 5, Record. — On an inihctment for harboring an apprentice, the record of the indenture is admissible in evidence, aUhough the original was not delivered by the justices to the recorder of deeds for the county, within the statutory time.^* 6. Secondary Evidence Generally. — If an indenture has been lost or destroyed, secondary evidence of its existence and contents may be given, when it appears that a faithful but inelifectual effort has been made to produce it.'' III. CONSENT OF PARTIES. 1. To the Contract. — An infant's consent to be bound as an apprentice may be proved by the fact of his executing the indenture, the circumstances attending it, or by evidence aliunde."' Proof by Parol. — ( Jral e\idence is admissible to prove the consent of the father and minor to the execution of an indenture with the master.'" 2. To Assignment. — The consent of the original master that his apprentice serve with another master may be proved by direct or circumstantial evidence."* 12. Counterpart, When Primary Evidence — Roe r. Davis, 7 It.-ist '^63; Mayor of Carlisle v. Blamirc, 8 East 487: Paul v. Meek, 2 Y. & J. 116; Houghton V. Koenig. 18 C. H. 235. 25 L. J. C. P. 218; C. &• T. R. Co. V. Perkins. 17 Alich. 296; Pearse I'. Morice, 3 Barn, & A, 396, 4 L. J. K. B, 21 ; Philipson ?■. Cliasc. 2 Camp, no; Burleigh ?■. Slibbs, 5 T. R. 465. , 13. Garnons i'. Swift, i Taunt. 507 ; Munn z: Godbold, 2 Bing. 292 ; Waller z'. Horsfall, i Camp. 501 ; Doe V. Trapaud. i Stark. 281 ; St. Clair V. Jones. Add. (Pa.) 343. Original lost or Destroyed. If the original instrument cannot be produced, the next best evidence is, first, a counterpart, if no counter- part, a copy, and if no counterpart or copy can be produced, then oral testimony. Villiers z: Villiers, 2 Atk. 71; BuUer's Nisi Prius, 254; Rex. V. Castleton, 6 T. R. 236; Kerns r. Swope, 2 Watts (Pa.) 75. 14. Record of Indenture, When Admissible State f. Hooper, i Houst. Crim. Cas. (Del.) 17. 15. Drew v. Peckwell, i E. D. Smith (N. Y.) 408: Bonnell v. Brotzman, 3 Watts & S. (Pa.l 17S; hteinecke z\ Rawlings. 4 Cranch 699, II Fed. Cas. No. 6326. But see Hooks V. Perkins, Busbee Law ( N. C.) 21. For methods of proving age see article " Age." 16. Consent of Infant Fisher 7'. Lunger. ,},^ N. J. Law 100: Rex. v. .Arundel, 5 M. & S. 257; Keane v. Boycott, 2 H. Bl. 511. When the infant's consent is re- quired to be expressed in the inden- ture, the instrument itself is the best ■ evidence of such consent. The Queen's Case, 2 B. & B. 286; Harper z'. Gilbert, 5 Cush. (59 Mass.) 417; Dodge z'. Hills, 13 ^le. 151. 17. Olncy z: .Meyers. 3 HI .^n. 18. Consent to Assignment, How Proved Kingwood z\ Bethlehem. 13 N. J. Law 221 ; Graham z\ Graham, i Serg. & R. (Pa.) 330. See Rex. Z'. The Holv Tririlv, 3 T. R. 605. Consent Required by Statate to be given before justices of the peace must be certified at the time in writing, and thereafter oral proof of such consent is inadmissible. Vol. X APPRENTICES. •147 3. To Removal. — The consent of jiarties to the removal of an apprentice fri^mi the jurisdiction may be proved by parol.'" 4. To Discharge. — The discharge of an apprentice with his con- sent can onl\- be sustained by evidence that it would be to his advantage.-" IV. AGE OF APPRENTICE. The recitals of age stated in an indenture do not conclude tiie apprentice : his true age ma\- lie proved by parol.-' Recitals Of — Master Concluded By — Evidence to Contradict Recitals Inadmissible. — The master is concluded by the recitals in the indenture of the age of the apprentice, and evidence on his part to contradict such recitals is inadmissible. "- V. BREACH OF COVENANTS. In an action against a master for failure to instruct his appren- tice in an art or liusiness, evidence is admissible in defense, to prove that the apprentice is a good workman in such business, or in some specific branch thereof.-" Acts and Declarations As Evidence. — The acts and declarations of an apprentice are admissil)le in evidence on the part of the master to show the temper and dis]iosition of the apprentice.-"' Com. V. Jones, 3 Serg. & R. ( Pa.) 158. See Com. v. Leeds, i Ashm. (Pa.) 405. 19. Consent to Removal Proof bn Parol. — Lobdell v. Allen, 9 Gray (Mass.) 377; Com. v. Hamil- ton, 6 Mass. 272. As to removal from jurisdiction, see Com. v. Ed- wards, 6 Binn. (Pa.) 202; Randall V. Rotch, 12 Pick. (.Mass.) 107; liaton V. Western, 9 Q. B. D. 636, 52 L. J. Q. B. 41, ovcrrulins. Royce V. Charlton, 8 Q. B. D. i, 45 L. T. 712. 20. Rex. V. Great Wigslon, 3 Barn. & C. 484; Rex. v. Mountscir- rell, 3 AI. & S. 497. A Discharge by Consent of All the Parties is presumptivL' evidence that it is for the benefit of the infant and is therefore valid. Re.x. 7'. Weddington, Burr. Sel. Cas. 765; Rex. V. Spanrstown, Burr. Sel. Cas. 801 ; Crombie "'. McGrath, 139 Mass. 550, 2 N. E. 100; Kingwood V. Beth- lehem, 13 N. J. Law 221 ; Graliam V. Graham, i Serg. & R. (Pa.) 330. 21. Recitals of Age Apl^rciiticc Not Concluded by Parol. — Proof of True Age. — Banks v. Metcalfe, I Wheeler's Crini. Cas. (N. Y.) 381; In re Brcnnan, i Sandf. (N. Y.) 711; Drew V. Peckwell. i E. -D. Smith (N. Y.) 408; Hooks r. Per- kins, Busbee Law ( N. C.) 21; E.r t^arle Davis. 5 T. R. 715. 22. McCutchin z\ Jamison, i Cranch 348, 16 Fed. Cas. Xo. 8743; Hooks V. Perkins, Busbee Law (N. C.) 21; Glidden z: Unity. 30 N. H. 104. 23. Failure to Teach. — Evidence in LK'fense. — liarger v. Cashman, 4 Bibb. (Ky.) 278: Wriglit ■:■. Brown, 5 Md. ^7 ; Hughes z\ Humphreys, 6 Barn. & C. 680; Barger r. Caldwell, 2 Dana (Ky.) 129. In actions for breach of contract for failure to teach, evidence is in- admissible to show that the appren- tice was kept at work with others of the same experience. Bell v. Her- rington, 3 Jones Law (N. C.) 320. 24. Acts and Declarations As Evi- dence Clancy v. Overman, I Dev. 6 B. Law (N. C.) 402. Vol. I APPROPRIATION OF PAYMENTS.— See Pay- ments. APPROVAL. — See Appeal Bonds ; Bond Certificates ; Records. APPROVER.— See Accomplice. ARBITRATION AND AWARD. Bv Clark Ross Mahan. PRODUCTION OF WITNESSES AND EVIDENCE BEFOKE THE ARBITRATORS, (J50 1. Procuring tlic Attendance of IVitncsscs, 950 A. Power of the Arbitrators, 950 B. Right of the Parties. 950 C. Assistance of Court in Proenring U'itiiesses, 951 2. Szveariug the JVitnesses. 951 A. Pozvcr of the Arbitrators, 951 B. Necessity of Siccaring JVitnesses, 931 3. Admission and Rejection of Evidence, 953 A. Recei-i'ing Illegal Evidence, 953 a. General Rule, 953 b. Waiver of Objection, 954 c. Arbitrators as Witnesses, 955 (1. Attorneys as Witnesses, 955 B. Rejecting Pertinent Evidence, 955 a. General Rule, 955 b. Offer of Evidence Necessary, 957 C. Referring Admissibility to Court, 957 D. Reopening Case for Additional Evidence, 957 E. Adducing Evidence Before Third Arbitrator or Um- pire, c)^7 F. Rehearing on l\'eiOinniitmcnt, 958 Vol. I ARBITRATION AND AWARD. 949 II. ACTIONS AND DEFENSES FOUNDED ON AWARDS, 958 1. Tlic Fact of Submission, g58 A. N'cccssity for Proof, 958 Pi. Competency of Evidence, 959 2. Publication and Delivery of the Award, 960 3. Tender and Demand of Performance, 960 4. Illegality of Award as Affecting Its Admissibility, 961 5. Best and Secondary Evidence 962 6. Pleading and Proof, 962 A. Variance, 962 7. Awards as Ei'idence .Igainst Strangers, 963 III. MATTERS IN DEFENSE OR AVOIDANCE OF AWARDS, 964 1. Contradiction or Explanation by Extrinsic Evidence, 964 A. General Rule, 964 B. Controlling Intent and Meaning, 965 C. Ambiguity, 965 D. Testimony of Arbitrators, 965 E. Admissions and Declarations, 967 2. Authority of tlie Arbitrators, 967 A. The Appointment of the Umpire, 967 B. Improper Appointment of Umpire, 968 C. Termination of Submission, 968 D. Resignation of Arbitrators, 969 E. Substitution of Arbitrators, 969 3. The Oath of the Arbitrators, 969 4. Time of Meeting, 969 5. Number of Arbitrators Present and Acting, 969 6. Matters Submitted to, and Decided by the Arbitrators, 969 A. //( General, 969 B. As Shozcing Excess of Authority by Arbitrators, 971 C. Testimony of the Arbitrators, 972 7. Mistake, 973 A. In General, 973 B. Testimony of the Arbitrators, 974 C. Admissions of Arbitrator, 975 D. Affidavits, 975 8. Misconduct, Fraud. Corruption, Partiality, Etc., 976 A. In General, 976 B. Testimony of the Arbitrators, 976 C. Declarations in Pais, 977 D. Affidavits, 977 9. Performance of the Award cyjj 10. Pleading and Proof, 978 A. Variance. 978 11. Burden and Requisite Cogency of Proof, 978 Vol. I 950 ARBITRATION AND AWARD. For matters of evidence ,y;eiierallv jjertaininc;- to Fraud. AFistake, see tho^e titles. I. PRODUCTION OF WITNESSES AND EVIDENCE BEFORE THE ARBITRATORS. 1. Procuring the Attendance of Witnesses. — A. Power of the Akbitr.vtors. — The power of the arbitrators as relates to the wit- nesses is not great. They have no authority of themselves to com- pel the witnesses to appear before them.' unless they are so expressly authorized by statute. - B. Right of thf P.\rties. — Without doubt, however, the par- ties are entitled to a reasonable opportunity to procure the attend- ance of their witnesses. ■'' Documentary Evidence. — And the rule applies with equal force to documentarv evidence.^ 1. Power of Arbitrators to Compel Attendance of Witnesses. Bryant v. Levy. 52 La. Ann. 1649, 28 So. 191 ; Tobey v. Bristol County. 3 Story 800, 23 Fed. Cas. No. 14.065 {dictum). 2. Statutes Authorizing Arbi- trators to Compel Attendance of Witnesses Wolfe v. Hyatt, 7O Alo. 156; Thomasson v. Risk, 11 Busli. (.Ky.) 619. And see the various local codes and statutes. 3. Party Entitled to Reasonable Opportunity to Procure Witnesses. Hollingsworth v. Lciper, 1 Uall. (Pa.) 161. And see Morewood v. Jewett. 2 Rob. (N, Y.) 496. But the objection that opportunity was not given is without merit where it appears that the arbitrators offered to hold the case open for such time as was required. Madison Ins. Co V. Griffin, 3 Ind. 277. And see Homes v. Aery, 12 Mass. 134. Where the Arbitrator Promises to Hear Witnesses, and then makes up his award without doing so. the award is invalid. Earl v. Stocker, 2 Vern. 251. Depositions So, where the arbi- trators refuse a party time to obtain the deposition of a foreign witness, and there is no reason to suppose that the object of the request is mere delay, their award will be in- valid. Passmore v. Pcltit, 4 Dall. (Pa.) 271. Vol. I Surprise at Trial — And where a party is surprised at evidence ad- duced by his adversary, and because of the unexpected absence of the witness by whom he can meet that evidence, it is fatal to the award if the arbitrators refuse time to pro- cure the witness, on the party's making the necessary showing. Tor- rance zi. Amsden, 3 AIcLean 509, 24 Fed. Cas. No. 14.103. To Entitle a Party to Further Time to Produce Testimony, he must show the arbitrators what the exidence is, why he is unable to produce it, and that he expects to be able to produce it in a reasonable lime. A naked allegation that he de- sires further time is not enough. Latimer v. Ridge, i Binn. (Pa.) 458. Waiver of Right The objection tliat the arbitrators tried and decided |]ie cause in the absence of a wit- mss will not be sustained where it .•i]>pears that the party objecting an- nuunced ready for trial, and it is net pretended that the witness was ever subpoenaed, or that any effort was made to procure his attendance, or to take his deposition, or that anv motion for a postponement was asked on account of the witness' absence. Canada v. Barksdale, 84 V'a. 742, 6 S. E. 10. 4. Green v. Franklin, i Tex. 497. The objection in this case was over- ruled, however, under the facts shown, as being without merit. ARBITR.ITIOX AND AWARD. 951 C. Assistance of Court in Procikixc, Witnesses. — And there are cases in which the courts have aided the parties in securing the attendance of witnesses before the arbitrators.'' 2. Swearing the Witnesses. — A. Pow ek of the .Aui!itk.\tors. Arbitrators, at common law, possess no power to administer oaths to the witnesses." In England,' however, and in some at least of the United States,'* this power is expressly conferred upon them by statutes. B. Necessity of Swearing Witnesses. — An award which is otherwise unobjectionable will not be invalidated by the mere fact that the arbitrators permitted the examination of the witnesses without their being first sworn," unless the arbitration agreement 5. Habeas Corpus ad Testifican- dum In Marsden v. Overbiiry, i8 C. B. 30, the court granted a habeas corpus ad tcsliUcanduin to bring np a prisoner in criminal custody, for the purpose of testifying before an arbi- trator. .\nA in Graham v. Glover, 5 El. & Bl. 591. to bring up a witness who was in prison under e.xecution for debt. Hearing Before Arbitrator Not a Trial. — In Hall r. Brand, 12 Q. B. D. 39, an action and " all matters in difference " between the parties were referred by consent to an arbitrator ; and it was held that no subpoena would be granted under 17 & 18 \'ict. c. 34, S. 1. to compel the at- tendance of a witness residing in the United Kingdom but out of the jurisdiction of the Queen's Bench Division, as a hearing before the ar- bitrator was not a " trial " within tiie meaning of that statute. 6. Arbitrators Are Witnout Power to Swear Witnesses Tobey V. Bristol County, 3 Story 800, 23 Fed. Cas. No. 14,065 ; People v. Townsend, 5 How. Pr. (N. Y.) 315; State I'. Jackson. 36 Ohio St. 281 ; Street v. Rigby, 6 Ves. 822 ; Welling- ton V. Alclntosh. 2 .^tk. 569; Half- hide T'. Penning, 2 Bro. C. C. 336; Bonner 7'. McPhail, 31 Barb. (N.'Y.) 106 ; Large v. Passinore, 5 Serg. & R. (Pa.) 51. Comfarc Inlay f. Wikoff, 4 N. J. Law 132. But the fact that the arbitrator who is a justice of the peace and as such has power under the statute to swear witnesses before any other person acting as arbitrator, swears the wit- nesses himself, is no objection to the award. Rice v. Hasscnptlug, 45 Ohio St. 377. 13 N. E. 655. 7. Tinder the English Statute, according to Hodson v. Wilde, 4 M. & W. 536, 2 Jur. 992, if the submis- sion provides that the witnesses shall be examined under oath, the arbi- trators have power to administer the oath. 8. Tlius in California. See In re Connor. 128 Cal. 279, 60 Pac. 862. And see the local codes and statutes of the various states on this ques- tion. 9. Examination of Witnesses Not Sworn Not Fatal to Award Thorn- ti-in i: McCorniick, 75 Iowa 285, 39 N. W. 502; Jenkins v. Meagher, 46 Miss. 84 {dictum). And according to Tomlinson v. Hammond. 8 Iowa 40, it is not necessary that tlie award show affirmatively that the witnesses were sworn. The presumption is that the arbitrators discharged their duty in this respect. See also Older z\ Quinn. 89 Iowa 445, 56 N. W. 660. Compare Knowlton z\ Mickles, 29 Barb. (.N. Y.) 465, where the award was held invalid because the ar- liitrators heard statements of wit- nesses in the absence of the opposite party, and without their being sworn, and awarded in accordance with those statements, although tliere was no evidence showing corruption or ir.tentional violation of duty. Affirmative Showing Necessary. In Dolph V. Clemens, 4 Wis. 204, it was held that the objection that the witnesses were not sworn was vsithout merit, in the absence of an affirmative showing by the party raising the objection. Vol. I 952 ARBITRATION AND AWARD. expressly requires that the witnesses shall be sworn,'" or unless it is done against the express request" and objection of one of the parties interposed at the time.'" And even when required by an express statute'" the parties may either expressly or impliedly waive such requirement.''' 10. Submission May Require Witnesses To Be Sworn Ridout v. Pve, I Bos. & P. 91 ; Biggs v. Han- sell, 16 C. B. 562; Banks '•. Banks, I Gale 46; Kane v. Fond du Lac, 40 Wis. 495; Sanborn v. Paul. 60 Mo. 32s; State V. Jackson. 36 Ohio Si. 281. Compare Dater v. Wellington, I Hill {N. Y.) 319, where the cmirl held that the omission to swear tin- witnesses, whether the parties had agreed that they should be sworn or not. and whether the parties had waived their being sworn or not, was, at most, mere matter of error or mistake which could not be cor- rected in an action on the award. 11. Necessity for Request That Witnesses Be Sworn [n re Mc- Gregor, 59 Hun 617, 13 N. Y. Supp. 191. And according to Pierce v. Perkins, 2 Dev. Eq. (N. C.) 250, hearing the witnesses without swear- ing them, cannot be complained of when so done by the express con- sent of the counsel. In Canada, when the arbitration is not under a rule of court, the witnesses need not be sworn unless required by the parties. See Wood- row V. O'Conner, 28 Vt. 776. 12. Necessity for Proper and Timely Objection /» re Connor. 128 Cal. 279. 60 Pac. 862; Bryant f. Levy, 52 La. Ann. 1649, 28 So. 191 ; Maynard v. Frederick, 7 Cush. (Mass.) 247; Greer v. Canfield. 38 Neb. 169, s6 N. W. 883; Newcoml) 7\ Wood, 97 U. S. 581 {dictum ) ; Rounds V. Aiken Mfg. Co., 58 S. C. 299, 36 S. E. 714 ; Britten v. Hooper. 25 Misc. 388, 55 N. Y. Supp. 493; Biggs V. Hansell, 7 J. Scott, 81 Eng. C. L. 562; Cochran v. Bartle, 91 Mo. 636, 3 S. W. 854; Bergh v. Pfeiffer, Hill & D. Supp. no; Wake- field V. Llanelly R. & D. Co.. 34 Beav. 245. And there are cases which hold that even when a party objects, and his objection is over- ruled, he camiot afterwards com- plain if his own witnesses are al- Vol. I lowed to give their evidence without being sworn. Allen v. Francis, 9 Jur. 691 ; Smith v. Sparrow, 16 L. J. Q. B. 139. In Smith v. Goff, 14 ^L & W. 264, where the submission provided that the arbitrators might, if they saw fit, examine the witnesses on oath, it was held discretionary with the arbi- trators to swear the witnesses, and their not doing so was not fatal even as against the express request of one of the parties. 13. Statute Requiring Witnesses To Be Sworn. — Wolfe r. Hyatt, 76 Mo. 156; In re Grening, 26 \. Y. Supp. 117. A Recital in the Award That the Arbitrators Heard the Testimony respecting the matters submitted sufficiently shows that the witnesses were in fact sworn as required by statute. Testimony, as understood in judicial proceedings, means the statements of a witness made under oath. Reeves v. McGlochlan. (15 Mo. App. 537- That the Record of a Statutory Arbitration Does not Show that the witnesses were subpoenaed or sworn does not avoid the arbitration ; lliat fact can be taken advantage of only on review. Weir -■. ^^'est. 27 Kan. 650. 14. Express or Implied Waiver of Statutory Requirement. — Rus- sell V. Seery, 52 Kan. 736. 35 Pac. 812 ; Grafton Quarry Co. v. Mc- CuUy, 7 Mo. App. 580; Cochran v. Bartle. 91 Mo. 636, 3 S. W. 854; Woodrow V. O'Connor, 28 \'t. 776. .\nd see Large r. Passmore. ^ Scrg. & R. (Pa.) 51. In California tlie code does not expressly require the witnesses to be sworn by the arbitrators, although the arbitrators are empowered to administer oaths to them ; and although it might be improper for the arbitrators to refuse a request to swear them, still an award cannot be invalidated because they were not ARBITKJTIOX AXD AWARD. 95.? 3. Admission and Rejection of Evidence. — A. Reckiving Iij.kcal EviDENCK. — a. Cicncral Kulc. — Courts of justice have long mani- fested a strong inclination to sujiport the decisions of arbitrators, who are judges of the parties' own choosing, and have repeatedly declared that these voluntarily chosen tribunals are not to be held to the same strictness in their |)roceedings as has been most wisely required in other cases.'" Ancl accordingly it has been held that it is not fatal to the award that tiie arbitrators have received imperti- nent and incompetent testimony,'" unless its admission constituted corruption, partiality or undue means to produce the award,'' or sworn when all the parties agreeil either expressly or hy failure in object. In re Connor, ij8 Cal. 271). 60 Pac. 862. 15. Arbitrators Not Usually Held to Strict Rules of Evidence. — Fon- nimore i'. ChiUls, X. J. Law ,386; Livingston v. Combs, i N. J. Law 42: Sabin v. Angell, +4. Vt. 523; TurnbuU v. Martin, 37 How. Pr. (N. Y.) 20. But when a cause is actnally pending in court, and is referred by rule of court to arbi- trators, the latter have no authority to dispense with the rules of evi- dence, and substitute therefor their own capricious notions. Eyre f. Fenimore, 3 N. J. Law Q32. In England the Cases are Con- flicting — Thus .Attorney General ?■. Davison, i McClel. & V. 160, 29 Rev. Rep. 774, holds that the arbitrators must follow the rules of evidence strictly. While Hagger v. Baker, 14 ^L & W. 9, holds that they need not do so. 16. Admission of Illegal Evidence Not Fatal to Award. — Eastern Counties R. 7'. Robertson, i D. & L. 498, 6 Man. & G. .^8; Symes r. Good- fellow. 2 Bing. (N. C.) 532; Perry- man f. Steggall, 9 Bing. 679 ; Chestly V. Chestiv, 10 N. H. ^27 ; Johnson 7: Noble, 13 N. H. 285, .^8 .\m. Dec. 485; Smith v. Gorman, 41 Me. 405; Vaughn z\ Graham, 11 AIo. 575 ; Maynard z: Frederick, 7 Cush. CMass.) 247; Lillard 7'. Casev, 2 Bibb, (Ky.) 459. Contra. — Parker v. ."Vvery, Kirby (Conn.) 353. Evidence Not Considered by Ar- bitrators. — In Offut J'. Proctor. 4 Bibb (Ky.) 252, it was held that where the objectionable evidence was not considered by the arbitrators in making up their aw-ard. the award is not invalidated. So also, in Bassett r. Cunningham, 9 Gratt. (Va.) 684, where the award docs not show upon what evidence the arbitrator^ acted. Evidence Not Affecting Result. Nor is the reception of illegal evi- dence fatal to the award where the evidence did not materially affect the arbitrators' decision. Hartshorne v. Cuttrell, 2 N. J. Eq. 297. See also Learned !■. Bellows, 8 Vt. 79: King- well V. Elliott, 7 O. P. C. 4^3. 49 Rev. Rep. 485. Parties and Interested Persons as Witnesses Formerly it was held that parties and other persons in- terested in the event of the suit could not be used as witnesses on the hear- ing before the arbitrators. Fenni- more v. Childs, 6 N. J. Law 386; Fowler !■. Thayer, 4 Cush. (Mass.) Ill ; Mc.Mistcr j'. Mc.\lister, i Wash. (Va.) 192. But there were cases holding to the contrary, .^skew v. Kennedy, I Bailey (S. C.) 46; Mulder v. Cravat. 2 Bay (S. C.) 370; Fuller V. Wheelock, 10 Pick. (Mass.) 13s: Hollingsworth v. Leiper, I Dall. (Pa.) 173; McCrae z: Robeson, 2 Murph, (N. C.) 127; Golden v. Fowler, 26 Ga. 451 (Ga. Stat. 1856. §,* p. 223); Wade z: Powell, 31 Ga. i. And see Harts- horn z: 'Cuttrell. 2 N. J. Eq. 297. And others held that it could be done if the submission expressly au- thorized it. Warne 7'. Bryant, 3 Barn. & C. 590. And see Lloyd v. .•\rchbowle. 2 Taunt. 324. 1 1 Rev. Rep. 595. But under the present statutes and practice, this objection would hardly be raised; at all events, there do not seem to be any recent cpses involving the question. 17. Harding 7'. Wallace, 8 B. Mon. (Kv.) -^^6. Receiving the Statement of One Vol. I 954 ARBITRATIOX AXD AWARD. unless it is otherwise expressly stipulated or agreed in the arbitra- tion agreement.''* Excess of Power can not be inferred from the mere fact that the arbitrators may have admitted illegal evidence about the subject- matter of the submission.'" Otherwise, however, where they have received evidence as to matters which were not submitted to them.-" b. Waiver of Objection. — Some of the courts, while holding that the reception of illegal eviderce is not fatal to the award, base their decision on tlie fact that the party has waived his right to of the Parties, Without Proof, and against the objection of the opposite party, was held to constitute such a gross impropriety as would vitiate the award, in Hartshorne v. Cuttrell, 2 N. J. Eq. 297. So held, also, of receiving e.v parte statements and testimony of one of the parties and without the knowledge of the other, and contrary to the express provision of the submission, in Speer i: Bid- well, 44 Pa. St. 23. 18. Unless Restricted by the Sub- mission, tlie arbitrators may disre- gard the strict rules of evidence, and decide according to their own sense of equity. ^IcGregor v. Sprott. 59 Hun 617. 13 N. Y. Supp. 191. Viewing the Premises Under an agreement that the arbitrators may " proceed informally, according to their own sense of propriety, witli or without witnesses, and with or with- out notice as they might prefer," it was held in Bridgeport v. Eisenman, 47 Conn. 34. that " the arbitrators had great latitude within which to exercise their discretion. They were limited by no rules of law or equity, by no precedents of form or prac- tice, in hearing and deciding the case. Their only rule of procedure was their own sense of propriety. They were not obliged to call wit- nesses, and if they saw fit to call them were not bound to have them sworn. They were not required to hold any formal meetings for hear- ing the case, and if they held such meetings were not Ijound to give the parties notice of the time and place, unless their own sense of propriety led them to do it. They might view the premises and decide upon such view, might examine them by tliemselves or in the presence of both parties, fir in that of either Vol. I party alone. The agreement covered all irregularities and informalities, unless they were of so gross a char- ;LCter as to show that they were acting fraudulently and corruptly." Reading From Another Case. !n re Union El. R. Co., 55 Hun 611, S N. Y. Supp. 813, the submission provided that " the arbitrators by a majority vote, ma\' exercise their dis- cretion as to the manner and way in which to inform themselves of the matters and things in dispute. They may refuse to hear witnesses and counsel, and proceed to a final de- termination in whatever manner they may by a majority vote decide :" and it was held that it was proper for one of them, in support of his con- tention as to the award to be made, 10 read from the report of another case involving a question identical with that submitted to them. Not Bound by Agreement as to Effect of Evidence In .\dams v. .XFcFarlane. 65 Me. 143, it was held that an agreement in the submission of mutual accounts between the par- ties, that an annexed statement of disbursements and collections should be taken to be correct by the arbi- trators, did not preclude them from hearing evidence as to items not included in the statement. 19. Burchell v. JNlarsh. 17 How. (U. S.) .344. To the same effect where the arbitrators, under a sub- mission to settle the affairs of a partnership, heard evidence, although against the objection of one of the parties, as to an account which Iiad been settled on an account stated long previous to the arliitrament. Emmet -■. Hoyt. 17 \^■end. (N. Y.) 410. 20. .Austin V. Clark. 8 W. Va. 2,^6, citing Swann v. Deem. 4 W. Va. 368. ARBITRATION AND AWARD. 9S5 interpose this ground of objection by his failure to object to the reception of the evidence at the time.'-' c. Arbitrators As Witnesses. — And it has l)een held that the fact that the arbitrators were used as witnesses on the hearing- before themselves, is not fatal to the award. -" d. Attorneys As Jl'itnesses. — And the appearance, as a witness, of counsel for one of the parties, is a mere irregularity which can- not be complained of for the first time after the case has been finally submitted to the arbitrators,-^ B. Rejectixg Pertinent Evidence. — a. General Rule. — On the other hand, an award, although it may be valid in all other respects, will be invalidated by the action of the arbitrators in rejecting evidence pertinent and material to the submission,-* 21. Waiver of Objection Fen- iiiniore z\ Childs, 6 N. J. Law ^Ho; Eollmann i\ Bollinann, 6 S. C. 29; Patten 7\ Hunnewell, 8 Me. 19. 22. Bollmann z'. Bollinann. 6 S. C. 29; Graham v. Graham, 9 Pa. St. 254, 49 Am. Dec. 557. 23. Counsel Testifying as Wit- ness Mere Irregularity Britton r. Hooper, 25 .Misc. 388, 55 N. Y. Supp. 493. 24. The Parties Have a Right to Be Heard by Their Proofs, — Their right in this respect is a primary right. It is founded in natural jus- tice. England. — Phipps z: Ingram, 3 D. P. C. 669; Johnston v. Cheape, 5 Dow 247, 16 Rev. Rep. 114. Indiana. — Indiana Cent. R. Co. Z'. Bradley, 7 Ind. 49; Milner z'. Noel, 43 Ind. 324. /oica. — Thompson z: Blanchard. 2 Iowa 44. Louisiana. — Dreyfons z\ Hart, 36 La. Ann. 929. Maryland. — And see Cromwell z: Owings, 6 Har. & J. 10. Mississift''- — Jenkins z: Meagher, 46 Miss. 84. Missouri. — Xewman i'. Lebeaume, 9 Mo. 30. Xezi' Jersey. — Hart Z'. Kennedy, 47 X. J. Eq. SI, 20 Atl. 29; Burroughs V. Thorn, 5 N. J. Law 777. Neiv York. — Moran v. Bogart, 16 Abb. Pr. (N. S.) .303; Fudickar v. Guardian M. L. In. Co., 62 N. Y. ,S92; Halstead z: Seaman. 82 N. Y. 27. 3,7 Am. Rep. 536 ; Van Cortland v. Underbill, 17 Johns. 405 (dis- tinguished in McKinney Z'. Newcoinb, 5 Cow. 425, where a motion to set aside an award for the rejection of a material witness was denied). Oregon. — Stemmer i'. Scottish L'nion Etc. Ins. Co.. 33 Or. 65, 53 Pac. 498. I'irginia. — Ligon z: Ford. 5 Munf. 10. Washington. — McDonald z\ Lewis, 18 Wash. 300, 51 Pac. 387. II' est I'irginia. — Fluharty v. Beatty, 22 W. Va. 698. And in Severance ZK Hilton, 32 N. H. 289, rejection of proper evi- dence was held to be especially fatal where the arbitrators undertake to decide as to its admissibility ac- cording to the principles of law. Compare Com. v. La Fitte, 2 Serg. 6 R. (Pa.) 106. This case, however, seems to have turned on the fact that a statute gave the arbitrators power to decide on the competency of evidence, as well as its credibility, and to determine all questions in the case, as well of law as of fact ; that the award when filed was to be con- sidered as a judgment until reversed, and that the exceptant's remedy was by appeal. Statement of the Rule In Can- field V. Watertown F. Ins. Co., 55 Wis. 419, 13 N. W. 252, the court, in speaking of this question say: " Whether the submission and award are ruled by the statute, or whether they constituted merely a common law arbitration, (the par- ties are) erititled to introduce evi- dence to the arbitrators. If the pro- ceeding was ruled by the statute, the exclusion of evidence violates a Vol. I 956 ARBITRATION AND AWARD. unless the parties have waived their rights in this respect,"^ either expressly or impliedly."'' An Exception to This Rule Exists, however, where the persons selected as arbitrators possess peculiar skill and knowledge con- cerning the subject-matter submitted to them, and it appears that the parties to the submission intend to rely upon that skill and knowledge.-^ plain provision Clhercofj that 'all of the arbitrators must meet together and hear all the proofs and allegations of the parties.' If this was mere!}' a common law arbi- tration, the right of the plaintiff to introduce evidence pertinent and ma- terial to the issne is equally clear. Whether it be a statutory or common law arbitration, the exclusion of proper testimony is fatal to the award." And in Hurdle v. Stallings. 109 N. C. 6, 13 S. E. 720, it was held that, although, without doubt, arbi- trators have some discretionary power to determine how much evi- dence they shall hear, they have no power to arbitrarily decline to re- ceive or examine any testimony whatever. In California, in recognition of this principle, by express statute, one of the grounds which will invalidate an award is the refusal of the arbi- trators to hear pertinent evidence. See In re Connor, 128 Cal. 279, 60 Pac. 862. So Also in Indiana. — Indiana Central R. Co. v. Bradley. 7 Ind. 49; Deford v. Deford. 116 Ind. 523, 19 N. E. S30. And in New York. — Locke v. tilley, 14 Hun 139. Affirmative Showing Necessary. In Dolph V. Clemens. 4 Wis. 204, it was held that the objection that ar- bitrators refused to hear testiinony is without merit when the award does not show upon what evidence it is based, and in the absence of an affirmative showing by the party ob- jecting. Excluding Witness of Doubtful Competency — In Campbell v. Wes- ten, 3 Paige (N. Y.) 124, it was held that a mistake of judgment of the arbitrators in rejecting a wit- ness, as to whose inadmissibility there is some doubt, will not be suffi- cient evidence of improper conduct Vol. I in the arbitrators to set aside the award in equity. 25. Rector v. Hunter. 15 Tex. 380; Bridgeport %•. Eisenman. 47 Conn. ^4. And see Morewood v. Jewett, 2 Rob. (N. Y.) 496. Oral Waiver The rejection of testimony is not fatal where, although the written submission is silent in relation thereto, it was verbally agreed between the parties that no evidence should be adduced, and that agreement was fonually stated to the arbitrators at the commencement of the hearing to be the rule governing the parties and the arbitrators, and it was in fact observed during a material part of the hearing. Ben- nett V. Bennett. 25 Conn. 66. View of Premises by Arbitrator. The fact that the arbitrator did not view the premises under dispute is not fatal to his award, where it does not appear that he was asked to do so, and it is clearly shown that he had previously on several occasions been upon them and was familiar with them. Hewitt v. Lehigh & H. R. Co.. 57 N. J. Hq. 511. 42 Atl. 32s. 26. Implied Waiver Must Be Clearly Intended. — In Hart ;■. Ken- nedy, 47 N. J. Eq. 51- 20 Atl. 29. the subtnission permitted the arbi- trators to " survey the ground, take levels, and determine." and it was contended that thereby the parties had expressly relinquished their right to produce testimony before the arliitrators ; but it was held that neither expressly nor by implication could this be taken to be the meaning of the language used ; that " nothing short of plain and clear words should be considered sufficient for this pur- pose." See also Alexander j'. Cun- ningham, III 111. 511. 27. Arbitrators Possessing Special Knowledge. — Stemnu-r ;■. Scniti'-h etc. Ins. Co.. ii Or. 65, 53 Pac. 498; Hall V. Norwalk F. Ins. Co.. 57 ARBITRATION AND AWARD. 957 I). Offer of Ez'idcucc Necessary. — E'.iit testinionv must be offered before it can be rejected; and a party cannot convict the arbitrators of error in refusing to hear pertinent evidence unless he has first offered to introduce the evidence.-* C. Referring Admissibility to Coi-kt. — It seems that it is proper for the arbitrator acting- under a submission under rule of court, to receive evidence as to the admissibiHty of which he is in doubt, and to award in the alternative for the one party, if the evidence be admissible, otherwise for the other party. -^ D. Reopening Case For Additional Evidence. — The arbitra- tors undoubtedly have the power to reopen a case after it has been once finally submitted to them, for the introduction of further evi- dence :^" but whether or no they shall do so is a matter resting in their discretion, and their refusal so to do will not be revised except for a plain case of abuse of that discretion."'' E. Adducing Evidence LSkfoke Third Arbitrator or Umpire. Where two or more arbitrators, after hearing the evidence, are unable to agree, and in accordance with the submission they select a third person, it is the duty of such third person, sitting either as third arbitrator,"'- or as umpire, "'■ to hear the whole case and evi- Conn. 105, \y All. 356; WilxTly ■;■. JNIatthews, 91 N. Y. 648; Johnston V. Cheape, 5 Dow 247. id Rev. Rep. 114. 28. Necessity for Offer of Evi- dence. — Ormsby ?'. liakewell, 7 Ohio 88; Russell v. Smith, S7 Ind. 457. A Mere Statement of Willingness to Bring in Witnesses i-, not a pro- duction of testimony. Stcmnier v. Scottish etc. Ins. Co., ,33 Or. 63, 53 Pac. 498. Nor can a party complain when he mereh' said he desired to introduce testimony, but does not even intimate that he expressed his desire or that it was refused. Turn- bull V. Martin, 2 Daly 428, 37 How. Pr. 20. Nor where he does not show what evidence it was which he claims the arbitrators rejected. Newman v. Lebeaume, 9 Wo. 30. Cnml>arc Hal- stead V. SeaiTian. 82 N. Y. 27, 37 Am. Rep. 536, where the submission required the arbitrament " to be con- ducted and decided upon the prin- ciple of fair and 'honorable dealing between man and man : " and the arbitrators based their refusal to hear testimony on the assumptio.i, though erroneous, that by the sub- mission their powers were liinited to hearing the parties' statements. It was held that it was not neces- sary for the objecting party, in order to preserve his rights, to actually prociuce, or to name his witnesses, or to state what facts he intends to prove by them. 29. See Byani v. Robbins, 6 Allen (Mass.) 63, where this was done without objection being raised. 30. Power of Arbitrators to Re- open Case for Additional Evidence, bweency v. Vaudry, 2 Mo. App. 352. 31. Reopening Case Discretionary With Arbitrators. — Blodgctt v. Prince, 109 Mass. 44; Tennant v. Divine, 24 W. Va. 7,9,7. 32. Duty of Third Arbitrator to Rehear Evidence. — West Jersey R. Co. V. Thomas, 23 N. J. Eq. 43'. afHrmcd 24 N. J. Eq. 567 : .'Me.xander r. Cunningham, in III. 511; Day v. Hammond. 57 N. Y. 479, 15 Am. Rep. 522; Wheaton v. Crane, 27 N. J. Eq. 368. Comt'arc Ranney '•. Edwards, 17 Conn. ,309, where it was held dis- cretionary, in the absence of an express request for such rehearing. Knowlton 7'. Homer, 30 Me. 552, where it was held that failure to so rehear was not fatal to the award in the absence of an express request by either such third arbitrator or the parties, or a stipulation in the submission requiring it. 33. Duty of Umpire to Rehear Evidence. — Gaffy v. Hartford Vol. I 958 ARBITRATION AND AWARD. dence, in the absence of any agreement or consent b_\- the parties dispensing with such full hearing.^* And according to some of the decisions this duty is equally imperative whether such third person be a third arbitrator or an umpire with sole power to decide the award. ^'^ F. Rehearing on Recommitmicnt. — Where the court, in pur- suance of the submission, recommits the matters to the arbitrator for his reconsideration, it is the dut_\' of the arbitrator to hear the evidence anew.^" II. ACTIONS AND DEFENSES FOUNDED ON AWARDS. 1. The Fact of Submission. — A. NiiCicssiTY foi^ Proof. — Where an award is sought to be used and introduced in evidence as the basis for recovery, the fact of submission must be proved."' But Bridge Co.. 42 Conn. 143 ; Ingraham V. Whitmore, 75 111. 24; Falconer 7'. Montgomery (Pa.), 4 Dall. 232; Passmore v. Pcttit (Pa.), 4 Dall. 271 ; Taber v. Jenny, i Spr. 315. 23 Fed. Cas. No. 13.720; Byrne v. Usry. 85 Ga. 219, II S. E. 561; Daniel v. Daniel. 6 Dana (Ky.) 93; Frissell z'. Fickes, 27 Mo. 557. Compare Jenkins v. Meagher, 46 Miss. 84. where it was held that failure to do so was not fatal to the award, in the absence of a request for rehear- ing; Sharp V. Lipsey, 2 Bailey (S. C.) 113, so holding in the absence of such request or a stipulation in the submission, referring it to sim- ilar effect ; Blood v. Shine, 2 Fla. 127. See also Graham v. Graham, 9 Pa. St. 254, 49 Am. Dec. 557. In Texas, such a rehearing is re- quired under the statute governing arbitration proceedings. Warren ;■. Tinsley. 53 Fed. 689. 34. The Burden of Proving Waiver of the Right to Adduce Evidence Before a Third Arbitrator is upon the parly asserting that fact, and it must be proved, noi beyond doubt, but beyond reasonable doubt, so that the court shall feel convinced that such was the fact. West Jersey R. Co. V. Thomas. 2?. N. J. Eq. 431, affirmed 24 X. J. Eq. 567. 35. No Distinction Between Third Arbitrator and Umpire. .■Me.xander ;■. Cunningham. 11 1 111. 511; Day V. Hammond. 57 N. Y. 479. IS Am. Rep. 522. 36. Nickalls ?■. Warren, si Eng. C. L. 615. Recommitment for Specific Al- teration But on a recommitment merely for the purpose of asking a specific alteration in or addition 10 the award, further evidence on the events discovered since the making of the original award, need not be heard by the arbitrators. In re Huntley.'i El. & B. 787. 12 Jur. 571. 37. Proof of Submission Neces- sary — Andrain v. Chace, 15 East 209 ; Ferrer v. Oven, 7 B. & C. 427, 31 Rev. Rep. 239; Milner !■. Turner. 4 T. B. Mon. (Ky.) 240; Hand v. Columbus, 4 Smed. & M. (Miss.) 203; Chicago & C. S. R. Co. r. Peters, 4.^ Mich. 636, 8 N. W. 584; Burghardt x: Turner, 12 Pick. (Mass.) 534; Perit ?■. Cohen. 4 Whar. (Pa.) 181; Boots v. Canine. 58 Ind. 450. And plaintiff in assump- sit on an award must show that the agreement to abide by the award was mutual and concurrent. Keep "'. Goodrich, 12 Johns. (N. Y.) 397. And so must a defendant who sets up an award under a parol submis- sion in bar of the plaintiff's cause of action. Houghton v. Houghton. 37 Me. 72. Where a Pending Suit Is Referred under an agreement that the award shall be made a rule of court, tlie defendant should file and prove the submission and award as a paper in the case on which the court may render judgment according to the terms of the award ; but he cannot plead the award by way of answer to the suit. Grayson ■•. Meredith. 17 Ind, 357. Inadvertent Reference in Award to Bond as Submission. — The tact Vol. I ARBITRATIOX AXD AWARD. 959 where the party a.^ainst whum the award is sousjht to he used, admits the award in his ])lea. McLaughlin, 80 Pa. St. 53. See also Wayte v. Wayte. 40 Krk. 16,^ Parol Evidence of Parol Submis- sion. — But where the award derives its validity and effect wholly from a parol submission, no other than parol evidence can e.xist as to the extent of the submission and what it contains. Hall v. Mott, Brayt. (Vt.) 81. And see infra this title. III. 6. for the rule as to the parol evidence to show that the arbitrators exceeded their authority by considering and passing upon matters not sulimitted to them. The Certificate of a County Cl^rk That a Controversy Was Submitted to Him by agreement of the parties, and that he made the award, is not evidence that the parties did so agree. Howard v. Sherwood, i Colo. 117. Rule of Court. — .\ submission to arbitration by agreement written and attested is not sufficiently proved by evidence of a rule making such agreement a rule of court in accord- ance with the statute. Beverlev v. Read, 7 Ad. & El. N. S. 79. 53 Eng. C. L. 79. The court said, however, that a judge's order for referri'ig the cause might be proved by such rule of court. See also Tankersley v. Richardson. 2 Stewt. (Ala.') 1,^0; Shriver v. State. 9 Gill. & J. (Md.) t. 40. Stokelv V. Robinson. .^4 Pa. St. 3i,s; Collins v. Freas. 77 Pa. St. 493. And see Houghton v. Bur- roughs. 18 N. H. 499- 41. Tyler v. Stephens. " Ga. 27S. so holditig as against the objection that the best evidence was the arbi- trators themselves. See also Spooncr J'. Payne. 56 Eng. C. L. 328. where the indenture was received upon proof of the subscribine witi'-ss' handwriting, and of a diligent but unavailing search made for him. Vol. I 'MM ARBirRATION AND AWARD. mission,''- but not to prove a submission made under rule of court/" 2. Publication and Delivery of the Award. — Proof of publication of the award is necessary only when the submission requires it.'*'' And possession of an award, apparently complete, by one of the parties is, in the absence of any proof as to how he obtained it, prima facie evidence that the arbitrators delivered it to him as their award. ''^ But when a party introduces in evidence, as a basis for the award, a submission to arbitration, which discloses that the arbitrators were required to make an award in writing, under their hands, and to deliver to the parties thereto a copy within a certain time, he must show not only that the award has been made, but that a copy thereof has been delivered to the other party within the time prescribed, unless it appears that the stipulation has been waived.'"' 3. Tender and Demand of Performance. — One seeking- to avail himself of an agreement to arbitrate the matters in suit, as a defense in bar of the suit, must prove an ofifer on his part, and a refusal on the part of his adversary, to comply with the agree- 42. Cady v. Walker, 62 Mich. IS7, 28 N. 'W. 80s, 4 Am. St. Rep. 834. And the fact that he is an attorney at law will not justify the exclusion of his testimony upon the ground that the communications made to him were privileged. 43. Lloyd V. Seal, 5 Harr. (Del.) 250. 44. Parsons v. Aldricli, 6 N. H. 264. 45. Possession of Award Prima Facie Evidence of Delivery LaiT;- dale T'. Kendall, 4 Dana ( Ky. ) 613. 46. Necessity of Proof of Deliv- ery of Award. — Anderson v. Miller, 108 .\la. 171, 19 So. 302. " The right of the parties," said the court in this case, " and the duty and authority of the arbitrators are to be meas- ured by the terms of the submission. Pratt V. Hackett, 6 Johns. 14. 'When actual delivery of the award, or a copy, is required, an informal notice to one of the parties, by one of the arbitrators, that an award has been made, even when accompanied by a statement of the contents thereof, would not be a sufficient compliance, as to such party, with the terms of the submission, to constitute a \alid award. Buck v. Wadsworlh, 1 Hill 321. Even after an award is drawn up, it is, until delivery, under the control of the arbitrators, who may, in their discretion, within the time limited, reopen the case and hear Vol. I other evidence. So that, until the award is delivered, there is lacking one element of completeness and finality of decision ; and informal information to a party that the arbi- trators had then made a decision, which was still within their control and subject to alteration, would fall short of showing an irrevocable award, binding as their last judg- ment." But it is not necessary for him to show that he had himself re- ceived a copy of the award. Ibid. Acquiescence as Amounting to De- livery. —In Perkins v. Wing. 10 Johns. (N. Y.) 143, an action on an arbitration bond, evidence of part payment of the award was held ad- missible to show acquiescence in the production and reading of the award, as amounting to a delivery of the award, and as being the delivery required. Declarations of Administrator Admitting Award — In Lobb v. Lobb, 26 Pa. St. 327, an action against an administrator on an award against the estate made subsequent to his appointment, it was held that declarations by him that the money awarded was unpaid and still in his hands were admissible to prove the e-tistence of the award which the pleadings put in issue, as well as its payment, and that he had recognized its validity, but not to prove the original liabilitv of the estate. ARBITRATION AND AWARD. 961 ment.''' And where the award rec|uires the defenchmt to pay to the plaintiff a sum certain, and the plaintiff' to pay to the defendant an annuity for life, and each party to execute mutual releases for all demands pertainino- to the arbitration, the plaintiff' must aver 'and prove a tender by him to the defendant of the requisite release, upon his giving the requisite security for the annuity, and the defendant's refusal thereof.''** But in an action for money awarded to be paid to the plaintiff as a creditor of one of the parties to the award, out of funds in the hands of the defendant, it is not necessarv that the plaintiff', in order to maintain his action, prove a demand on the defendant. ■'■' 4. Illegality of Award As Affecting Its Admissibility, — Tn an action in' which an award is the basis of the cause of action or defense, the submission and award, which are consistent and har- monious, the latter with the former, and both with the pleadings, are admissible in evidence for the party seeking to avail himself of them, although their validity in law may in fact be open to serious objection.^" 47. 221. 48. 294. 49. 50. Snodgrass v. Gavil, 28 Pa. bt. Hiigg V. Collins, 18 N. J. Law Sccarce v. Scearce, 7 Ind. 286. Richards v. Drinker, 6 N. J. Law ,^07; Onion v. Robinson, 15 Vt. 510; Hewitt V. Furnian. 16 Serg. & R. (Pa.) 135; Lobb V. Lobb. 26 Pa. St. 327 ; Hume v. Hume, 3 Pa. St. 144; Dickerson v. Rorkc. 30 Pa. St. 390. The Consideration of Matters Extraneous to the Submission, and Other Acts Constituting Misconduct, if not apparent on the face of the award, are not grounds for the ex- clusion of the submission and award as evidence. Wliether such facts are proved is for the jury to determine, under proper instructions from the court ; but the court can not deter- mine them and refuse to receive the award as evidence, or exclude it after it has been admitted. Burns v. Henilrix, 54 Ala. ;8. That a Party Was Denied a Proper Hearing is no ground for ruling out tlie award as evidence ; the inquiry whether this was so or not being a question for the deter- mination of the jury. Riley v. Hicks, 81 Ga. 263, 7 S. E. 17,3. And in Harris v. Seal. 23 ^'fe. 435. defend- ant's offer to prove great and mani- fest errors by the arbitrator to his 61 great injury, and the disallowance as evidence by the arbitrator of various items of claims proved Iiy him against the plaintiff, and that the decision was influenced by prejudice and partiality, was rejected, although he expressly disclaimed any imputa- tion of corruption or of general want of integrity. The court ruled that the award could be neither recom- mitted nor rejected for either of the reasons asserted unless the referee should testify that he had become satisfied that errors or mistakes ex- isted in the award which rendered a revision of it necessary. Notice to Third Arbitrator But an award by two of the three arbi- trators to whom the matters were submitted, without any notice to the third arbitrator and refusal by him to act, is inadmissible in evidence in a subsequent proceeihng to enforce (he performance of the award. Ban- nister V. Read, 6 111. 92. The Mere Fact That One of the Parties With His Counsel With- draws From the Hearing after having participated therein during a portion of the time, is no reason for excluding the award as evidence on a subsequent proceeding between the same parties involving the same sub- ject matter, as against the party who withdrew. Caldwell v. Caldwell. 121 Ala. 598, 25 So. 825. VoL I 962 .IRBITR.inOX AXD AWARD. Grounds of Decision not Shown. — The fact that the award dues not show on its face just how the resuh was reached is no sjround for excliiding- it as evidence on behalf of the successful party in an action by him on a bond cnnditioned for the performance of the award. ^^ The Mere Fact That an Award Is Signed by but Two of Three Arbitra- tors to whom the submission was referred, is no objection to its admission in evidence to support a cause of action thereon, wliere the statute authorizes awan's to be signed by a majority of the arbitrators. '- The Fact That Exceptions Have Been Filed, although subse(|uently withdrawn, to an award which has been made the judgment of the court, does not affect the admissibility of the award. "'^ 5. Best and Secondary Evidence. — Proof of the contents of a lost submission and award may lie made by parol evidence. '■'' 6. Pleading and Proof. — A. \"ariance. — A party who relies upon an award to suppurt his right of action or defense, cannot give evidence thereof which does not in precise terms identify the award proved with that alleged."^ 51. Grounds of Decision Need Not Be Shown. — Where the crmtrnver^y under submission relates to cross- money demands, whether in suit or not, or where, in any case, the cir- cumstances are such that the arbitra- tors will be warranted in requiring the party who, upon the whole, ap- pears to be in default, to pay to the other a gross sum of money, it is not necessary, nor is the better practice, for the award to show upon its face just how the result was reached; and the fact that it does not so show that fact is no ground for excluding it as evidence. Stearns v. Cope, log 111. 340- 52. Whitewater Valley Canal Co. V. Henderson, 3 Ind. 3 ; Tliompson v. Blanchard, 2 Iowa 44. So held also in Gas Co. v. Wheeling, 8 W. Va. 320, where the submission by impli- cation authorized an award by two. But an Award Purporting to Be the Award of the Three Arbitrators to whom the submission was made, which is in fact executed by only two of them, is inadmissible in evidence in a subsequent proceeding to en- force it. Bannister v. Read. 6 111. 02. And an Award by a Single Ar- bitrator must have been signed and delivered to the parties before it can be used in evidence. Morrison v. Russell. 10 Ired. Law (X. C") 273. Vol. I 53. McRory v. Sellars. 46 Ga. ^50. 54. Brown v. East. 5 T. B, Men. (Ky.) 405; Collier v. Watley, 120 Ala. 38, 23 So. 796, But not where the party offering the evidence does not first give evi- dence accounting for the absence of the award. Burke v. Vovles. 5 Blackf. and.) 190. Leading Question Put to Witness. In .\danis ;■. Harrold. 2q Ind. 19S. to prove the contents of the award, which was shown to have been lost, tlie plaintiff put a paper in the hands of a witness, and asked him. " State whether or not this is a true copy of the award?" It w-as in-ged that this question was objectionable as lead- ing; but the court held the objection untenable, stating that "leading questions arc not always objection- able. They are sometimes eminently proper. It would be difficult to im- agine any mode better calculated to get at the real truth of the matter than by the very interrogatory put." Rut evidence of the terms of a set- tlement based upon an arbitration in writing cannot be given without nrii- ducing the award. Smith v. Mc- Gchcc, T4 .\la. 404. 55. Variance Between Pleading and Proof. — Thus evidence if an award by arbitrators is a mat-ri-il variance from a complaint setting up ARIUTR.iriOX AXD AUWRD. %3 7. Awards As Evidence Against Strangers. — An award is not competent evitlence as against a person not a party thereto, and wlio sustains no such relations as constitute a legal i)riviiv between himself ami either party thereto. ■''' Nor can it be received under the an award by an umpire. Lyon v. Blossom, 4 Ducr (N. Y.; ,318. But proof of a submission and award to two arbitrators named, and an um- pire to be chosen by them as therein provided, is not a variance from an allegation of a submission and award to three arbitrators and an award by them. Cliase r'. Jcfis, 51 X. H. 494. Award Settling Terms of Ex- ecutory Contract And .in award under a suliniission of a dispute in relation to the share of the crop claimed by one of the parties, which simply finds that, " the contract has been proved that defendant was to give plaintiff the fifth of the crop made for said defendant." doi-s not support an averment and comidaint in a subsequent action on the award, averring that the arbitrators " award- ed to plaintiff the one-fifth part of said crop." Roundtree '•. Turner, 36 Ala. 555. Award To Be Judgment of Court. Proof that suits pending should be submitted, and that the award should be the judgment of the court, is a material variance from an aver- ment in the declaration on an award of an agreement to submit to arbitra- tion certain differences e.xisting, and that the defendant undertook to ob- serve and perform the award, and will defeat the plaintiff's right of recovery in such an action. Smith f. Cross white. 5 Humph. (Tcnn.) 59. The court said : " The submis- sion proved was made of record, by order of court, and stipulates that the award is to be the judgment of the court, the design being to put an end to those suits, and prevent further litigation. Rut, according to the submission stated in the declara- tion, a right of action only would exist to enforce the award. Instead of putting an end to litigalion. it would only increase it." Award Adjusting' Partnership Transaction Tn Wood v. Deutch- nian. Ro Tnd. 524. it was held that a complaint declaring for a "balance on settlement of partnership account" was not sustained by evidence of an award for an amount due on adjust- ment of partnership transactions; that such evidence did not establish a claim for an amount due from the defendant upon a settlement between the parties, but that it showed rather that the mutual accounts between them had been merged in the arbi- tration proceeding, and that the plaintiff's remedy, if any. was on the award. Award To Be Full Release. Payiitciit on Demand. — Tn Parmelee V. Allen, 32 Conn. 115, an action on an award, the declaration averred that the award required the defend- ant to pay the sum awarded on de- mand ; while the award merely re- quired him to pay the plaintiff the sum mentioned, to be in full of all demand when he had done the other acts required by the award to be done. It was held that the payment of the money was to be on demand ; that the last clause was not intended to affect the time for its payment, and that there was no variance. 56. Coon V. Osgood. 15 Barb. (X. Y.) 583; Woodward t'. Woodward. 14 111. .370: Smith V. Weber, i Ad. & El. 119. 28 Eng. C. L. 119, 40 Rev. Rep. 286. Compiirc Thorpe z'. Eyre. I Ad. & El. 936, 28 Eng. C. L. 426. where it was held that on an issue between a landlord and an execution creditor of his tenant, whether the crops on the land at a certain time were the property of the party sn found by the award to have been tenant, the award was admissible on behslf of the landlord. Award Not Evidence Against Grantee 'Without Notice — In Emery T'. Fowler, .v'^ Mc. 90. it appeared that owners of adjoining lands agreed in writing to submit to arbitration a dispute between them as to the boundary line: tliat thereafter, but l)efore the award, one of the parties sold his land to another having no notice of the arbitration agreement; and it was held that an award stib- scquently made was not admissible Vol. I 9f)4 ARBITRATION AND AWARD. rule allowing verdicts as proof of reputation, although between strangers to the record.''" III. MATTERS IN DEFENSE OR AVOIDANCE OF AWARDS. 1. Contradiction or Explanation by Extrinsic Evidence. — A. Genkkal Rule. — It is a general rule that parol or other extrinsic evidence, the only tendency of which is to vary or explain a written submission and award, cannot be received.^* in a suit involving such boundary line, between the grantee under the deed, and the other party. 57. Award Not Evidence of Reputation. — "The authority of an arbitrator is entirely derived from the consent of the parties to the ref- erence ; his award has no force ex- cept by reason of that consent, and no instance can be proved in which strangers have been held to be in any way affected in their rights by an award, either as evidence of right or of reputation. The award is but the opinion of the arbitrator, formed, not upon his own knowledge, as declara- tions used by way oi reputation commonly are, but upon the result of evidence laid before him, most prob- ably in private, and formed also fiost litem luotain, having none of the qualities upon which evidence of reputation rests. It may be said that the verdict of a jury is equally de- fective in such qualities. Whether it be so or not, it is sufficient to say that the admissibility of a verdict as evidence of reputation is established by too many authorities to be now questioned, but that the principle of those authorities is not clear enough to embrace an award. We are there- fore of opinion that the learned judge was perfectly right in rejecting the award." Evans v. Rees, to Ad. & El. 151, 37 Eng. C. L. lOi. 50 Rev. Rep. 366. 58. Extrinsic Evidence Inadmis- sible to Vary or Explain Written Submission and Award. — Alabama. Thnmason r. Odinn, 31 Ala. 108, 68 Am. Dec. 159. Kentucky. — Crimes 7'. Grimes, i Dana 234. Maine. — Buck v. Spofford, 35 Me. 526; McNear v. Bailey, 18 Me. 251. Massachu.'ictts. — Richardson v. Ins, Co., 3 Mete, 573. Vol. I Neiv Hampshire. — Pike v. Gage, 29 N. H. 461 ; Furber v. Chamber- lain, 29 N. H. 405. Neiv Jersey. — Leslie v. Leslie, 52 N. J. Eq. 332, 31 Atl. 724, affirming N. J. Eq., 24 Atl. 1029. New York. — Efner v. Shaw, 2 Wend. 567. Vermont. — May v. Miller, 59 Vt. 577. 7 Atl. S18. _ Wisconsin. — Kane v. Fond du Lac, 40 Wis. 495. Oral Agreement Collateral to Written Submission Parol evi- dence is inadmissible to enlarge the powers of the arbitrators to pass upon and include matters not sub- mitted to them, by showing that at the hearing before the arbitrators it was so agreed, without specifying when the agreement was made — especially where the award conclu- sively shows that the only submis- sion acted on was the one in writing. Palmer v. Green, 6 Conn. 14. Finality of Award In AIcDer- mot 7". United States Ins. Co., 3 Serg. & R. (Pa.) 604, the award found that " proof had not been produced sufficient to establish a claim against the defendant ;" and it was held incompetent to show that the plaintiff desired a postponement before the arbitrators, but that de- fendant urged a decision, when such evidence is offered, not for the pur- pose of impeaching the award for misconduct or precipitancy of the arbitrators, but as tending to show that the award was not final. Supplementary Explanatory Award Under a parol submission, it may be shown that after the award had been made the parties verbally consented to the arbitrators' making an additional award for the purpose of ex-plaining their original award. Kvcloth 7'. Chase. 17 Mass. 458. ARBITRATION AND AWARD. '»65 B. CoNTKOLLiXG Intent AND Meaxixc. — Nor can extrinsic evidence be received to control the intent and meaning of the award made by the arbitrators,''" or to explain the intent and meanins;- of the parties to an arbitration bond."" Improper Execution of the Award may be shown bv extrinsic evi- dence, on a motion for an attachment for failnre to perform the award, for the purpose of annulling- the award. "^ C. Ambiguity. — But extrinsic evidence is competent to explain an uncertain expression in a written submission"- or award."^ But evidence of the meaning of the arbitrators can not be received to obviate a patent ambiguity."'' D. Testimony of Arbituatoks. — And the rule excluding extrinsic evidence to vary or explain a written submission or award is equally applicable to the testimony of the arbitrators."^ Xor Boundary Lines. — In Robertson V. McNeil, 12 Wend. (N. Y.) 578, ejectment to recover lands awarded to the plaintiff, it was held to be in- competent for the defendant to show that the line established by the arbi- trators was not the line referred to in the submission to be found and established by the arbitrators. But the testimony of the arbitrator that the line established was in conform- ity to the original referred to in the submission was competent. Correction on Recommitment. — On a motion to accept an award returned under a submission under rule of court, it is competent to introduce evidence to show that the award, which had been recommitted to the arbitrators for correction, and a new award returned, had been in fact corrected by the arbitrators in mat- ters of form only. Atkinson t'. Crookor. 35 Me. 135. Signing Award Without Reading. In Withington v. Warren, to Mete. (Mass.) 431, an action on a promis- sory note for a sum awarded by ar- bitrators to be paid by him to the plaintiff, it is held that the de- fendant could not defend by show- ing that one of the arbitrators, upon the statement of the chair- man who drew up the award, that it was right. signed it without reading it or knowing its contents, and that it was for a larger sum than was agreed upon by the arbitrators, unless he also shows that the said arbitrator was induced by some false representation, fraud or misconduct to sign a different award from that which he intended. 59. Cobb V. Dortch, 52 Ga. 548; Clark V. Burt, 4 Cush. (Mass.) 396; Parker v. Parker, 103 Mass. 167; Doke '■. James, 4 N. Y. 568: Scott v. Green, 89 N. C. 278. 60. Sessions v. Barfield. 2 Bav (S. C.) 94- 61. Stalworth ;■. Inns. 2 D. & L. 428. And see Kerr z'. Jeston, i Dow N. S. 338; Wade v. Dowling, 4 El. & Bl. 44. 62. Faw V. Daw. i Cranch C. C. 8g, 440, 7-8 Fed. Cas. Nos. 3663, 4701. 63. Thus of an uncertain descrip- tion. Bancroft v. Grover, 23 Wis. 463. 99 Am. Dec. 195. 64. See generally, the title " Am- biguity." 65. Bigelow v. Maynard. 4 Cush. (Mass.) 317; King v. Jemison, t,} Ala. 499. That He Did Not Unite or Concur with his co-arbitrators in making or publishing the award, cannot be proved by the testimony of the arbi- trator. Ellison V. Weathers, 78 Mo. 115. Vagueness or Uncertainties cannot be explained by the testimony of the arbitrators. Alexander v. McNear. 28 Fed. 403. Arbitrators Cannot Be Examined Evidence Was laid of a tender of conti- how much and _ when in what kind of money : but they may be examined as to a single point, such as did they Vol. I as to What Before Them nental money, it was made, or 966 IRBITR.rnON AND AWARD. can the arbitrators be called upun to disclose the grounds upon which thev made their award,''" nor to construe their award."" allow interest. Wade v. Gallagher, i Veates (Pa.) 77. Finality of Award An arbitra- tor may be called npon to testify to facts showing that no final award was made, and that he, as the arbi- trator entrusted with the award, discovered a mistake in it soon after he had signed it. and that he there- upon refused to deliver it as his award. Shulte v. Hennessey, 40 Iowa 352. See also Hintman v. Nichols, 116 Mass. 521, where it was held that an arbitrator under an oral submission could testify that he " had no idea the reference was final," as shoAving that he had not understood that he had rendered any decision upon the question which finally determined the rights of the parties. When Award Returned Into Court. Where the clerk of the cmirl omitted In make the usual indorsement on arbitration papers left with him to be filed, testimony of one of the arbitra- tors is admissible to show that the award had been returned within the time stipulated in the submission. 1 oung V. Dugan. i 0. Greene ( Iowa) 152. Alteration of Submission. — In Abel 7.'. Fitch, 20 Conn. 90, the ques- tion was whether the submission was in its original form as used by the arbitrators, or had been altered by an interlineation since the submis- sion and award ; and it was held proper, in order to prove the altera- tion, to introduce the testimony of the arbitrators that they had no knowledge or recollection that this interlineation was in the submission when they acted ; that according to their recollection and belief there was no question before them of mat- ters contained in the interlineation : nor did they hear anything about them from the parties, but arbitrated only upon questions submitted in the submission as it read without the iiilerliiieatinn. Examining Arbitrators as to Affi- davits Made by Them On motion to set aside an award, in support of which has been filed atTidavits of the arbitrators, the court may, in its dis- cretion, permit the other party to call the arbitrators and examine them orally as to matters .stated by thein in their affidavits. Robinson v. Shanks, 118 Ind. 125, 20 N. E. 713. " It is doubtless true," said the court, " that a juror can not be heard to impeach his verdict. Perhaps the same rule would apply to an arbi- trator whose award is attacked. In this case, however, the testimony of the arbitrators had been heard in sup- port of the award. As the object of all judicial investigation is to ascer- tain the exact truth, we think that if the court had reason to believe that the affidavits of the arbitrators did not state the whole truth, we think it was in its discretion to call and examine them in relation to the mat- ters about which they had testified in their affidavits. In this case there does not seem to have been any abuse of discretion in this regard." 66. Testimony of Arbitrators Dis- closing Grounds of Decision. — King- ston V. Kincaid, i Wash. C. C. 448, 14 Fed. Cas. No. 7821 ; Bigelow z>. Alaynard, 4 Cush. (Mass.) 317. And .iccording to Aldrich v. Jessiman, 8 N. H. 516. aftidavils of the arbi- trators cannot be received, giving a construction of their award, and stating the question which was meant (o be presented. And sec Ward v. .\merican Bank. 7 Mete. (Mass.) .'S6 (where it was so held of a writ- ten statement of the arbitrator stating substantially what he might testify) ; I.eggo V. Young. 16 C. B. 626 (where il was so held of a letter of the arbi- trator stating the grounds of his decision). 67. Testimony of Arbitrators to Continue Award. — Ward v. Gould. 5 Pick. (Mass.) 291; Cobb V. Dol- phin Mfg. Co.. T08 N. Y. 463. IS N. E. 438; Cobb V. Dorlch. 52 Ga. 548; Mulligan v. Perry. 64 Ga. 567. See also Wiswall v. Hall. Quincy 1 .Mass.) 27, wherein it was held that arbitrators could not be admit- ted to testify that their award that each party should bear his own costs was made in consideration of a Vol. I ARBIT RATIOS AXD AWARD. '»(.7 E. AuMissioxs AND Declakatioxs. — And the rule exckuling extrinsic evidence to control the terms of an award extends to aihnissions made by one of the parties as to the intent and mean- ing, of the arbitrators."^ Nor can declarations of the arbitrators be received for that purpose,''" although they were made at the time they published the award/" 2. Authority of the Arbitrators. — A. The Appoixtmext of THE U.MPiRi;. — It may be shown by parol evidence that after the submission in writing the parties agreed that the arbitrators should have power to call in an umpire. Such an agreement is a new and independent contract, and is not a variance of the written sub- promise by one party never to en- force a certain judgment against the other. Statement of Rule In speaking of the question whether an award, reduced to writing in plain, unam- biguous terms, can afterwards be shown by the ar1)itrators themselves, or by other parol evidence, not to mean what it clearly purports to mean on the face of it, but was in- tended to mean something else not expressed in the award, the court in Cobb v. Dortch, 52 Ga. 548. said ; "If that can be done in the absence of fraud or mistake, then the award of arbitrators is of but little value; it would settle nothing in relation to the subject matter of their award; besides, it is as much against public policy to allow arbitrators to impeach 'heir award after it has been reduced to writing, and delivered to the parties making the submission, as it would be to allow jurors to impeach their own verdict after it has been made and delivered to the court." Explaining Phraseology In Boughton I'. Seamans, 9 Hun (N. Y. ) 392, the question put to the arbi- trators, "What did you agree to?" was held as not upon its face calling for au}' evidence touching the con- sultations or reasons of the arbi- trators, but only a statement by them of what the award in fact was. there being some dispute owing to the phraseology of the award, as to what it was. 68. Clark r. Burt, 4 Cush. (Mass.) ,to6. Declarations of Party Previous to Arbitrament. — In Cook r. Gardner, i.?o Mass. 313, a trust deed provided that if the beneficiary should not dis- charge his obligations to the grantor, the trustee might appoint arbitrators to pass on the matters submitted to them, with power to determine the trust upon terms by them con- sidered just and equitable, and that thereupon the trustee should hold the land for the benefit of the grantor. It was held, on a writ of entry by the trustee against the beneficiary after the award determining the lru5t, that evidence of declarations by the grantor, to the effect that the lieneficiary had discharged the obli- gations imposed on him by the deed « as not admissible. The court said : " The question had been submitted 111 and decided by the tribunal which the parties in interest had selected. .'\ny admissions which had been made (by the grantor) before the Iiearing by that tribunal were proper matters for its consideration. Such admissions, wdiether tnade before or after that hearing, were not com- petent evidence for the purpose of vitiating the award, nor to affect the rights which were established by it." 69. Declarations of an Arbi- trator, to the effect that he and his co-arbitrators neglected to be sworn, should not be received for the pur- pose of impeaching • the award. Kankakee & S. R. Co. ■;■. Alfred, 3 111. App. 511. See also Hubbell v. Russell, 2 Allen (Mass.) 196. holding thus of declarations made by the ar- liitrator several days after making and publishing his award. 70. Clark f. Burt, 4 Cush. (.Mass.) 396. Vol. I 968 ARBlTRAriON AND AWARD. mission.'' Otlierwise under a statutory submission providing that it shall be made a rule of court/- B. iMPRorijR Appointment of the; Umpire may be shown, on a motion for an attachment for failure to perform the award, for the purpose of annulling the award. '^ C. Termin.xtion of Submission. — Extrinsic evidence may be received, on a motion for an attachment for failure to perform an award, to show that the arbitrators' authority to act had been revoked.'* But on a proceeding to enforce an award against two defendants, evidence by one of them that after the hearing on the submission, but before the arbitrators had declared their award, he had declared to them that he would not be bound by their award is not competent to prove revocation of the submission. ■'■ But where an arbitrator has been called to prove a parol submission and an award thereunder, it is conijietent for the other party to prove by him facts showing that the submission had ceased to be operative when the award was made.'" 71. Sharp v. Lipsey, 2 Bail-.-y (S. C.) 113. 72. Elmendorf v. Harris, 23 Wend. (N. Y.) 628, 35 Am. Dec. 587. Nor is the award, if signed by the umpire only, any evidence of such appointment. 73. Improper Appointment of Umpire Lord r. Lord, 5 EI. & IjI. 404, 84 Eng. C. L. 403- 74. Alilne v. Gratrix, 7 East 608; King V. Joseph. 5 Taunt. 452. 22 Rev. Rep. 803. 75. Robertson v. McXicl. \2 Wend. (N. Y.) 578. As to evidence to show that the arbitrators exceeded their authority, see Infra this title. 76. Perit v. Cohen, 4 Whan. (Pa.) 81. The facts sought to l)e proved were that soon after the stibmission a meeting of the arbi- trators was held, and upon the facts and statements then before them, they decided that they could make no award and so informed the par- ties ; and, second, that long after- wards, without any new submission or notice to defendant, they met and made the avvard in question, not on the facts and statements communi- cated by the parties, but upon cir- cumstances which had happened after the first meeting and after the aban- donment of the reference. The court said : " The court below fell into an error in rejecting the evidence, under the impression, it would seem, that Vol. I the witness was incompetent, or could not be required to give it, because he acted as an arbitrator in making the award upon which the plaintiff relied for his recovery against the defendant. The court seem to have taken up the idea, that the evidence, which the defendant proposed to give by the witness, tended to impeach the propriety, if not the integrity of his conduct, as an arbitrator. This, however. I think, was a misapprehension ; for the evi- dence offered to be given by him. instead of going to show that he acted improperly as an arbitrator be- tween the parties here. wouUl have shown, if it had been given, that he in fact was not an arbitrator at the time, and had no authority from the parties, to act as such ; and that, though he had had such authority some time before that, yet he with the other gentleman upon whom it was conferred, after making an attempt to execute it, but being unable to do so. had surrendered or given it up again to the parties ; who thereupon had a right to consider the sub- mission as terminated, and no longer in force." This case also held it competent for tne defendant to bring out these facts on cross examination, and with- out first having onened his rase. The court said : " Having given evi- dence accordingly by the witness, which, without more, went to prove ARBITKATIOX AXD AWARD. '!()') D. Resignation of Auimtkatous. — Evidence is admissible, lo bar an action on an award, to show that the arbitrators had resigned their authority, before making their award, and that their resigna- tion had been accepted by the parties. It is certainly competent to show that they acted without authority." E. SuBSTiTUTio.v or .\Kr.ni;.\ToRS. — ■ Parol evidence is admissi- ble to show that the arl^itrainrs who made the award acted in the place of those first agreed upon, by the consent of the parties.'* 3. The Oath of the Arbitrators. — When the fact that the arbitra- tors have been sworn is not re(|uired by statute to be evidenced by a writing, parol evidence is competent to show that fact.''-* So also of the fact that the ])arties waived the necessity of the oath of the arbitrators.*" 4. Time of Meeting. — If it is not required by an express pro- vision in the submission, or by some statute, that the arbitrators shall keep a detailed written account of their meetings, adjourn- ments, and all other proceedings, parol evidence is admissible to show the time when the arbitrators met for the hearing.*' 5. Number of Arbitrators Present and Acting. — Although the award may not on its face show that all the arbitrators were pres- ent and acted under the submission, that fact may be shown bv evidence nliiiiidc."'- 6. Matters Submitted to, and Decided by, the Arbitrators. — A. In Ghneual. — W hcnever ])ariies have submitted dis|)utes nr dif- that the writing, purporting to In- an award, was made in pursuanct- of an agreement of submission in force at the time of making the award, he (the plaintiff) could with no propriety or color of reason, after closing his examination of the wit- ness in chief, object to the defend- ant's asking such questions of the witness as would tend to elicit evi- dence from him. showing that the submission, of which he testified, as having been made, had been put an end to. before the making of the award; and consequently the awarl was made without any submission, which authorized it." 77. Relyea i: Ramsay, 2 \\'end. (N. Y.) 602. 78. Douglass T'. Brandon, 6 Baxt. (Tenn.") 58? 79. Parol Testimony to Show That Arbitrators Have Been Sworn. Crook 7'. Chambers. 40 Ala. 239; Price V. Kirby. i Ala. 184: Cones 7'. Vanosdol, 4 Tnd. 248, citing Jacobs ?•. .uoffat, T, Blackf. (Ind.) .395. And see Shryock v. Morton. 2 A. K. ^farsh. 561. Com fare Bethea 7\ Hood, 9 La. Ann. 88; Sharkey z: Wood, 5 Rob. (La.) 326. 80. Waiver of Arbitrators' Oath. Tucker 7: .\llen. 47 Mo. 488. 81. Porter f, Dugat. 12 Mart. O. S. (La.) 245. 82. Hoffman z: Hoffman. 26 N. J. Law 175; Schultz z\ Halsev, 3 Sandf. (N. Y.) 405. Statement of the Rule " It is apprehended that no case can be ad- duced, showing the necessity of this fact appearing in the award itself. To prove it by parol, does not con- travene any adjudged principle in the exposition of awards. It neither impeaches nor supports its merits, hut supplies a fact not affirmed or denied by the award, and which, perhaps, it was not the duty of the two arbitrators to notice. If. in this case, one of the arbitrators had not met, and arbitrated with the other two, would it not be coinpetent to prove it. and thereby show, what a defendant is always entitled to show, in a court of law. that the award is not within the submission?" .\ck- ley r. Finch. 7 Cow. (N. Y.") 290. Vol. I 970 AKBITRATIOX AXD A]VARD. ferences to arbitration and award, and the award does not upon its face show what matters were in fact submitted and decided, and it subsequently becomes a material fact as to whether or not the matter then at issue had been submitted to and decided bv the arbitrators, either party may introduce evidence aliunde for the purpose of showing what matters were in fact sulimitted.**"' But parol evidence 83. England. — Brown v. Croy- don Canal Co.. 9 Ad. & EI. 5^^, 36 Eng. C. L. 282. Dclazi'are. — Robinson %'. Burton. 2 Hon St. 62. Kentucky. — Shackelford v. Pucket. 2 A. K. Marsh. 4,^5. 12 Am. Dec. 422. Maine. — Comery v. Howard, 81 Me. 421, 17 Atl. 318 (dictum) ; Carter V. Shibles, 74 Me. 273. Massachusetts. — Blackwell ?'. Goss, u6 Mass. 394: Leonard v. Root, 15 Gray 553; Cook v. Jaques. 15 Gray 59 ; Hodges v. Hodges, 5 Mete. 205. Xorlli Carolina. — Osborne v. Cal- vert, 83 N. C. 365. 86 N. C. 170. Pennsylvania. — Huckestein v. Kaufman. 173 Pa. St. 199, 33 Atl. lOsS. 'J enuessec. — Newman v. Wood, Mart. & Y. 190. Contra. — Gardener v. Odcn, 2 Cush. (Miss.) 382. " Without the Aid of Parol Evi- dence," said the court in Scbackel- ford V. Purket, i A. K. Marsh. (Ky.) 435, 12 Am. Dec. 422, " it would be impossible to sustain a general sub- mission of all matters in dispute. For, as the submission contains no suggestion of the matters disputed, it must be inoperative unless those matters can be ascertained by matters extraneous from the submission ; for it is plain no defect in the submis- sion, the mere act of the parties can be explained by anything contained in an award — the act of the admin- istrators ; and there is nothing else but parol evidence which can be resorted to for the purpose of sup- porting the submission." .\nd in Bennett v. Pierce, 28 Conn. 314. the court in sustaining the admissibility of such evidence, say : " The parol evidence was not offered for the purpose of altering or changing 'he terns of the written submission , or even for the purpose of explaining an ambiguity contained in it, wh^ch ni.'.y be done in some cases; but, as Vol. I intimated, for the mere purpose of applying the instrument to its proper subject matter, which may always be done. And we see no more ob- jection to it in this case than there is in proving by parol that a piece of land is the same that is described m a deed, because it answers to the description." Accidental Omission to Lay Mat- ter Before Arbitrators. — Where there is a submission to arbitration of all demands which either party has against the other one. one of the parties as plaintiff in a subsequent action against the other, who has pleaded the award as in bar plaintiff's cause of action, cannot introduce evidence to show that the matters on which he has brought suit were by accident never laid before the arbitrators for their consideration, nor did they decide thereon. Wheeler r. Van Houten, 12 Johns. (N. Y.) 311. The court said: "It would be a very dangerous precedent, to allow a party, on a submission so general, intended to settle everything be- tween the parties, to lie by, and sub- mit only part of his demands, and then institute a suit for the part not brought before the arbitrators. The objection of the submission was to avoid litigation; and neither party is at liberty to withhold a demand from the cognizance of the arbitrators, on such submission and then to sue for it. It is true, if a person sues upon several and distinct causes of action, and submits only a part of them to the jury, he is not precluded from suing again for such distinct cause of action as was not passed upon. In that case, he was not bound origi- nally, to unite the different causes of action, and, therefore, shall not be barred; but here he boiuid himself to the defendant to submit every de- mand, and cannot recede from his agreement." See also Owen v. Bocrum, 23 P.arli. 193. ARBITKATIOX AXD AWARD. 'ill of what was understood and intended and acted upon is not compe- tent to show what the award itself does not show.** B. As Showinc Excess of Authority r.v Aruitkators. — It is a very general rule that it may be shown by parol evidence, either in defense or avoidance of an award, that the arbitrators acted in excess of their jurisdiction by considering and passing upon matters not prcperlv within the terms of the submission, or by omitting to pass upon matters submitted to them,'*^ although there are decisions Misconduct of Party Causing Omission by Arbitrators But it is proper for the plaintiff to show that he endeavored to hring liefore the arbitrators the subject matter of the present cause of action, but that the defendant, by his objections, caused the arbitrator to refuse to consider it. Such evidence not only shows that the cause of action was not in- ckided in the award, but that it could not be. on account of the mis- conduct of the defendant himself. Morrss v. Osborn, 64 Barb. (N. Y. ) 543. Where the Submission Mentions Certain Items, and it is objected that the award makes no mention of or decision thereon, it can be proved by parol that there was in fact a dispute between the parties about those items that had been submitted to the arbitrators, and that the latter had acted upon them. Hewitt v. Furman, 16 Serg. & R. (Pa.) 135. Parol evidence is always resorted to lor the purpose of identifying the thing or matter. Burrows v. Guthrie, '.I Til 70. Matters Expressly Excluded by Award. -•- Although a submission may be general of all matters in dispute, and the award may recite the consideration of such matters, yet the defendant in an action on the award may give evidence of in- debtedness to him from the plain- tiff where the arbitrators in a memor- andum on the back of the award, expressly stated that they took no notice of such indebtedness. Griffith z\ Jarrett. 7 Har. & J. (Md.) 70. 84. As for example what the ar- bitrator intended to decide and did decide. Such evidence adds to and varies the effect, if it does not con- tradict, the written award. Parker v. Parker, 10,^ Mass. 167. And see sii/'ra. this article III, i. B. " CoN- TR.\DICTI0N O.R EXPLANATION BY Ex- TKiNsic Evidence;" "Controlling IxTENT AND Meaning." Performance of Contract Submit- ted. — In Galvin v. Thompson, 13 Me. 367, an action on an award, it was held competent to show by parol how far each party had performed or fallen short of performance of the contract submitted to the deter- mination of the arbitrators, and what claims thence resulted by one upon the other, depending on facts sub- sequent to the agreement and which could only be verified bv such proof. Award Not Separating Demands Due Party in Different Capacities. In Strong i'. Beroujon, 18 Ala. 16S, it was contended that the award in question was uncertain because it did not show what was awarded to one of the parties in his own right and what as guardian ; but it was said that this was not required by the submission, and that if it ever be- came a material question in the event of a future suit about the same mat- ters, evidence would be admissible to prove it. 85. Parol Evidence to Show Excess of Authority. — Alabama. Burns z\ Hendrix. 54 Ala. 78. Indiana. — Brown v. Harness, II Ind. App. 426, 38 N. E. 1098. loii'a. — Sharp r. Woodbury, 18 Iowa 195; Dice v. Yarnel. Morr. 241. Maine. — Wyman f. Hammond, 55 Me. 534; McNear z: Bailey, 18 Me. .\Iassacliusctts. — Hubbell v. Bis- sell, 2 .Allen 196; Gaylord z: Norton, 130 Mass. 74. AVti' York. — Dodds v. Hakes, 114 N. Y. 260, 21 N. E. 398; Briggs v. Smith, 20 Barb. 409 : Butler v. New York. 7 Hill 329, (reversing i Hill 489. and in effect overruling Barlow T'. Todd. 3 Johns. 367, 2 Johns. Ch. 55; Perkins r'. Wing. 10 Johns. 143, Vol. I 'J72 ARBITRATION AND AWARD. to the contrary.*" C. Testimony of the Arbitkatuks. And for the purpose of and see De Lorig v. Stanton, 9 Johns. 38; and followed in Williams v. uoodrich, 4 Denio 194) ; French v. New, 20 Barb. 481. North Carolina. — Walker v. Walker, i Winst. 255 ; Brown v. Brown. 4 Jones Law 123. Pennsylvania. — Dickerson v. Rorke, 30 Pa. St. 390. Statement of the Rule " Snch evidence," said the court in Butler v. New York, 7 Hill 329, " has a bear- ing upon the right and power of the arbitrators to make the award. It does not propose to vary the written terms of the award, but to show that the arbitrators did award upon matters not submitted to them. It is analogous to the case of a .special power of attorney, where oral evi- dence can, unquestionably, be re- ceived to show that the act done or the instrument executed by the at- torney was not within the scope of his authority. The award of arbi- trators is absolute and conclusive except in the specitied cases of mis- conduct, or where they exceed their power. These are matters not neces- sarily or ordinarily appearing on the face of the award, and generally can only be brought to the consideration of a court by extrinsic evidence. It would seem like a denial of justice, where arbitrators have transcended th; power and authority given them, that the party shall be precluded from giving any proof, and be bound to submit, merely because the arbi- trators have not made such defect of authority apparent upon the face of the award." ■' The Purpose of Such Evidence Is Not to Vary the Terms of the Award, but to show that the arbi- trators did award on matters not submitted to them. The law is well settled that the power of arbitrators is confined strictly to the matters sub- mitted to them, and if they exceed that limit their award will, in gen- eral, be void. They cannot decide upon their own jurisdiction, nor take upon themselves authority by deciding that they have it. but must in fact have it, under the agreement of the Vol. I parties whose differences are sub- mitted to them, before their award can have any validity, and the fact of jurisdiction, when their decision is challenged, is always open to inquiry." Dodds v. Hakes, 114 N. Y. 260, 21 \. E. ,398. Affidavit of Arbitrators or Other Persons The court may receive the affidavits of the parties — the arbi- trators or other persons — to show what took place at the hearing before the arbitrators, for the purpose of showing that the arbitrators ex- ceeded their powers under the sub- mission. Williams v. Goodrich, 4 Denio (N. Y.) 194. 86. Ruckmaii t. Rawson, 37 X. J. Law 565. Parol Evidence of What Was Con- sidered Where three ^ucces^ive arbitraments have been had. and awards made, and. in an action on the last award, it appears on the face of the award that the arbitrators had allowed damages adjudicated on in a prior arbitrament, parol evi- dence is admissible as to what had been considered on the prior award in order to show how far such award was conclusive ; but not as to what had occurred under the last award to show an excess of authority, and thus to contradict or explain the award. LToagland v. Veghte. 23 N. J. Law 92. Of Failure to Consider. — In Whitewater Valley Canal Co. "'. Hen- derson, 3 Ind. 3, an action upon an award for damages for iniuries to plaintiff, caused by defendant's enter- ing on his land and taking material for the construction of the defend- ant's canal, it was held that the de- fendant could not introduce evidence that at the time of the injuries the lands were owned by a third person, but that the arbitrators, on deter- mining upon their award, refused to take into account, imder a claim of offset to the damages claimed by the plaintiff, the benefits and advantages resulting from the construction of the canal to the whole of the lands of which plaintiff's land was a parcel. Consideration of Matter Not Fur- ARBITRATION AND AWARD. 973 showingf tlie facts shown by the two preceding sections as facts jiroper to be shown, it is proper to use the testimony of the arbitra- tors.'*^ And the testimony of an arbitrator, who is a lawyer, offered for this purpose, is not to be exckided on the ground that the communications made to him on the hearing were privileged.*' But such testimony cannot be received for the purpose of impeach- ing the award.*'-' 7. Mistake. — .A. In Geneu.vi.. — The right to impeach or avoid an award on the ground that the arbitrators have mistaken the law on the facts or have miscalculated, or the like, when the fact is not ajiparent on the face of the award, is one upon which the courts nishing Legal Claim — In Rundell v. Lf Fleur, Alk'ii (Alass.) 480, it was Iield that where an award, undct a general submission, by bond, of all demands to arbitration, is iniobjec- tionable on its face, and no partiality or corruption^ is charged against the arbitrators, parol evidence is inad- missible to show that they considered in making their award of damages, a matter which furnished no legal ground of claim for damages. Boundary Line A party to an award settling a boundary line dispute between himself and the other parly, cannot, for the purpose of showing an excess of authority by the arbi- trators, introduce evidence that at the time of the arbitration there was no dispute in relation to the boundary line in dispute. Searle v. Abbe, i.l Gray (Mass.) 409. 87. Testimony of Arbitrators to Show Matters Submitted and De- cided. — England. — Burdeugh v. L. R., 5 H. L. 418. United States. — York etc. R. Co. V. Myers, 18 How. 246, Delazi'arc. — Allen v. Smith, 4 Har. 234; Stevens v. Gray, 2 Har. 347. Illinois. — Spurck f. Crook, 19 111. 415- Maine. — ^^Buck v. Spofford, 35 Me. 526. Massachusells. — Hale v. Huse, 10 Gray 99; Evans v. Clapp, 123 Mass. 165, 25 Am. Rep. 52; Hodges v. Hodges, 5 ^letc. 205. Missouri. — Valle v. North Mo. R. Co.. 37 Mo. 445. Nebraska. — Hall ''. Vanier, 6 Neb. 85. iVfic )'or/,\ — New York -r. Butler. 7 Hill 329 (reversing i Barb. ;^2S. 4 How. Pr. 446) : Briggs ;■. Smith. 20 Barb. 409. Pennsylvania. — Graham v. Graham, 9 Pa. St. 254, 49 Am. Dec. 557; Con- verse V. Colton. 49 Pa. St. 346; Zeigler v. Zeigler, 2 Serg. & R. 286; Roop V. Brubacker, i Rawl. 304. Contra. — Thomason v. Odum, 31 .Ma. 108, 68 Am. Dec. 159: State v. Stewart. 12 Gill & J. (Md.) 458; Gardener v. Oden, 2 Cush. (Miss.) 382. Testimony to Enlarge Written Award In Glade v. Schmidt. 20 111. App. 157 (afHrmed 126 111. 485), it was held that wdien the written award pursues the submission, it cannot be enlarged by testimony of the arbitrators showing that they considered and settled matters not submitted ; although such testimony might be admissible in a direct at- tack to set aside the award or in an- swer to a suit upon it, in support of a plea denying the validity of the award. 88. Cadv V. Walker. 62 JNIich. 157, 28 N. W. 805, 4 Am. St. Rep. 834. 89. Dohe I'. James, 4 N. Y. 568. Writing Signed by Arbitrators. Where two of the arbitrators are called and examined as witnesses touching the matters submitted to them, and they contradict each other, a writing signed by them, and containing that portion of the award sought by one of the parties to be rejected as not having been submitted to the arbitrators under the submission, after it has been submitted to them, is com- petent evidence to be considered by the jury in determining the relative weiglu that ought to be given to Vol. I 974 .IRBITKATIOX AND AWARD. are by no means in accord."" Of course, if the courts of a particular jurisdiction do not allow an inquiry into an award upon any such ground, they will not allow the introduction of any kind of evidence aliunde to show it; and again if the courts do allow such an inquiry, the important question then is, what kind of evidence may and will they receive for the purpose of showing the mistake.'-" B. Testimony of rut Arbitrators. — Accordingly, some of the courts hold that for the purpose of showing mistake of the arbitra- tors, it is proper to receive the testimony of the arbitrators, "- although there are courts holding otherwise."^ the te^itimony of the arbitrators. Mc- Culloiigh V. McCulIough, 12 Ind. 487. 90. Consequences of Mistake. As was said by Mr. Morse in his work on Arbitration and Award (chap, .xix.) : "We now approach the most difficult topic in the law of arbitration, to wit, the question, what will be the effect of a mistake made by the arbitrator in matter of law or of fact, not obvious on the face of the award itself? The em- barrassment in dealing with this matter lies in the utter inconsistency of the judicial decisions ; for so soon as we seem to have successfully educed a rule or principle from some of them, we straightway find it con- tradicted by other authorities. Thus the only certain element is the entire uncertainty. The trouble exists in England to an even greater extent than in our own country. Russell acknowledges that ' a close ex- amination of the cases compels one to say that one uniform principle has not been adhered to as to the consequences of a mistake.' " Citing Lord EHensborough as having ac- knowledged the same difficulty in Chace v. Westmore. 13 East .\sf>; and Chief Justice Parker, in Jones v. Boston Mill Corporation. 6 Pick. (Mass.) 148; Russell on Arli.. jid ed.. p. 292. 91. Scope of the Article The question of the right to impvach an award for mistake naturally does not fall within the scope of a work on evidence. And it is thought by the writer of this article that the proper point at which to start is with the assumption that tlie courts do allow such an inquiry, and accordingly restrict the treatment of the question here to showing what evidence may be received. Vol. I 92. Williams v. Paschall, 3 Yeates (Pa.) 564; King v. Armstrong, 25 (".a. 264; Roop V. Brubacker, i Rawle (Pa.) 304. Mistake Must Be An Available Ground. — Of course the mistake nnist be one recognized b\' courts as one available to the party as a ground for impeaching, the award. Thus Barows ?•. Sweet, 143 Mass. 316, 9 N. E. 665, allowed the tes- timony of the arbitrator to be re- ceived to show an inadvertent charge against one party of an item which all the parties admitted and intended should have been charged to another, and that but for such mistake his award would have been different. While Monk f. Beal. 2 Allen (Mass.') 585. holds that hi- testimony cannot be received to shoiv an erroneous conclusion upon the evi- dence before him. And again in Leavitt V. Comer. 5 Cush. ( Mass. ) 129, testimony of one of the arbi- trators tending to show that, although the award was signed by him. yet in fact it was not his award, as he intended to have made the same, and that in making their computations the arbitrators overlooked certain items and made certain omission.^ which materially affected the result, was held to have been pruperlv rejected. Concurrence of All the Arbitrators. Again, some of the courts modify the above rule by holding that all of the arbitrators must be produced and a concurrence by all of them in the mistake shown. Stow '•. Atwood. 28 III 30; Pulliam 7'. Pensonean, 33 111. 374- 93. Newland f. Douglass. 2 Johns. (N. v.) 62; Chapman t'. Ewing. "8 .■\Ia. 403. And in Shiver 1: Ross. I Hrev. (S. C.) 203. on motion to ARBITR.ITIOX AXD AJi'-lKn. ')7S A Letter From the Arbitrator to one of tile parties statin^- the grounds of his decision cannot he recei\-e(l to show mistake of hiw by him." C. Admissions oi* Akiutkator. — Again it has been held that a mistake of law on the jiart of the arbitrator which is not apparent on the face of the award, can only be proved by the express admis- sions or statements of the arbitrator himself that he had meant to decide according to the legal rule and mistaken it.''^ D. AfFiDAViTS. — I'ut it has been held that after an award has been filed in court by the arbitrators, the affidavits of the arbitra- tors that they made a mistake in calculation will not justify the court in changing the award.'"' Otherwise, however, of affidavits showing that the arbitrators had misconstrued the rule of reference as to the extent of their jurisdiction, and had misdecided accord- inglv." An Ex Parte Statement Purporting to Contain the Evidence Before the Arbitrators, compiled from the nc.ites of, and sworn to by counsel for one of the parties, but under no authority derived from the rules and practice of the court, or the consent of the opposite party, is not competent evidence on a motion to set aside the award for mis- take."* confirm an award, it was insist'jil that the arbitrators had made a mistake, and leave was asked to examine one of the arbitrators to e.Nplain tlie award, and discover whether the same mistake was not made ; hnt the motion was denied. The conrt said: " If the arbitrators themselves, or a majority of them, would come for- ward and e.\press their dissatisfac- tion with the award, and offer to explain some mistake or miscalcula- tion which they had involuntarily committed, it would be a good cause for sending them out again, or refer- ring the matter back to them, to reconsider their award; or even for refusing to affirm the award, without sending it back to be reconsidered. But as this was not the case in the present instance, the rule was ordered to be made absolute." Evidence of Promises by the Ar- bitrators to Correct Errors and mistakes is inadmissible in defense of an action at la\y on the award. . Efner r. Shaw. 2 Wend. (N. Y.) 567. 94. T^eggo V. Young. t6 C. B. 626. And see Ward r. American Bank. 7 Mete. (Mass.) 48S, so hold- ing of such a statement in writing by the arbitrator. 95. Admissions of Arbitrator to Show Mistake. — Bell i'. Price. 22 N. J. Law 578. See also Morgan r. Mather, 2 Ves. Jr. 15, 2 Rev. Rep. 163. And see Valle '•. Xorth Missouri R. Co., 37 Mo. 445, where it is said " that the arbitrator may come into court of equity and prove the mistake, but that it ought to be a mistake that does not result from the mere negligence of the losing party, but one that, by due diligence he would not be able to discover." 96. Tilghnian z'. Fisher, 9 \\'att; (Pa.) 441, wherein the court said: " It would be monstrous indeed, if the court were, upon the application of either party, to undertake to alter the award of arbitrators to what they, at the solicitation of the party, had declared on oath w^s their in- tention, so as to make it materially dilTerent. by enlarging the ar.iount nearlv five hundred dollars from what they had returned in their award. The iniquity that would inevitably result from such a practice, were it to obtain, is too obvious to require it to be stated." 97. Thus, in Jones v. Corrv, s Bing. N. C. 187, 35 Eng. C. L. icg. 55 Rev. Rep. 652. such affidavit was received and the award set aside, notwithstanding on the face of the award there was no objection. S»8. Bell I'. Price, 22 N. T. Law Vol. I ')7(> ARBITRATION AND AWARD. 8. Misconduct, Fraud, Cormption- Partiality, Etc. — A. In Gen- eral. — Under the rule allowing a party to impeach an award upon the ground that the arbitrators have been guilty of corruption, par- tiality, gross misbehavior and the like, the evidence to establish those facts may be either direct, or of such a character as will lead the mind to the inevitable conclusion that the award was influenced by dishonest methods."" Constructive Fraud. — Extrinsic evidence to show fraud on the part of the arbitrators, as a ground for avoiding the award, must be such as will show an actual and intentional fraud and not a con- structive fraud such as flows from an erroneous or unjust judg- ment.^ The Amount of the Award is a fact that may be shown and taken into consideration as tendmg to show misconduct on the part of the arbitrators. - B. Testimony of the Arbitr.vtors. — The weight of authority seems to be to the effect that an arbitrator is not a competent wit- ness to impeach his own award by evidence of his own misconduct,^ 57S. The court al.so ruled that the statement was incompetent for the further reason that the court could not review the merits of the award by an examination of the evidence be- fore the arbitrators. 99. Bumpass v. Webb, 4 Port. (Ala.) 65, 29 Am. Dec. 274. And see Hartupee v. Pittsburgh, 131 Pa. St. 535, 19 Atl. 507, where evidence sought to be adduced on a charge of collusion between the arbitrator and one of the parties was ruled out, because of its insufficiency, as not showing any such collusion. Heated Discussion Between Arbi- trators During Consultation But evidence to the effect that after the hearing and while the arbitrators were in consultation, the chairman expressed in a decided manner his views of the law of the case ; that one of the arbitrators stated that he should rely upon the chairman's knowledge of the law ; that the other arbitrator dissented from the chair- man : that there was a heated and unfriendly discussion between the chairman and dissenting arbitrator, and that afterwards the other two refused to discuss the case further with him, will not justify the setting aside of the award conformable to the submission and unobjectionable upon its face. Roberts i: Old Colony R. Co.. 123 Mass. 552. Injustice of Award. — So evidence introduced for the purpose of assail- ing an award, the utmost tendency of which is to show that the judg- ment of the arbitrators is unjust, will not sustain a charge of fraud, partiality or corruption. Elrod v. Simmons, 40 .\la. 274. And in Hoffman v. De Graff, 109 N. Y. 638, 16 N. E. 357, it was held incompetent for a party to introduce evidence as to the value of land, which had been submitted to arbi- tration, and the character and com- petency of the adverse party's wit- nesses who had testified before the arbitrators, for the purpose of avoid- ing the award for misconduct of the arbitrators. Proceeding Ex Parte P,ut in an action on an award, defended on the ground of misconduct on the part of the arbitrators, it is com- petent for the defendant to show that the arbitrators, contrary to the express provision of the submission, received c.r partr statements and affidavits from one party, without the knowledge of the other. Spcer 7'. Bidwell. 4+ Pa. St. 23. 1. Hostetter i'. Pittsburg. 107 Pa. St. 419. 2. Brown v. Bellows, 4 Pick. (Mass.) 178. See also Smith v. Coolev, S Daly (N. Y.) 40T. 3. Claycomb v. Butler. 36 111. too; French 7'. New, 20 Barb. 481 : Den- man V. Bayless, 22 111. 300; Elbuahcr Vol. I ARBITRATION AND AWARD. 977 nor that of his co-arbitrators/ nor of a part}' if it involve his own misconduct.^ But he may depose to facts which transpired at or during- the arbitration tending to show the award to be void for legal cause." C. Declarations in Pais. — But evidence of declarations of the arbitrators, uttered in pais, after having made his award, is admissi- ble in support of a charge of partiality by him.' D. Affidan'ITs. — It has been held that affidavits may be intro- duced in evidence for the purpose of showing partiality or misbe- havior.* 9. Performance of the Award. — In an action on an award it is competent for the defendant to give evidence to show performance of the award," or to give evidence that the plaintiff had not com- plied with its terms. ^" And the plaintiiif, in an action on an arbitra- tion bond may give evidence showing its breach.^' V. Buckley, l6 Serg. & R. (Pa.) 72; Overby v. Thrasher, 47 Ga. 10. 4. Tucker v. Page, 69 111. 179. But an Arbitrator Who Has Re- fused to Join in the Award, is com- petent to testify to acts of miscon- duct committed by another arbitrator. iy open, exclusive, undisputed possession of the burned premises.'' the inhabited dwelling was " endan- gered." State V. Grimes, 50 Minn. I-'.!. 52 N. W. 275. 3. For method of proving intent generally, sec article " Intent." People I'. Hiltel 131 Cal. 577, 63 Pac. 919; State V. Byrne. 45 Conn. 273; Com. f. McCanhy, 119 Mass. 354; Com. 7'. Bradfnrd, 126 Mass. 42; People V. Vasalo, 120 Cal. 168, 52 Pac. 305; Meislcr v. People, 31 Mich. 99; Hall ■:■. State, 3 Lea (Tenn.) 552. Intent Shown by Attempt to Fire Another House Upon an indict- ment for attempting to fire a dwell- ing, by attempting to set fire to another building, the jury may infer the attempt alleged from the evi- dence of the attempt to fire the other building. Com. v. Wade, 17 Pick. (Mass.) 395. 4. Phillips V. State. 29 Ga. 105. Evidence to Show Accident. — In Hamilton v. People, 29 .Mich. 173, it was held error to have excluded evidence that persons were in the habit of playing cards in the barn with lights, as the fire might have started that way. 5. State V. Phifer, 90 N. C. 721 ; .Morris v. State. 124 A\:\. 44, 27 So. 3,36. The accused having set fire at night to an inhabited dwelling, it ap- pearing that the act was willftd. evi- Vol. I dence of his intent was inadmissible. People V. Jones, 2 Edni. Sel. Cas. (N. Y.) 86. 6.' Contents of Corn Crib In an indictment for arson, the building was designated as a " corn crib," and proof that " corn and fodder " were kept in it was admissible to show the building to be such as was con- templated by the indictment, though evidence of the contents of the barn at the time of- the fire was held in- admissible. Brown v. State, 52 Ala. 345- 7. Simpson r'. State, rii .'Ma. 6, 20 So. 572; Hamilton ?'. People, 29 Mich. 173. 8. Com. V. Preecc, 140 Mass. 276, 5 N. E. 494- Introduction of Deed to Property. In State v. Smalley, 50 Vt. 736, the defendant was charged with burning a house alleged to belong to him. The prosecution, to prove his owner- ship, introduced a deed to the prop- erty executed in the name of another person, and supplemented such deed by evidence showing that defendant had actually purchased the property and had made several payments thereon, while the person named in the deed had never made payment. It was held that such evidence was admissible. 9. State V. Thompson, 97 N. C. 496, I S. E. 921. ARSON. ')S?, D. Parol. — .\nd may probably be proved by parol evidence,'" including the declarations of the accused;" as where defendant occupied as lessee of the one alleged to be the owner. E. ObjiJCTIgns to Proof Op. — And an objection that the evi- dence does not show property in the alleged owner of the burned building must be taken at the trial, and cannot be made on a motion in arrest of judgment. '" 5, Occupancy. — Upon an indictment for arson, where the occu- pancy of the burned building is an essential ingredient of the crime, it is insufficient to show that fact by mere inference.'^ But it may be shown by parol evidence." 6, Variance. — In prosecutions for arson, the crime being one of a local nature, whatever is stated in the indictment by way of description of the locality of the ofifense, must be strictlv proved as laid.'^ In Massachusetts. — I'nder an indictment for burning a building, a conviction cannot be had by proof of the burning of a structure other than a dwelling."' Xor is parol evidence admissible to prove such ownership.'' II. MOTIVE. 1. Ill-Will. A. Of Wui ■Evidence of ill-will is limited to 10. State I'. Burrows, i Houst. (Del.) 74; State v. Smalley, 50 Vt. 736 ; Rogers v. State, 26 Tex. App. 404, 9 S. VV. 762. Parol Evidence to Show Owner- ship. — In Knights v. State. 58 Neb. 225. 78 N. W. 508. it was held com- petent to prove the ownership of a store building by parol evidence, in the absence of a showing that such building was real estate. In State i'. Tennebom, 92 Iowa 551, 61 N. W. 193, an abstractor was allowed to testify that the record title of the property burned was in a certain woman, it was held that, if this was error it was harmless, where the ownership was sub- sequently proved by a deed, and by the testimony of the w'oman's hus- liand. In State v. Lyon, 12 Conn. 486, an indictment for burning a shop, one count alleged it to be the property of B and C as trustees for D, and another count alleged it to belong jointly to B and C. There was no evidence to support the first allega- tion, and to support the second, only the testimony of one witness that, at tiie time the shop was burned, he was employed therein by B, and of another witness that, at the saine time, the accused was working in the same shop, employed by one E. It was held insufficient to authorize a conviction. 11. Conversations Admissible to Show Ownership. — Upon the trial of one for arson, where the indictment alleged the building to have been burned with the design of defraud- ing the insurance companies, testi- mony of a witness as to his con- versations with the accused, were held admissible, as tending to show ownership in the latter. Com. v. Wesley, 166 Mass. 248, 44 N. E. 228. 12. Rogers v. State, 26 Tex. App. 404. 9 S. W. 762. 13. Stale I'. Thompson. 97 N. C. 496, I S. E. 921. 14. Stallings v. State, 47 Ga. 572. 15. State I'. Jaynes, 78 N. C. 504; State V. Roseman, 66 N. C. 634; State V. Burrows, i Houst. (Del.) 74. 16. People V. Slater, 5 Hill. (N. Y.) 401. 17. Com. V. Hayden. 150 Mass. 332, 23 N. E. 51. Vol. I 984 ARSON. the defendant himself, and is inachnissible as regards the members of his family.'* B. To Owner or Occupant. — Evidence of ill-will, harbored by the accused against the owner of the burned building,'" or an occupant thereof, is admitted.-" C. To Owner of Contents. — So of ill-will towards the owner of property contained in the burned building.-' D. To Owner's x\gent. — A motive of arson cannot be shown by proof of the ill-will of tlie accused towards the agent of the owner.^- E. Pro\'inc. Ill-Will. — a. Threats Against Ozciicr. — Threats uttered, by one accused of arson, against the person or property 18. Bell V. State, 74 Ala. 420. 19. As to proof of motive gen- erally, sec the article " Motive." Alabama. — Bell v. State. 74 Ala. 420; Hinds V. State, 55 .-Ma. 145; Overstreet v. State, 46 Ala. 30; Simp- son V. State, III Ala. 6, 20 So. 572. Georgia. — Meeks v. State. 103 Ga. 420, 30 S. E. 252. Michigan. — People v. Eaton, 59 Mich. 559, 26 N. W. 702. North Carolina. — State v. Rhodes, III N. C. 647. IS S. E. 1038. Vermont. — State i'. Ward, 61 Vt. 153, 17 Atl. 483. ilvidence of Previous Difficuicies. Hudson V. State, 61 Ala. 333; Davis V. State, 15 Tex. App. 594; Winslow V. State, 76 Ala. 42. Ill-Will Toward Wife. _ Upon the question of motive, it is competent to prove the prisoner's ill-vifill for his wife, where the latter owns an in- terest in the building burned. State V. Hannett, 54 Vt. 83. Wages Due From Owner Where the accused was employed as a laborer on the farm of the prosecutor, it was attempted to show a motive in the burning by. proof that the prosecutor had not paid him his en- tire wages promised. It was held that a failure to pay the balance due was insufficient, when taken alone, to furnish a sufficient motive for arson. Ross v. State, 109 Ga. 516, 35 S. E. 102. See also Simpson v. State, III Ala. 6, 20 So. 572. 20. Oliver v. State, 33 Tex. Crim. .^pp. 541, 28 S. W. 202. Defendant's Wife in Burned Build- ing — In Shepherd ?■. People, 19 N. Vol. I '^'- 537- tlie court said : " The evi- dence showing the terms upon which the prisoner lived with his wife was of the same general cliaracter (i. e. tending to show a motive). Ordi- narily one would be slow to do an act which would endanger the safety of a person connected with him in this relation. But if, instead of the sentiments of regard and afifection, he entertained towards her feelings of bitterness and hatred, the pre- sumption would be quite otherwise." 21. Mc.Adory v. State, 62 Ala. 154. In State v. Emery, 59 Vt. 84, 7 .\tl. 129, the defendant was charged with firing a barn, and the evidence showed his threats and ill-feeling toward one who owned cattle in such barn. It was held that evidence tending to prove the defendant's knowledge of the presence of those cattle in the barn, was admissible to show motive. 22. Such Evidence Too Remote. In State v. Battle, 126 N. C. 1036, 35 S. E. 624, a trial for arson, Mont- gomery, J., said : . . . " Malice or ill-will is evidence upon which a jury might infer a motive to commit a crime against a person or the prop- erty of the object of ill-will or malice, but the commission of the crime for the purpose of compelling the injured person to punish the enemy of the criminal cannot be a basis of inference of the motive to commit the crime. It is too remote. Such a conclusion must be based upon evidence, not of motive, but of the fact as to the object on the part of the criminal committing the crime." .-iKSON. ')S5 of one whose properly has been burned, are admissible to prove the existence of ill-will.-^ b. Against O-n'ticr's Family. — Evidence of threats against a son and grandson, by reason of their close relationship to the owner of the burned property, is admissible, thought not weighty, as show- ing ill-will to the family and a motive for the crime.-* c. Weight of Threats .-is Evidence. — If a threat is proved, its weight as evidence against the accused is for the jury.-^ And the lapse of time between such threat and the burning, affects the 23. For proof of ill-will generally see article " Malice." Alabama. — McAdory v. State, 62 Ala. 154; Pratler v. State. 107 Ala. 26, 18 So. 238; Brock V. State, 26 Ala. 104; Winslow v. State, 76 Ala. 42; Hinds V. State. 55 Ala. 145; Hudson V. State, 61 Ala. 333 ; Over- street V. State, 46 Ala. 30. California. — People v. Lattimore, 86 Cal. 403, 24 Pac. 1091. Illinois. — Carlton v. People, 150 111. 181, 37 N. E. 244. loiva. — State v. Millmeier, 102 Iowa 692, 72 N. W. 275. Maine. — State v. Fenlasan, 78 Me. 495, 7 Atl. 385 ; State v. Day, 79 Me. 120, 8 Atl. 544. Massachusetts. — Com. v. Choate, 105 Mass. 451 ; Com. v. Goodwin, 14 Gray 55; Com. v. Quinn, 150 Mass. 401, 23 N. E. 54; Com. V. Allen, 128 Mass. 46, 35 Am. Rep. 356. Michigan. — People v. Eaton, 59 Mich. 559, 26 N. W. 702. Missouri. — State v. Crawford, 99 Mo. 74, 12 S. W. 354 ; State v. Moore, 61 Mo. 276. Nevada. — State v. McMahon, 17 Nev. 365, 30 Pac. 1000. New York. — People v. Murphy, 10 N. Y. Crim. 177, 17 N. Y. Supp. 427. North Carolina. — State v. Lytle, 117 N. C. 799, 23 S. E. 476; State v. Rhodes, in N. C. 647, 15 S. E. 1038; State T'. Thompson, 97 N. C. 496, I S. E. 921. Tennessee. — Hensley v. State, 9 Humph. 243. Vermont. — State v. Emery, 59 Vt. 84, 7 Atl. 129. Virginia. — Sawyers v. Com., 88 Va. 356, 13 S. E. 708; Shifflet v. Com., 14 Gratt. 652; Bond v. Com., 83 Va. 581, 3 S. E. 149- IVest I'irginia. — Gregg 7 ■. State. 3 W. Va. 705. In Winslow v. State, 76 Ala. 42, the court said : " The previous threats of the defendant, and his declarations in the nature of threats, were, on the same principle, properly admitted : while they are not of them- selves convincing of guilt, from them, in connection with the other circumstances, if believed by the jury, guilt may be a logical sequence." Hostility Continuing to Time of Fire One charged with arson, had threatened that. " unless his mother got something out of the property he would burn the building;" it ap- peared that although his mother did get something, yet there was ill- feeling between the accused and his sister when the threat was made, which ill-will continued down to the time of the burning, his sister occu- pying a part of the building during the time. It was held that such evi- dence was admissible. Com. v. Crowe. 165 Mass. 139, 42 N. E. 563. 24. State v. Thompson, 97 N. C. 496, I S. E. 921. 25, State v. Hallock, 70 Vt. 159, 40 Atl. 51. In Fulton I'. State, 58 Ga. 224, the court said: "If the prisoner threat- ened to burn the gin-house, and it was burned accordingly, by some person, on the same night the threat was uttered, whether the prisoner is the incendiary is for the jury to determine. If they should believe the threat was made, and made se- riously, and that the house was not burned accidently, but by design, they might deem it sufficient to identify the prisoner as the guilty party." Vol. I 986 ARSON. weight, but not the aihnissibihty of the evidence.-" d. Order of Proof. — Evidence of the threats of the jirisoner arc admissible at any staije of the prosecution's case.-' 2. Pecuniary Motive. — A. Gkn'erai.ly Admissible. — The state may show a pecuniary motive in the accused, to commit the crime. -^ B. Fact of Ixsurancf:. — a. Rclcz'ancy. — And to that end proof that the accused held a policy of insurance on the burned building or on goods therein at the time of the fire.-" or acted for one who 26. Hudson 7'. State. Oi Ala. .^33. Threats Made Two Years Before. State t'. Jones, io5 Mo. 302. 17 S. W. 366; Com. I'. Goodwin. 14 Gray (Mass.") 55. Threats Made Three Years Before. Com. ■;'. Qninn. 150 ^la-i^. 401. 2? N. E. 54- Chief Indicia of Corpus Delicti, 111 Sawyers T'. Com.. 88 Va. 356, 13 S. E. 708, the court said : " Among the chief indicia which go to sub- stantiate at once the corfitis delicti and the guih of the prisoner in a case like this, say the authorities, are the circumstances that the fire broke out suddenly in an uninhabited house or in different parts of the same building, and that the accused had a cause of ill-will against the sufiferer. or had been heard to threaten him." In People v. Simonsen. 107 Cal. 345, 40 Pac. 440. the court said : " A building may be burned under such suspicious circumstances as to indicate the act of an incendiary, and thus a corfiis delicti established and the doors opened for the defend- ant's admissions and confessions ; but there must be some evidence of some kind tending to show the in- cendiary character of the fire, aside from these admissions and confes- sions." 27. In State v. Day. 79 Me. 120, 8 Atl. 544, a prosecution for arson, the court .said : " While it is true that the commission of the offense charged must necessarily be the foundation of every criminal prose- cution, j'et it by no means follows that it is necessary that the accused party should be previously shown to be connected with the crime in order to render his threats in relation to the commission of such crime ad- mis-i!i1(.-. The c r Irr in which tlu-y Vol. I are received is not material. They arc admissible at any stage of the government's case." 28. Com. V. Hudson, gy Mass. 565. Pecuniary Reward In State v. Green. 92 N. C. 779, an indictment for burning a mill, after evidence had been introduced tending to prove guilt, it was held competent for the state to prove, as showing a pecu- niary motive, that the prisoner was to be paid for the crime, that he had declared shortly before the fire that he had no money, but expected to have some soon, and did, in fact, have some soon after the fire. 29. State v. Watson, 63 xMe. 128; Freund v. People, 5 Park. Crim. (N. Y.) 198; People V. Fournier (Cal.), 47 Pac. 1014. Suggestion to Agent as to In- creasing Insurance Evidence that. a month before the fire the accused suggested to an insurance broker that there should be an increase of insurance upon the building after- wards burned, was held admissible, as showing a motive to coimnit the offense. Com. ■:'. Bradford, 126 Mass. Mortgages of Destroyed Goods to Repel Presumption Where it was contended by the prosecution that defendant's motive in firing the building was to collect the insurance on his stock of goods, which was worth $500.00 on the day of the fire, and insured for $2000, the defendant introduced in rebuttal, office copies of the mortgages on such goods, dated six months before the fire, amounting to $1700. It was held that the mortgages were immaterial and had no tendency to disprove the de- fendant's motive to destroy the goods. Com. V. McCarthy, 119 Mass. 354- But in People v. Doncburg. 51 App. lliv. 613, 64 N. V. Supp. 438. the ARSON. '»S7 liad such a policy is admissible."" Over-Insurance. — It is, likewise, .competent to prove that the burned property was over-insured.''" Hut not for mere purpose of impeaching- the character of the defendant. "- Defendant's Knowledge. — Provided defendant knew of such over- insurance,''" and the demand of the insured against the company for such over-insurance.^* 1). Mode of Proof. — (l.) Existence of Insurance Company. — It is unnecessary to prove the legal existence of the insurance company.''''' (2.) Validity of Policy. — Nor the validity of the policy of insur- ance issued to the accused ;"" nor that the latter could sue upon such policy." burned property was owned by ibe wife of the accused, was mortgaged for $1560 and insured for $1300, loss, if any. payable to the mortgagee. The property was unprofitable and there was nothing to show that the accused would be benefited by burn- ing it. It was held insufficient to show a motive in the accused. Disposition of Insurance Money. Upon the trial of one charged witli arson, to obtain insurance money, it was held error to refuse to charge the jury that the law presumed that the accused would not steal or mis- apply the insurance money if he obtained possession thereof. People z: Fitzgerald, 156 N. Y. 253, 50 N, E. 846. 30. People v. Scott. 10 Utah 217, 37 Pac. 335. In Tennessee, it has been held in- admissible upon the trial of one for burning the house of another, by the latter's procurement, to prove the building to have been insured. Roberts v. State, 7 Cold. (Tenn.) 359- 31. Stitz -'. State, 104 Ind. 359, 4 N. E. 145 ; Shepherd v. People, 19 N. Y. 537; People v. Sevine (Cal.), 22 Pac. 969; People v. Kelly, II App. Div. 495, 42 N. Y. Supp. 756. And so to prove want of motive it may be shown that the property was worth more than the insurance. Stale V. Ward, 61 Vt. 153, 17 Atl. 483. 32. Stitz V. State, 104 Ind. 359, 4 X. E. MS- SB. People T'. Kelly, 11 App. Div. 49^. 42 N. Y. Supp. 756: Martin 7\ Stale. 28 Ala. 71. 34. Stitz 7'. State. 104 Ind. 359, 4 N. E. 14.S. 35. Unitril Slates. — U. S. 7: Amedy. 1 1 Wheat. ,^92. California. — People v. Hughes, 29 Cal. 257; People r. Schwartz, .32 Cal. t6o. Di.'slrict of Columbia. — U. S. v. McBride, 7 Mackey 371. Illinois. — McDonald ?'. People, 47 111. 5,U Indiana. — Johnson r. State, 65 Ind. 204. Massacltiisetis. — Com. v. Gold- stein, 114 Mass. 272. Michigan. — Meister v. People, 31 Mich. 99. Missouri. — State v. Tucker, 84 Mo. 23. Nciv York. — Carncross I N. Y. Cr. S18: Freund 5 Park. Cr. 198. Ohio. — Evans v. State, St. 4.S8. In State z: Byrne, 45 Conn. 273, the court said: "If he (the defend- ant) believed that the policy was legally issued, that it was valid, and would be paid, and burned the build- ing with the expectation and belief that the money would be paid, and for the purpose of obtaining it, it was enough. The actual payment of tne money, and the legality and validity of the policy, are not essen- tial elements of the crime." 36. People t. Hughes, 29 Cal. 237 ; State T'. Byrne, 45 Conn. 273. 37. People r. Hughes, 29 Cal. 257. i'. People, i'. People, 24 Ohio Vol. I 988 ARSON. (3.) Value of Property. • — And not only evidence of value is admis- sible, but also evidence of its enhanced value by reason of its loca- tion, tog^ether with circumstances showing the profits derived there- from.^* (4.) Defendant's Financial Condition. — It has been held that, upon trials for arson, evidence of the defendant's financial condition is irrelevant and inadmissible,^" though the contrary view seems to have been taken. ^^ 3. Other Motive. — Advantage to be gained by destroying records or other papers may be shown as motive.'" 4. Defendant's Proof of Motive in Another. — The accused may show that others possessed some motive for burning the property. *- Upon a trial for arson, evidence that another had uttered threats to burn the building in question, is irrelevant and inadmissible.''^ III. CONFESSIONS AND CONDUCT. 1. Generally. — The character of the crime of arson renders con- viction frequently dependent upon an extrajudicial confession.''* But the corpus delicti must, as in other cases, be established by evi- dence aiiiiinie such confession.*^ Statenients and declarations of 38. Hudson 7>. State, 6i Ala. 333. 39. State z: Moore, 24 S. C. 150, 58 Am. Rep. 241. 40. Defendant's Financial Con- dition. — In Reg. V. Grant, 4 F. & F. 322, an indictment for arson, where one count in the indictment charged an intent to defraud the insurance company, evidence ■was admitted to prove the prisoner to be in easy cir- cutiistances and under no financial necessity to obtain the insurance funds. 41. State V. Travis. 39 La. Ann. 356, I So. 817 ; 'Winslow v. State, 76 Ala. 42; Luke z'. State, 49 Ala. 30, 20 Am. Rep. 269. 42. Hudson v. State, 61 Ala. 333. But the accused will not be per- mitted to give the names of such other persons. One was accused of starting a fire in a building not his own in order to burn the adjoining building occupied by himself; the prosecution having shown that de- fendant's building was insured, it was competent for defendant to show that the building wherein the fire started was also insured — thus show- ing motive in another than himself. People r. Fournier (Lai.), 47 Pac. 1014. Vol. 1. 43. Carlton v. People, 150 111. 181, 37 N. E. 244; Ford V. State, 112 Ind. 373, 14 N. E. 241 ; State v. Crawford, 99 Mo. 74, 12 S. W. 354; Shifflet v. Com., 14 Gralt. (Va.) 652. But see Hensley Z'. State, 9 Humph. (Tenn.) 243, where it was held com- petent for the accused to prove that a third person had made threats to burn the building in question and was in the neighborhood on the night of the fire. 44. As to proof of confessions see article " CoNrESSiONS." Smith v. State. 64 Ga. 605. Corrobora ting Circumstances. Where the prisoner had confessed to the crime it was held that, evidence of the building's having been burned under circumstances indicating in- cendiarism, though weak and un- satisfactory in those details which were susceptible of clearer proof, was nevertheless admissible as being sufficiently corroborated by the con- fession. People z'. Jones, 123 Cal. 65, 55 Pac. 698. 45. Sam v. State, 33 Miss. 347; Winslow V. State, 76 Ala. 42 ; People V. Jones, 123 Cal. 65, 55 Pac. 698; Wimberly v. State, 105 Ga. t88. 31 S. E. 162; jMurray v. State. 43 Ga. 256. ARSON. 989 the accused, tendinis- to show his guilt, are admissible." 2. As Part of Res Gestae. — Any statement that is part of the res gestae is, of course, admissible on that ground.'" 3. Made at Inquest. — The voluntary testimony of the accused before a fire inquest, is competent evidence against him on his prosecution for arson. ^** Although he was not informed that he need not criminate himself.*" 4. Behavior at Fire. — Evidence of the conduct of the defendant, during the fire, is admissible.'"' 46. See " Confessions." " Dec- LAR.ATIONS," Com. V. Cliase, 147 Mass. 597, 18 N. E. 565. Statements on Morning After Fire. In Com. V. Crowe, 165 Mass. 139. 42 ISl. E. 563, the accused, on the morning after the fire, said to his brother-in-law, " Is this the place where the fire was?" to which the latter replied, " Don't you know it is " at which the accused laughed. The conversation was overheard by a policeman who thereupon arrested the brother-in-law for being drunk, and the accused said, " Yoii want to ar- rest him to find out what lie knows about who set the fire." It was held that these facts were admissible in evidence. 47. See article " Res Gestae." Upon the trial of an indictment for aiding and abetting the insured in setting fire to his house with the intent to thereby defraud the insur- ance company, the statement of the party insured made after the fire occurred, claiming and swearing to his proof of loss, are part of the res gestae and admissible. Searless 1'. State, 6 Ohio Cir. Ct. 331. Statements a Part of Res Gestae. In People v. O'Neil, 112 N. Y. 35s, 19 N. E. 796, the defendant was pres- ident and owned most of the stock of the company whose building was destroyed; it was held that, the proof of loss which he made out jointly with another of the company's offi- cials, giving the total insurance, and stating it to be his opinion that the fire was of incendiary origin, were admissible against him as part of the res gestae. A False Statement Made by Defendant After the Fire, to the effect that the barn burned was not insured, was held to constitute no part of the res gestae, and could not aid in defrauding the insurance com- panies, and should have been ex- cluded. Hamilton i'. People, 29 Mich. 173. 48. Com. v. Bradford, 126 Mass. 42; Com. V. "Wesley, 166 Mass. 24S. 44 N. E. 228; Com. V. King, 8 Gray (Mass.) 501. 49. Com. V. King, 8 Gray (Mass.) 501. 50. State t'. Ward, 61 "Vt. 153, 17 .•\tl. 483; People V. Burton, 9 N. Y. Crim. 207, 28 N. Y. Supp. 1081. See also People v. Fournier (Cal.), 47 Pac. 1014. Defendant's Behavior at the Fire. In Reg. V. Taylor, 5 Cox C. C. 13S. the indictment was for firing a cer- tain hay-rick, and evidence was ad- mitted to show the presence of the accused at the burning of other ricks on the same night, for the purpose of illustrating the prisoner's behavior before and after the fire in question, notwithstanding there were indict- ments against him for the two other fires; but evidence of threats and statements connected with the other indictments, but not illustrative of the one in issue, were inadmissible. Where the prisoner was accused of aiding and abetting the firing of his own house, a witness testified that, during the fire, when the firemen and general public had access to the house, the prisoner arrived and see- ing witness with others inside the house, pulled him out; that prisoner afterwards asked witness if he had told anyone, and upon receiving a negative answer, replied that he was glad, as that would have made him appear guilty. It was held weak and inclusive, and insufficient to over- Vol. 1, 990 ARSON. 5. Behavior After Fire. — So is the conduct nf ilie accused after tlie fire, l)ut cdunected therewith."^ 6. Possession of Goods. — Possession by the accused of tioods from the Inirned huihUng, may go to the jury in connection with other evidence of the defendant's guilt. ^'- IV. EVIDENCE OF OTHEK FIRES OR ATTEMPTS. 1. Generally Inadmissible. — Evidence that other buildings in the same place were limned about the same time, is inadmissible.'' ' 2. Part of One Scheme. — E-xcept where the state undertakes to show tiiat the tires to be proved, were part of a scheme that included the tire charged in the indictment.^* come the presumption of the prisoner's innocence. People '■. Kelly, 1 1 App. Div. 495, 42 N. Y. Supp. 756. Conduct of Defendant's Clerk. Upon a trial for arson, the admission of evidence that the prisoner's clerk prevented the removal of goods from the burning store, was not 'error, it appearing the prisoner himself had forbidden such clerk to carry out any goods and had prevented another from doing so. Bluman r. State, 3;} Te.x. Crim. .\pp, 4,^. 21 vS. W. 1027. 51. The Rule Stated. — In People V. O'Neil. 112 N. Y. ,SS5, 19 N. E. 796, the court said : " We do not think the court committed an error in the reception of this evidence. Its adiTiission was, under the circum- stances, somewhat a matter of dis- cretion. It was a remote circum- stance, but it bore upon the question of guilt, in that it tended to show what was his conduct and demeanor, when engaged in matters connected w'ith the fire, and in the course and disposition of which he was prin- cipally interested and a prominent actor. The calm or disturbed de- meanor, the natural or the unusual conduct, of the individual, arc wit- nesses to the workings of the mind, and, taken in connection with all other circumstances tending to con- nect him with an event, aid the jury in forming the inference of inno- cence or of guilt." 52. Johnson -•. State. 48 (ja. 116. Goods in Prisoner's Trunk In State f. Vatter, 71 Iowa 557, 32 N. W. 506, it was held competent to prove that certain goods which were in the house on the day it burned, Vol. 1. were discovered in the prisoner's trunk. Stolen Bank Notes Possessed by Accused In State v. Gillis. 4 Ue\. ( N. C.) 606, the evidence showed the prisoner's possession of bank notes similar to some stolen from the house when the arson was com- mitted, and that his explanations of their possession were conflicting; it was held admissible as tending to show his guilt. .V witness may testifv that, after the fire, he bought from the wife of the defendant, goods of the same kind as those insured in the Inirned building. Johnson !■. Slate, 65 Ind. 204, 53. Com. ?■. Gauvin, 14; Mass. i ?4. 8 N. E. 895; Brock v. State, 26 Ma. 104. TJpon the Trial of an Accessory before the fact, in the burning of a barn, evidence of the burnin.g of a depot in a neighboring town, is in- admissible. State V. Dukes, 40 S. C. 481. 19 S. E. 134. ■Where the Other Fires Are Not Shown To Be of Incendiary Origin, evidence that such other fires de- stroyed property belonging to the same owner, is inadmissible. People I'. Fitzgerald, is6 X. Y. 25.?. 50 N. E. 846. Evidence of Fires Five Years Before, in which the accused was in- terested, is incompetem. State v. Raymond, :;? X. -I. Law 260. 21 .Atl. .U'8. 54. Where the Accused Had Predicted the Fire, and had said lli.ii .ill the houses of the owner wiiuld btn-n, it was held cnmp.tcnt ARSON. 'I'll 3. Part of One Conflagration. — Or where the fires were pari nf one eoiiflagTatioii.'"'' 4. Previous Attempts. — Evidence of a previous attempt 1)\' the accused to burn the same buihhng' is admissible.^"' V. NATUKE AND SUFFICIENCY. 1. Circumstantial Evidence. — Direct evidence to estalilish the crime of arson, is not essential.'^" to show that the dwelling of the same person had been set on fire a short time before the fire in ques- tion. State V. Hallock, 70 Vt. 159, 40 Atl. 51. Evidence to Prove an Incendiary Origin lias been admitted to show that botli fires were part of a scheme planned and e.xeciited by the prisoner and his associates. Wright z\ Peo- ple, I N. Y. Cr. 462. Testimony of the Prosecutor, to the eifect that he had taken unusual precaution to prevent the fire in ques tion " because of other fires " is ad- missible to prove an incendiary origin for the one in question. State v. iMc.Mahon. 17 Nev. 365, 30 Pac. 1000. In England. — In Reg. v. Dossett, 2 C, & K. 306. an indictment for arson, by willfully discharging a gun close to a hayrick and thereby set- ting the same on fire, evidence was admitted to show that on another occasion the accused was observed, with a gun in his hand, near the rick, and that the hay was then on fire. In Reg. z'. Gray, 4 F. & F. iioj, where the prisoner was accused of burning his house to obtain insurjince, evidence was admitted to show that twice before insurance had been col- lected from other companies for suc- cessive fires, in order to establish the fire in question to have been in- tentional and not accidental. 55. Woodford 7: People, 5 Thomp. & C. (N. Y.) 539, affirmed in 62 N. Y. 117, 20 Am. Rep. 464, where a dwelling and two outhouses were situated in such a manner that should one burn all must burn, it is competent to prove that the three structures must have been set fire to at the same time. People v. Hiltel, 131 Cal. 577, 63 Pac. 919. 56. State r. Ward, 61 Vt. 153, 17 Atl. 483 ; People v. Lattimore, 86 Cal. 403, 24 Pac. 1091 ; Com. <■. Mc- Carthy, 119 ^lass. 354; State z'. Hal- lock, 70 Vt. 159, 40 Atl. 51; People -'. Shainwold, 51 Cal. 468; Com. ?■. Bradford, 126 Mass. 42. But in Reg. "'. Bailey, 2 Co.x C. C. 311, evidence was admitted showing previous efTorts to set fire to other portions of the same building, not- withstanding the fact that no evidence had been introduced to connect the accused with such other attempts. Previous Solicitation of Another. The testimony of a witness, that, sev- eral months before the trial, the accused requested him to do the burning, is admissible in evidence. Martin z: State, 28 Ala. 71 ; People t'. Bush, 4 Hill (N. Y.) 133, following McDermott r. People, 5 Park Crim. (N. Y.) 102. Contra. — Offer Several Years Be- fore But in Carncross z'. People, I N. Y. Crim. 518. evidence of de- fendant's proposal to burn the house in question, made several years be- fore, to one unconnected with the offense in question, was held inad- missible. Statements During Solicitation. Evidence that, during his solicitation of another to burn a building, the accused stated to the latter that he had twice before attempted to burn such building, is admissible. Mc- Swean Z'. State, 113 Ala. 661. 21 So. 211. 57. Whitfield z: State, 25 Fla. 289. 5 So. 805 ; Winslow z'. State, 76 Ala. 42; State z'. Carroll, 85 Iowa I, 51 N. W. 1159. Rule Stated In Smith r. State, 64 Ga. 605, the court said: " If it required positive testimony to convict in cases of arson, it would be next to impossible ever to procure a con- viction, for it is a crime committed Vol. 1. 9')2 ARSON. 2. Articles Connected With the Crime. — It is competent to intro- duce such articles as the evidence associates with the incendiary.^' 3. Experiments. — It is competent to introduce evidence of cer- tain experiments and comparisons, made after the occurrence of the fire, in order to explain and illustrate the manner in which the premises were burned."^" 4. Opinions. — It is incompetent, in a trial for arson, for a witness to testifv that " he thought the house was burned by some one."^" 5. Sufficiency. — It is impracticable to state a useful rule for determining whether or not a given set of facts will or will not sustain conviction, but in the note several illustrations will be given. "^ under cover of darkness and when there is no human eye to see ; there- fore, circumstances and confessions are the only evidence usually ob- tained ; and, whilst they should be received with great caution, yet if they are such as to convince the mind and satisfy the judgment of the upright and intelligent juror, this is all that the law requires." Where circumstantial evidence is relied upon to establish the corpus delicti it must be cogent and con- clusive. State V. Millmeier, I02 Iowa 692, 72 N. W. 275. Where one was charged with firing an outhouse " used as a kitchen," the prosecution introduced, over defendant's objection, evidence that at the same time the outhouse was burned, the dwelling house, fif- teen yards away, was also set on fire by means of sticks lied together with a rope belonging to the ac- cused, and soaked with oil. It was held that such evidence was admis- sible. State 1'. Thompson, 97 N. C. 496, I S. E. gji. Presumption of Connivance. — The fact that incendiaries entered the owner's house in his absence and prepared to set fire thereto, raises no inference of connivance on the part of such owner. People v. Kelly, 11 App. Div. 495, 42 N. Y. Supp. 756. 58. State r. Ward, 61 Vl. 181, 17 Atl. 483; Gawn V. State, 7 Ohio Dec. 6, Flask Containing Kerosene. — In Morris v. State (Ala.). 27 So. 3,^6. it was held competent to prove that a half-pint flask containing kerosene oil had been found about 100 feet from the house which was burned, and that such flask had contained something like bluing, and that it had been seen in the possession of the defendant's wife during the pre- vious summer, and had then had water and bluing in it. Jug Formerly in Possession of De- fendant's 'Wife. — In Thomas v. State. 107 Ala. 13, 18 So. 229, a trial for arson, the evidence showed the accused to have been seen approach- ing the premises in question with a . jug in her hand, that she poured oil therefrom upon the building, ignited it and ran away. It was held that evidence of the same jug's having been in the possession of the husband of the accused at a time prior to the fire, was admissible, as showing opportunity to have the jug in her possession at the time of the burn- ing, and to identify her as the guilty party. 59. Reg. V. Hasseltine, 12 Cox C. C. 404. See also Com. v. Choate, 105 Mass. 451 ; People ?'. Fournier (Cal.), 47 Pac. 1014. 60. State r. Nolan, 48 Kan. 723, 29 Pac. 568. 61. Facts Sufficient to Convict. Alabama. — Overstreet f. State. 46 Ala. 30; Childress v. State. 86 Ala. 77, 5 So. 775 ; Cook v. State. 83 Ala. 62, 3 So. 849. California. — People v. Sevine, (Cal.), 22 Pac. 969. f'/oncyn. — Whitfield 7: Stale, 25 Fla. 28g, 5 So. 805. Georgia. — Johnson ?'. State, 89 Ga. 107, 14 S. E. 889; Brooks r. Slate, ,1 Ga. 612; Allen 7: State, 91 Ga. 189. 16 S. E. 980. Vol. 1. ARSON. 993 Illinois. — Carlton i'. People, 150 111. 181. 37 N. E. 244. lozva. — State v. turgor, 94 Iowa 33. 62 N. W. 696. Louisiana. — State v. Fiilford, 33 La. Ann. 679. Maine. — State v. Taylor, 45 Me. 322. Massachusetts. — Com. -'. Squire, i Mete. 258. Micliigan. — People v. Burridge, 99 Mich. 343, 58 N. W. 319. Missouri. — State v. Moore, 61 Mo, 2-6. Ohio. — Evans ;'. State, 24 Ohio St. 458. Virginia. — Sawyers v. Com.. 88 Va. 356, 13 S. E. 708. In People v. Hiltel. 131 Cal. 577, 63 Pac. 919, the evidence showed that, at the time of the arrival of the tirst neighbor the accused was seen appearing from behind the burning building, fully dressed, except his coat was off ; that no cry or alarm had been heard, and that accused made no attempts to save the effects until the arrival of neighbors; that shortly before the fire, he was very much excited and angry with his wife, who owned the house, and who was about to get a divorce from ac- cused on account of his cruelty. The accused testified that he was asleep at 8 o'clock, and the fire was discov- ered soon after 8, and had been burning a considerable time. It was held sufficient evidence to convict. Sufficient to Go to the Jury. In Meeks v. State, 103 Ga. 420, 30 S. E. 252, the evidence showed the prisoner to have entertained ill-feel- ing towards his employer, claiming the latter ow-ed him money ; that he subsequently made threats, from which it might be inferred that he intended to be revenged by burning his employer's house ; that a day or two before the fire, he was overheard plotting with his brother, though the plot did not appear; that the em- ployer's family was away from home on the night of the fire; that tracks were traced from the vicinity of pris- oner's house to within a few yards of the one burned, and from the lat- ter back home by a circuitous route ; that these tracks were made by shoes with a peculiar worn place upon them, and that the prisoner's shoes fitted them exactly; that upon his ar- rest, the prisoner desired, for no ap- parent reason, to change his shoes. It was held sufficient to go to the jury on his guilt or innocence. Peo- ple V. Burton, 9 N. Y. Cr. 207, 28 N. Y. Supp. 108; State v. Shines, 125 N. C. 730, 34 S. E. 552. Facts Insufficient to Convict. Georgia. — Green v. State, in Ga. 139, 36 S. E. 609. loiva. — State v. Delaney, 92 Iowa 467, 61 N. W. 189; State V. Johnson, 19 Iowa 230. Kcntuckv. — Com. v. Phillips, (Ky.), 14 S. W. 378. Massachusetts. — Com. ?■. Wade, 17 Pick. 395. Mississippi. — Luker v. State, (Miss.), 14 So. 259. New York. — McGary v. People, 45 N. Y. 153- Te-t-aj. — TuUis v. State, 41 Tex. 598. Virginia. — Garner v. Com., (Va.), 26 S. E. 507 ; Brown v. Com., 87 Va. 215, 12 S. E. 472. In Boatwright v. State, 103 Ga. 430, 30 S. E. 256, the evidence showed that the prisoner had had a difference with his employer, Boyd, about the amount due for services ; that a short time before the fire, the prisoner advised a friend not to go near the house, as they might hold him responsible should anything oc- cur ; that when his attention was called to the fire, soine distance away, accused said : " Look what a fire over to Boyd's !" that he had stated to fellow prisoners in jail that, he had not burned the house, but knew who had, and had offered a little boy a dollar if he would burn it ; that there was nothing to con- nect this boy with the fire ; that there had been three fires at the Boyd place that summer. It was held insufficient to convict. ART, STATE OF.— See Patent s. 63 Vol. I ASSAULT AND BATTERY. Civil Action by Geo. A. Whipple. Criminal Action by Horace T. Smith. I. CIVIL ACTION, y.j5 1. Evidence Generally Admissible, 995 A. Intent and Malice, 995 B. Res Gestae, ij^jj C. Declarations and Admissions, 997 D. Opinion Evidence, 997 E. Real Evidence, 997 F. Character and Condition of Parties, 998 2. Evidence in Special Pleas, 999 A. Moderate Castigavit, 999 B. Son Assanlt Demesne, 1000 C. Replication De Injuria, 1000 D. Molliter Manns Iniposnit, 1000 3. Damages, looi A. Mitigation of Damages, looi a. In General, looi b. Provocation, 1002 c. Criminal Prosecution, 1003 B. Aggravation of Damages, 1004 a. In General, 1004 b. Financial and Social Condition of Parties. 1004 C. Consequential Injuries, 1005 II. CRIMINAL ACTION, 1006 1. Presumptions and Burden of Proof, 1006 2. Res Gestae, 1007 A. Weapons, 1008 3. Nature of Injuries, 1008 A. Wounds in Evidence, 1009 4. Intent, Malice, Declarations and Threats, 1009 A. Former DifUcuities, 1009 5. Recklessness, Illegal Act, ion 6. Assault on Female, 101 1 A. Appearance of Injuries, 1012 B. Former Acts, 1012 C. Character of Female, 1012 7. -Sad Reputation of Defendant, 1012 A. Discredit Defendant as Witness, T013 Vol. 1. ASSAULT AND BATTERY. 9'»5 III. MATTERS OF DEFENSE, 1013 1. Res Gestae, 1013 2. Intent. 1013 3. Declarations and Tlireats of Prosecutor, 1013 4. Infonnafion, 1014 5. Declarations After Assault, 1014 6. Actions Against Prosecutor, 1015 7. Defense of Another, 1015 8. Defense> of Property, 1015 9. Master of Ship, 1016 10. Arrest. 1016 11. Punishment, 1017 12. Evidence of Intoxication, 1018 13. Provocation Which is of the Res Gestae, roi8 14. Discredit Prosecuting Witness, 1019 15. Good Reputation of Defendant, 1019 16. Consent, 1020 17. Opinions, 1020 :8. Pr/or Acquittal or Conviction, 1020 I. THE CIVIL ACTION. 1. Evidence Generally Admissible. — A. Intent and Malice. The intention to do harm is of the essence of an assault. "^ And the intent is to be collected from the circtmistances of the case ; and therefore overt acts when accompanied by words that are mere threats and in themselves negative the idea of a present intention to assault, are not sufficient to sustain the action.- As physical contact is not necessary to the consummation of an assault, the allegation of an assault is proved by evidence that defendant did an overt act ag-ainst plaintiff capable of causing injury, with the intent to injure 1. Intention. — Greenl. Ev., vol. 2, § 83. In Com. z'. White, no Mass. 407, Wells, J., said : " It is not the secret intent of the assaulting party, nor the undisclosed fact of his ability or inability to commit a battery, that is material, but what his conduct and the attending circumstances denote at the time to the party assaulted." In Blake v. Barnard. 9 Car. & P. 626. it was held not to be an assault if the gun was not loaded. But see remark in McKay z\ State, 44 Tex. 43- In Metcalfe v. Conner, s Litt. (15 Ky.) 370, it was said that a tnan going into a house with clubs did not commit an assault, unless the iiTtention to assault was shown. So where defendant entered on a holding over tenant who refused to quit and removed the furniture and the windows, it was held not to be an assault as there was no intention to do violence to the person, but if there had been an assault these acts would undoubtedly aggravate it. Sterns r. Sampson, 59 Me. 568, 8 Am. Rep. 442; Meader i'. Stone. 7 Mete. (Mass.) 147; and see O'Don- nell V. Mclntyre, 37 Hun (N. Y.) 623; atKrmcd 118 N. Y. 156, 23 N. E. 455: Plank v. Grimm, 62 Wis. 251, 22 N. W. 470; Degenhardt v. Heller, 93 Wis. 662. 68 N. W. 41 T, 57 Am. St. Rep. 945. 2. The Intention ftnalifled Dy Words. — Tubervillc v. Savage, I Mod. 3. where defendant, drawing Vol. 1. 9% ASSAULT AND BATTERY. whether tlie act failed in its intended efifect or not.-'' Malice or want of malice may be shown, when exemplary damages are allowable for the purpose of aggravating or mitigating general damages/ his sword said: "If it were not assize time, I would not take such language from you." Blake v. Barnard, 9 Car. & P. 626. 3. Futile Overt Acts Smith v. Newsam, i \'L-nt. 256; Tombs v. Painter, 13 East i; Lewis v. Hoover, 3 Blackf. (Ind.) 407; Handy v. Johnson, 5 Md. 450; Liebstadter v. Federgreen, 80 Hun 245, 29 N. Y. Supp. 1039; IMorgan v. O'Daniel, 19 Ky. Law 193, 39 S. W. 410. 4. MacDougall v. Maguire, 35 Cal. 274, 9S Am. Dec. 98. In Bartram V. Stone, 31 Conn. 159, it is said: " In an action for assault and bat- tery, the plaintiff may prove the previous threats of the defendant to make the assault, lioth for the pur- pose of proving that the defendant made the assault, and to prove that it was maliciously made. Where it is material to show the animus with which an act was done, both the prior and subsequent declarations of the party doing the act, as well as those which accompany the act, are admissible." Time Limits on Acts or Words Showing Malice. — In Irwin v. Ycagcr, 74 Iowa 174. 37 N. W. 1,36, it was held error to admit in evidence that more than two years prior to the alleged assault, in a difficulty be- tween the plaintiff and the defend- ant, defendant said " Never mind, I will fi.\ }-ou yet," as the evidence was too remote to show malice. Breitenbach v. Trowbridge, 64 Mich. 3,93. 31 N. W. 402, 8 Am. St. Rep. 829. held, that the question whether defendant after an assault, had not called plaintiff "a damned police court shyster," is not competent on his cross examination for the pur- pose of showing malice at the time of the assault. In Peterson v. Toner 80 Mich. 350, 45 N, W, 346, held, that for the purpose of showing defendant's malice in making an assault on plain- tiff, the latter may introduce evi- dence of threats made against him Vol. 1. by defendant, three or four years before the assault. Subsequent Threats In Spear v. Sweeney, 88 Wis. 545, 60 N. W. io6o, held, abusive epithets addressed to a person fourteen hours after an as- sault was made upon him, are ad- missible in evidence to show that the assault was made witli express malice. Circumstances Tending to Show Malice. _ In Elfers z: Woollcy, 116 N. Y. 294, 22 N. E. 548, the court say: "The rule is well settled in this state that in an action for assault and battery, all the circumstances im- mediately connected with the transac- tion tending to exhibit and explain the motive of the defendant are com- petent for the purpose of showing whether he acted maliciously or in an honest belief that he was justified in what he did." In Volt? V. Blackmar, 64 N. Y. 440, a conversation had on the night before the alleged assault, was ad- mitted as evidence tending to show the motive. Watkins v. Gaston, 17 Ala. 664. Threats made ten days before the assault are admissible to show motive. Bell i'. Morrison, 27 Miss. 68. In Castner %'. SHker, 23 N. J. Law 95, it was held that acts and declar- ations of plaintiff occurring more than two or three months before the affray and on several occasions, are not admissible to show an in- tention of wanton violence at the time of the assault. In Byers r. Horner, 47 Md. 23, it is said : " Any acts or declarations indicative of the existence of malice or ill-will on the part of defendant towards plaintiff at the time of the wrong committed, may be given in evidence to prove malice." Malice Determined by All the Cir- cumstances. — Frost V. Pinkerton. 61 App. Div. 566, 70 N. Y. Supp. 802. All the circumstances should be considered in determining whether there was malice. Borland 7>. Bar- ASSAULT AND BATTERY. 997 B. Res Gestae. — Any acts or declarations which are a part of the res gestae are admissible in evidence.^ C. Declarations and Admissions. — Admissions made by sig- nificant acts are receivable in evidence against the defendant f also admissions of the defendant at the trial of a criminal action for the same assault.' Declarations made to a physician are admissible so far as they refer to plaintiff's physical condition and sensations. ° D. Opinion En'idence. — Opinion evidence is generally inadmis- sible except in cases where the witnesses may have better means of forming opinions than the jury.' E. Real Evidence. — The weapon with which the assault was rett, 76 Va. 128, 44 Am. Rep. 152. In Klein z: Thompson, 19 Ohio St. 569, evidence of e.xpress maUce is admissible though not averred in the petition. Reddin v. Gates, 52 Iowa 210, 2 N. \V. 1079; Crosby v. Humphreys, S9 Minn. 92, 60 N. W. 843. 5. Bruce v. Priest, 87 Mass. 100; Queen v. Bedell, 48 N. H. 546; State V. Rawles, 65 N. C. ,-534; Ward v. White, 86 Va. 212, 9 S. E. 1021, 19 Am. St. Rep. 883 ; Byers r. Horner, 47 Md. 23; Havilan'd v. Chase. 74 N. C. 477; Nelson v. State (Te.x. Grim. App.), 20 S. W. 766. See also " Mitigation of Dam- ages, Provocation," post I. 3. b. See Cherry v. McCall, 23 Ga. 193. See also " Mitigation of Dam- ace," in general, t>ost I. 3 ; IMaisen- backer v. Society Concordia, 71 Conn. 369, 42 Atl. 67; Pokriefke v. Mack- urat, 91 Mich. 399, 51 N. W. 1059; Gillespie v. Beecher, 85 Mich. 347, 48 N, W. s6i; Puett v. Beard, 86 Ind. 104. See in Rosenbaum v. State, S3 Ala. 354, what took place between pros- ecutor and prisoner at a previous interview in the forenoon of the same day, cannot be proved, as it is too far removed to constitute a part of the res gestae. Cleveland v. Stilwell, 75 Iowa 466, 39 N. W. 711; Matthews j', Terry, 10 Conn. 455 ; Bracegirdle v. Orford, 2 M. & S. 77 ; Brzezinski v. Tierney, 60 Conn. 55, 22 Atl, 486, where com- plaint alleged an assault and battery with a cane, it was held admissible to prove that while beating the plain- tiff, the defendant pushed him against a car, thereby injuring him. Blake v. Damon, 103 Mass. 199. 6. Jewett V. Banning. 21 N, Y. 27. The fact that defendant remained silent when accused by plaintiff of making an assault on him may be taken as an admission. In Heneky :■. Smith, 10 Or. 349, 45 Am. Rep. 143, evidence of the fact that six days after plaintiff brought suit, defendant made a con- veyance of land, was received as an admission of ;■. Moore, 3 Ind. E. 724; Puett zi. Trowbridge, 64 tending to shoi liability, Myers App. 226, 28 N. Beard, 86 Ind. 104. 7. Brietenbach Mich. 393, 31 N. W. 402, 8 Am. St. Rep. 829. 8. Lichtenwallner v. Laubach, 105 Pa. St. 366; Newman v. Dodson, 61 Tex. 91 ; Earl v. Tupper, 45 Vt. 275. In Collins v. Waters, 54 III 485, it is held that plaintiff's declarations to his physician as to how and with what instrument the injury was pro- duced, is inadmissible in a civil action for assault. 9. In State r. Garvey, 11 Minn. 154, opinion of prosecuting witness as to the intent with which defendant committed the act is not admissible, where he has no better means to judge, than the jurv. Smith v. State (Tex. Grim. App.), 20 S. W. 360, opinion of a witness as to whether a whipping by a school teacher was severe, cruel or unjust is not ad- missible. Trimble v. State (Tex. Crim, App.), 22 S. W. 879, opinion not admissible as to why defendant assaulted plaintiff. Vol. 1. 998 ASSAULT AND BATTERY. committed nia\' be pfoduced in evidence upim being properly identi- fied.'" F. Charactek and Condition of Parties. — Evidence of defendant's good character is not admissible in a civil action." Nor can the plaintiff give in evidence that he is a man of good general character.'- Wwi if the evidence has already shown that defendant was acting in self-defense, then evidence of the turbulent and quarrelsome disposition of the plaintiff is admissible, if it was known to defendant at the time of the assault ;'" unless the character of plaintiff has no connection with the assault.'* But if defendant was the aggressive party he cannot show that the person assaulted was a violent man or had a bad character.'^ Physical Condition of the Parties. — It is competent to give in evi- dence to the jury the physical condition of the plaintiff or defend- ant before, at the time of, and after the assault, where it is necessary to explain the transaction and its consequences.""' Also to show 10. \'on Reeden v. Evans, 52 111. App. 209. 11. United States. — Brown v. Evans, 17 Fed. 912, affinncd 109 U. S. 180. California. — Anthony v. Grand, lOi Cal. 235, 35 Pac. 859; Vance v. Richardson. 1 10 Cal. 414, 42 Pac. 909. Connecticut. — Thompson v. Church, I Root 312. Indiana. — Elliott v. Russell, 92 Ind. 526; Sturgeon v. Sturgeon, 4 Ind. .\pp. 232, 30 N. E. 805. hnca. — Reddin v. Gates, 52 Iowa 210, 2 N. W. 1079, Kentucky. — Drake v. Com., 10 B. Mon. 225. Maine. — Soule v. Bruce, 67 Me. 584. Massachusetts. — Day v. Ross, 154 Mass. 13, 27 N. E. 676. Michigan. — Fahey z: Crotty, 63 Mich. 383. 29 N. W. 876, 6 Am. St. Rep. 305 ; Pokriefke v. Mackurat, 91 Mich. 399, 51 N. W. 1059; Dcrwin V. Parsons, 52 Mich. 425, 18 N. W. 200, 50 Am. Rep. 262. Mississipfi. — Sowell v. McDon- ald, 58 Miss. 251. Missouri. — Lyddon v. Dose. 81 Mo. App. 64. Nebraska. — Barr v. Post, 56 Neb. 698, 77 N. W. 123. North Carolina. — Smithwick v. Ward. 7 Jones Law 64. Ohio. — Sayen v. Ryan, 9 Ohio Cir. Ct. 631. 12. Givens r. Bradley, 6 Ky. 192, 6 Am. Dec. 646; Reed' v. Kelly, 4 Vol. 1. Bibb. (Ky.) 400; Quinton v. Van Tuyl, 30 Iowa 554. 13. Galbraith v. Fleming, 60 Mich. 403, 27 N. W. 581 ; Harrison V. Harrison, 43 Vt. 417; Knight v. Smythe, 57 Vt. 529; Keep v. Quail- man, 68 Wis. 451, 32 N. W. 233; Culley r. Walkeen, 80 Mich. 443, 45 N. W. 368; Silliman v. Samp- son, 42 App. Div. 623, 59 N. Y. Supp. 923. Defendant cannot show that plain- tiff was an irritating and troviblesomc old man and had similar trouble before. Maclntoch 7'. Bartlett, 67 Me. 1,^0. Must Be Shown by General Reputation and Not Opinion. Colder z: Lund. 50 Xeb. 867. 70 N. W. 379- 14. McKenzie t. .'Mien, 3 Slrob. (S. C.) 546; Cummins v. Crawford, 88 111. 312, 30 Am. Rep. 558; Mc- Carty v. Leary. 118 Mass. 509; Shook V. Peters, 59 Tex. 393 ; Littlehale v. Dix, II Cush. (Mass.) 364. 15. Kuney v. Dutchcr, 56 Mich. 308, 22 N. W. 866; Bruce v. Priest, 87 Mass. ICO. 16. Stone V. Moore. 83 Iowa 186, 49 N. W. 76. In Bonino z: Cale- donia, 144 Mass. 299. II N. E. 98, a physician allowed to testify as to condition of plaintifT's nose eight months after the injury, where the request is for him to state the con- dition of the plaintiff at that time, so far as related to the effect of the injury In the nose — there being evi- ASSAULT AND BATTERY 999 the relative sizes of the plaintiff and defendant as bearing on the amount of force necessary to be used by defendant.'' 2. Evidence in Special Pleas. — .\. Moder.xte C.xstigavit. When the plea of moderate eastiga-:it is put in, the defendant must not only show his authority, and the cause of the beatinp;, but also that it was in fact moderate; and if by his own evidence it appears that he has abused his authority and inflicted blows unnecessary for the purpose, his issue fails him, and it is of his own wrons:^ and without the cause set forth in his plea.'" The defendant must also show that the plaintiff was his apprentice, by the evidence of the articles of apprenticeship.'" Evidence is not admissible as to what was the customary practice of other masters in chastising- their apprentices,-" or that the ordinary management of the defendant dence to conni-ct the then condition with the injury. Family witnesses were allowed to give a full account of the physical condition of plaintiff before the in- jury, and of his sufferings then and since, and of the continued infirmities, without apparent improvement, for three and one-half years after the iniurv. Kuney ;■. Dutcher, s6 Mich. ,^o8, 22 N. W. 866. Elliott V. Van Buren, ,3,^ Mich. 49, 20 Am. Rep. 668; Jackson t'. We. Is, i.S Te.x. Civ. App. 27s, 35 S. W. 528. Evidence that the plaintiff had hemorrhages of the lungs eighteen months before and was weak and feeble at the time, accompanied by evidence from which it would be in- ferred that defendant had knowledge of such facts, is admissible. Ously f. Hardin, 23 111. 352. Competent to show that plaintiff was weak-min'ded. Evidence as to plaintiff's condition the following morning is adinissible. Hannan v. Gross, 5 Wash. 703, 32 Pac. 787. ■ Where plaintiff had been injured in the army, it was admissible to show that these injuries had been aggravated, and to what extent, by the assault. Watson v. Rheinder- knecht, 82 Minn. 235, 84 N. W. 798. Reddin v. Gates, 52 Iowa 210, 2 N. W. 1079. Held, that a ferreotype of the condition of plaintiff's wounds. taken shortly after the battery, with testimony that it was a correct representation of the then condition, was competent. 17. Thomason z: Gray, 82 Ala. 291, 3 So. 38. In determining the amount of force necessary to be used by defendant, the jury may consider the age and relative size of the parties. Crosby v. Humphreys, 59 Minn. 92, 60 N. W. 843. 18. Hannen t'. Edes, 15 Mass. 365. In Matthews z: Terry, to Conn. 455. the court say on this issue : " It is claimed by the defendant, that the relation of master and servant existed between them, which con- ferred upon him this right. Admit- ting that relation to have existed, it by no means followed that the de- fendant possessed the power claimed. There is no doubt but that for just cause, a parent may reasonably cor- rect his child, a master his ap- prentice, and a schoolmaster his pupil. Yet that power cannot be lawfully exercised by a master over his hired servant, whether that ser- vant is employed in husbandry, in manufacturing business, or in any other manner, c.vccpt in the case of sailors. And if the master beat such servant though moderately, and by way of correction, it is good ground for the servant's departure, and he may support an action against the master for battery. Citing i Chitty Pr. 73, 75 ; Newman i'. Bennett, 2 Chitty 195. See also Watson v. Christie, 2 Bos. & P. 224; Brown v. Howard, 14 Johns. (N. Y.) 119; Thome v. White, i Pet. Adm. 168, 23 Fed. Cas. No. 13.989; Sampson V. Smith, IS Mass. 365. 19. Greenl. Ev., vol. 2, §97. 80. Newman v. Bennett, 2 Chitty 195- Vol. 1. lOOU ASSAULT AND BATTERY was mild and moderate.-^ B. Son Assault Demesne. — When the defendant pleads son assault demesne, he must prove that the plaintiff assaulted him first, ^^ and that what was done by him was in necessar}^ defense of his own person.-' A previous assault is not admissible in evidence under this plea, or any assault other than the one laid in the decla- ration.-* It is also necessary to prove an assault commensurate with the trespass soutjht to be justified"'^ when the plea is used, and the reply is dc injuria, all averments of the plea are put in issue, and the plaintiff can only recover for the excess of force he proves ;-° and under these pleas the defendant is confined to evidence in excuse of the battery.^' C. Replication de Injuria. — The replication dc injuria is really a traverse to a plea in excuse, and therefore puts in issue only the matter of excuse alleged in the plea : therefore, under de injuria, the plaintiff may show in evidence that the defendant's bat- tery was excessive.-* Where there is only one count and a traverse de injuria, no evidence can be introduced relating to any other assault than the one specified in the plea.-" D. MoLLiTER Manus Imposuit. — Although the plea may justify a mere assault, it is never good if the evidence shows a beating and wounding.'" Where the assailant does not use force, evidence of a request to depart should be given under this plea.'* Where a per- 21. Lander v. Seaver, 32 Vt. 114, 76 Am. Dec. 156. 22. Stevens v. Lloyd, i Cranch C. C. 124, 23 Fed. Cas. No. 13,402; Schlosser v. Fox. 14 Ind. 365. See Wilken v. Exterkamp, 19 Ky. Law 1 132, 42 S. W. 1 140. In the absence of a plea of son assault demesne, defendant cannot prove that plain- tiff first assaulted him. 23. Rogers v. Waite, 44 Me. 275; Fitzgerald v. Fitzgerald, 51 Vt. 420; Watson V. Hastings, l Penn. (Del.) 47, 39 Atl. 587. 24. Gibson v. Fleming, i Har. & J. (Md.) 483; Dole V. Erskine, 37 N. H. 316; Peyton v. Rogers, 4 Mo. 254- 25. Reece v. Taylor. 4 N. & M. 470. 26. Harrison v. Harrison, 43 Vt. 417; Watson t'. Hastings, i Penn. (Del.) 47, 39 Atl. 587. 27. Frederick v. Gilbert, 8 Pa. St. 454. But if plaintiff attempts to justify he must newly assign the matter of justification. Elliot v. Kilburn, 2 Vt. 470. 28. Ayers v. Kelley, n 111. 17; Fortune v. Jones, 30 III. .-Xpp. 116, Vol. 1. reversed 128 111. 518, 21 N. E. 523; Fisher v. Bridges, 4 Blackf. (Ind.) S18; Gaither v. Blowers, 11 Md. 536; Hannen v. Edes, 15 Mass. 347; Curtis V. Carson, 2 N. H. 539; Ben- nett V. Appleton, 25 Wend. (N. Y.) 371 ; Bartlett v. Churchill. 24 Vt. 218; Mellen v. Thompson, 32 \'t. 407; Philbrick v. Foster, 4 Ind. 442; Dole V. Erskine, 37 N. H. 316; Thomas v. Black, 8 Houst. (Del.) 507, 18 Atl. 771- 29. Carpenter v. Crane, 5 Blackf. (Ind.) 119; Berry v. Borden, 7 Blackf. (Ind.) .384. 30. Cox V. Cooke, i J. J. Marsh. (Ky.) 360; Shain v. Markham, 4 J. J. Marsh. (Ky.) 578. 20 Am. Dec. 232; Boles V. Pinkerton, 7 Dana (Ky.) 453; French v. Marstin, 24 N. H. 440, 57 Am. Dec. 294; Gates V. Lounsbury, 20 Johns. (N. Y.) 427; Bush V. Parker, i Bing. (N. C.) 72; Brubaker v. Paul, 7 Dana (Ky.) 428, 32 Am. Dec. in. 31. Mcllvay v. Cockran, 2 Marsh. (Ky.) 276; Ford v. Logan, 2 Marsh. (Ky.) 325. See Tullay v. Reed, i Car. & P. 6; Ballard v. Bond, i Jur. 7. ASSAULT AND BATTERY 1001 son is justified in laying hands on anotlier, tliis plea will be sus- tained by evidence of the use of necessary and reasonable force, but not of unnecessary and unreasonable force.'- And the one who justifies the use of force, must prove the circumstances of justifica- tion. '^ 3. Damages. — A. Mitigation of Damagi;s. — -a. In General. Mitigation of damages in a case of assault is admissible,'* but the circumstances of mitigation must form part of the res gestae.'^ Although consent to an assault is no justification, yet such consent may be shown in mitigation of damages."'"' In actions for indecent assaults and solicitations, evidence may be given for the purpose of mitigating damages, as to the general character of plaintiff for unchastity, but evidence of specific acts is inadmissible."' But usually the evidence of character of plaintiff or defendant is imma- terial, and inadmissible to mitigate damages.'* 32. Green v. Bartram, 4 Car. & P. 308, where B would have been jus- tified in using reasonable force to put A out of his house, yet was not justified in having A arrested. England. — Hillary v. Gay, 6 Car. & P. 284; Edwick V. Hawkes, 18 Ch. D. 199 ; Eyre v. Norsworthy, 4 Car. & P. 502 : Iniason v. Cope, 5 Car. & P. 193 ; Thomas i'. Marsh, $ Car. & P. 596. United States. — Denver etc. R. Co. V. Harris, 122 U. S. 597. Connecticut. — Larkin v. Avery, 23 Conn. 304. Illinois. — Comstock i'. Brosseau, 65 111. 39- New Jersey. — Todd v. Jackson, 26 N. J. Law 525. New York. — Hyatt v. Wood. 3 Johns. 239, 4 Johns. 150, 4 Am. Dec. 258; Wood V. Phillips, 43 N. Y. 152; McMillan v. Cronin, 75 N. Y. 474; Bristor v. Burr, 120 N. Y. 427, 24 N. E. 937, 8 L. R. A. 17; O'Donneil V. Mclntyre, 27 Hun 623. Ohio. — Pitford -■. .\rmstrong, Wright 94. Te.vas. — Sinclair v. Stanly, 69 Tex. 718, 7 S. W. 511. See also Canavan v. Gray, 64 Cal. 5 ; Franck V. Wiegert, 56 Mich. 472, 23 N. W. 172. Contra. — Sterling v. Warden, 51 N. H. 217, 12 Am. Rep. 80; Kellam v. Janson, 17 Pa. St. 467; Rich v. Keyser, 54 Pa. St. 86. Eviction From Railway Train. Coleman -■. X. Y.. X. H. & 11. R., 106 Mass. t6i. Eviction of Trespasser. — Brebach r. Johnson, 62 111. App. 131 ; Gyre V. Culver, 47 Barb. (N. Y.) 592; Beecher 7', Parmele, 9 Vt. 352, 31 Am. Dec. 633 ; Brothers r. Morris, 49 Vt. 460; Abt V. Burgheim, 80 111. 92; Jones V. Jones. 71 111. 562; Wright V. So. Exp. Co., 80 Fed. 85 ; Low V. Elwell, 121 iNIass. 309, 23 Am. Rep. 272. 33. Hanson i'. E. & N. A, R. Co., 62 Me. 84, 16 Am. Rep. 404; Cole- man V. N. Y., N. H. & H. R., 106 Mass. 161 ; Brown z\ Gordon, i Gray (Mass.) 182; Rhinehardt v. Whitehead, 64 Wis. 42, 24 N. W. 401. 34. Anonymous, Brayt. (Vt.) 168. 35. Mowry v. Smith, 9 Allen (Mass.) 67; Tyson v. Booth, 100 Mass. 258; Child v. Homer, 13 Pick. (Mass.) 503; Byers v. Horner, 47 Md. 23. Currier v. Swan, 63 Me. 323. Evidence of a previous assault upon the same afternoon between the parties admissible in mitigation of damages, but not the details thereof. See also Flint ,■. Bruce, 68 Me. 183. 36. Adams v. Waggoner, 33 Ind. 531, S Am. Rep. 230; Barholt v. Wright, 45 Ohio St. 177, 12 N. E. 185, 4 Am. St. Rep. 535; Logan v. .\ustin, I Stew. (Ala.) 476; Schutter V. Williams, I Ohio Dec. 47 ; Grotton I'. Glidden, 84 Me. 589, 24 Atl. 1008. 37. Dimick v. Downs, 82 111. 570; Gore V. Curtis, 81 Me. 403, 17 At!. 314, 10 Am. Rep. 265; Miller 7. Curtis, 158 Mass. 127, 32 N. E. 1039, 35 Am. St. Rep. 469. 38. Reddin 7'. Gates, 52 Iowa 210, Vol. I 1002 ASSAULT AND BATTERY. b. Provocation. — No provocation will reduce the damages, in an action for assault and battery, below compensatory or actual dam- ages, unless it amounts to a justification.^" But any act of provoca- tion, or any insulting and provoking language used, at the time of the assault and battery, may be given in evidence in mitigation of damages." Such provocation or language is not admissible unless 2 N. \V. 1079 ; Corning ?'. Corning, 6 N. Y. 97; Willis V. Forrest, 2 Dner 310. 39. United States. — Cushnian %'. Waddell, l Baldw. 57, 6 Fed. Cas. No. 3516. Connecticut. — Burke v. Melvin, 45 Conn. 243. Delaware. ^- Tatnall z\ Courtney, 6 Houst. 434. IlUiwis. — Scott -'. Fleming. 16 111. App. 5.39- Kcntuckx. — Waters v. Brown. 3 A. K. Marsh, do Ky.) 557- Maine. — Prentiss v. Shaw, 56 Me. 427. 96 Am. Dec. 475. Keii: York. — Keves v. Devlin, 3 E. D. Smith 518. " Tennont. — Goldsmith v. Joy, 61 Vt: 488. 17 Atl. loio, IS Am. St." Rep. 923. 4 L. R. A. 500. IVisconsin. — Birchard ?'. Booth. 4 Wis. 85; Corcoran v. Harran, 55 Wis. 120, 12 N. W. 468; Brown 7'. Swine- ford. 44 Wis. 282. 28 Am. Rep. 582. 40. Rochester v. Anderson, i Bihb (Ky.) 428; .^very r. Ray, i Mass. 12; Ellsworth v. Thompson. 13 Wend. (N. Y.) 65S; Cushman v. Ryan, i Story 91. 6 Fed. Cas. No. 3515; Cushman T. Waddell, i Baldw. 57, 6 Fed. Cas. No. 3516; Burke v. Melvin, 45 Conn. 243; Brown v. Swineford. 44 Wis. 282. 28 .\m. Rji>. 582, provocation of an assault, though not sufficient for justification may go to exclude exemplarj' dam- ages. Richardson v. Hine, 42 Conn. 206; Matthews r'. Terry. 10 Conn. 455; Bartrani !■. Stone. 31 Conn. 159. in Fairbanks v. Witter. 18 Wis. 301, on the strength of a provocation at the time, evidence was admitted in mitigation of damages, tending to show that plaintiff had during several years previous to the affray frequently tried to provoke a quarrel with de- fendant, and had threatened on various occasions to take his life. In Stetler v. Nellis, 60 Barb. (N. Y. > 524. the court said although cvi- Vol. 1. deuce of acts done or words spoken by plaintiff long before the cause of action arose, is inadmissible for the purpose of showing provocation and mitigating the damages, yet, where such acts or words arc a portion of a series of provocations frequently repeated and continued down to the time of the assault, they may be shown in evidence. In Bundy v. Maginess, 76 Cal. 532, 18 Pac. 668, it was said, where de- fendant alleges acts of provocation both before and at the time of the assault, and that those that caused the assault and batterj- were those at the time of the assault, he cannot give evidence of other provocative acts. Dole V. Erskine. 37 N. H. 316, held that evidence that plaintiff had for a long time previous to the assault and battery entertained hostile feelings towards defendant and had formerly committed an assault on him, is lu- admissible. .An article published in a newspaper two days before the assault, is ad- missible in evidence as part of the res gestae. Ward v. White. 86 Va. 212, 9 S. E. 1021, 19 .\m. St. Rep. 883. England. — Eraser v. Berkeley, 7 Car. & P. 621. .irkansas. — Ward i'. Blackwood, 41 Ark. 295, 48 Am. Rep. 41. Connecticut. — Guernsey v. Morse, 2 Root 252, I Am. Dec. 69. Delatvare. — Jarvis ;'. Manlove, 5 Harr. 452. Illinois. — Ogden v. Claycomb. 52 111. 365: Murphy v. McGrath, 79 11! 594; Donnelly v. Harris, 41 111. 126. Indiana. — Fullerton 1: Warrick, 3 Blackf. 219, 25 Am. Dec. 99. Iowa. — Ireland v. Elliott, 5 Iowa 478, 68 Am. Dec. 715; Thrall v. Knapp. 17 Iowa 468; Gronan v. Kukkuck, 59 Iowa 18, 12 N. W. 748. Kentucky. — Chandler v. Newton, 13 Ky. Law 927. ASS.IULT AND BATTERY 1003 it is a part of the res gestae.*^ And therefore evidence of a provo- cation given by plaintiff some time before the assault, is not admis- sible in evidence. *- c. CriminaJ Prosecution. — In a civil action for assault and bat- tery evidence may not be given to the jury for the purpose of reduc- ing damages, that the plaintiff had been prosecuted criminally for the assault and ])aid his fine.*'' The record of the indictiuent may be introduced in evidence to show that the indictment and action are founded on the same transaction.*"' Louisiana. — Richardson -'. Zuntz, 26 La. Ann. 313; Caspar r. Pros- dame, 46 La. Ann. 36, 14 So. 317. Maryland. — Caither v. Blowers, II Md. 536. Massachusetts. — Paul i'. Bisset, 121 Mass. T70. Michigan. — Millard 7'. Trua.x. 84 Mich. S17, 47 N. W. iioo. 22 .Am. St. Rep. 70s. Minnesota. — Crosby v. Hum- phreys, 59 Minn. 92, 60 N. W. 843. Ne'ci' York. — Willis i'. Forrest, 2 Duer 310 ; Lee r. Woolsey, 19 Johns. 319, 10 Am. Dec. 230. North Carolina. — Barry v. In- gles, Taylor 72. Tennessee. — Jackaway i'. Diila, 7 Yerg. 82, 27 Am. Dec. 492. In Marker v. Miller, 9 Md. 338, it was held that the fact that the as- sault was comnn'tted by the defend- ant in vindication of his truth and veracity is a mitigating circumstance if he had the truth on his side, and hence plaintiff may rebut it by proof that truth was with him. But see Butt f. Gould, 34 Ind. 552, and Bartram v. Stone, 31 Conn. 159. 41. Avery v. Ray, i Mass. 12; Ellsworth z<. Thompson, 13 Wend. (N. Y.) 658: Richardson v. Hine, 42 Conn. 206; Brooks 7: Carter. 34 Fed. 505; Millard v. Truax, 84 Mich. 517, 47 N. W. 1 100. 22 .\m. St. Rep. 705; Coxe V. Whitney, 9 Mo. 531; Lee J'. Woolsey, 19 Johns. (N. Y ) 319; Chapell I'. Schmidt, 104 Cal. mi, 3S Pac. 892. Where defense was that plaintiff unlawfully entered defendant's gar- den and was picking his flowers at the time of the assault, it was not error to exclude evidence of prior commissions of the saine trespass. Alabama. — Keiser ?'. Smith, 71 Ala. 481, 46 Am. Rep. ,142. Indiana. ■ Baker v. Gausin, 76 Ind. 317- lotvQ. — Cleveland v. Stilvvell. 75 Iowa 466, 39 N. W. 711. Kentucky. — Rochester ;■. Ander- son, 1 Bibb 428; Dungan v. Godsey, 2 A. K. Marsh. 352 : Sherley v. Billings, 8 Bush 147, 8 Am. Rep. 451. Massachusetts. — Hall v. Powers. 12 Mete. 482, 46 Am. Dec. 698; Paul v. Bisset, 121 Mass. 170. iVcic York. — Mayixard v. Beards- ley, 7 Wend. 560, 22 Am. Dec. 595. Virginia. — Davis v. Franck, 2>i Gratt. 413; McAlexander v. Harris, 6 Munf. 465. 42. Rochester v. .\nderson, i Bibb (Ky.) 428; Chrisman ;■. Hunter, 3 Dana (Ky.) 83; Berry v. Ingles, Taylor 72; Roach v. Caldbeck, 64 Vt. S93, 24 Atl. 989; Waters v. Brown, 3 A. K. Marsh. (Kv.) 557- 43. Alabama. — VhWyxps z: Kelly, 29 Ala. 628. California. — Bundv v. Maginess, 76 Cal. 532, 18 Pac. '668. Delaivare. — Keller z'. Taylor, 2 Houst. 20. lozva. — Reddin v. Gates, 52 Iowa 210, 2 N. W. 1079. Kentucky. — Reed v. Kelly, 4 Bibb 400. Mississippi. — Wheatley v. Thorn, I Cush. 62. Missouri. — Corwin z'. Walton, i8 -Mo. 71, 59 Am. Dec. 285. South Carolina. — Wolff v. Cohen, 8 Rich. Law 144. I'ermont. — Roach z: Caldbeck. 64 Vt. 593, 24 Atl. 989; Headle v. Wat- son, 45 Vt. 289, 12 Am. Rep. 197. Contra. — Smithwick z'. Ward, 7 Jones Law 64; Rhodes z\ Rodgers, 151 Pa. St. 634. 24 Atl. 1044; Flanagan v. Womack, 54 Tex. 45 ; Jackson v. Wells, 13 Te.x. Civ. App. 275. 35 S. W. 528. 44. Blackburn z: Minter. 22 Ala. 613. Vol. 1. 1(1(14 ASSAULT AND BATTERY. The pecuniary circumstances of the defendant may be considered in awarding damages/^ and also the station or position of the par- ties.*" B. Aggravation of Damages. — a. /;;• General. — Circumstances of outrage and insuh attending an assault and battery,*" which wound the feelings or tend to lower the party injured in the estimation of society, may be given in evidence to influence the award of dam- ages beyond the usual amount." Malice may also be shown in evidence in aggravation of actual damages even though exemplary or punitive damages are also recoverable on the same ground.*" But evidence of words spoken at the time of the assault, or at another time and place, is inadmissible in aggravation of damages."'" Where it is averred that the assault was unlawfully made, matters of aggravation may be given in evidence without pleading them.^' b. Financial and Social Condition of Parties. — When an aggra- vated assault and battery is sued for, evidence is admissible of the pecuniary ability of the defendant,'" or of his social posi- 45. Sloan v. Edwards, 6i Md. 89. But the court say as to financial con- dition that where the question is "what is pecuniary condition of de- fendant " and the answer is " gen- erally considered good " it is inad- missible because too indefinite. Schmidt V. Pfeil, 24 Wis. 452; Harris v. Marco, 16 S. C. 575 ; Dailey V. Houston, 58 iVIo. 361. In Mullin t'. Spangenberg, 112 111. 140, court say defendant cannot show he is without pecuniary resources, unless by way of rebuttal. Johnson V. Smith, 64 Me. 553; Jacoby v. Guier, 6 Serg. & R, (Pa.) 399- 46. Sloan v. Edwards, 61 Md. 89; Dailey v. Houston, 58 Mo. 361 ; Schelter v. York, Crabbe 449, 21 Fed. Cas. No. 12,446; Jarvis v. Man- love, 5 Harr. (Del.) 452. 47. Barnes v. Martin, 15 Wis. 240, 82 Am. Dec. 670; Dickey v. Mc- Donnell, 41 111. 62 ; Root V. Stur- divant, 70 Iowa 55, 29 N. W. 802; Worford v. Isbel, i Bibb (4 Ky.) 247, 4 Am. Dec. 633; Pratt v. Ayler, 4 Har. & J. (Md.) 448. In Shafer v. Smith, 7 Har. & J. (Md.) 67, other trespasses to plain- tiff, or to his family, if committed at the time of the principal trespass, may be given in evidence to increase the damages. Bell v. Morrison, 27 Miss. 68; Joice v. Branson, 73 Mo. 28; Pendleton v. Davis, I Jones (N. C. ) 98; Dean v. Raplee, 75 Hun 389, 27 N. Y. Snpp. 438. Vol. 1. 48. Townsend v. Briggs (Cal.), 32 Pac. 307 ; Ously v. Hardin. 23 111. 352; Johnson v. McKee, 27 Mich. 471 ; Elliott V. Van Buren, 33 Mich. 49, 20 Am. Rep. 668, aggravation of an ex- isting disease; Hodges v. Nance, i Swan (Tenn.) 57; Bagley v. Mason, 69 Vt. 17s, 37 Atl. 287. 49. Webb v. Oilman, 80 Me. 177, 13 Atl. 688; Shafer v. Smith, 7 Har. & J. (Md.) 67; Joice v. Branson. 73 Mo. 28. 50. Hallowell z'. Hallowell, i T. B. Mon. (Ky.) 130. 51. Sampson v. Henry, II Pick. (Mass.) 379; Pierce v. Carpenter, 65 Mo. App. 191. See Birchard ■?: Booth, 4 Wis. 85, where damage is not the necessary or natural con- sequence of the assault and battery or where it is matter of aggravation, evidence cannot be given unless specially stated on the record. 52. United States. — Brown v. Evans, 17 Fed. 912. Illinois. — Cockran r. Aminon, 16 ill. 315; Jones V. Jones, 71 111. 562. Kcntucl;y. — Gore v. Chadwick, 6 Dana (36 Ky.) 477. Maine. — Webb v. Gilman, 80 Me. 177, 13 Atl. 688. Maryland. — Sloan v. Edwards, 61 Md. 89. North Carolina. — Pendleton v. Davis, I Jones 98. Ohio. — Hendricks v. Fowler, 16 Ohio Cir. Ct. 597. .Smith Carolina. — Rowe v. Moses, ASSAULT AND BATTERY 1005 tion,^'' but this evidence is not admissible on the subject of actual compensatory damages.^'' c. Consequential Injnries. — Where the complaint is general, no special damages alleged, evidence may be given of damages natu- rally and necessarily resulting from the act of defendant. °''' Where the damages are consequential they must be set forth specially in the petition, or else no evidence of such damages will be allowed.'^" 9 Rich. Law 423, 67 Am. Dec. 560; Harris v. JNIarco, 16 S. C. 575. Wisconsin. — Barnes v. Martin, 15 Wis. 240, 82 Am. Dec. 670; Draper V. Baker, 61 Wis. 450, 21 N. W. 527, 50 Am. Rep. 143 ; Birchard v. Booth, 4 Wis. 85. 53. McNamara v. King, 2 Gilm. (III.) 432; Sloan V. Edwards, 61 Md. 89 : Eltringham v. Earhart, 67 Miss. 488. 7 So. 346, 19 Am. St. Rep. 319; Dailey v. Houston, 58 Mo. 361 ; Jones V. Jones, 71 III. 562; Gaithers v. Blowers, II Md. 536. 54. Roach V. Caldbeck. 64 Vt. 593, 24 Atl. 989; Hare v. Marsh, 61 Wis. 435, 21 N. W. 267, 50 Am. Rep. 141. 55. Morgan v. Kendall. 124 Ind. 454, 24 N. E. 14.^- 9 L- R- A. 445. Andrews v. Stone, 10 Minn. 72, where no special damages alleged, not confined to nominal damages, but may recover such general dam- ages as are proved to result. O'Leary z'. Rowan, 31 Mo. 117. Stevenson v. Morris, 37 Ohio St. 10, 41 Am. Rep. 481 ; Birchard v. Booth, 4 Wis. 85. Need not set out in petition necessary or usual con- sequences of the injury, and may recover for these even though they accrue after the commencement of the suit. Gronan v. Kukkuck, 59 Iowa 18, 12 N. W. 748; Sloan v. Edwards. 61 Md. 89; Fetter v. Beale, I Ld. Raym. 339, 2 Salk. 11; Moore V. Adam, 2 Chitty 198; i Chitty PI, 346- 56. Vertz v. Singer Mfg. Co., 35 Hun (N. Y.) 116. In Hutts V. Shoaf, 88 Ind. 395, it is said that if the complaint alleges that the plaintiff was made lame and sick, evidence of special damage is admissible, though no specific amount is claimed " eo nomine." In Hamm t. Romine, 98 Ind. 77, complaint alleged permanent dis- ability, and it was held that plain- tiff could give evidence as to her ill health since the assault. Sloan v. Edwards, 61 Md. 89, held might show that had become subject to fits, although not specially alleged as grounds of special damages. Avery V. Ray, I Mass. 12. In Welch v. Ware. 32 Mich. 77, declaration set up items of injury, suffering and expense, avers hin- drance in plaintiff's affairs, loss of profits in occupation as a theatrical performer, etc. Held, that evidence was admissible of price plaintiff was paying for board of himself and family, value of the joint services of hitnself and wife as performers, and of proportion his services were worth. Cannot recover for doctor's bill resulting, unless specially set forth. O'Leary v. Rowan, 31 Mo. 117. In Robinson v. Stokely, 3 Watts (Pa.) 270, consequential injury to plaintiff's business must be averred in declaration, otherwise evidence of such injury is inadmissible. Kuhn V. Freund, 87 Mich. 545. 49 N. W. 867 ; Pettit V. Addington, Peake 62. If consequent sickness be intended to be relied on, it must be laid under a per quod. Exceptions to Above. — Special damages may be recovered, wdien not declared on in the complaint, if the evidence in regard to such special damages is given to the jury without objection. Atkinson v. Harran, 68 Wis. 405, 32 N. W. 756. Must Be Proved as Averred. .\llegation that plaintiff expended uKineys to be cured is not sustained by proof that he simply incurred liability therefor. Ward v. Haws, 5 Minn. 440. Vol. 1. 1006 ASSAULT AND BATTERY II. CKIMINAL ACTION. 1. Presumptions and Burden of Proof. — The burden is upon the state to prove the assault to be a criminal one,'' not made in self- defense,^' even where a deadly weapon was used f'' but it has also been held that the burden is upon the defense to justify the use of such weapon."" There is no presumption that a billy, "^ axe,"^ pistol, or other instrument is a deadly weapon,"' and the burden is upon the state to show its deadly character"* as used."'' Where the defense relies upon some distinct and independent fact not part of the res gestae, the burden shifts to the defendant."" Natural Results. — The law presumes that the defendant intends the ordinary results of his acts,"' and the acts of his accomplices. Loaded Gun Aggravated Assault. — The burden is upon the defend- ant to prove that his ii,m\ was not loaded,"" and it has been held that the burden is upon the defendant to justify mayhem."" 57. Presumptions and Burden of Proof Com. v. McKie, i Gray 67 Mass.) 61, 61 Am. Dec. 410; State v. Shea, ID4 Iowa 724, 74 N. W. 687; People V. Shanley. 30 Misc. 290 , 62 N. Y. Supp. 389; State v. Fowler. 52 Iowa 103, 2 N. W. 983 ; State v. Mor- phy> 22 Iowa 270; State v. Por- ter, 34 Iowa 131 ; U. S. ?'. Luiit, i Sprague (U. S.) 311. If the defendant relies upon no separate, distinct or independent fact, but confines his defense to the orig- inal transaction on which ths charge is founded with the accompanying circumstances, the burden of proof never shifts, but remains upon the state throughout the whole case to prove the act a criminal one beyond a reasonable doubt. People v. Rod- rigo, 69 Cal. 601, II Pac. 481. 58. State v. Hickam, 95 Mo. 322, 6 \m. St. Rep. 54. 59. Deadly Weapon — State v. Hickam, 95 Mo. i22. 6 .^m. St. Rep. 54- People, 91 >.. \. State (Tex. .App.), 60. Sawyer 667. 81. Ballard 13 S. W. 674. 62. Melton v. State. 30 Tex. .\pp. 273, 17 S. W. 257. There is no presumption that an ax is a deadly weapon, but its char- acter in this regard depends upon its size, martner of use and proof is re- quired. Gladney v. State (Tex. App.), 12 S. W. 868. Vol. 1. 63. Ballard v. State (Tex. App.), 13 S. W. 674; Hilliard v. State, 17 Tex. App. 210; Parks v. State (Tex. App.), IS S. W. 174- 64. Hunt -'. State, 6 Tex. App. 663; Hillard v. State, 17 Tex. App. 210. 65. Branch v. State, 35 Tex. Crim. App. 304, a S. W. 356. 66. People v. Rodrigo, 69 Cal. 601, 1 1 Pac. 481 ; Com. v. ^IcKie, 67 Mass. (i Gray) 61. 67. Natural Results. — Donaldson V. State, ID Tex. App. 307 ; Atkins v. State, II Tex. App. 8; Evans v. State, 25 Tex. Snp. 304; People v. Wright. 93 Cal. 564. 29 Pac. 240. The law warrants the presumption that a person intends the results or consequences to follow an act which he intentionally commits, which or- dinarily do follow such acts. State V. Gillett, 56 Iowa 459, 9 N. W. 362. It is presumed that one who hires another to commit an assault, in- tends the probable consequences of his act. State v. Merchant (N. H.). 18 Atl. 6.S4. 68. Loaded Gun — State v. Cherry, ^2, N. C. (II. Ired.) 475; Crow v. State, 41 Tex. 468; Burton v. State, 3 Tex. App. 408, 30 Am. Rep. 146; Caldwell v. State, 5 Tex. 19; State V. Herron, 12 Mont. 230, 29 Pac. 819. },>, Am. St. Rep. 576- 69. Sec " Mavhem." Where the defendant bit oflf a por- tion iif tlie car of the assaulted party. ASSAULT AND BATTERY. I(iu7 2. Res Gestae. — The res i^cstac of the assault are competent evi- dence/" and include the acts,'' declarations,'- appearance,'" and physical condition of the parties,'^ and of the accomplices of either,'^ as well as all the circumstances of the assault.'^ the burden of establishing that it was done in self-defense was upon the defense. State f. Skidmore, 87 N. C. 509. 70. Res Gestae. —People v. Pearl, 76 Mich. 207, 42 N. W. 1 109, IIS .\ni. St. Rep. 304, 4 L. R. A. 709. Sec Res Gest.\e." Smith v. State, 123 Ala. 64, 26 So. 641 ; Blount v. State, 49 .'Ma. 381. Each party to the affray should be permitted to give all the details and the jury will then be better able to pass upon their credibility. State v. Newland, 27 Kan. 764. Although the prosecutor was the aggressor, the State may show that the defend- ant struck after the necessity for de- fense had ceased. Harris v. State, 123 Ala. 69, 26 So. 515. 71. Richards v. State, 3 Tex. App. 423 ; Blount v. State, 49 Ala. 381. The defendant may prove that his pistol was not, in fact, loaded with ball, although he believed it to be at the time and intended homi- cide. State I'. Swails, 8 Ind. 524, 65 Am. Dec. 772. The prosecuting witness testified that the defendant struck him ; on cross-examination it is proper to in- quire, " How he knew witness struck him, and what defendant was doing when he turned around." Com. v. Crowley, 167 Mass. 434, 45 N. E. 766. 72. State ;■. Wiggins, 152 Mn. 170. 53 S. W. 421. The witness heard the cry of the prosecutor and as he ran to his as- sistance, saw somebody run away. The witness asked what was the matter and the prosecutor said de- fendant was trying to choke him to death. Held, the declaration of the prosecutor, part of the its gestae and admissible. Monday i'. State, 32 Ga. 672, 79 Am. Dec. 314. Threats made at the time of the assault coupled with conditions, the defendant had no right to exact, may be shown in aggravation. Crow v. State, 41 Tex. 468. 73. Com. V. Malone, 114 Mass. 295. Evidence of the conduct, de- meanor and expression of the de- fendant at or about the time of the assault is always admissible. Blount V. State, 49 Ala. 381. 74. Harris !■. State, 123 Ala. 69, 26 So. 515; Hodges V. State, 15 Ga. 117. 75. Rape -'. State, 34 Tex. Crim. App. 61S, 31 S. W. 652 ; Jackson v. U. S., 102 Fed. 473, 42 C. C. A. 452; Elmore v. State, no .Ma. 63, 20 So. 323 ; Ross 7'. State. 62 Ala. 224. Contemporaneous declarations of those not on trial, who were of the assaulting party, are admissible. Blount V. State. 49 A\a. 381. When the combination to commit an assault is established, the acts or declarations of one accomplice in the prosecution of the enterprise is evi- dence against others and when a t>rima facie case of joint action is shown the whole transaction should he "submitted to the jury. Tompkins V. State. 17 Ga. 356. Where there was a conspiracy to assault a temperance speaker it is competent to show that the conspir- ators went together to the place of assault, that some of the parties worked for the others and that some of them had been engaged in the liquor business. Yeary r. State (Tex.), 66 S. W. 1 106. 76. Yeary v. State (Tex.). 66 S. W. 1 106; Law V. State. 34 Tex. Crim. App. 79, 29 S. W. 160; Tomp- kins V. State, 17 Ga. 336 ; Harris v. State, 123 Ala. 69, 26 So. 515; State I'. Goering, 106 Iowa 636. 77 X. W. 327. Where two parties made a demon- stration with guns against the prose- cutor and while he was attempting to disarm one and a third party was trying to disarm the other, the de- fendant cut the prosecutor and third party in quick succession with a knife, all the facts and circum- stances are competent evidence for the State as part of the res gcs- Vol. 1. 1008 ASSAULT AND BATTERY About the Time. - — And include matters just before" and after the assault.'* Remote Facts. — But those remote in time'" or space are not com- petent unless upon special grounds.*" A. \\'e.\pons. — The weapon used may be identified by a wit- ness,"' and the manner of its use may be described as affecting its deadly character. *- 3. Nature of Injuries. — The extent and nature of the injuries of the prosecutor may be shown by his testimony,*^ by a non-expert tae. Smith v. State, 123 Ala. 64, 26 So. 641. It may be shown as part of the res gestae that the father of the de- fendant in the same affray inflicted other wounds upon the prosecuting witness. Hoflfmann z'. State, 65 Wis. 46, 26 N. W. 110. Where there was testimony tend- ing to show the same motive for as- saulting several persons, evidence of assaults upon such other persons at the time of the assault in issue is admissible. Horn i'. State, 102 Ala. 144. 15 So. 278. 77. About Time. — People v. De- masters, 109 Cal. 607, 42 Pac. 236. Evidence that defendant before striking the blow pointed a pistol at the assaulted person and tried to pull the trigger is part of the res gestae and admissible. Nelson v. Slate (Tex. Crim .\pp.), 20 S. W. 766. 78. Com. v. Malone, 114 ;Mass. 295; Horn v. State, 102 Ala. 144, 15 So. 278; State V. Fowler, 52 Iowa 10,3, 2 N. W. 983; People v. Teix- eira, 123 Cal. 297, 55 Pac. 988; Hodges z: State, 15 Ga. 117; Mon- day V. State, 32 Ga. 672, 79 Am. Dec. 314- Where the offense charged was as- sault with a pistol, evidence that the defendant immediately afterward procured an ax and attacked the same party, is admissible to show auimiis and as a part of the res gestae. Richards !■. State, 3 Tex. App. 423. Declarations of an assaulted party after he had run 600 feet were held competent. Waechter r. State.. 34 Tex. Crim. .\pp. 297, 30 S. W. 800. Statements made by the assaulted boy when he came home wounded and crying were regarded by the Vol. 1. court as part of the res gestae and admissible. Pool i". State (Tex. Crim. App.), 23 S. W. 801. 79. Remote Matters. — Rosen- baum V. State, 33 Ala. 354; Hadley 7'. State, 58 Ga. 309; State r. Noe- ninger, 108 Mo. 166, 18 S. W. 990; Whilden v. State, 25 Ga. 396, 71 Am. Dec. 181. Evidence that threats were made after the assault to lynch the de- fendant is not admissible for him. Mc.\llister v. State, 49 Ga. 306. Declarations of the assaulted boy after he came home and a stranger was called in to hear them are not part of the res gestae and are not admissible. Pool Z'. State (Tex. Crim. App,), 23 S. W. 891. Evidence that the parties are rec- onciled and now friends is not com- petent for the defense. Hadley v. State, 58 Ga. 309. 80. State V. Fowler, 52 Iowa 103, 2 N. W. 983 ; Rosenbaum 7'. State, ^^ .Ma. 354; State z'. Noeninger, 108 Mo. t66;"i8 S. W. 990. 81. Weapons — Thompson v. State, 35 Tex. Crim. App. 352, 33 S. W. 871 ; Cain z: Warner, 13 Pa. Supp. Ct. 461. 82. State v. Swails, 8 Ind. 524, 65 Am. Dec. 772; Tolett v. State (Tex. Crim. App.), 55 S. W. 335; Hunt v. Stale, 6 Tex. App. 663; Shaddle v. Slate. ,34 Tex. 572; Chambers t'. State, 42 Tex. 254 ; Skidmore z: Slate, 43 Tex. 93: Filkins r. People, 69 N. Y. lor. 25 Am. Rep. 143. Whether the gun was loaded and how loaded is very material evi- dence under an indictment for shoot- ing at another. .Mien -■. State, 28 Ga. 395- 73 Am. Dec, 760. 83. Injuries — People v. Suth- erland, 104 Mich. 468. 62 N. W. 566; People z: Zounek, 66 Hun 626. 20 \. V. Supp. 75.^- ASSAULT AND BATTEKY. .1009 witness,'*"' or by the testimony of a phxsician or surgeon^^ who alone can give his opinion as to the injuries,*'' or upon an agreed state- ment or hypothetical case.*' A. Wounds in Evidence. — The wounds themselves may be exhibited to the jury by the state*"* or defense.*" 4. Intent, Malice, Declarations and Threats. — Declarations of ill- will,'"' and threats by the defendant"' or his accomplices,"" and rele- vant conversations between the parties"^ before"^ or after the assault, are competent for the state to show malice or intent. °^ A. Former Difficulties. — Evidence that former difificulties existed between the parties is admissible,"" but evidence of what those difficiUties were is exckided l)v some courts,"' while others 84. Kinnard v. State, 35 Te.x. Crim, App. 276, 33 S. W. 234; Pilcher I'. State, 32 Te.x. Crim. App. ^S7, 2=5 S. W. 24. 85. State v Haynie. 118 N. C. 1265, 24 S. E. 536. 86. Opinions Dean r. State, Sg Ala. 46, 8 So. 38. 87. Doolittle V. Stale, 93 hid. -72. 88. Exhibit Wounds. — People v. Sutherland, 104 Micli. 468, 62 N. W. 566; Parrisli v. State. ^2 Tex. Crim. .\pp. 583, 25 S. W. 420. 89. The prosecuting witness should be required to exhibit his al- leged wounded arm to the jury and a contrary ruling of the court is er- ror. King V. State, ico Ala. 8=;, 14 So. 878. 90. Declarations and Threats. Walker v. State. 85 Ala. 7. 4 So. fi86, 7 Am. St. Rep. 17. See " Intent," " Mauci:," " Mo- tive." The prosecutor testified that five weeks before the assault he heard the defendant say, " if he had not just now got out of trouble he would ijreak a stick over the head of " the prosecutor. Held, the testimony was admissible to show animus. Bol- ton V. State (Te.x. Crim. App), ,^9 S. W. 672. 91. State V. Henn, 39 Minn. 476. 40 N. W. 572; Skelton v. State (Tex. Crim. App.), 51 S. W. 943; Walker V. State, 85 Ala. 7, 4 So. 686; 7 Am. St. Rep. 17. Evidence that defendant said on the day of the assault that he ex- pected to kill somebody before he left town is admissible to show in- tent. Read v. State. 2 Ind. 438. 64 92. Veary v. State (Te.x. Crim. .\pp.), 66 S. W. 1 106. 93. Walker v. State, 85 .\la. 7, 4 So. 686, 7 Am. St. Rep. 17. The assaulted wife may testify to conversations between her and the assaulting husband. Doolittle v. State, 93 Ind. 2y2. 94. State v. Henn, 39 Min. 476. 40 N. W. ^72; Walker v. State, 85 Ala. 7, 4 So. 686, 7 .Am. St. Rep. 17. 95. After. — Cogswell v. Com., 17 Ky. Law. Rep. 822, i2 S. W. 935 ; .•\ilen V. State, 74 Ind. 216; Richards V. State, 3 Tex. App. 423; \\'alker v. State, 85 Ala. 7, 4 So. 686, 7 Am. St. Rep. 17. Declarations made by the accused regretting that he missed the as- saulted party when he shot at him are admissible, to contradict the de- fense that he fired into the air to frighten the prosecuting witness. Cogswell V. Com., 17 Kv. Law Rep. 822, 32 S. W. 935- Where an officer wrongfully ar- rested and assaulted a person — what the officer did and said at the police station afterward is compe- tent. State I'. Davidson. 44 Mo. .\pp. 513. 96. Former Difficulties. — \\ here malice aforethought is an element of the crime, evidence of former trouble and quarrels is competent. State v. Forsythe, 98 Mo. 667, r S. W. 834. 97. May v. State. 6 Tex. .\pp. 191 ; Latham r. State. 39 Tex. Crim. .App. 472, 46 S. W. 638: Stewart v. State, 78 Ala. 436 : Wood v. State, 86 .\la. 71 ; Gunter v. State, iii .\la. 23. 20 So. 632, 56 Am. St. Reo. 17. It is error to permit the state to go minutely into other quarrels of Vol. 1. 1010 ASSAULT AND BATTERY hold to the contrary and admit evidence of the facts of such ditiflcul- ties,"* inchiding the acts and declarations of the assauUed party tending to anger the defendant ;"" and it is proper to ask the prose- cutor as to the motive or cause of the assault/ but where his opinion is sought or given, the evidence should be excluded. - When the evidence for the prosecution as to such difficulties sug- gests a wrong upon the part of the defendant, the defense should be permitted to explain the transaction.-' Where malice or premeditation is not an element of the offense, and does not affect its grade,'' where the matters were remote'' or a the defendant. People i'. Kenyon, 93 Mich. 19. 52 N. W. 1032. The party alleged to have been assanlted had an encounter with defendant's brother a few mornings before and the brother was killed, but the defendant was not present. Held, evidence of such en- counter was not admissible against the defendant. State v. Clayton, ico i\Io. 516, n S. W. 819, 18 Am. Rep. 565. 98. State r. Sanders, 106 Mu. 188, 17 S. W. 223; Ross z: State, 62 Ala. 224; Tompkins 'c'. State, 17 Ga. 356; People V. Deitz, 86 Mich. 419, 49 N. W. 295; Sullivan v. State, 31 Tex. Crim. App. 486, 20 S. W. 927. 37 Am. St. Rep. 825; 'Walker v. State, 85 Ala. 7, 4 So. 686. 7 Am. St. Rep. 17; State V. Schleagal, 50 Kan. 325, 31 Pac. 1 105; State r. INIontgoniery, 65 Iowa 483, 22 N. W. 639. hi proof of malice it may be shown that the assaulted party w-as on the jury which recently convicted the dv- feiulant. Trimble r. State ( Tex. Crim. App.), 22 S. W. 879. Evidence that defendant married the prosecutor's sister soon after the assault and that the prosecutor had interfered with their affairs just be- fore the assault are competent. Thomas r. State, 117 Ala. 178, 23 So. 665. In an action against a policeman for assault in arresting the mother without cause, it is competent to prove that the officer had seduced her daughter to show his motive in making the arrest. People v. Daily, 14^ N. Y. 638, 37 N. E. 823. 99. .\ speech which was the cause of a conspiracy to assault the speaker mav be given in evidence in the absence' of proof that the defend- ant did not hear the speech or have it communicated to him. Yeary. v. Vol. 1. State (.Tex. Crim..\pp.),66 S.W. 1106. It is competent tor the state to prove that the assaulted party said that "no honest man would avail himself of the bankrupt law " and that the defendant's father had just passed through bankruptcy. State i'. Grififs, 3 Ired. (N. C.J 504. 1. The questions, " What caused the defendant to strike you?'" " What was his motive for striking?" are not objectionable, especially where the answer is not an opinion. Trimble v. State (Tex. Crim. App.i, 22 S. W. 879. 2. Trimble v. State (Tex. Crim. App.), 22 S. W. 879. 3. Where the state gives evidencj of former affray between the parties too remote to be part of the res ges- tae to show malice or intent, the de- fense may show that the prosecutor was the aggressor in the former dif- ficulty and pleaded guilty to an as- sault while defendant acted wholly in defense. Morrison i\ Stale, 37 Tex. Crim. -App. 601, 40 S. \V. 591. The prosecuting witness testified that there had lieen no trouble be- fore between the parties, except about a letter of his which the de- fendant had opened. Held, error for. the court to exclude testimony of the defendant, that his mother who had poor eyesight, opened the letter and handed it to defendant to read : that he read no more after he discovered the mistake, but returned it to the postoffice. Skelton v. State (Tex. Crim. .^pp.). 51 S. W. 943- 4. In a simple case of assault and battery, declarations or threats of the accused made some time before an' inadmissible. State 1: Norton. f2 N. C. 628. 5. People J'. Deitz. 86 Mich. -\"'- _;o \. W. 206. ASSAULT AND BATrERV li)li reconciliation had occurred, such evidence of intent or moti\'e h:is been excluded." Such evidence is confined to matters between the parties themselves/ and the defendant may testify as to his intent and motive in the matter." 5. Recklessness, Illegal Act. — Where there was no intent to assault the prosecutor, net^ligence or recklessness may be shown," and evidence that the assault was committed in the performance of an illeji^al act is admissible ;'° but it has been held that an act vialum prohibitum would not supply the place of malice," and to rebut the claim of accident the ill-will of the defendant may be shown. ^- 6. Assault on Female. — Declarations. — The declarations of the assaultetl woman or i>irl, which are voluntary and spontaneous, made at the time of the assault, ^^ or very soon afterward, are admissible against the defendant,'* but her narratives of past events should be excluded.'^ 6. Threats two years old with in- tervening reconciliation too ancient. People V. Deitz, 86 Mich. 419, 49 N. W. 296. 7. Where the prosecutor made the attack and was severely punished, he may not show that long before, the father of the defendant made threats against him. People v. Pearl, 76 Mich. 207. 4 L. R. A. 709. 5 Am. St. 304. Evidence that the defendant said triat the ward of the assaulted men owed him a gambling debt a1id thit he would have his money or the ward's blood, is not admissible. State V. Moberlv, 121 Tslo. 604, 26 S. W. 364. 8. The quo aiiiino of the assault is material in fi.xing the grade, the ofifense and direct proof of such in- tent is admissible. Filkins i". Peo- ple. 69 N. Y. Id. Where the accused gives the rea- sons that induced him to conmiit the assault, the state may show that the reasons or fact did not exist and that the defendant was mistaken in his beliefs as to facts. Cornelisnn ;■. Com., 84 Ky. 583. 2 S. W. 235. 9. Recklessness Com. v. !Mc- I.augblin, 5 Allen (Mass.) 507; Peo- ple V. Raher. 92 Mich. 165, 52 N. W. 625, 31 Am. St. Rep. 575. 10. Illegal Act. —Turner 7: State, 35 Tex. Crini. App. 369, 33 S. W. 972; Cowley I'. State. 10 Lea (Tenn.) 282; Smith I'. AIcLain, ir W. Va. 658; Powell r. State, 32 Tex. 230, 22 S. W. 667; Dunaway v. People, no, 111. 333, 51 Am. Rep. 686; McGehee v. State, 62 Miss. yy2, 52 .\m. Rep. 2C9; State I'. Gilman. 69 Me. 163. 31 ,\m. Rep. 257. Where a grossly negligent dis- charge of a pistol is the assault in question, the ordinance making such discharge unlawful is competent evi- dence. Com. J'. Hawkins, 157 Mass. 551, 32 N. E. 862. 11. Com. I'. .-Vdanis, 114 Mass. 323. 19 .Am. Rep. 362. 18. To rebut the claim that an as- sault producing severe injury was ac- cidental, it may be shown that the defendant did not show the injured party any attention or -.ympalhy. State 7'. .^Iford, 31 Conn. 40. 13. Assault on Female. See " R.'>lPF.." If the declarations of the assaulted woman or child are voUmtary. spon- taneous and contemporanerus with the main fact and not narratives of past events, they are admissible a.gainst the accused. \'eal t'. State, 8 Tex. App. 474- 14. Declarations made by the as- saulted woman 10 minutes afterward are admissible. Pilcher r. State, 32 Tex. Crim. .\pp. s^7- -i S- ^^'- 24- 15. Veal r. State, 8 Tex. App. 474; Price V. State, 35 Tex. Crim. App. 501. 34 S. W. 622. What an assaulted female tnld the officer during the week is not evi- dence. Com. -'. Fitzgerald, 123 Mass. 408. Vol. 1. 1012 ASSAULT AND BA'ITBRy Complaint. — Though the fact that she made a complaint is admis- sible.'" A. ArPEAR.\NCE OF IxjuKiES. — Evidence of the appearance and condition of the prosecutrix immediately after the allesjed assault is admissible. ^^ B. Former Acts. — Evidence of a previous indecent assault upon the same party is competent to show motive or intent.^* C. Cii.NRACTi'K (IE Fe.m.veE. — Evidence of the general reputation of the prosecutrix as to chastity,''' of her specific acts of uncliastity,"" or immodestv with the defendant.-' hut not with others, is admissi- ble for the defense. -- 7. Bad Reputation of Eefendant. — F.vidence of the bad reputa- tion of the defendant is r.ot admissible,-' and specific matters to his discredit-^ not relating to the assaulteu{ where the defend- ant becomes a witness, such evidence may be used to (hscredit him as in other cases."" Admissions-'' and confessions-^ are competent under the general rules of evidence. Denial. — Evidence tending to show that the assault was com- mitted by another is admissible, but evidence of his threats unsup- ported by other evidence should be excluded.-'' III. MATTERS OF DEFENSE. 1. Res Gestae. — On the question of self defense evidence of the res gestae^" including the wounds received by the defendant, is ad- missible.^^ 2. Intent. — The defendant may testify as to his intent and motive^- and his belief regarding the purposes of the prosecutor at the time of the assault."-' 3. Declarations and Threats of Prosecutor. — Evidence of threats and declarations of ill-will which were made by the prosecutor before the assault'''' of his former difficulties with the defend- 26. Discredit Defendant as Wit- ness Where the defendant is a wit- ness, to discredit him, it may be shown upon his cross-examination, that he had been indicted twice be- fore for stealing. Bolton z'. State (Tex. Crini. App.). .19 S. W. 672. 27. An admission made while un- der arrest, by the defendant to the officer, not procnred by threats is competent for the state. Com. '•.■. Mitchell, 117 JNIass. 4JI. See '' Con- fessions." 28. The confessions or admissions of the defendant made while intoxi- cated are admissible, but the degree of into.xication maj' he shown as af- fecting their weight. State v. Grear, 28 Minn. 426, 10 N. 'W. 472, 41 .A.m. Rep. 296. 29. Disconnected threats not part of the res gestae made by a third party against the assaulted one may not be shown by the defendant where the defense is that the assault was committed by another. State 1'. Reaudet, 52 Conn. 5.36, 4 M]. 237, 55 .\ni. Rep. 155. 30. Res Gestae Stale r. Goer- ing, 106 Iowa 636. 77 N. \V. .'27. In proof of self-defense it is com- petent to show that a stick in the hands of the prosecuting witness and used by him iii the affray had the ap- pearance of being loaded. Law f. State, ,^4 Tex. Crim. App. 70, 29 S. W. 160. Evidence that the defend- ant provoked an assault upon him is competent to rebut evidence of self- defense. Henry ■;■. State, 79 .-Ma. 42; Page V. State, 69 Ala. 229 ; Johnson V. State, 69 Ala. 253. 31. The Extent and Nature of the Defendant's Injuries may be shown where he relies upon self defense as a justification and the complaints of pain he made while suffering are admissible evidence. Com, V. Jardine. 143 Mass. S67, 10 N. E. 250. 32. Berry v. State, 30 Tex. App. 423, 17 S. 'W. 1080. 33. U. S. r. Lunt, i Sprague (U. S.) 31 1. 34. Declarations and Threats. Gunter v. State. 11 1 Ala. 23, 20 So. 632, 56 Am. St, Rep, 17; State v. Goodrich, 19 Vt, 116, 47 Am, Dec, 676; Harman r. State. 40 Tenn, (3 Head) 243, Contra. — State c'. Skidmore, 87 N, C, 509. Evidence of threats and acts of hostility on the part of the pros- ecuting witness so far as known by or reported to the defendant is com- petent in proof of self defense to show what danger the defendant might reasonably have apprehended from the assault of such witness. State V. Dee, 14 Minn. 35. 'Where there was evidence that the pros- ecutor had made threats before the affrav and the defendant testified Vol. 1. 1014 ASSAULT AND BATTERY. zni" but not with others,'"^ and of his quarrelsome and vin(hcti\-e reputation is athnissible to show self defense.''' 4. Information. — The defendant may testify as to his information rajrardino- such matters^* and may show by other evidence that the information was imparted to him.^" Exceptions. — Where the defendant was the aggressor and there is no evidence of self defense,*" or where the defendant did not recognize the prosecutor'" or know of his dangerous character or reputation, such evidence would not be competent to show self defenses- Relatives. — Similar c\idencc as to the relatives of the prosecutor is not admissible."" ■' 5. Declarations After Assault. — Evidence of the acts*^ or declarations of the |iroseculor occurring after the assaidt and too that he made a movement toward his hip pocket as if to draw a revolver, evidence of the prosecu- tor's good repntation for being peaceable is admissible. Rhea v. Stale, 37 Tex. Crini. ,\pp. i ^8. 38 S. W. 1012. 35. Former Difficulties State v. Dee. 14 Minn. 35 ; Gunter v. State, III Ala. 23, 20 So. 632, 56 \m. St. Rep. 17. 36. Evidence of difficulties be- tween the prosecutor and others not connected with the as.sault in ques- tion, should be excluded. Bolton v. State (Tex. Crim. .A.pp.), 39 S. W. 672. 37. Reputation of Prosecutor. Lewallen v. State. 6 Tex. .'Xpp. 475 ; People V. Frindel, 58 Hiui 482, 12 N. Y. Supp. 498. Where an assault is in self de- fense, evidence of the violent char- acter of the assaulted party is ad- missible, but where the defendant was the aggressor such evidence is not admissible. People v. Kellv, 94 N. Y. 526. 38. Information State -■. Dee, 14 Mimi. 35; U. S. ?'. bunt, i Spraguc (U. S.) 311. 39. A prison keeper justified an assault upon a prisoner with a cane as being necessary for discipline and in self defense, and offered testimony of the sheriff that he had informed defendant upon his de- livery of the prisoner to him that he was a violent and desperate man. Hrld. rciection of this tcslimonv was error. State r. bull. 4S Yt. 581. Vol. 1. 40. Exceptions State v. Reed, 137 Mo. 125, 38 S. VV. 574; Martin V. State, 5 Ind. App. 453, 32 N. E. 594; Whilden v. State, 25 Ga. 396, 71 Am. Dec. 181 ; State v. Jackson, 17 Mo. 544, 59 Am. Dec. 281 ; Har- man zk State, 40 Tenn. (3 Head) 243 ; People v. Frindel, 58 Hun 482, 12 N. Y. Supp. 498 ; Brown v. State, 74 Ala. 42; Rufus V. State, 117 .\la. 131, 23 So. 144; Wright -'. State, 17 Tenn. (9 Yerg) 342. Where the defendant was first as- saulted in his saloon and his assiil- ant then went outside and defied him, and the defendant procured a revolver, went out, renewed the affray and fired wdien his former assailant was in full retreat, evi- dence of bad character of the pros- ecutor is not admissible. State v. Paterno, 43 La. Ann. 514, 9 So. 442. 41. Where an assault was made by owner in alleged defense of his property and he did not recognize the prosecutor, evidence that the prosecutor was a quarrelsome man was properly excluded. Henderson V. State, 12 Tex. 525. 42. Hender.son 7: State. 12 Tex. 52.V 43. Exidence of an assault upon the defendant by a brother of as- saulted party earlier in the day is not admissible in justification for pointing loaded gini. May 7\ State. 6 Tex. App. 191. 44. The defense may nnt show that the assaulted person had a weapon a short time after the as- sault. Stale V. Noeningcr, 108 Mo. 166, 18 S. W. 990. ASSAULT AND BATTERY 1015 remote for the res gestae is general!)' excluded,''^ but may become competent in cross examination^" or to discredit his testimony."*' 6. Actions Against Prosecutor. — Evidence that the prosecutor was indicted or even convicted of an assault upon the defendant for the same aflfray is not competent in proof of self defense,''* but may be evidence to discredit him as a witness.*" 7. Defense of Another. — The defendant may show that the assault was matlc in defense of another'^" and evidence of the rela- tions existing between the defendant and the person he sought to defend is admissible.^' 8. Defense of Property. — Evidence of the facts and circumstai'.ces as to the right forciblx to retain,''- recapture or obtain jjosscssion of lands"'" or goods is admissible in defense of an assault made for 45. Slate 7'. Ncwlaiul. 2~ Kan. 746. 46. State v. Goodrich, 19 Vt. 116. 47 Am. Dec. 676. The declarations of tlie assavdted person made soon after the affray are not competent, except to con- tradict his testimony. State v. X'oeiiinger. 108 Mo. 166, 18 S. W. 990. 47. State v. Goodrich, 19 Vt. 1 16. 47 Am. Dec. 676. 48. Com. V. Lincohi. 110 Mass. 410. Evidence that one defendant ob- tained a warrant against the pros- ecutor for an assault is not admis- sible. Hadley v. State, 58 Ga. 309. 49. State v. Kepplc. 2 Kan. .\pp. 401, 42 Pac. 745. 50. State V. Totmaii, 80 Mo. .\pp. 125: State I'. Reed. i,?7 .\io. ijj, ,^8 S. W. 574; Spicer v. People. 11 111. App. 294. One who intervenes to defend a party to an affray does so at his own peril ; he stands in the shoes of the defended party and can only do such acts as the latter might law- fully do under the circumstances, and the wrongful acts of the de- fended party may be shown against such defendant. Wood 'e. State, 128 .-Via. 27, 29 So. 557. One may lawfully do in defense of another what he might do for himself. State v. Foley, 12 Mo. .\pp. 431. 51. Orton v. State 4 Greene (Iowa) 140; State v. Bullock. 91 N. C. 614; Com. v. Malone, 114 Mass. 295 ; State v. Johnson, 75 N. C. 174; Waddell v. State, i Tex. App. 720. The defense of one's self, husband, wife, child, parent, or servant is a natural right. State v. Elliott. 11 N. H. 540. A parent may defend his child as he may himself. State V. Herdina, 25 Minn. 161. 52. State v. Johnson, 12 Ala. 840. 46 Am. Dec. 283 ; People v. Teixeira, 123 Cal. 297, 55 Pac. 988; Filkins v. People, 69 N. Y. loi, 25 Am. Rep. 143 ; Smith v. State. IDS Ala. 136, 17 So. 107; State v. Downer. 8 Vt. 424, 30 Am. Dec. 48. In defense for assault upon one of his employers, the defendant may show a special contract by which he was to have sole possession of the place where he worked and that the assault was in defense of such possession. Com. i'. Ribert, 144 Pa. St. 413. 22 Atl. 1031 ; Com. v. Dona- hue. 148 Mass. 529, 20 N. E. 171, 12 Am. St. Rep. 591, 2 L. R. A. 623; Com. V. Renard, 8 Pick (Mass.) 133; State V. Dooley, 121 Mo. 591, 26 S. W. 558 ; Anderson & .\ustin V. State, 6 IBaxt. (Tenn.) 608; Rex V. .Mittoii. T, Car. & P. 31, 14 Eng. C. L. 196. 53. Clarke v. State, 89 Ga. 768, 15 So. 696; State f. Lockwood, I Penn. (Del.) 76, 39 Atl.. 589; Goshen v. People, 22 Colo. 270, 44 Pac. 503. A contract was left with the • fendant in escrow, the prosecutor asked permission to see the doc- ument and then attempted to carry it away. Held, an assault with only necessary force was justifiable. Com. z\ Lynn. 123 Mass. 218. A tenant put new windows in the rented house, the property was soil and after possession under the sale Vol. 1. 1016 ASSAULT AND BATTERY. such a purpose,''^ but evidence of anger and undue violence ma_\- be shown in rebuttal/^ and where there is no question as to trespass, evidence of title to the locus in quo is inadmissible. 9. Master of Ship. — The master of a ship may show that the assault was made in defense of his authority, and evidence of the information upon which he relied and of the facts as to the danger. is admissible.^" 10. Arrest. — The defendant may show the facts and circum- stances which justify an arrest^' and that the assault was only the necessary force required to make such arrest,''' but the conviction or acquittal of the arrested and assaulted person is not competent evidence,''" but evidence of malice or undue severity on the part of the officer is admissible.''" The defendant may show that an assault upon an officer was made in resisting an illegal arrest.''' such tenant came back and removed the windows. Held, an assault without unnecessary force in their recapture was justifiable. State i'. Elliott, II N. H. 540. The defendant, lessor, lirought an action before a justice of the peace against the prosecuting witness, the lessee, to obtain possession but while the lessee was attending court, fastened up the house against the lessee, who broke open tlie house, when he was assaulted by the lessor. Held, the papers and docket of the justice were admissible to show the state of the action at the time, but the lease for the premises should be excluded. State v. Mc- Kinley. 82 Iowa 445, 48 N. W. 804. 54. Com. V. Lynn, 123 Mass. 218; Com. v. Donahue, 148 Mass. 529, 20 N. E. 171, 2 L. R. A. 623; State v. ijmith, 105 Ala. 136, 17 So. 107. The ownership or right of pos- session of property in whose defense the assault is made is material and may be shown. Filkins v. People, 69 N. Y. 101 : State v. Forsythe, 89 Mo. 667, I S. W. 834; State v. Dooley, 121 Mo. 591, 26 S. W. 558; State V. Morgan, 3 Ircd. (N. C.) 186. 55. To relnU the defense that the as.sault was only the necessary force required in a lawful recapture of property, it may be shown that the assault was made in any angry and rude manner with unnecessary force. Bonner v. State, 97 Ala. 47, 12 So. 408. 56. Master of Ship U. S. v. I.unt, I Sprague (I'. S. ) 3ri. 57. Evidence that the defendant Vol. 1. was a member of an association to detect crime and appreliend crim- inals, that a crime had been com- mitted, that the prosecuting witness was suspected and the assault was made in arresting him, is competent to show intent. Kercheval v. State. 46 hid. 120. 58. State v. McNinch. 90 X. C. 695; State V. Pugh, loi N. C. 737. 7 S. E. 757, 9 Am. St. Rep. 44. The officer is the judge of the propriety and necessity of adopting a certain mode of securing his pris- oner, but it may be shown that the officer did not act honestly in the matter and was gratifying his malice. State v. Stalcup, _■ Ired. (N. C.) io. 59. The queslion is did the offi- cer use unnecessary force con- stituting an assault in making the arrest, and evidence of the convic- tion of the prosecuting witness is irrelevant and should be excluded. State v. Gregory. 30 Mo. App. 582. Against an officer on trial for assault in arresting the complain- ant, the judgment of acquittal of the latter is not competent. Pat- terson V. State, 91 Ala. s8, 8 So. 756. 60. State r. Stalcup, 2 Ired. (X. C.) 50; State -'. Gregory, 30 .Mo. .\pp. 582 ; State ;■. Davidson, 44 Mo. .•\pp. 513; People V. !.)ailv, 143 N. Y. 638. 37 X. E. 823. .See " Intent." 61. Denby v. State, 108 Cal. 54. 40 Pac. 1051 ; State v. Beek. 76 N. C. 10; Stockton V. State. 25 Tex. 772 ; -Massie v. State, 27 Tex. App. 617. II S. W. 638. ASSAULT AND BATTERY 1017 In Defense of a Conductor for Ejecting One From His Car, evidence as to improper ctnuhict at the time and for a considerable period before is admissible.''- The defense may show the reasonable rule or custom the conductor sought to enforce,"^ and the conductor mav testify as to his belief concerning the misconduct of the prosecutor/"' The state may show the undue violence of the assault''^ or the removal of the prosecutor while the cars were in motion.'"' 11. Ptinishment. — Evidence that the defendant was the parent of the assaulted jiarty or stood in loco parentis is admissible for the defense,'^' and upon the issue as to the reasonableness of the ])unish- ment, the nature of the offense,''** the severity of the punishment,'''' the nature of the instruinent used in correction, and all the attendant circumstances may be shown.'" A witness may not give an opinion upon this issue, '^' but the defendant may tcstif}- as to his purpose and 62. Tlic passenger sliowed uiily his spent ticket and was ejected from the car. Held, misconduct which justified the conductor in ejecting him when he re-entered, showing his good ticket. State v. Campbell, 32 N. J. Law 309. The misconduct of an ejected pas- enger during his whole trip where it was a short one is competent for the defendant conductor in proof of justification. People v. Caryl, 3 Parker Crim. (N. Y.) 326. 63. Com. ■;'. Powers, 48 Mass. (7 Mete.) 596; People t'. McKay. 46 Mich. 439, 9 N. W. 486, 41 Am. Rep. 169; State r. Goold. 53 Me. 279; State V. Overton, 24 N. J. Law 435, 61 Am. Dec. 671 ; State r. Thompson, 20 N. H. 250. Evidence of the custom of lli • company in collecting tickets is com- petent defense of a conductor for assault in removing one from a car upon refusal to deliver up his ticket. People r. Carvl, •? Parker Rep. (N. Y.) 326. 64. The passenger deposited his fare but the street car conductor under an honest mistake, ejected him from the car for supposed non- payment. Held, intent is an element of the assault and such belief of the conductor may be shown in de- fense and as a justification. State T'. McDonald, 70 ]\Io. App. 510. 65. State v. Ross. 26 N. J. Law 224. 66. State 7'. Kinney, 34 Minn. .311, 25 N. W. 70s. 67. .\nderson r. State, 3 Head (^Tenn.) 455, 75 Am. Dec. 774; Snowden v. State, 12 Tex. App. 105, 41 Am. Rep. 667; Gorman v. State, 42 Te.x. 221 ; Donnelly v. Ter- ritory (Ariz.), 52 Pac. 368; State T'. Bost (S. C), 34 S. E. 650. Articles of apprenticeship are competent to show the defendant's rights in relation to his apprentice. Orton 7'. State, 4 Iowa 140. The probate record appointing the prosecuting witness conservator of the person and estate of the de- fendant, is competent to rebut the defense that he was a trespasser in defendant's house. State 7'. Hyde, 29 Conn. 564. 68. Dean 7'. State. 89 .\la. 46, 8 So. 38 ; Anderson 7'. State. 3 Head (Tenn.) 455, 75 Am. Dec. 774. 69. Kinnard v. State. 35 Tex. Crim. App, 276, 33 S. W. 234; An- derson 7'. State, 3 Kead (Tenn.) 455- Sec " Injuries." 70. Dean v. State, 89 Ala. 46, 8 So. 38; Danenhoflfer v. State, 79 Ind. 75. .•\ parent or one standing in loco /carditis, exercises pro hoc vice, judicial functions and to determine the reasonableness and animus of the punishment, the nature of the instrument used and all attendant circumstances may be shown. Dean 7'. State, 89 Ala. 46, 8 So. 38- 71. In defense of a school teacher a witness may not give his opinion that the whipping was neither severe, cruel nor unjust. Smith 7'. State (Tex. Crim. .^pp.). 20 S. W. 360. Vol. 1. 1018 ASSAULT AND BATTERV. intention,'- l)Ut his self serving' declarations are not admissible."'' 12. Evidence of Intoxication. — Intoxication of the defendant, where part of the res gestae, is admissible,'^ and where intent is an element of the crime intoxication may be shown in defense,'^ or to reduce the grade of the offense,'" but where intent is not a part of the crime, evidence of intoxication is not admissible.'' It is com- petent for the state to show that to ner\'e himself for the assault llie defendant became intoxicated. '~ 13. Provocation Which is of the Res Gestae, ma\ be shown."' while evidence of other provocation is excluded in many jurisdic- tions**" but admitted in others.'*^ 72. Kinnard v. State, 35 Tex. Crim. App. 276, 33 S. \V. 234; Berry v. State, 30 Tex. App. 423, 17 S. W. 1080; Danenhoffer v. State, 79 Ind. 75. 73. Kinnard v. State, 35 Tex. Crim. App. 276, Zi S. W. 234. 74. Carter v. State, 87 Ala. 113, 6 So. 356. Intoxication of the defendant is of the res gestae and may be shown. State V. Garrey, II Minn. 154. 75. Cline v. State, 43 Ohio St. ii2, I N. E. 22 ; Parlcer Crim. Rep. (N. Y.) 291 ; Mooney v. State, a Ala. 419; Chrisman v. State, 54 Ark. 283, 15 S. VV. 889, 2b Am. St. Rep. 44. Intoxication to such an extent that the defendant docs not know what he is doing may be shown as defense. Statu- i'. Garvcy, 11 Minn. 154. 76. Ford v. State, 71 Ala. 385; .Mooney v. State, 2i Ala. 419; lingel- hardt v. State, 88 Ahi. 100, 7 So. IS4- Drunkenness may not be shown in defense of assault and battery, but where the law recognizes de- grees of the offense and intent or premeditation are elements of the crime, it may be shown to reduce its grade. Engelhardt i\ State, 88 Ala. 100, 7 So. 154. 77. People t'. Gordon, 103 Cal. 568, 3y Pac. 534; Walker v. State, 85 Ala. 7, 4 So. 686, 7 Am. St. Rep. 17; Com. V. Malone, 114 Mass. 295. On an indictment of assault with a deadly weapon evidence of drunkenness of the defendant at the time is immaterial and not admis- sible, as proof of specific intent is not necessary. People v. .Marseilcr, 70 Cal. 98, II Pac. 503. Vol. 1. 78. Cline v. State. 43 Ohio S ii2, I N. E. 22. 79. Rawlins v. Com., i Leigh (Va.) 581, 19 Am. Dec. 757. The law has enough regard for the weakness of human nature to regard a violent attack as a sufficient excuse for going beyond the mere necessities ot sell defense and chas- tising the aggressor withm such bounds as do not exceed the natural limits of the prosecution. People V. Pearl, 76 Mich. 207, 42 N. VV. 1 109, 4 L. I-!.. A. 709, 15 Am. St. Rep. 304. 80. Rawlings v. Com., i Leigh (.V'a.) 581, 17 Am. Dec. 707. Evidence that the prosecutor had killed defendant's dog, and that it was a small pet, is not admissible tor the detendant. Rogers v. State, 126 Ala. 40, 28 So. 619. The prosecuting witness was asked if he had not struck the de- fendant at another time, and by objection was rightly sustained. State V. Montgomery, 65 Iowa 483. 22 N. W. 639. 81. People V. Ross, 66 Mich. 94. 33 N. W. 30; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781 ; Brown V. State, 79 .\la. 42. Where the defense is tlv.- use of opprobrious words, the relative size and strength of the parlies, and all the circumstances of the case should be shown. .Marion v. State. 68 Ga. 290. Although the shooting occurred the next day. evidence of an at- tempted rape made by the assaulted party upon the defendant's wife or daughter is competent. Biggs v. State, 29 Ga. 723. 76 .\m. Dec. 630. Evidence of the general character of the wife for virtue and chastity ASSAULT AND BATTERY 1019 14. Discredit Prosecuting Witness. — Upon cross examination of the prosecutor, his hostile feelings, declarations of ill-will and the making of threats may he shown to discredit his testimony,'- and after his attention has been called to such declarations and threats, but not before. Ihey may be proved b\' any competent evidence, '■'■ hut evidence of the facts of previous difficulties too remote for vcs gestae, is not admissible.*^ 15. Good Reputation of Defendant. — Evidence of the general good reputation of defendant, with reference to the nature of the offense charged is competent for the defense'" even to raise a doubt where none existed,*"' and it is error for the court unreasonably to limit the number of character witnesses,"' but where the assault is only a misdemeanor, evidence of good character of the defendant is sometimes excluded.*' Evidence in rebuttal and cross examina- tion are admissible as in other cases,'" is admissible for the defense, where her character had been attacked \ty the state upon a trial of her hus- band for shooting one who as- sauhed her. Biggs v. State, 29 Ga. y22, 76 Am. Dec. 630; Booker v. State, 4 Tex. App. 564; People -'. Webster, 89 Cal. 572 ; State v. Mont- gomery, 65 Iowa 483, 22 N. W. 639. 82. State v. Dee, 14 Minn. 35. 83. Booker v. State, 4 Tex. App. 564. A declaration of the prosecuting witness that " he would say any- thing or do anything " to get the defendant convicted, is not admis- sible unless the witness' attention was called to the statem cut to lay the foundation for the impeachment of his testimony. State i\ Dicker- son, 98 N. C. 708, 3. S. E. 687. It is proper to inquire of the prosecuting witness if he has not expressed feelings of hostility toward the defendant and such inquiry is a necessary foundation for evidence of declaration made by the witness. Booker v. State, 4 Tex. App. 564. 84. Rosenbaum i'. State, 33 Ala. 354- Evidence of manner and conduct of prosecuting witness at an earlier meeting same day, not of the res gestae, too remote and not admis- sible. Henry v. State, 79 Ala. 42. 85. People v. Rodrigo, 69 Cal. 601, II Pac. 481; People v. Spriggs, 58 Hun 603, n N. Y. Supp. 433; State i: Schleagel, 50 Kan. 325. 31 Pac. 1105; State v. King, 78 Mo. 555 > People v. Jassino, 100 Mich. 536, 59 N. W. 230. Evidence of good character is of the wife for virtue and chastity iginal evidence, independent of the other evidence of the cause, both on the question of guilt and the degree of his criminality. Rosen- baum V. State, a Ala. 354. Defendant may show his reputa- tion for peace, " notwithstanding lie was full of strange oaths," " des- perate in demeanor," and " reck- less in display of deadly weapons." but evidence of the custom of him- self and associates to flourish weapons without intent to use them is admissible. Walters i'. State, 17 Tex. Crim. App. 226, 50 Am. Rep. 129. 86. Rosenbaum -■. Stale, i;^ .\la. 354. 87. The defendant used three character witnesses as to his gen- eral reputation for peace and quietude. The state informed the court that it did not intend to in- troduce evidence in rebuttal. The court then excluded further char- acter testimony by the defense although this was his first intima- tion as to limiting the number of witnesses, and the defense claimed surprise and that it had not called its best witnesses. The action of the court was error. Morrison z\ State, 37 Tex. Crim. .\pp. 601, 40 S. W. 591- 88. Drake v. Com., 49 Ky. (lO B. Mon.) 225; Matthews f. State, 32 Tex. 117. 89. The defendant, charged with improper assault upon a woman, offered evidence of his good char- Vol. I 1020 ASSAULT AND BATTERV 16. Consent. — Evidence of consent is admissible in defense,"" but upon a charge of assault upon a girl under the statutory age such evidence is generally excluded'" unless as part of the res gestae."^ Many courts, however, admit such evidence as a defense.*" 17. Opinions. — Except that of experts in proper cases, "^ opinion evidence is not admissible in cases of assault,"^ though some courts show a disposition to relax this rule.'-"' 18. Prior Acquittal or Conviction. — Evidence of ac(|uittal or con- viction in a prosecution for or involving the assault charged, is admissible/'' but where the issue as to the assault charged was not included in the prosecution, such evidence should be excluded."' acter. Upon cross examination of the character witnesses, they tes- tified that his general character was bad for rnnning after women." Held, that the evidence was prop- erly admitted. Balkuni ■:■. State, iis A\a.. 117. 22 So. 532. Where the defendant offered evi- dence of good character as a peace- able, orderly and law-abiding cit- izen, it was error to admit evidence in rebnttal of his soldier record or reputation as to his being often absent without leave and drinking and gambling. Burns t. State, 23 Tex. .>pp. 641. 5 S. W. 140. 90. Consent to an assault, com- mitted without malice, may be shown as a defense. State v. Back, I Hill (S. C.) 363, 26 Am. Dec. 190. 91. People r. McDonald. 9 Mich. 150; Hill V. State. 37 Tex. Crim. App. 279, 38 S. W. 987, 66 .\m. St. Rep. 803; People v. Verde- green, 106 Cal. 211, 39 Pac. 607. 46 .^m. St. Rep. 2';4; Havs 7: People, I Hill (N. Y.) 351. There is a great difference be- tween submission and consent, and involuntary submission would not be evidence of consent. Regina v. Day, 9 Car. & P. 722. .38 Eng. C. L. .w6. 92. People v. Verdegrccn. 106 Cal. 211. 39 Pac. 207. 46 .\m. St. Rep. 234- 93. State ~: Packett. 11 Nev. 255, 21 Am. Rep. 754; Smith r. State, 12 Ohio St. 466. 80 Am. Dec. ,365; Regina v. Meredith. 8 Car. &• P. 589, 34 Eng. C. L. 539. 94. Where an expert has no better means to form an opinion as to the intention of the defendant Vol. 1. than the jury has, his testimony should be excluded. State v. Gar- vey, 1 1 Minn. 154. 95. Trimble r. State (Tex. Crim. .\pp. ), 22 S. W. 879. Where the prosecutor testified that llic defendant and he were always good friends and that the defend- ant shot without any cause or provocation, the questions by de- lendant"s counsel. " Pistol must have gone off accidentally then?" and " Will you tell the jury whether the shooting was accidental?" were properly excluded, as calling for con- clusions. Gunter v. State, 1 1 1 .Ala. 23, 20 So. 632, 56 Am. St. Rep. 17. 96. The prosecuting witness may be asked what he understood by the defendant's remark at the time of the assault that " the easiest way is the best," and his answer that " he thought tliey meant to use him roughly " is competent. People v. Moore, 50 Hun 356, 3 N. Y. Supp. 159- 97. Com. 7'. Miller, 5 Dana (Kv.) 320; Regina v. Smith, 34 U. 'C. Q. B. 552 : Gunter 7: State. Ill Ala. 23. 20 So. 632. 56 .^m. St. Rep. 17. Where the indictment for a higher grade of crime includes a charge of assault either in terms or by implication, acquittal or •convic- tion or improper discharge of the jury against objection of defendant may be shown. Mitchell r. State. 42 Ohio St. 38-!. 98. Regina 7: Smith, 1,4 V. C. Q. B. 552. .'Kn acquittal in a lower grade of offense would not be a bar to a prosecution for a higher one. Stal • 7'. Foster. 3;^ Iowa 525. UC SOUTHERN REGIONAL LIBRARY FACILITY D 000 955 849 ff LAW LIBRARY XJNIVL: . V OF CALIFORNIA. LOS ANGELES